Clause 18: Human rights

66. Clause 18 allows the CEHR to co-operate with other people or organisations within the United Kingdom and abroad when undertaking its human rights duties as set out in clause 9. Clause 13 permits the CEHR to co-operate with others in respect of the activities set out in that clause; clause 18 allows co-operation to extend beyond those activities in relation to human rights. In particular, this will allow the CEHR to co-operate with human rights commissions in other parts of the United Kingdom, and to give its opinion to international bodies about the compliance of the United Kingdom with its international human rights obligations.

Clause 19: Groups

67.     Clause 19 provides the CEHR with powers additional to the general powers set out in clause 13, to fulfil its duties in respect of groups set out in clause 10.

68.     The provisions of clause 19 enable the CEHR to monitor crimes affecting members of certain groups and undertake activities to reduce crime within or affecting members of those groups. The CEHR can also arrange social, recreational, sporting, civic, educational or other activities designed to involve members of groups.

69.     The CEHR can undertake these activities itself, or can arrange to assist or cooperate with others in making such arrangements.

     Clause 20: Investigations

70.     Clause 20 gives the CEHR a power to conduct investigations into persons (both natural and legal). Such an investigation may be into the commission of an unlawful act under the equality enactments, compliance with a requirement of an unlawful act notice issued under clause 21 or compliance with the terms of an agreement entered into under clause 23.

71.     Under subsection (2), the CEHR may only carry out an investigation under subsection (1) if it suspects that the person concerned may have committed an unlawful act.

72.     Subsection (3) provides that a belief of unlawful discrimination or harassment, sufficient to satisfy the requirement in subsection (2), may have been acquired by the CEHR in the course of an inquiry, but need not be. The CEHR may carry out an investigation without having first carried out an inquiry.

73.     Subsection (4) sets out the requirements which must be met before the CEHR can settle a report which records a finding that the person concerned has: committed an unlawful act; failed to comply with a requirement imposed by an unlawful act notice under clause 21; or failed to comply with an undertaking given under clause 23. The CEHR must send the person concerned a draft of the report and allow him at least 28 days in which to make written representations and consider any representations made.

74.     Schedule 2 sets out the provisions relating to terms of reference, representations, evidence, reports and recommendations and effects of recommendations in respect of inquiries, investigation and assessments. Commentary on Schedule 2 can be found below.

     Clause 21: Unlawful act notice

75.     Clause 21 makes provision for the CEHR to issue an unlawful act notice after an investigation confirming an unlawful act has taken place.

76.     Subsection (1) permits the CEHR to issue an unlawful act notice in circumstances where it has conducted an investigation and is satisfied that the party investigated has committed an unlawful act, as defined in clause 34. Under subsection (2) an unlawful act notice must set out the unlawful act and the legislative provision by virtue of which the act is unlawful. Subsection (3) requires the CEHR to include in the notice details of the appeal procedure against the notice, the scope for a subsequent investigation into the subject's compliance with the notice and the scope for the CEHR to apply to a court for an injunction under clause 24 if it thinks the unlawful act is continuing. Under subsection (4) the CEHR may include within the notice a provision requiring the recipient to prepare an action plan (as provided for in clause 22) setting out how the unlawful act will cease or not be repeated. It allows the CEHR to recommend action that the person served the notice should take. Subsection (5) sets out the basis on which a person may appeal against an unlawful act notice and subsection (6) sets out the options available to a court or tribunal to affirm, annul or vary a notice or requirement under it, including the power to make an order for costs.

Clause 22: Action plans

77.     Clause 22 sets out the arrangements for an action plan that clause 21 enables the CEHR to require of a person on whom it has served an unlawful act notice.

78.     Subsection (2) requires that the unlawful act notice must specify a deadline for the first draft action plan.

79.     Subsections (3) and (4) require the CEHR to either approve the first or any subsequent draft plan or give notice to the person that it is not adequate, specify a time for a revised draft and make recommendations as to the content of the revised draft.

80.     Subsection (5) provides that, unless the CEHR gives the person notice that the draft plan is inadequate or applies to a court for an order (under subsection (6) below) to provide a revised draft, the action plan shall come into force within six weeks.

81.     Subsection (6) enables the CEHR to apply to a county court (and the Scottish equivalent) for an order requiring a person to submit a draft or revised action plan by a deadline specified by the court. The court may also make a direction as to the plan's content. Subsection (6)(c) enables the CEHR to apply to a court for an order within five years of an action plan coming into force to require the person to comply with the action plan or to take specific action for a similar purpose. Subsection (9) provides that a person not complying with a court order commits a criminal offence.

82.     Subsection (7) allows for an action plan to be varied by agreement.

83.     Subsection (8) applies paragraphs 10 to 14 of Schedule 2 to consideration by the CEHR of the adequacy of a draft action plan.

Clause 23: Agreements

84.     Clause 23 makes provision for the CEHR to enter into an agreement with a person who it has reason to believe has committed an unlawful act, as defined in clause 34. Agreements are enforceable through the courts. The CEHR is able to enter into an agreement where the other party undertakes not to commit a specified unlawful act, and to take or refrain from taking specified action. In return, the CEHR undertakes not to proceed under clause 20 or 21 with an investigation or the issue of an unlawful act notice in respect of the act specified in the agreement.

85. Under subsection (4) an agreement may contain supplementary matters, such as action that may be taken in the event of a breakdown of the agreement or the circumstances in which either party may terminate the agreement. It also allows the parties to consensually vary or terminate the agreement.

86.     Subsection (5) provides that the CEHR can enter into an agreement with a public authority in respect of a breach of any of the public sector duties set out in clause 34(2) in lieu of issuing a public sector duty compliance notice, as provided for in clause 32.

     Clause 24: Applications to court

87.     Clause 24 gives the CEHR the power to apply for an injunction (and an interdict in Scotland) against a person who it believes that, unless restrained, is likely to commit an unlawful act. It also provides for the CEHR to apply to a court when the other party to an agreement provided for in clause 23 has failed to comply, or the CEHR thinks is unlikely to comply with an undertaking under the agreement. The court can order the other party to comply with his undertaking and take any such other action as the court may specify.

     Clause 25: Application to restrain unlawful advertising, pressure, &c.

88.     Clause 25 sets out the CEHR's powers to bring legal proceedings (in its own name) in respect of the relevant provisions in the SDA, RRA, DDA and this Bill that prohibit unlawful advertising, instructions and pressure to discriminate in respect of race, sex, disability and religion or belief.

89.     Subsection (2) provides that the CEHR alone is entitled to bring proceedings in respect of these provisions of the equality legislation set out in subsection (1).

90.     Under subsection (3) the CEHR can apply to an employment tribunal or county court (or to a sheriff in Scotland) for a finding that an act of unlawful advertising, pressure or instructions to discriminate has taken place.

91.      Subsection (4) provides for a court or tribunal to which a complaint has been made by the CEHR to determine whether the allegation is correct.

92.     Subsection (5) gives the CEHR the power to apply to a county court for an injunction and under subsection (6) to a sheriff in Scotland for an interdict, where it considers that, unless restrained, the person concerned may commit further acts of unlawful advertising or instructions or pressure to discriminate. The CEHR may apply for such an injunction in one of two circumstances: either where a court or tribunal has determined that such an act has been committed or where the CEHR believes that such an act has been committed.

93.     Subsection (6) provides that the CEHR's enforcement powers in this clause do not apply to the criminal offences in the SDA, RRA, DDA or this Bill of making false or misleading statements about whether an advertisement is unlawful.

     Clause 26: Section 25: supplemental

94.     Clause 26 sets out the procedural rules governing the exercise of the CEHR's powers in relation to unlawful advertising, and instructions or pressure to discriminate under clause 25.

95.     Subsection (1) provides that the CEHR can only make an application to a court or tribunal under clause 25(3) for a determination that an act covered by clause 25 has taken place:

• within six months of the alleged unlawful act; or

• with the permission of the employment tribunal or court if after that six month time limit.

96.     Subsection (2) prevents the CEHR, when applying for an injunction under clause 25(5) or (6), from relying on the ruling of a court or tribunal under clause 25(4) if there is an appeal pending against that ruling, or if it would still be possible for an appeal to be brought within the normal time limits.

97.     Subsection (3) provides that the CEHR can only apply to a county court for an injunction or to the sheriff in Scotland for an interdict under clause 25(5) or (6) restraining a person from doing an act covered by clause 25:

• within five years of the date on which the act last occurred; or

• with the permission of the court (or sheriff in Scotland) if after that five year time limit.

Clause 27: Conciliation

98. Clause 27 gives the CEHR the power to make arrangements for the provision of conciliation services (as defined in subsection (8)).

99. Conciliation services can be provided in relation to disputes where proceedings have been or could be brought under specified sections of the equality enactments (listed in subsection (1)). These are civil proceedings in respect of:

• goods, facilities and services, premises, public functions and education under the SDA;

• goods, facilities and services, premises, public functions and education under the RRA;

• goods, facilities and services, premises, public functions and education under the DDA (except for proceedings about admissions and exclusions);

• goods, facilities and services, premises, public functions and education under the provisions for religion and belief in this Bill;

• activities covered by the Sexual Orientation Regulations that can be made under Part 3 of this Bill, and;

• further and higher education under the Employment Equality (Sexual Orientation) Regulations and the Employment Equality (Religion or Belief) Regulations.

100.     Conciliation services can also be provided (subsection (2)) in relation to disputes about whether it is unreasonable for a landlord to withhold consent to the making of disability related improvements to let residential property.

101.     Subsection (3) requires the CEHR to exercise this power to ensure that, so far as reasonably practicable, the conciliation services are available to those who want them.

102.     Subsection (4) prevents information communicated to a person providing conciliation services from being used in litigation without the consent of the party who provided the information.

103.     Subsection (5) excludes Commissioners, CEHR staff, Committee members and Investigating Commissioners from providing conciliation services.

104.     Subsections (6) and (7) require the CEHR to make administrative arrangements to prevent information connected with a conciliation case from being passed to a member of the CEHR or its staff, except in the following circumstances: where the parties to the dispute agree; where the information does not make the individuals identifiable (e.g. where information is provided in aggregate form); or where the information is necessary for conciliation arrangements to be made.

105.     Subsection (9) provides the Secretary of State with an order-making power (specified in clause 39(4) as subject to an affirmative resolution procedure) to amend this clause so as to vary the range of disputes in respect of which the CEHR can arrange conciliation services.

     Clause 28: Legal assistance

106.     Subsection (1) enables the CEHR to give assistance to an individual who alleges that he is a victim of behaviour contrary to the equality enactments (defined in clause 33) and who is or may become a party to legal proceedings which relate to the alleged breach of the equality enactments. The CEHR will determine the criteria on which legal assistance is granted.

107.     Subsection (2) enables the CEHR to give assistance to an individual who is or may become a party to legal proceedings insofar as the proceedings concern or may concern the question of whether it is reasonable for a landlord to withhold consent to the making of disability related improvements to let residential property.

108.     Under subsection (3) the types of legal assistance which the CEHR may provide or arrange are legal advice, legal representation, and facilities to settle the dispute or any other form of assistance. Such assistance may also include securing an arrangement to avert legal proceedings. This is distinguishable from the provision of formal conciliation services in clause 27 where both sides are able to meet with a conciliator to resolve a dispute about discrimination and harassment in relation to the provision of goods, facilities and services, education and the exercise of public functions.

109.     Subsection (4) prevents the CEHR from providing legal assistance in respect of the provisions of Part V of the DDA (public transport).

110.     Subsection (5) allows the CEHR to provide legal assistance in respect of any aspect of any proceedings which relate in part to a provision of the equality enactments. However such assistance must end if the proceedings cease to relate to a provision of the equality enactments.

111.     Subsection (6) gives the Lord Chancellor an order-making power to enable the CEHR to provide assistance in respect of proceedings which have ceased to relate to the equality enactments, but which relate wholly or partly to any of the Convention rights (as defined in section 1 of the Human Rights Act 1998).

112.     Subsection (7) gives the Secretary of State an order-making power to enable the CEHR to provide assistance in other proceedings (under legislation other than the equality enactments) where a disabled person seeks to rely on a matter relating to this disability. This could not, however, be used to permit assistance in respect of Part V of the DDA, which is expressly excluded under subsection (4) above.

     113.     Subsection (8) provides that the powers in subsections (6) and (7) may be exercised either in general terms, or in relation to particular types of proceedings or particular circumstances. In providing legal assistance under this clause Subsection (10) disapplies any requirement in legislation for the CEHR to have in place a contract of insurance or indemnity in order for it to advise on compromise agreements.

     114.     Subsection (11) provides that the CEHR may support legal proceedings brought under domestic legislation (outside the equality enactments) that is either incompatible with or has failed to give effect to Community law on discrimination on the grounds listed (sex, racial origin, ethnic origin, religion, belief, disability, age or sexual orientation or equality of opportunity between men and women). In this context sex discrimination includes gender-reassignment.

     Clause 29: Legal assistance: costs

115.     When a person who has been assisted by the CEHR becomes entitled to have his costs/expenses repaid to him by another party, this clause entitles the CEHR to recover its expenses (the amount of which may be determined by regulations made by the Secretary of State) out of costs awarded or paid by agreement.

116.     Under subsections (2) and (3) the CEHR is able to enforce the reimbursement as a debt, although the debt ranks after any obligation on the person to pay money to the Legal Services Commission in England and Wales and to the Scottish Legal Aid Board in Scotland.

Clause 30: Judicial review and other legal proceedings

     117.     Clause 30 confirms that the CEHR has capacity to institute or intervene in legal proceedings where the proceedings are relevant to any of the CEHR's functions, subject to any limitations imposed under legislation or by rules of court, except that it makes provision to override the "victim test" in section 7 of the Human Rights Act.

118.     Subsection (2) deems the CEHR to have the necessary title and interest in relation to any such legal proceedings in Scotland.

119.     Subsection (3) enables the CEHR to rely on a breach of the Convention rights in any legal proceedings which it has instituted (or in which it has intervened) even if it is not itself a victim of the breach. However it may only do so if there are one or more persons who are (or, for a potential future breach, would be) victims. Were it not for this provision, the "victim" test in section 7 of the Human Rights Act would prevent the CEHR from relying on the Convention rights. No award of damages may be made to the CEHR in relation to a breach of the Convention rights. The terms "legal proceedings", "unlawful act" and "victim" used in this subsection are defined in section 7 of the HRA.

     120.     Subsection (4) ensures that, apart from subsection (3), this clause does not create any cause of action or override any other limitation or restriction on who may bring proceedings.

     Clause 31: Public sector duties: assessment

121.     Clause 31 enables the CEHR to assess a public authority's compliance with the public sector duties for gender, race and disability.

122.     Schedule 2 sets out the provisions relating to terms of reference, representations, evidence, reports and recommendations and effects of recommendations. Commentary on Schedule 2 can be found below.

     Clause 32: Public sector duties: compliance notice

123.     Clause 32 enables the CEHR to require a public authority to comply with its public sector duties for gender, race and disability.

124.     Subsection (2) enables the CEHR to issue a notice requiring a public authority to comply and to provide within 28 days written information of steps taken or proposed to comply with the duty.

125.     Subsection (3) provides that a notice issued under this section requiring information relevant to the CEHR for assessing compliance shall specify when and the manner and form in which the information is to be provided.

     126.     Subsection (4) requires the CEHR to have conducted an assessment provided for under clause 31 before it can issue a compliance notice in respect of a breach of a public sector general duty.

127.     Subsection (5) obliges the recipient of a compliance notice to comply with it.

128.     Subsection (8) enables the CEHR to apply to a court for an order requiring the public authority to comply with the notice. Subsection (9) provides that the court referred to in subsection (8) is the High Court or Court of Session in respect of a general duty and a county or sheriff's court in respect of specific duties.

129.     Subsection (10) requires a compliance notice to specify a time limit before which the CEHR will not apply to a court for enforcement of a compliance notice.)

130.     Subsection (11) provides that enforcement of a breach of a public sector specific duty shall be by no other party than the CEHR and solely by means of a compliance notice.

Clause 33: Equality and human rights enactments

131.     Subsection (1) defines "the equality enactments" which are referred to in clauses 8(1)(d) and (e), 21(2), 28 and 34 as the existing pieces of legislation dealing with promoting equality and combating discrimination on the grounds of sex (including married status and gender reassignment), race, disability, sexual orientation and religion or belief, together with Part 2 of this Bill and the regulations to be made under Part 3. The Secretary of State may add to, remove from or vary the list of equality enactments by using the power contained in subsection (3) - which, in accordance with clause 39(4), is subject to the affirmative resolution procedure.

132.     Subsection (2) defines the "equality and human rights enactments" which are referred to in clauses 11(1) and 11(2)(a) and (b). The enactments falling within this definition are the equality enactments defined in subsection (1) and the HRA.

     Clause 34: Unlawful

133.     Clause 34 defines "unlawful" as used in clauses 8, 16, 20, 21 and 24 as contrary to provisions of the equality enactments listed in clause 33.

134.     Subsection (2) excludes certain activities which would otherwise meet the definition of unlawful in subsection (1). This includes breach of the public sector duties under the SDA, RRA and the DDA and breach of the public transport provisions in Part V of the DDA.

Clause 35: General

135.     Clause 35 sets out various definitions of terms used in Part 1 of the Bill. The clause provides that "act" includes deliberate omission. This is the definition used in the existing equality enactments.

136.     "Race" includes colour, nationality, ethnic origin and national origin. This follows the definition of racial grounds, racial group etc in section 3(1) of the RRA.

Clause 36: Dissolution

137.     Clause 36 provides for the Secretary of State, by order, to dissolve the EOC, CRE and DRC (collectively referred to in relevant subsequent clauses as "the former Commissions") or to remove specified functions from them.

138.      Subsection (3) requires the Secretary of State to have exercised the order-making power in subsection (1) to ensure that all the former Commissions cease to exist by 31st March 2009.

     Clause 37: Transfer of property, &c.

139.     Subsection (1) enables the Secretary of State, by an order under clause 36(1), to provide for the transfer of specified property, rights and liabilities from the former Commissions to the CEHR.

140.     Subsection (2) empowers the Secretary of State to direct any of the former Commissions to provide information in respect of property, rights and liabilities and in relation to the exercise of any of their functions. It also provides for the Secretary of State to direct that a former Commission should transfer specified property, rights and liabilities to a specified person. The former Commissions can also be directed to make staff, property or facilities available to the CEHR. The Secretary of State can also direct the former Commissions to stop taking certain specified action.

141.     Under subsection (3) the Secretary of State may direct a former Commission to prepare a scheme for the transfer of specified property, rights and liabilities to the CEHR or to any other person.

142.     In preparing a scheme to transfer property, rights and liabilities, subsection (4) provides that the former Commissions must consult with either the CEHR or the person to whom the transfer is to be made. The transfer will come into effect once approved by the Secretary of State, subject to any modifications made.