Clause 38: Transfer of property: supplemental

143.     Clause 38 is linked to the direction-making power in clause 37. It stipulates that any direction by the Secretary of State under clause 37 must be made in writing, and only following consultation with the relevant former Commission and, if appropriate, the CEHR.

144.     The direction can only be varied or revoked by a further direction.

145.      Subsection (2) ensures that any action taken or in the process of being taken by a former Commission immediately prior to the transfer shall have the same effect after the transfer as if done by the CEHR (including any legal action).

146.     Any references to the former Commissions in agreements or other documents shall be taken as a reference to the CEHR after transfer.

147.     Subsection (4) allows for property, rights and liabilities to be automatically transferred irrespective of any requirement for consent or agreement that would ordinarily apply.

148.      Subsection (5) provides for the Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE) to apply to the transfer of staff from the former Commissions to the CEHR. The regulations safeguard the terms and conditions of staff. Subsection (5) provides that any scheme or order made under clause 37 must provide that continuity of employment is preserved for any purpose relating to an employee of a former Commission. This will protect existing pension arrangements.

Clause 39: Orders and regulations

149.     Clause 39 sets conditions under which a Minister of the Crown may make secondary legislation under Part 1 of the Bill. Subsection (1) requires all orders and regulations to be made by statutory instrument, and subsection (2) provides that any order or regulations may make provision generally or for specified purposes, may make different provision for different purposes, and may include transitional, incidental or consequential provisions.

150.     Subsection (3) provides that certain orders and regulations are subject to the negative resolution procedure, namely:

• any order revoking a code of practice issued by the CEHR (under clause 15(3));

• any order extending the range of proceedings in which the CEHR may provide assistance (under clause 28(6) and (7));

• regulations concerning the calculation of the CEHR's expenses in legal proceedings (under clause 29(5));

• any order dissolving an existing Commission (under clause 36(1));

• an order dissolving the Disability Committee (under Part 5 of Schedule 1).

151.     Subsection (4) lists the order-making powers which are to be subject to the affirmative resolution procedure, namely those which

• add or vary any entry in the list defining groups for the purposes of clause 10 (under clause 10(6));

•      add, remove or vary any entry in the list of enactments in connection with which the CEHR can issue a code of practice (under clause 15(5));

•      add, remove or vary any entry in the list of enactments in relation to which the CEHR can provide conciliation services (under clause 27(9));

•      add, remove or vary any entry in the list of equality enactments (under clause 33(3)).

152.     These orders may make consequential amendments to any enactment, including an enactment in or under an Act of the Scottish Parliament.

     Clause 40: Consequential amendments

153.     Clause 40 gives effect to the consequential amendments set out in Schedule 3.

Clause 41: Transitional: the Commission

154.     Clause 41 creates a transitional period during which time only selected provisions dealing with the formation of the CEHR will take effect. The transitional period starts from the commencement of any of the establishment clauses (clauses 1 to 3) and Schedule 1. The transitional period ends when any of the CEHR's duties and powers in clauses 8 to 32 comes into effect.

155.     During the transitional period, the minimum number of Commissioners will be five, instead of ten as stated in paragraph 1 of Schedule 1. This will allow the CEHR to begin making decisions, at an early stage, in respect of establishing the CEHR.

156.      As soon as possible after the first appointments to the CEHR Board, the Secretary of State is required to appoint the three transitional Commissioners, as nominated by each chair of the former Commissions. The conditions of appointment of the three transitional Commissioners will mirror other Commissioners, although their positions will cease to exist not more than two years after the relevant former Commission loses its principal functions or ceases to exist.

157.      The purpose of these transition appointments is to provide a link between the former Commissions and the nascent CEHR to ensure the smooth transition of functions, duties and staff from the former Commissions to the CEHR.

     Clause 42: Transitional: functions of the dissolved Commissions

158.     Under Clause 42, the order making power in clause 38 (1) can also provide for a former Commission to continue an action (referred to as a 'transitional case') it has started (for example, a consultation exercise, code of practice, guidance etc) when the relevant related function transfers to the CEHR, or for the CEHR to exercise a function of a former Commission in relation to the transitional case, as specified in the order.

159.     Subsection (2) ensures that a commencement order made to bring into force a provision of Schedule 3 or 4 may include any provision applying, disapplying or modifying a provision in this Act or any another enactment to ensure that a provision in subsection (1) relating to an order made under Clause 36(1) is able to take effect.

160.     Subsection (3) ensures that codes of practice issued by a Commission that ceases to exist under Clause 38(1) or where the function that relates to a specific code has been removed shall continue to have effect until the code is revoked, by order, subject to the negative resolution procedure, by the Secretary of State, at the request of the CEHR. Any codes prepared by the former commissions can be revised by the CEHR as if they had been issued by the CEHR under clause 15.

161.     Any consultation exercises already undertaken by a former Commission in respect of revising or issuing a code of practice will still apply as if undertaken by the CEHR under clause 15.

     Part 2: Discrimination on Grounds of Religion or Belief

Clause 43: Religion and belief

162.     Clause 43 defines what is meant by "religion or belief" for the purposes of this Bill. Clause 43(a) defines "religion" as "any religion", a broad definition in line with the freedom of religion guaranteed by Article 9 of the ECHR. It includes those religions widely recognised in this country such as Christianity, Islam, Hinduism, Judaism, Buddhism, Sikhism, Rastafarianism, Baha'ism, Zoroastrian and Jainism. Equally, denominations or sects within a religion can be considered as a religion or religious belief, such as Catholicism or Protestantism within Christianity. The main limitation on what constitutes a "religion" for the purposes of Article 9 of the ECHR is that it must have a clear structure and belief system.

163.     Clause 43(b) defines "belief" as "any religious or philosophical belief".

164.      Clause 43(c) and (d) state that "lack of religion" and "lack of belief" are also covered by the phrase "religion or belief".

Clause 44: Discrimination

165.     Clause 44 defines discrimination on the grounds of religion or belief for the purposes of this Part. Subsections (1) & (2) define direct discrimination. This occurs where, on grounds of religion or belief, person A treats person B less favourably than he would treat others. For the purposes of the comparison which has to be made to determine whether one person has been treated less favourably than another, the relevant circumstances in each case must not be materially different. Subsection (1) provides that direct discrimination can occur even if it is not person B's religion or belief, but another person's religion or belief, which constitutes the grounds for discrimination. For example, it would apply if a shopkeeper refuses to serve a customer, not because of the customer's religion, but because of the religion of his friend who is in the shop with him. However, it does not apply where the less favourable treatment occurs solely on grounds of A's religion or belief - for example where A feels motivated to take particular action because of what his religion or belief requires. Additionally, subsection (1) clarifies that person A will still have unlawfully discriminated, even if he subscribes to the same religion or belief as that of the victim of discrimination. Subsection (2) indicates that discrimination can also occur even if A is mistaken as to B's religion: i.e. if person B is not of the religion presumed by person A. So if a shopkeeper refuses to serve a customer because he believes that he belongs to a certain religion, it is irrelevant whether or not the customer is actually of that religion; he could still use this Part to bring a case of religious discrimination against the shopkeeper.

166. Subsection (3) defines indirect discrimination. This occurs where person A applies to person B provision, criterion or practice, which he applies equally to other people, but which puts people of person B's religion or belief at a disadvantage compared with some or all other people. Person B must also have personally suffered a disadvantage compared to some or all persons not of his religion or belief. It would not be unlawful however if the action causing disadvantage to person B could be reasonably justified by reference to matters other than B's religion or belief: for example, if it was performed to meet security or health and safety concerns, or if the efficiency of a business would be seriously jeopardised by failure to take the action complained about.

167.     Subsections (4) and (5) define victimisation. This occurs where person A treats person B less favourably than others because person B: has brought, or intends to bring, proceedings under these religious discrimination provisions; has given or provided, or intends to give or provide, evidence or information in connection with such proceedings; or has done, or intends to do, any other thing in connection with this Part (including an allegation that a person has contravened it). Victimisation will also have taken place if person A treats person B less favourably than others because he suspects that person B has done any of these things. It will not be victimisation however, if person A's treatment of person B relates to B's making, other than in good faith, a false allegation.

Clause 45: Goods, facilities and services

168.     Under clause 45, discrimination on the grounds of religion or belief in the provision of goods, facilities and services (by a person whose business or concern it is to provide them to the public or a section of the public) is made unlawful. Thus it will be unlawful for such a person, on the grounds of religion or belief, to:

• refuse to provide goods, facilities or services to a person who seeks to obtain or use them;

• provide such a person with goods, facilities or services of inferior quality to those which would normally be provided to members of the public or to a section of the public to which the recipient belongs;

• provide goods, facilities or services in a different manner (for example, more hostile or less courteous) than they would normally be provided to members of the public or to a section of the public to which the recipient belongs; or

• provide goods, facilities or services on different terms (for example, less favourable) than those on which they would normally be provided to members of the public or to a section of the public to which the recipient belongs.

169.     Subsection (2) lists examples of the types of facilities and services in relation to which discrimination under subsection (1) would be unlawful.

170.     Subsection (3) ensures that, where a person exercises a skill in a particular way for the purposes of a particular religion (for example the preparation of food), he will not be compelled by this clause to exercise it in a different manner for the purposes of another religion.

171.     Subsection (4) ensures that this clause will not apply in relation to the provision of goods, facilities and services by a person exercising a public function (these are covered in a later clause) or where discrimination in the provision of goods, facilities and services is addressed by another provision of Part 2 or the Employment Equality (Religion or Belief) Regulations 2003, which prohibit discrimination on the grounds of religion or belief in the fields of employment and vocational training.

172.     Subsection (5) clarifies that the provision of goods, facilities and services will be caught by this Part irrespective of whether or not the recipient has to pay for them.

Clause 46: Premises

173.     Clause 46 covers the disposal and management of premises, making it unlawful for anyone selling or letting premises to discriminate against potential buyers or tenants because of their religion or belief and for landlords or other managers of premises to discriminate against tenants or other occupiers. This would include refusing to dispose of premises to people of a certain religion or belief; offering less generous terms to people of a certain religion or belief; or deliberately discriminating against people of a certain religion or belief on a list of those requiring housing.

174.     Subsection (2) refers specifically to managers of premises (which would include landlords) and their treatment of tenants. It makes unlawful any discriminatory behaviour by a manager of premises on account of the religion or belief of a tenant or other occupier (for example a licensee). This would cover all aspects of a manager's duties towards a tenant or other occupier, including the facilities he would provide and the terms under which he would evict a person.

175.     Subsection (3) relates to a situation where a person's permission is required for the disposal of someone else's interest in a property - the executor of someone's will for example - and it ensures that such permission cannot be withheld in a discriminatory way.

176.     Subsection (4) restricts the operation of this clause to premises in Great Britain. It does not extend to premises abroad, even if the actual sale or letting of the property takes place in this country.

Clause 47: Section 46: exceptions

177.     Clause 47 creates an exception to the provisions in clause 46. Subsection (1) provides that it will not be unlawful for a landlord to discriminate against a potential tenant of a part of his premises, if:

• he or a near relative lives in another part of the same premises (and intends to continue to do so);

• the premises include parts that he or a near relative would share with the tenant such as a bathroom or kitchen; or

• the premises are of a size where no more than two households, or six individuals, can live in the premises in addition to the landlord or a near relative.

178.     Subsection (2) defines what "near relative" means for the purposes of subsection (1).

179.     Subsection (3) lists other circumstances where the provisions in clause 49 will not apply, and religious discrimination in the disposal of premises will not be unlawful: namely, where a person owns an estate or interest in the premises, or occupies the whole of the premises, and does not use an estate agent to dispose of the premises and does not arrange for publication of an advertisement for the purposes of disposing of the premises.

     Clause 48: Educational establishments

180.     Clause 48 extends the prohibition against discrimination on the ground of religion or belief to the educational establishments listed in the Table set out in the clause. This Table also indicates who is the responsible body for the purposes of this Part of the Bill, in relation to each educational establishment listed. The Table does not extend to educational institutions or establishments in the further or higher education sectors as these are covered by existing secondary legislation. ¹

     

¹ SI 2003/1660 Employment Equality (Religion or Belief) Regulations 2003

181.     The clause makes it unlawful for an educational institution to discriminate against a person in respect of the terms on which it offers him admission as a pupil or by refusing to accept an application to admit him as a pupil. Where a person is already a pupil of the establishment it is unlawful to discriminate against him in the way the establishment affords him access to any benefit, facility or service or by refusing such access. It is also unlawful to exclude a pupil or subject him to any other detriment. A pupil of the establishment includes any person who receives education at the establishment.

182.     Subsection (2) requires that, for England and Wales, the terminology used in any of the Education Acts would have the same meaning in this Part. Subsection (3) requires that, for Scotland, the terminology used in the Education (Scotland) Act 1980 (c.44) would have the same meaning in this Part.

Clause 49: Section 48: exceptions

183.     Subsection (1) of this clause exempts maintained schools which have a religious character (often referred to as faith schools) from the prohibition on discrimination in subsection (1) of the previous clause. It also exempts independent schools if such schools have a religious ethos, schools conducted in the interest of a church or denominational body, and, in Scotland, independent schools that admit only pupils who belong - or whose parents belong - to one or more particular denomination. The provision will therefore allow all such schools with a religious ethos to admit pupils or set admission terms for pupils based on the religious character or religious ethos of the school. It will also allow such schools to conduct themselves in a way which is compatible with their religious character or ethos.

184.     Subsection (2) provides that the discrimination provisions in clause 48 that relate to pupils' access to benefits, facilities and services will not apply to anything done in connection with the school curriculum or to acts of worship or other religious observance organised by or on behalf of an educational establishment. The reference to curriculum bears its ordinary English meaning and accordingly is to the basic curriculum as delivered in educational establishments, which includes the National Curriculum, together with elements such as Religious Education which is not part of the National Curriculum but is required by legislation to be taught in state schools. It also includes elements such as the provision of school library books, which are aimed at the delivery of a broad-based and balanced education to pupils. This particular exemption reflects the need to avoid any conflict with the existing legislative framework in respect of the content of the curriculum and religious worship. Existing education legislation allows for parents to withdraw their children from sex education and religious education, but not from other parts of the curriculum covered by subsection (2)(a). While parents can remove their children from collective worship, educational institutions are under no obligation to provide opportunities for separate worship of different religions and beliefs represented among its pupils. The exception in subsection (2)(b) maintains that position.

185.     Subsection (4) provides for an order-making power by which the Secretary of State for Education and Skills can amend or repeal an exception set out in this clause, or can create a new exception from the prohibitions in clause 48. The subsection also permits the Secretary of State to make provision about the construction or application of the defence of objective justification to a charge of indirect discrimination. Subsection (4) specifies the conditions required for the Secretary of State to make any such order, including the need for consultation with appropriate bodies and the approval of both Houses of Parliament.

Clause 50: Local education authorities and education authorities

186.     Clause 50 makes unlawful discrimination by Local Education Authorities (LEAs) in England and Wales, and Education Authorities in Scotland, except in the areas listed in subsections (2), (England and Wales) and (3) (Scotland), namely:

• The provision of schools - section 14 of the Education Act 1996 (and, for Scotland, section 17 of the Education (Scotland) Act 1980) defines the LEA function of providing primary and secondary schools for children in a given catchment area. Clause 50, subsection (2)(a) ((3)(a) for Scotland) allows discrimination in this area, to prevent an LEA being bound to provide schools for pupils of different faiths, or of no faith, in the catchment area.

• Transport - LEAs often provide subsidised transport for pupils of a particular (often faith) school that is located outside the local area. Subsection (2)(b) ((3)(b) for Scotland) allows discrimination in this area so that LEAs do not have to provide subsidised transport for all faith or non-faith schools.

• General responsibilities - section 13 of the Education Act 1996 (and equivalent provision in legislation for education in Scotland) describes the responsibilities incumbent on LEAs to contribute to the spiritual, moral, mental and physical development of the community through their provision of education to children. Clause 50, subsection (2)(c) ((3)(c) for Scotland) allows discrimination in the exercise of these responsibilities in so far as they relate to the two previous points: provision of schools and transport.

Subsection (2)(d) ((3)(e) for Scotland) refers to the Table featured in clause 49. It means that clause 51 (1) does not apply to discrimination by LEAs and EAs in the exercising of their specific functions as responsible bodies for the educational establishments listed in the Table, as clause 49 covers them in that respect.

Clause 51: Public authorities: general

187.     Subsection (1) prohibits discrimination on grounds of religion or belief in the exercise of the functions of all public authorities.

188.     Subsection (2) defines "public authority" as including any person who has functions of a public nature and "function" as any function of a public nature.

189.     Exceptions to these provisions are set out in subsections (3) and (4). Subsection (3) follows the pattern of similar legislation and excepts a list of bodies, such as the Houses of Parliament, the Security Services and GCHQ.

190.     Subsections (4)(a) to (e) exclude the exercise of judicial functions and legislative processes (including those of the General Synod of the Church of England). Subsection (4)(f) excepts a decision to prevent someone entering the country, or to deport someone from the country, where this decision is made on the grounds that it is conducive to the public good, or that it is undesirable to permit the person to remain in the United Kingdom. Subsection. (4)(g) extends the exception on immigration matters to cover people entering the country to provide services in connection with a religion or belief, such as a minister or clergyman. This exception is required because the immigration services necessarily discriminate against certain religious groups for the purposes of recognising people as entering the country to provide religious services.

191.     Subsection (4)(j) excepts a decision related to criminal proceedings, where a decision has been taken not to prosecute.

192.     Subsections (4)(k) (i), (iii), (v) and (vi) except from the prohibition on discrimination (insofar as it is not excepted elsewhere), the exercise of any public functions in a number of areas that relate to faith and non-faith educational institutions. Those areas are:

• The Curriculum - the prohibitions in this clause will not apply to action in relation to the school curriculum. See the note for clause 49(2)(a).

• Collective worship - the prohibitions in this clause will not apply to acts of worship or other religious observance organised by or on behalf of an educational institution. See the note for clause 49(2)(b).

• Transport - an LEA or other responsible body can arrange transport to a faith school for those pupils who live a distance away and they will not be obliged by this legislation to provide a similar service for pupils at another faith or non-faith school.

• Establishment, alteration or closure - a public authority will not have to answer discrimination charges as a result of its decision to establish, alter or close any particular school.

193.     Subsections (4)(k)(ii) and (iv) except further exercises of public functions from the prohibition on discrimination in this clause, but only in respect of those schools which have a religious ethos. Those functions are:

• Admissions - faith schools can operate a selective admissions policy, prioritising those children of a specific religion or belief.

• Governing bodies - religion or belief can be legitimate criteria in the selection of governors for schools with a religious ethos, and places on the governing body may be restricted to or reserved for people of that religion or belief.

194.     Subsection (4)(l) excepts from the effect of this clause the exercising of the power under section 2 of the Local Government Act 2000 which provides for local authorities to promote the economic, social and environmental well-being of their area.

195.     Subsection 4(m) excepts from this clause actions which are provided for by the provisions in the Employment Equality (Religion or Belief) Regulations 2003 or by another provision of this Part. Where actions would be unlawful by virtue of clause 45 but for an express exemption, those actions are not excepted from clause 51 by subsection (4)(m). This ensures that goods, facilities and services provided by public authorities will be covered by clause 51 if they are exempted under clause 45 but not covered by any of the exemptions in relation to clause 52.

196.     When the court is hearing a case brought in respect of clause 51, it cannot grant an injunction unless it is satisfied that to do so will not prejudice any criminal proceedings or a criminal investigation. Similarly, a court must stay or desist proceedings brought in respect of clause 51 when there is a risk that criminal proceedings or a criminal investigation could be prejudiced by the case continuing.

197.     Subsection (6) refers to clause 69(4). It relates to the answers that a person, accused of an unlawful act under this Part, may give to a questionnaire prescribed by the Secretary of State, and the inferences that can be drawn from a failure to answer, or from an evasive or equivocal answer. Under subsection (6), inferences cannot be drawn from an absent or evasive answer if:

• the person questioned reasonably asserts that there was a risk of prejudicing criminal proceedings or a criminal investigation, or of revealing the reason for not instituting or not continuing criminal proceedings; or

• the reply is of a kind, or is given or withheld in circumstances specified, in an order by the Secretary of State.