Clause 52: Discriminatory practices

198.     Clause 52 makes it unlawful to operate a practice which results in unlawful discrimination, or which is likely to result in unlawful discrimination if applied to persons of any religion or belief. Subsection (2) also makes it unlawful to adopt or maintain a practice or arrangement which has the potential to result in a practice which is unlawful under this clause.

199.     Subsection (3) makes clear that the unlawful discrimination referred to in this clause is that which is unlawful under the preceding provisions of this Part.

200.     Subsection (4) provides that the CEHR is to be the only body entitled to bring proceedings in respect of discriminatory practices, and must do so by means of its powers in clauses 20 to 24 of the Bill (investigations, unlawful act notices and action plans, agreements and applications to court to enforce these).

Clause 53: Discriminatory advertisements

201.     Clause 53 makes it unlawful to publish or cause to be published an advertisement which indicates an intention to discriminate unlawfully, for example, an advertisement for a car for sale in which it was expressed that persons of a certain religion would not be welcome to respond. The unlawful discrimination referred to in this clause is that which is unlawful under the preceding provisions of clauses 45 to 51.

202.     Subsection (3) makes it clear that only the CEHR is to be entitled to bring proceedings in respect of unlawful advertisements and must do so in accordance with its powers set out in clause 25. Subsection (4) provides a defence for the publisher of an unlawful advertisement, where it was reasonable for him to rely on a statement by the person causing the advertisement to be published, that the prohibition in subsection (1) would not apply.

Clause 54: Instructing or causing discrimination

203.     Clause 54 makes it unlawful to instruct, cause or induce, or attempt to cause or induce, another person to discriminate unlawfully.

204.     Subsection (5) makes clear that the discrimination referred to in this clause is that under earlier clauses in this Part.

205.     Subsection (6) provides that only the CEHR is entitled to bring proceedings in respect of a contravention of this clause and must do so in accordance with its powers set out in clause 25.

Clause 55: Statutory requirements

206.     Clause 55 provides a general exception from this Part for anything done for the purpose of complying with legislation made by Parliament, Ministers or other bodies in Great Britain empowered to make legislation.

Clause 56: Organisations relating to religion or belief

207.     Clause 56 creates an exception from this Part for organisations whose purpose is to practice, advance or teach a religion or belief, to enable people of a certain religion or belief to benefit from or engage in religious activities, or to improve relations, or maintain good relations, between people of different religions or beliefs. This does not include an organisation whose sole or main purpose is commercial.

208.     Subsection (3) provides that it is not unlawful under this Part for an organisation, or anyone acting on behalf of or under the auspices of an organisation:

• to restrict membership of the organisation;

• to restrict participation in activities undertaken by the organisation or on its behalf or under its auspices;

• to restrict the provision of goods, facilities and services in the course of its activities or on its behalf or under its auspices; or

• to restrict the use or disposal of premises.

209.     Subsection (4) provides that it is not unlawful under this clause for a minister of religion (as defined in subsection (6)), acting in connection with an organisation to which this clause relates:

• to restrict participation in activities carried on in the performance in relation to that organisation; or

• to restrict the provision of goods, facilities or services in the course of such.

210.     Subsection (5) limits the restrictions described in subsections (3) and (4) to those imposed (a) by reason of or on the grounds of the organisation's purposes, or (b) in order to avoid causing offence on grounds of that organisation's religion or belief, to persons of that religion or belief.

Clause 57: Charities relating to religion or belief

211.     Clause 57 provides an exception from this Part, where benefits are conferred on persons of a particular religion or belief in pursuance of a charitable instrument, and where restricting the benefit in this way is imposed by reason of or on the grounds of the provisions of the charitable instrument.

212. Subsection (2) creates an exception from the provisions of Part 2 for the Charity Commissioners (and, in Scotland, the Office of the Scottish Charity Regulator), which exempts these regulators from the provisions of Part 2 when they are exercising a function in relation to a charity in a manner which appears to them expedient in the interests of the charity.

Clause 58: Faith schools, etc

213.     Clause 58 provides that it will not be unlawful under this Part for schools with a religious ethos to restrict the provision of goods, facilities or services or to restrict the use or disposal of their premises, to ensure that the purpose for which the premises would be used does not conflict with the tenets of the school's faith (or faiths).

214.     Subsection (3) provides that references in this Part to the provision of facilities or services (for example in clause 45) do not apply to the provision of educational facilities and services to students attending an educational institution.

Clause 59: Membership requirement

215.     Clause 59 creates an exception from this Part, for charities that ask members, or prospective members, to assert their acceptance of a religion or belief as a requirement of membership of the charity.

216.     Subsection (2) provides that this exception is only valid for charities which first imposed this requirement before 18 May 2005 and have continued to do so ever since.

Clause 60: Education, training and welfare

217.     Clause 60 provides an exception from Part 2 for anything done to meet the special needs of people of particular religions or beliefs in relation to their education, training or welfare, or the provision of ancillary benefits in connection with meeting such needs.

Clause 61: Care within family

218.     Clause 61 provides an exception from Part 2 where a person takes into his home, and treats as a member of his family, a person requiring a special degree of care and attention. An example would be the fostering of a child. The welfare of the child would take precedence over any question of religious discrimination.

Clause 62: National security

219.     Anything done for the purpose of safeguarding national security will be exempt from the prohibitions introduced by this Part, providing that the national security requirement justifies the action in question.

Clause 63: Amendment of exceptions

220.     Clause 63 provides an order-making power by which the Secretary of State can add a new exception to the prohibitions against public authorities (clause 51(1)) or change an existing exception in Part 2. Subsection (2) requires that the Secretary of State consult with the CEHR before making such an order, which is subject to the affirmative resolution procedure.

Clause 64: Restriction of proceedings

221.     Clause 64 provides that proceedings in respect of an act which will be unlawful under this Part, can only be brought in accordance with the provisions in this Bill. This restriction will not however, prevent an application for judicial review; proceedings under any of the Immigration Acts, or the Special Immigration Appeals Commission Act 1997; or, in Scotland, the Court of Session exercising its jurisdiction with regard to an order or determination.

Clause 65: Claim of unlawful action

222.     Clause 65 relates to the mechanism for bringing a claim against someone in respect of an act made unlawful by this Part:

     223.     The claim is to be brought in a county court (in Scotland, a sheriff court) by way of proceedings in tort (or in Scotland for reparation) for breach of statutory duty.

     224.     In England and Wales, where a claim is brought against a local education authority or the responsible body of an educational establishment (as listed in the Table in clause 48) by virtue of clause 48 or 50 the claimant must give written notice to the Secretary of State.

     225.     In Scotland where a claim is brought against an education authority or the responsible body of an educational establishment (as listed in the Table in clause 48) by virtue of clause 48 or 50 the claimant must give written notice to the Scottish Ministers.

     226.     If the claimant provides the court with evidence from which the court could conclude, in the absence of a reasonable alternative explanation, that an unlawful act has been committed, the court is to assume that the act was unlawful unless the respondent can prove otherwise.

Clause 66: Immigration

227.     Clause 66 provides that proceedings may not be brought under clause 65 in a county or sheriff court in respect of an act of a public authority, if the lawfulness of the act could be raised in immigration proceedings - that is, proceedings under any of the Immigration Acts or the Special Immigration Appeals Commission Act 1997 (c.68).

228.     If, during immigration proceedings, a court or tribunal finds that an unlawful act has been committed by a public authority under clause 51, then a county or sheriff court hearing proceedings, as per clause 67, must accept that finding.

Clause 67: Remedies

229.     Clause 69 sets out the remedies available to a county court (the sheriff in Scotland), hearing proceedings as described under clause 65:

• The court can, in addition to any remedy in tort, grant any remedy that the High Court (Court of Session in Scotland) can grant in proceedings for judicial review.

• The court cannot award damages to a claimant (a pursuer in Scotland) in a case of indirect discrimination (see clause 44(3)), if the respondent (the defender in Scotland) proves that there was no intention to treat the claimant unfavourably on grounds of religion or belief.

• The court can award damages, by way of compensation, for injury to feelings.

• 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.

Clause 68: Timing

230.     Proceedings under clause 65, must be brought either within six months of the alleged unlawful act, or if later, with the permission of the court.

231.      Subsection (2) specifies that for immigration cases - that is, proceedings brought under any of the Immigration Acts or the Special Immigration Appeals Commission Act 1997 (c. 68) - the six month period starts from the first possible date that proceedings could begin under clause 65.

Clause 69: Information

232.     Clause 69 indicates the way that information can be obtained by someone (a "claimant or potential claimant" in England and Wales and a "pursuer or potential pursuer" in Scotland), from the person who he thinks has acted unlawfully against him under this Part (a "respondent or potential respondent" in England and Wales and a "defender or potential defender" in Scotland), so as to assist in his decision about whether or not to take proceedings.

233.     Subsection (2) refers to the question forms prescribed by the Secretary of State which a claimant (or pursuer) can use to question a respondent (or defender), and by which the respondent (or defender) can reply.

234.     Under subsection (3), both the claimant's (or pursuer's) questions and the respondent's (or defender's) answers, will only be admissible as evidence in a case brought, if the questions were put within six months of the alleged unlawful act taking place and in a manner prescribed by an order of the Secretary of State (subject to negative resolution). The Secretary of State can amend that time period by an order, which is subject to the affirmative resolution procedure.

235.     Under subsection (4), a court may draw an inference from a respondent's failure to reply within eight weeks, at all or unequivocally, to questions put to him by a potential claimant. See clause 51(6) for exceptions to this in relation to questions which could affect criminal investigations or prosecutions.

Clause 70: National security

236.     Clause 70 provides for rules of court to make provision permitting a court to take various forms of action which are considered expedient in the interests of national security. This is equivalent to section 67A of the Race Relations Act 1976 (as inserted by the Race Relations (Amendment) Act 2000). The power in this clause will make it possible to make rules enabling the court, when considering proceedings brought under this Part of the Bill:

• to exclude the claimant, the claimant's representatives or any assessors from part or all of the proceedings;

• to permit a claimant or representative who has been excluded to make a statement prior to any part of the proceedings from which they are excluded; and

• to ensure that part or all of the reasons for a decision are kept secret.

237.     Where the claimant or representatives are excluded from part or all of proceedings under such rules, this clause provides for the Attorney General or Advocate General for Scotland to appoint a special advocate to represent the interests of the claimant.

     Clause 71: Validity and revision of contracts

     238.     Clause 71 provides that the term of a contract will be void where its inclusion would make the contract unlawful under this Part, where it is included in furtherance of an act that is unlawful under this Part, or where it provides for the doing of an act which would be unlawful under this Part.

     239.     Subsection (2) protects a person who is party to a contract and who would have been the victim of discrimination as a result of a term of that contract. It provides that the term will not be void in such a situation, as this would further disadvantage the person. However the offending term would not be enforceable against that person.

     240.     Under Subsection (3), a term purporting to exclude or limit a provision of Part 2 of the Bill will be unenforceable by a party in whose favour it would operate.

     241.     Subsections (5) and (6) allow the courts to resolve disputes by removing or modifying a term to which subsection (1) applies.

Clause 72: Aiding unlawful acts

242.     Clause 72 makes it unlawful to knowingly help someone (whether or not as his employee or agent) to do an act that is unlawful under this Part. Subsection (2) makes it an offence (punishable by a fine not exceeding level 5 on the standard scale) when requesting assistance from another person, to state falsely that a proposed act is lawful under Part 2.

Clause 73: Employers' and principals' liability

243.     Clause 73 has the effect that an employer is liable for the acts of his employees, whether or not he knew or approved of those acts. Similarly, a principal will be liable for the acts of his agent.

     244.     An employer will not be liable if he can prove that he took all reasonable steps to ensure that the employee could not perform the discriminatory act.

     245.     This clause will not apply to the offence of making a false statement in relation to a discriminatory advertisement under clause 53.

Clause 74: Police

246.      Clause 74 applies to members of police forces under the Police Act 1996 (c.16) or the Police (Scotland) Act 1967 (c. 77), and special constables and police cadets appointed in accordance with either of those Acts.

247.     Under subsection (2), such a person is treated as an employee of his chief officer of police for the purposes of this Part, and anything done by him in the course of his duties is to be treated as done in the course of that employment.

248.     Under subsection (3), compensation, costs or expenses awarded against or incurred by a chief officer of police, in proceedings brought against him under this Part, will be paid out of the police fund. The police fund will also provide for any sums required by a chief officer of police for the settlement of a claim made against him under this Part.

249.     Subsection (5) provides that a reference to the Equality Bill will be included in the list of discrimination legislation at clause 56 of the Serious Organised Crime and Police Act 2005. This list specifies the anti-discrimination legislation which applies to the Serious Organised Crime Agency.

Clause 75: Indirect provision of benefit, &c.

250.     Clause 75 means that someone who has the power to facilitate access to a service, facility or benefit of any kind is subject to the prohibition in this Part as much as the actual provider of these things. An example would be a social worker who facilitates access to various counselling or welfare services. This provision would make it unlawful for such a person to refuse to facilitate this access to a particular family because of their religion or belief.

Clause 76: Employment Equality Regulations

251.     Clause 76 is intended to ensure consistency, with regard to the definition of "religion or belief", between this Part and the Employment Equality (Religion or Belief) Regulations 2003 (S.I. 2003/1660). It remains in accordance with the wording in Council Directive 2000/78/EC of 27th November 2000 establishing a general framework for equal treatment in employment, as implemented by those regulations.

Clause 77: Crown application

252.     Clause 77 provides that the provisions of Part 2 are to apply to acts done on behalf of the Crown as they apply to acts done by a private person. In addition, clause 51 binds the Crown whatever the nature of the acts. Subsection (3) indicates that acts are to be treated as done on behalf of the Crown, if done by - or on behalf of:

• a government minister or department (or, in Scotland, Scottish Ministers);

• a statutory body acting on behalf of the Crown;

• a statutory office holder acting on behalf of the Crown; or

• a statutory office holder in the Scottish Administration (within the meaning of section 126(7) of the Scotland Act 1998 (c. 46)).

253.      Subsections (4) and (5) provide that proceedings under the provisions of this Part cannot be brought against the Queen acting in her personal or private capacity.

Clause 78: Interpretation

254.     Subsection (1) defines "charity" for the purpose of this Part. It has the meaning given by the Charities Act 2005 and, for Scotland, it means a recognised body within the meaning given by section 1(7) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c.40).

255.     Subsection (2) indicates that in this Part, references to either action or refusal include a reference to deliberate omission.

Clause 79: Territorial application

256.     The provisions of this Part apply to anything done:

• in Great Britain; or

• on a British ship (a ship registered in Great Britain or owned or used for Crown purposes), hovercraft (a hovercraft registered in Great Britain), or aircraft (and in relation to the provision of facilities to travel on these).

     257.     Under subsection (3), clause 51, which includes the function of granting someone entry into the UK, applies to anything done inside or outside the UK.

     258.      Under subsection (5), the provisions of this Part will not apply to anything done in or over a country other than the UK, or in or over the territorial waters of a country other than the UK, if it is done to comply with the law of that country.

     Part 3: Discrimination on Grounds of Sexual Orientation

     Clause 80: Regulations

259.     Clause 80 provides a power under which the Secretary of State can make regulations that prohibit sexual orientation discrimination (including indirect discrimination, victimisation and harassment). The regulations may make provision similar to Part 2, which means that the regulations may prohibit - either generally or in specified circumstances - discrimination in the provision of goods, facilities and services; the exercise of public functions; education and the disposal of premises.

260.     Clause 80 also makes clear that the regulations will be able to prohibit discriminatory advertisements and instructing or causing discrimination or harassment. It will also be possible to provide general or specific exceptions to the prohibition on sexual orientation discrimination in the areas covered by the Regulations.

261.     The regulations will be subject to the affirmative procedure. They will set out the remedies available to those who consider that their rights have been breached and otherwise provide for enforcement. Regulations will be able to allow individuals to bring cases via the county courts in England and the sheriff court in Scotland. Judicial review could also be made available in appropriate cases. The regulations will also be able to create criminal offences corresponding to those in other enactments relating to discrimination or equality and with the same maximum penalties.

     Part 4: Public Functions

     Clause 81: Prohibition of discrimination

262.     Clause 81 inserts a new section 21A into Part III of the SDA. New section 21A will make it unlawful for a public authority to discriminate and commit acts of harassment on grounds of sex when carrying out its functions. In practice this will mean that Ministers, local authorities, the police and other governmental organisations are not permitted to discriminate or harass on the grounds of a person's sex when exercising their public functions. This prohibition of sex discrimination in public functions ("the prohibition") will bring the SDA into line with section 19B of the RRA. The Disability Discrimination Act 2005 also similarly extends the DDA by inserting a new section 21B into the DDA.

263.     An individual who has been discriminated against contrary to new section 21A will be able to bring proceedings in a county court (or a sheriff court in Scotland) in accordance with section 66 of the SDA.

264.     New subsections 21A(4) and (9) set out the functions and actions which are excluded from the general prohibition. The new subsection (4) includes a provision that none of these exceptions permits anything prohibited by European Community law on discrimination. New subsection 21A(3) excludes the Houses of Parliament and the intelligence services from the requirement not to discriminate.

265.     The exempted functions and actions in new subsection 21A(4) and the Table of Exceptions in new subsection 21A(9) include:

• acts related to the preparation and making of primary and secondary legislation made by a Minister of the Crown, the Scottish Ministers, the National Assembly for Wales, the Privy Council or the General Synod of the Church of England;

• acts which are necessary to comply with a statutory requirement;

• judicial functions and acts done on behalf of or on the instructions of a person exercising a judicial function - for example, complying with a court order;

• decisions related to criminal proceedings, where a decision has been taken not to prosecute;

• services only required by one sex, services more beneficially provided on a single-sex basis and acts done to compensate for disadvantage related to sex; and

• the Charity Commissioners for England and Wales when they are exercising their functions in relation to such charities which, under existing exemptions in section 43 of the SDA, are allowed to discriminate on grounds of sex.

266.     The exceptions for services that are provided separately (items 8 to 12 in the Table of Exceptions at new subsection 21A(9)) allow public authorities to provide services only to one sex, or to provide separate or different services for men and women when the circumstances or need are such that it would not be reasonably practicable to do otherwise. For example, it will allow healthcare to be provided for gender-specific conditions such as ovarian or prostate cancer; and for support services for women who have suffered domestic abuse to be provided in a single sex environment.

267.     New section 21A also contains provisions to prevent there being any overlap between the new provision and the existing provisions of the SDA.

268.     An order-making power in new subsection 21A(5) allows the Secretary of State to make additional exemptions after consultation with the CEHR and subject to affirmative resolution of each House of Parliament. (The consultation will be with the EOC until the CEHR takes on responsibility for sex discrimination issues and thereafter with the CEHR.)

269.     New subsections 21A(6), (7) and (8) introduce changes to the enforcement provisions in section 66 of the SDA to ensure that proceedings brought under new section 21A will not prejudice the outcome of a related criminal investigation or criminal proceeding. They also amend the questionnaire procedure in section 74 of the SDA, so that a court will not be able to draw inferences from a failure to respond to a questionnaire if that was necessary to avoid prejudice to a criminal investigation or criminal proceedings.