House of Commons - Explanatory Note
Equality Bill [HL] - continued          House of Commons

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     Clause 82: General duty to promote equality, &c.

270.     Clause 82 amends the SDA by inserting into that Act new section 76A. The effect of this provision is to impose on public authorities a duty to promote equality of opportunity that is similar to the duty imposed by section 71 of the RRA (as substituted by section 2 of the Race Relations (Amendment) Act 2000 (RRAA)) and the duty imposed by section 3 of the Disability Discrimination Act 2005 which inserts new section 49A into the DDA.

271.     New subsection 76A(1) imposes a general duty on public authorities when carrying out their public functions, either as employers or service providers, to have due regard to the need to eliminate unlawful discrimination and harassment, and to promote equality of opportunity between men and women. This general duty will be enforceable through judicial review, rather than creating a cause of action for individuals in private law.

272.     New subsection 76A(2) extends the definition of a public authority to include any person to the extent that he has functions of a public nature. This would include, for example, a private security firm contracted to provide a public function, for instance, to run a prison. It is only the public functions of private companies that are covered. Core public bodies like government departments, local authorities, the police and other governmental bodies are all public authorities. This subsection also confirms that the duty on public authorities to eliminate unlawful discrimination also covers contravention of the Equal Pay Act 1970.

273.     New subsection 76A(3) excludes certain bodies from the definition of public authority, in particular the Houses of Parliament, Scottish Parliament, General Synod of the Church of England and the intelligence services. There is also a power for the Secretary of State, after consulting the Commission, to extend this list of bodies by order (subject to the negative resolution procedure).

274.     Subsection 76A(4) exempts certain functions from the scope of the general duty: functions in connection with proceedings in the Houses of Parliament and the Scottish Parliament (though not the Scottish Parliamentary Corporate Body) and the exercise of judicial and related functions. There is also a power for the Secretary of State, after consulting the Commission, to extend this list of functions by order, also subject to the negative resolution procedure.

275.     New subsection 76A(5) confirms that the general duty to promote equality of opportunity between men and women does not override any exception or limitation in law which permits sex discrimination.

Clause 83: Specific duties

276.     Clause 83 inserts new sections 76B and 76C into the SDA.

277.     New section 76B empowers the Secretary of State to impose, by order, specific duties on public authorities, other than certain Scottish bodies, to ensure the better performance by them of the general duty in new section 76A(1). This order will be subject to the negative resolution procedure. The Secretary of State is obliged to consult the CEHR before making such an order. The provision does not confer rights on individuals to complain about a failure by a public authority to comply with a specific duty.

278.     In respect of specific duties being imposed in Wales, new subsection 76B(3) confirms that the Secretary of State must (i) consult the National Assembly for Wales before imposing specific duties on any person exercising functions in relation to Wales; and (ii) gain the consent of the National Assembly for Wales before imposing specific duties on a person all of whose functions are public functions in relation to Wales.

279.     New section 76C includes provisions empowering Scottish Ministers to set specific duties in respect of certain Scottish bodies, to ensure the better performance by them of the general duty. In the case of cross-border public authorities (within the meaning of section 88(5) of the Scotland Act 1998), the Secretary of State may impose, by order, duties in respect of the functions which are not Scottish functions (i.e. those which are not devolved), and the Scottish Ministers may impose, by order, duties in respect of their Scottish functions (i.e. those which are devolved). New section 76C(6) also requires that, before placing cross-border public authorities under specific duties, the Secretary of State must consult Scottish Ministers. Similarly, new section 76C(7) requires that, before placing cross-border public authorities under specific duties, the Scottish Ministers must consult the Secretary of State.

280.     New section 76D sets out the framework for the enforcement of specific duties imposed by order under 76B(1) or 76C. The Commission may serve a compliance notice on a public authority where it is satisfied that the authority is not complying with any specific duty. A compliance notice will require the public authority to (i) comply with the duty and (ii) inform the Commission within 28 days (beginning with the date on which the notice is given), of action it intends to comply with the duty. The notice could also require the public authority to provide the CEHR with information additionally specified in the notice in order to verify that the duty has or is being complied with. The new section also enables the Commission to apply to a county court for an order to require the public authority to comply with the notice, if the Commission thinks that the public authority has not done so.

Clause 84: Codes of practice

281.     Clause 84 inserts a new section 76E into the SDA

282.     New section 76E gives the Commission the power to draw up and issue a code of practice about performance of both the general duty in clause 82 and the specific duties to be imposed by clause 83. There is also a requirement for the Secretary of State to consult Scottish Ministers and the National Assembly for Wales before approving a draft code or commencing a code. Recognising that codes of practice on the gender duty will go beyond the employment field, provision is made in this section for a code of practice on the gender duty to be admissible in evidence in relevant proceedings before all courts and tribunals.

283.     In respect of clauses 82 and 83 (which introduce new sections 76A to 76C into the SDA), before the CEHR becomes operational the EOC will have responsibility for enforcing the general duty and the specific duties to be imposed by secondary legislation. During this interim period, the EOC will also be responsible for preparing and issuing codes of practice under new section 76E in relation to the general duty and the specific duties. The procedural requirements applying to codes of practice prepared under section 56A of the SDA are to apply with the adjustment made by clause 84 to the issuing of codes whilst the EOC is responsible for issuing the codes of practice on the gender duty.

Clause 85: National security

284.     Clause 85 inserts a new section 66B into the SDA.

285.     New section 66B allows for county and sheriff court rules 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 RRA which was introduced by the RRAA. The power in section 66B will allow rules to be made to allow the court, when considering proceedings brought under this part of the SDA:

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

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

  • to keep part or all of the reasons for a decision secret.

286.     Where the claimant or representatives are excluded from part or all of proceedings under such rules, new section 66B(2) allows the Attorney General or Advocate General for Scotland to appoint a special advocate to represent the interests of the claimant.

Clause 86: General duty: exceptions

287.     Clause 86 makes a minor consequential amendment to the DDA.

288.     Section 49C(4) of the DDA permits any or all of subsections (a) to (d) of the general duty to promote equality for disabled people to be disapplied from prescribed acts. This amendment would ensure that, should it be necessary to disapply subsections (e) or (f) of the duty, this could also be done - for example, to clarify the situation where there was doubt as to whether an act was covered or not, or to exclude particular types of act from those duties where there would be good policy reasons as to why they should not be covered.

Clause 87: National security

289.     Clause 87 inserts a new section 59A into the DDA that is analogous to new section 66B of the SDA, inserted by clause 85.

Clause 88 National security

290.     Clause 88 makes an amendment to the equivalent provision in the RRA to ensure that a special advocate may be appointed where either the claimant or the representatives or both are excluded. As currently drafted, the RRA provision only allows for the appointment of a special advocate where both the claimant and the representatives are excluded.

     Part 5: General

     Clause 89: Repeals

291.     Clause 89 gives effect to the repeals set out in Schedule 4.

Clause 90: Crown application

292.     Clause 90 provides that Ministers of the Crown, government departments and other agents of the Crown are bound by the Bill. The CEHR will therefore be able, inter alia, to investigate Government and other public bodies and use its powers to require them to give information. This Bill will however not affect Her Majesty in Her private capacity or in right of Her Duchy of Lancaster or the Duke of Cornwall.

     Schedule 1: The Commission: Constitution, &c.

293.     Schedule 1 sets out provisions relating to: the constitution of the CEHR; its members (the Commissioners) and their tenure of office; the tenure of office of the Chairman and the deputy Chairman; regulation of its proceedings; appointment of its staff; appointment of its Investigating Commissioners; its powers of delegation and committees (including the Scotland, Wales, and Disability Committees); preparation of its annual report; remuneration of Commissioners and staff; its financial arrangements; and its status. In particular:

     Schedule 1, Part 1: Constitution

294.     Paragraph 1(1) establishes that there shall be no less than 10, and no more than 15, members of the CEHR, who shall be known as Commissioners, and who shall be appointed by the Secretary of State. In addition to these Commissioners, the chief executive of the CEHR will also be a Commissioner by virtue of holding that office.

295.     Paragraph 2(1) requires that the Secretary of State appoint only individuals who have knowledge or experience of a relevant matter, or who are suitable for some other special reason. When appointing Commissioners, the Secretary of State is required to have regard to the desirability of the Commissioners together having knowledge and experience of the relevant matters.

296.     Paragraph 2(2) sets out the relevant matters to which the appointments refer. This includes the Commission's functions (including its work with business, employee organisations, and the public sector), in particular discrimination and human rights.

297.     Paragraph 2(3)(a) requires the Secretary of State to appoint at least one Commissioner who is or has been a disabled person.

298.     Paragraph 2(3)(b) requires the Secretary of State to appoint, with the consent of Scottish Ministers, one Commissioner who knows about conditions in Scotland.

299.     Paragraph 2(3)(c) requires the Secretary of State to appoint, with the consent of the National Assembly for Wales, one Commissioner who knows about conditions in Wales.

300.     Paragraph 3 provides that a Commissioner can be appointed for a specified period of between two and five years, and that reappointment can be made once this term has expired. It requires a Commissioner to give notice in writing to the Secretary of State if he or she wishes to resign, and enables the Secretary of State to dismiss any Commissioner who is unable, unfit or unwilling to fulfil his or her functions.

301.     Paragraph 4 provides for the terms of appointment of the Chairman and deputy Chairman. It sets out the functions of the Chairman, and deputy Chairman, and the procedures necessary should they vacate office or resign their post. It also specifies that the chief executive cannot be appointed Chairman or deputy Chairman of the CEHR.

     Schedule 1, Part 2: Proceedings

302.     Paragraphs 5 and 6 allow the CEHR to regulate its own proceedings. A minimum of five Commissioners must be present when the procedure regarding quorum for meetings is established.

303.     Paragraphs 7 and 8 require the CEHR to appoint, with the approval of the Secretary of State, a chief executive and it may appoint other staff as appropriate. The Secretary of State must also approve the overall number of staff and terms and conditions of appointment.

304.     Paragraph 9 permits the CEHR to also appoint an Investigating Commissioner to carry out an investigation, other enforcement action, and inquiries.

305.     The CEHR may delegate any of its functions to another Commissioner or to staff. The CEHR can also establish advisory or decision-making committees, which can be made up of Commissioners, staff and external members. Decision-making committees must be chaired by a Commissioner and can have any function delegated to them.

306.     Paragraphs 16 to 31 set out the requirements for the CEHR to establish a Scotland Committee and a Wales Committee. Each Committee shall be chaired by the relevant Commissioner with knowledge of conditions in Scotland or Wales. The Committees must be established before any of the general duties (clauses 8 to 12) come into force. The Committees have an advisory role in respect of the CEHR's functions insofar as they affect Scotland and Wales respectively. The CEHR is obliged to consult the Scotland or Wales Committee before undertaking a function that, in its opinion, may affect people in Scotland and Wales respectively.

307.     The Committees have delegated decision-making powers in respect of the activities listed in clause 13 in so far as the activities, in the opinion of the CEHR, affect Scotland and Wales. They will also have delegated power under clause 11(2)(c) and clause 11(2)(d) to provide advice to the devolved administrations in respect of law which, in the opinion of the CEHR, affects only Scotland or Wales respectively. The CEHR is unable, therefore, to undertake these activities to the extent that they are delegated to the Committees. The Scotland and Wales Committees are not able to exercise these decision-making powers where they have been delegated to the Disability Committee under Part 5 of Schedule 1: in those circumstances, the Disability Committee is obliged by paragraph 52(4) and (5) to consult the Scotland or Wales Committees before exercising the powers.

308.     Notwithstanding the delegation of clause 13, the CEHR may provide advice or guidance on a GB-wide basis, such as, for example, through a helpline or the publication of advice leaflets or contract with another party to provide this service.

309.     Paragraph 32 requires the CEHR to prepare and publish an annual report, including in relation to its activities in Scotland and Wales, and submit it to the Secretary of State. The Secretary of State must lay the annual report before Parliament. The annual report must also be sent to the Scottish Parliament and the National Assembly for Wales.

310.     Paragraphs 33 and 34 allow the CEHR to continue proceedings irrespective of whether there is an outstanding vacancy (including the Chair) or whether there is an irregularity in respect of an appointment on either the CEHR Board or a committee.

Schedule 1, Part 3: Money

311.     Paragraphs 35 to 37 set out the remuneration arrangements for the CEHR Board, staff members or members of an advisory or decision-making committee. It also allows for the CEHR to be listed as part of the Superannuation Act 1972 in respect of pension arrangements for staff.

312.     Paragraph 38 requires the Secretary of State to determine and provide funds that are reasonably sufficient to enable the CEHR to perform its functions 307. Paragraph 39 allows the CEHR to charge for a service provided under clause 13 (Information, advice etc), or clause 27 (Conciliation).

313.     Paragraphs 40 and 41 requires the CEHR to prepare a statement of accounts on an annual basis which is examined, certified and reported on by the Comptroller and Auditor General. The first financial year to which paragraph 40 relates must be from the coming into force of section 1 until the following 31 March, but relating to a period of not less than 12 months.

     Schedule 1, Part 4: Status &c.

314.     Paragraph 42 establishes the status of the CEHR in relation to the Crown. It confirms that Commissioners and employees of the CEHR are not employed as civil servants.

315.     Paragraph 42(3) requires the Secretary of State to have regard to the desirability of ensuring that the Commission is under as few constraints as reasonably possible in determining its activities, timetables and priorities.

316.     This Part of Schedule 1 also amends a number of Acts of Parliament to ensure the CEHR is subject to them. These provisions ensure that the CEHR is subject to the requirements of the Parliamentary Commissioner Act 1967, relating to departments subject to investigation; the House of Commons Disqualification Act 1975 and similar provisions barring members of the House of Commons, Northern Ireland Assembly, and National Assembly for Wales from being members of the CEHR, including as an Investigating Commissioner or member of a decision-making committee. It also subjects the CEHR to the provisions of the Public Records Act 1958 and the Freedom of Information Act 2000.

     Schedule 1, Part 5: Disability Committee

317.     Paragraph 49 requires the CEHR to establish a Disability Committee before either the equality and diversity duties set out in clause 8 or the duties with regard to groups set out in clause 10 of the Bill comes into force, in either case in so far as they relate to disability

318.     Paragraph 50 sets out the requirements for the number of members of the Disability Committee. Members of the Committee may be Commissioners, staff or other non-Commissioners by virtue of paragraph 12(2) of Schedule 1 to the Bill. Paragraphs 50(b) and (c) require that the Chairman and at least half of the members of the Disability Committee are or have been disabled people. This reflects a requirement in the Disability Rights Commission Act concerning the composition of the DRC. By virtue of paragraph 50(c) of Schedule 1 in conjunction with paragraph 12(3) of Schedule 1 to the Bill, the Chairman of the Committee must be a Commissioner who is or has been a disabled person. The Chairman need not be the same Commissioner appointed to give effect to the requirement in paragraph 2(3)(a) of Schedule 1. "Disabled person" for the purposes of paragraph 50 bears the same meaning as in clause 8(4) of the Bill. Paragraph 50 (2) provides that the DRC Transition Commissioner appointed under clause 41 may not be a member (or Chairman) of the Committee.

319.     Paragraph 51 sets a period of two to five years as the term of office of members of the Disability Committee, subject to the possibility of reappointment, or dismissal, or in accordance with paragraph 51(c) lapsing of the appointment of members of the Committee when the Committee is dissolved following the process set out in paragraphs 57 to 62.

320.     Paragraph 52 sets out the functions of the CEHR which are delegated to the Disability Committee. These are the duties under clause 8 of the Bill (equality and diversity) and duties under clause 10 of the Bill (groups) in so far as they relate to "disability matters". "Disability matters" is defined in paragraph 52(3) as matters provided for under Parts 1, 3, 4, 5 and 5B of the DDA and clauses 8 and 10 in so far as they relate to disability. Part 1 of the DDA sets out the meaning of "disabled person" and "disability"; Part 3 of the DDA sets out the duties on providers of goods, facilities, services and premises to the public, public authorities exercising their functions; and associations providing benefits, facilities and services to applicants for membership, members, associates and guests; Part 4 of the DDA sets out the duties in relation to education; and Part 5 of the DDA provides powers for the Secretary of State to make accessibility regulations in respect of taxis, public service vehicles, and rail vehicles; and Part 5B of the DDA makes procedural and evidential provision with regard to consent to improvements to let dwelling houses. Matters provided for in Part 2 of the DDA, which deals with discrimination and harassment in the employment field will not be delegated to the Disability Committee. The Committee's remit with regard to Part 2 of the DDA is set out in paragraphs 53 and 54.

321.     In carrying out the duties of the CEHR under clauses 8 and 10, so far as they relate to disability, or in relation to disability matters generally (as defined in paragraph 52(3)), the Disability Committee may exercise any of the powers listed in paragraph 52(1)(a).

322.     For example, the Disability Committee will be able to issue codes of practice (delegated by virtue of paragraph 52(1)(a)(ii)) which deal with disability discrimination in the provision of goods, facilities, services and premises or education, as provided for in Parts 3 and 4 of the DDA respectively, as the latter fall within the definition of "disability matters" in paragraph 52(3) of Schedule 1.

323.     Paragraph 52(2) allows the CEHR to exercise the powers and fulfil the duties delegated to the Disability Committee, where they relate partly to disability and partly to other matters. This would allow the CEHR, for instance, to establish a GB-wide helpline offering advice on all of the equality enactments listed at clause 33. However, the CEHR is required under paragraph 53 to consult the Committee before doing so.

324.     Paragraph 53 imposes a duty on the CEHR to consult the Disability Committee before taking action on matters affecting disabled people, in particular where such action affects Part 2 of the DDA (employment field). This means that, for example, if the CEHR were to prepare a code of practice relating to discrimination in employment across all equality strands, it would be required to involve the Disability Committee by seeking their advice and expertise on all areas of the proposed code affecting disabled people, such as reasonable adjustments for disabled people in the workplace. Or, for example, if drawing up a programme of investigations and inquiries which would impact on disabled people, the CEHR would be required to consult the Disability Committee prior to doing so.

325.     Paragraph 54 imposes a corresponding duty on the Disability Committee to provide advice to the CEHR on the exercise of any of the CEHR's functions affecting disabled people.

326.     Paragraph 55 requires the CEHR to allocate a sufficient share of its total allocated resources (which will include staff and funding) to the Disability Committee to enable it to carry out its delegated functions effectively.

327.     Paragraphs 57 to 59 make provision for a mandatory review of the Disability Committee to assess whether it is expedient for the Committee to continue. The review is to take place after the Disability Committee has been operating for five years.

328.     Paragraph 58 lists the persons who are excluded from participating in the review, to ensure that the review will be carried out independently of the CEHR.

329.     Paragraph 59 requires the CEHR to ensure that the review involves a consultation with disabled people and other interested parties, and that a report of the findings of the review is submitted to the CEHR and published. The report must include a recommendation by the reviewing body on how long the Committee should continue in existence.

330.     Paragraph 60 requires the CEHR, after receiving the report, to make a recommendation to the Secretary of State on how long the Disability Committee should continue in existence.

331.     Paragraph 61 requires the Secretary of State to make an order specifying the date on which the dissolution of the Disability Committee will take effect, which may be after a period of continuation. In accordance with clause 39(3)(e) such an order is subject to the negative resolution procedure.

332.     Paragraph 62 provides that an order made by the Secretary of State under paragraph 59 may also make provision in relation to the Committee's conduct of its business prior to dissolution. For example, this may include provision about activities the Committee must complete before it is dissolved. The order may also make provision as to how the CEHR will carry out functions that were previously delegated to the Committee before its dissolution.

333.     Paragraph 63 clarifies that paragraphs 12-15 of Schedule 1 to the Bill allow the CEHR to create a subsequent committee with responsibility for disability issues, or to delegate to another committee any functions that were originally delegated to the Disability Committee, after the Disability Committee has been dissolved.

334.     Paragraph 64 ensures that the Disability Committee can only be dissolved following the review process set out in paragraphs 57 to 62.

 
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Prepared: 15 November 2005