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

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     Schedule 2: Inquiries, Investigations and Assessments

335.     Schedule 2 sets out the provisions relating to terms of reference, representations, evidence, adjournments, reports and recommendations and effects of recommendations relating to inquiries, investigations and assessments.

336.     Paragraph 9 allows the CEHR to give a notice to any person, in the course of an inquiry, investigation or assessment.

337.     Paragraph 10 provides that the notice may require a person to provide the CEHR with information or documents in his possession or to give oral evidence to it.

338.     Paragraph 11 provides the grounds on which a person served with a notice to provide information can apply to the court to overturn the notice.

339.     Paragraph 12 enables the CEHR to apply to a county court (or to a sheriff in Scotland) for an order requiring a person to provide the information required.

340.     Paragraph 13 creates three summary criminal offences: one of failing to provide information requested under paragraph 9 or ordered by a court under paragraph 12; second, falsifying such information and third, making a false statement in oral evidence to the CEHR, following a request to give oral evidence under paragraph 9. A person who is guilty of an offence under paragraph 13 shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

     341.     Paragraph 14 provides for a person to disregard a notice issued under paragraph 9 if it would require the disclosure of information prejudicial to national security. It also provides that in the event of a person disregarding such a notice the CEHR may apply to the Investigatory Powers Tribunal which shall consider the application by applying the principles of judicial review.

342.     Paragraph 15 sets out the requirements on the CEHR to prepare and publish a report of an inquiry, investigation or assessment.

Schedule 3: Amendments consequential on Part 1

343.     Schedule 3 makes a number of consequential amendments to legislation. These include substituting the CEHR for the existing equality Commissions where they have rights or obligations under existing legislation: for example, the CRE's right to be consulted in respect of codes made by the Secretary of State under the Asylum and Immigration Act 1996.

Schedule 4: Repeals

344.     Schedule 4 lists the repeals made by the Bill.

     PUBLIC SECTOR FINANCIAL COST AND PUBLIC SECTOR MANPOWER EFFECTS

345.     The Bill will involve new expenditure from public funds. There will be the costs associated with establishing the CEHR as a new body and the costs of making the transition into the new body from the EOC, CRE and DRC, which the CEHR will succeed and which will be dissolved by this Bill.

346.     Estimated non-recurring set-up costs include:

  • temporary accommodation for the new Chairman, Chief Executive and skeleton staff to make the necessary preparations for the CEHR to take on full operations;

  • procurement and fitting out of new accommodation, new IT systems, IT and other office equipment, website development, branding, launch publication design and production costs;

  • costs of relocation for existing commission staff transferring to the CEHR under TUPE provisions; and

  • costs of abolishing existing commissions including termination of property leasing arrangements.

  • 347. The total estimate of set-up costs is in the region of £24m.

348.     The creation of the CEHR to provide institutional support beyond the current three equality strands (gender, race and disability) to the three new strands (religion and belief, sexual orientation and age) and to human rights will lead to the CEHR's running costs budget being greater than the sum of the budgets of the EOC, CRE and the DRC. For the funding year 2005-2006, the current Commissions received combined funding of around £48 million. The estimate of the annual budget for the CEHR when it is fully operational, encompassing the functions of all three Commissions, is £70 million. It is expected that a significant proportion of this extra funding would be used to pay for increased staff levels, expected to be of the order of 20-50% over the total staff numbers of the existing Commissions (the current Commissions employ just over 500 staff between them). The exact number of new staff will be a matter for the Chairman and CEHR when appointed to determine and will be influenced by the balance of the new body's activities and organisational structure and priorities. Additional staff for the new CEHR will be recruited in open and fair competition.

     SUMMARY OF THE REGULATORY IMPACT ASSESSMENT

349.     Individual regulatory impact assessments have been conducted for the establishment of the CEHR; the introduction of legislation making it unlawful to discriminate in the provision of goods, facilities and services, premises, education, and the exercise of public functions on the grounds of religion or belief; and the introduction of a public sector duty to promote gender equality, as the impacts of these three areas of policy are not dependent upon each other. It is difficult to quantify the majority of benefits associated with these three proposals as they all address inequalities and unfairness in today's society, rather than address explicit financial concerns. Below is a summary of the impact of these three measures.

350.     The extra costs in public spending associated with the establishment of the CEHR are discussed in the preceding section, but as the CEHR will enforce existing legislation, there are no extra regulatory requirements placed on businesses or the public sector as a result of its creation. While many of the effects of the establishment of the CEHR are not amenable to quantitative analysis (although these are explored in the RIA), the impact of having one body providing advice and information for employers as opposed to the current three (and some government departments) has been estimated as providing an overall cost-saving for employers of between £2.7 and £3.4 million per year.

351.     The gender duty will apply only to the public sector and therefore there will be costs across a range of public authorities (one-off implementation costs have been estimated at £9.2 - £13.9 million, and on-going costs have been estimated at £1.7 - £2.8 million per year). The general duty of the gender duty will apply to those bodies undertaking functions of a definite public nature, and therefore may apply to certain functions of a small number of private bodies if they are of an express public nature. Gender equality requirements on private contractors would most likely be clearly set out in the contractual arrangements with the public body concerned (one-off implementation costs have been estimated at £0.8-£1.7 million and on-going costs have been estimated at £1.2-£2.4 million per year).

352.     The majority of costs stemming from the introduction of legislation making it unlawful to discriminate in the provision of goods, facilities and services on the grounds of religion or belief and the discharge of public functions, are associated with the dissemination and understanding of guidance (estimated at around £8.76 million for the private sector and £0.089 million for the public sector).

     SUMMARY OF THE RACE EQUALITY IMPACT ASSESSMENT & EQUAL TREATMENT APPRAISALS

353.     The Race Equality Impact Assessment (REIA) for the establishment of the CEHR (which is being published separately and is available at www.dti.gov.uk or from cehr@dti.gsi.gov.uk) analysed the areas where the proposals to create the CEHR might have particular implications for race equality, assessed the impact and recommended that the proposals set out in the Fairness for All White Paper (May 2004) should be adapted to ensure there is no negative impact on race equality. In this Bill the recommendations made in the REIA are reflected in the following:

  • the enforcement role for the CEHR in clauses 20 to 32, and the absence of any statutory criteria for the CEHR to decide which individual cases to support in clause 28;

  • the provisions made for the CEHR to conduct inquiries into named bodies, as well as into sectors and general themes in any area of its remit i.e. covering equality, human rights and good relations - clause 16;

  • the powers for the CEHR to make recommendations in the course of or following an inquiry or investigation - clauses 16 and 20;

  • no 'public interest test' has been set for the launching of general inquiries which can lead to 'formal investigations' where suspicion of 'unlawful acts' is uncovered - clause 16;

  • the CEHR will have powers to compel evidence without recourse to the Secretary of State - clauses 16 and 20 and Schedule 2;

  • the CEHR will have powers to enter into binding agreements with those who may have committed unlawful discrimination with a view to preventing any recurrence - clause 23;

  • the provisions made to enforce the public sector duties on race, disability and gender equality - clause 32;

  • there is an obligation on the Secretary of State, when making appointments to the CEHR, to appoint only individuals who have knowledge or experience of a relevant matter, including race discrimination, or who are suitable for some other special reason - clause 2 and Schedule 1 Part 1; and

  • the flexibility for transfer of race equality work from the CRE to the CEHR - clause 36.

354.     The Equal Treatment Appraisal for the Bill (available at www.dti.gov.uk or from cehr@dti.gsi.gov.uk) examines the impact of the proposals on the other five equality strands (i.e. age, disability, gender, religion or belief and sexual orientation).

355.     For the new strands of sexual orientation, religion or belief and age, this is the first time that institutional support for combating discrimination and promoting equality of opportunity will exist.

356.     The functions of the EOC, CRE and DRC will be carried forward (with minor modifications to update and harmonise certain provisions where necessary) into the CEHR.

     TERRITORIAL EXTENT

357.     The Bill extends to Great Britain.

358.     Equal opportunities are in principle reserved to the Westminster Parliament, but the encouragement of equal opportunities is an exception to this rule and falls within the devolved competence of the Scottish Parliament. Some clauses of this Bill fall partly within the competence of the Scottish Parliament. These include clauses relating to promotion of equality and diversity in Part 1, the promotion of equal opportunities in the gender duty and duties imposing functions on Scottish Ministers in Part 4. The Scottish Parliament will be invited to agree that it is content for Parliament to legislate for Scotland in this devolved area. Human rights as a topic is neither reserved nor devolved - a human rights issue falls within the competence of the Scottish Parliament if the underlying subject matter is not reserved. The CEHR's human rights role in Scotland is intended to be limited in practice to human rights issues on reserved topics.

359.     Under the Welsh devolution settlement the subject matter of equal opportunites is not transferred to Wales.

360.     The Bill does not extend to Northern Ireland since equal opportunities are "transferred matters" under the Northern Ireland Act 1998. But the Bill will make a small number of consequential amendments and repeals to legislation which applies in Northern Ireland, and so the Bill will extend to Northern Ireland to that limited extent.

     COMPATIBILITY WITH THE EUROPEAN CONVENTION ON HUMAN RIGHTS

361.     Section 19 of the HRA requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of the HRA). The statement has to be made before the Second Reading.

362.     There is not believed to be anything in the Bill which conflicts with the Convention Rights. Indeed, the CEHR will work to promote compliance with the HRA.

     TRANSPOSITION OF EU DIRECTIVES

363.     The Race Directive (2000/43/EC) and the Equal Treatment Amendment Directive (2002/73/EC) require Member States to create equality institutions for the promotion of equal treatment on the grounds of race and sex. The bodies' competencies must include providing assistance to victims of discrimination in pursuing complaints, conducting independent reports and making recommendations on any issue relating to discrimination. The EOC and CRE currently have the competencies required by the directives. These competencies will be carried forward to the CEHR.

364.     The Employment Directive (2000/78/EC) (which prohibits discrimination on the grounds of disability, sexual orientation, religion or belief and age) does not require Member States to create an equality institution for the promotion of equal treatment on those grounds. However, where an organisation exists which has a legitimate interest in ensuring that the Employment Directive is complied with, the organisation should be permitted to engage in litigation on behalf or in support of complainants, in accordance with criteria laid down in national law. Once created, the CEHR will be such an organisation and will be able to engage in litigation in support of complainants, as required by the Employment Directive.

365.     The Employment Directive has been implemented (in respect of the religion or belief strand) by the Employment Equality (Religion or Belief) Regulations 2003. This Bill will slightly modify the definitions used in those Regulations in order to provide consistency between the Regulations and the new religious discrimination provisions contained in Part 2 of the Bill. The changes do not however have a substantive effect on the scope of the Regulations.

COMMENCEMENT

     366.     The provisions of the Bill and the Schedules will be brought into force on a day or days appointed by commencement order of the Secretary of State. As provided for in clause 36(3), each of the existing equality Commissions is to cease to exist by 31st March 2009, and the commencement orders and dissolution orders to be made under clauses 91 and 36(1) respectively will achieve this.

 
 
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Prepared: 15 November 2005