Equality Bill [HL]

House of Commons

Session 2005 - 06
Internet Publications
Other Bills before Parliament

Equality Bill [HL]

Equality Bill [HL]
Part 4 — Public Functions
52

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The provision of a service for one sex only where—

(a)
if the service were provided for both sexes jointly it would or

might be less effective, and

(b)
the extent to which the service is required by the other sex

makes it not reasonably practicable to provide separate

5

services for that sex.

12
The provision of separate services for each sex in different ways or to

different extents where—

(a)
if the service were provided for both sexes jointly it would or

might be less effective, and

10

(b)
the extent to which the service is required by one sex makes it

not reasonably practicable to provide the service for that sex in

the same way or to the same extent as for the other sex.

13
Action taken for the purpose of assisting one sex to overcome—

(a)
a disadvantage (as compared with the other sex), or

15

(b)
the effects of discrimination.

Miscellaneous

14
The exercise of a function of the Charity Commissioners for England

and Wales or the holder of the Office of the Scottish Charity Regulator

in relation to an instrument in relation to which section 43 applies.

20

15
Action which is unlawful by virtue of another provision of this Act.

16
Action which would be unlawful by virtue of another provision of this

Act but for an express exception.”

(2)
In section 17(5) of the Sex Discrimination Act 1975 (c. 65) (police) for “by virtue
of subsection (1)” substitute “by virtue of subsection (1) or (1A)”.
25
(3)
In section 81 of that Act (orders)—
(a)
in subsection (2) after “sections” insert “21A,”, and
(b)
after subsection (2) insert—
“(2A)
An order under section 21A(5) may not be made unless—
(a)
the Secretary of State has consulted the Commission,
30
and
(b)
a draft has been laid before and approved by resolution
of each House of Parliament.”
(4)
In section 85 of that Act (Crown application) after subsection (3) insert—
“(3A)
Section 21A binds the Crown.”
35
84
General duty to promote equality, &c.
(1)
In the Sex Discrimination Act 1975 the following shall be inserted at the
beginning of Part VIII (supplemental)—
“76A
Public authorities: general statutory duty
(1)
A public authority shall in carrying out its functions have due regard to
40
the need—

Equality Bill [HL]
Part 4 — Public Functions
53

(a)
to eliminate unlawful discrimination and harassment, and
(b)
to promote equality of opportunity between men and women.
(2)
In subsection (1)—
(a)
“public authority” includes any person who has functions of a
public nature (subject to subsections (3) and (4)),
5
(b)
“functions” means functions of a public nature, and
(c)
the reference to unlawful discrimination shall be treated as
including a reference to contravention of terms of contracts
having effect in accordance with an equality clause within the
meaning of section 1 of the Equal Pay Act 1970 (c. 41).
10
(3)
The duty in subsection (1) shall not apply to—
(a)
the House of Commons,
(b)
the House of Lords,
(c)
the Scottish Parliament,
(d)
the General Synod of the Church of England,
15
(e)
the Security Service,
(f)
the Secret Intelligence Service,
(g)
the Government Communications Headquarters,
(h)
a part of the armed forces of the Crown which is, in accordance
with a requirement of the Secretary of State, assisting the
20
Government Communications Headquarters, or
(i)
a person specified for the purpose of this paragraph by order of
the Secretary of State (and a person may be specified generally
or only in respect of specified functions).
(4)
The duty in subsection (1) shall not apply to the exercise of—
25
(a)
a function in connection with proceedings in the House of
Commons or the House of Lords,
(b)
a function in connection with proceedings in the Scottish
Parliament (other than a function of the Scottish Parliamentary
Corporate Body),
30
(c)
a judicial function (whether in connection with a court or a
tribunal),
(d)
a function exercised on behalf of or on the instructions of a
person exercising a judicial function (whether in connection
with a court or a tribunal), or
35
(e)
a function specified for the purpose of this paragraph by order
of the Secretary of State.
(5)
Subsection (1)(b) is without prejudice to the effect of any exception to
or limitation of the law about sex discrimination.
(6)
A failure in respect of performance of the duty under subsection (1)
40
does not confer a cause of action at private law.”
(2)
In section 81 of the Sex Discrimination Act 1975 (c. 65) (orders) after subsection
(2A) (inserted by section 83 above) insert—
“(2B)
An order under section 76A(3)(i) or (4)(e) may not be made unless the
Secretary of State has consulted the Commission.”
45
(3)
In section 85 of that Act (Crown application) after subsection (3A) (inserted by

Equality Bill [HL]
Part 4 — Public Functions
54

section 83 above) insert—
“(3B)
Section 76A binds the Crown.”
85
Specific duties
(1)
In the Sex Discrimination Act 1975 (c. 65) the following shall be inserted after
section 76A (inserted by section 84 above)—
5
“76B
Specific duties
(1)
The Secretary of State may by order impose on a person to whom the
duty in section 76A(1) applies, or in so far as that duty applies to a
person, a duty which the Secretary of State thinks will ensure better
performance of the duty under section 76A(1).
10
(2)
Before making an order under subsection (1) the Secretary of State shall
consult the Commission.
(3)
The Secretary of State—
(a)
must consult the National Assembly for Wales before making
an order under subsection (1) in respect of a person exercising
15
functions in relation to Wales, and
(b)
may not, without the consent of the National Assembly for
Wales, make an order under subsection (1) in respect of a
person all of whose functions are public functions in relation to
Wales.
20
(4)
A failure in respect of performance of a duty imposed under subsection
(1) does not confer a cause of action at private law.
76C
Specific duties: Scotland
(1)
Section 76B(1) shall not apply in relation to a person who is a relevant
Scottish authority or a cross-border authority.
25
(2)
The Secretary of State may by order impose on a cross-border authority
to whom the duty under section 76A(1) applies, or in so far as that duty
applies to the cross-border authority, a duty which the Secretary of
State thinks will ensure better performance of the duty under section
76A(1), to the extent that the cross-border authority’s functions are not
30
Scottish functions.
(3)
The Scottish Ministers may by order impose on a relevant Scottish
authority to whom the duty under section 76A(1) applies, or in so far as
that duty applies to the relevant Scottish authority, a duty which the
Scottish Ministers think will ensure better performance of the duty
35
under section 76A(1).
(4)
The Scottish Ministers may by order impose on a cross-border
authority to whom the duty under section 76A(1) applies, or in so far as
that duty applies to the cross-border authority, a duty which the
Scottish Ministers think will ensure better performance of the duty
40
under section 76A(1), to the extent that the cross-border authority’s
functions are Scottish functions.
(5)
Before making an order under any of subsections (2) to (4) the person
making the order shall consult the Commission.

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Part 4 — Public Functions
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(6)
Before making an order under subsection (2) the Secretary of State shall
consult the Scottish Ministers.
(7)
Before making an order under subsection (4) the Scottish Ministers
shall consult the Secretary of State.
(8)
A failure in respect of performance of a duty imposed under this
5
section does not confer a cause of action at private law.
(9)
In this section—
“relevant Scottish authority” means—
(a)
a member of the Scottish Executive or a junior Scottish
Minister,
10
(b)
the Registrar General of Births, Deaths and Marriages
for Scotland, the Keeper of the Registers of Scotland or
the Keeper of the Records of Scotland,
(c)
an office of a description specified in an Order in
Council under section 126(8)(b) of the Scotland Act 1998
15
(c. 46) (other non-ministerial offices in the Scottish
Administration), or
(d)
a public body, public office or holder of a public office—
(i)
which is not a cross-border authority or the
Scottish Parliamentary Corporate Body,
20
(ii)
whose functions are exercisable only in or as
regards Scotland, and
(iii)
some at least of whose functions do not relate to
reserved matters (within the meaning of the
Scotland Act 1998),
25
“cross-border authority” means a cross-border public authority
within the meaning given by section 88(5) of the Scotland Act
1998, and
“Scottish functions” means functions which are exercisable in or as
regards Scotland and which do not relate to reserved matters
30
(within the meaning of the Scotland Act 1998).
76D
Specific duties: enforcement
(1)
This section applies where the Commission thinks that a person has
failed to comply with a duty imposed under section 76B or 76C.
(2)
The Commission may give the person a notice requiring him—
35
(a)
to comply with the duty, and
(b)
to give the Commission, within the period of 28 days beginning
with the date on which he receives the notice, written
information of steps taken for the purpose of complying with
the duty.
40
(3)
A notice under this section may require a person to give the
Commission information required by the Commission for the purposes
of assessing compliance with the duty; in which case the notice shall
specify—
(a)
the period within which the information is to be given (which
45
shall begin with the date on which the notice is received and
shall not exceed three months), and
(b)
the manner and form in which the information is to be given.

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Part 4 — Public Functions
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(4)
A person who receives a notice under this section shall comply with it.
(5)
But a notice under this section shall not oblige a person to give
information that he could not be compelled to give in proceedings
before the High Court or the Court of Session.
(6)
If the Commission thinks that a person, to whom a notice under this
5
section has been given, has failed to comply with a requirement of the
notice, the Commission may apply to a county court (in England and
Wales) or to the sheriff (in Scotland) for an order requiring the person
to comply.”
(2)
In section 81 of the Sex Discrimination Act 1975 (c. 65) (orders) after subsection
10
(2B) (inserted by section 84 above) insert—
“(2C)
An order under section 76C(3) or (4) is subject to annulment in
pursuance of a resolution of the Scottish Parliament.”
86
Codes of practice
In the Sex Discrimination Act 1975 the following shall be inserted after section
15
76D (inserted by section 85 above)—
“76E
Codes of practice
(1)
The Commission may issue a code of practice about the performance
of—
(a)
the duty under section 76A(1), or
20
(b)
a duty imposed under section 76B or 76C.
(2)
Section 56A(2) to (11) shall apply to a code under this section as to a
code under that section (for which purpose the reference in section
56A(10) to specified proceedings before an employment tribunal shall
be treated as a reference to criminal or civil proceedings before any
25
court or tribunal).
(3)
The Secretary of State shall consult the Scottish Ministers and the
National Assembly for Wales before—
(a)
approving a draft under section 56A(4)(a) as applied by
subsection (2) above, or
30
(b)
making an order under section 56A(7) as applied by subsection
(2) above.”
87
National security
In the Sex Discrimination Act 1975 the following shall be inserted after section
66A (burden of proof in county and sheriff courts)—
35
“66B
National security
(1)
Rules of court may make provision for enabling a county court or
sheriff court in which a claim is brought under section 66(1), where the
court considers it expedient in the interests of national security—
(a)
to exclude from all or part of the proceedings—
40
(i)
the claimant;
(ii)
the claimant’s representatives;
(iii)
any assessors;

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Part 4 — Public Functions
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(b)
to permit a claimant or representative who has been excluded to
make a statement to the court before the commencement of the
proceedings, or the part of the proceedings, from which he is
excluded;
(c)
to take steps to keep secret all or part of the reasons for the
5
court’s decision in the proceedings.
(2)
The Attorney General or, in Scotland, the Advocate General for
Scotland, may appoint a person to represent the interests of a claimant
in, or in any part of, proceedings from which the claimant or his
representatives are excluded by virtue of subsection (1).
10
(3)
A person may be appointed under subsection (2) only—
(a)
in relation to proceedings in England and Wales, if he has a
general qualification (within the meaning of section 71 of the
Courts and Legal Services Act 1990 (c. 41)), or
(b)
in relation to proceedings in Scotland, if he is—
15
(i)
an advocate, or
(ii)
qualified to practice as a solicitor in Scotland.
(4)
A person appointed under subsection (2) shall not be responsible to the
person whose interests he is appointed to represent.”
Disability discrimination
20
88
General duty: exceptions
In section 49C(4) of the Disability Discrimination Act 1995 (c. 50) (public
authorities: general duty: exceptions) for “section 49A(1)(a), (b), (c) or (d)”
substitute “one or more specified paragraphs of section 49A(1)”.
89
National security
25
In the Disability Discrimination Act 1995 the following shall be inserted after
section 59 (statutory authority, national security, &c.)—
“59A
National security
(1)
Rules of court may make provision for enabling a county court or
sheriff court in which a claim is brought in respect of alleged
30
discrimination contrary to this Act (including anything treated by
virtue of this Act as amounting to discrimination contrary to this Act),
where the court considers it expedient in the interests of national
security—
(a)
to exclude from all or part of the proceedings—
35
(i)
the claimant;
(ii)
the claimant’s representatives;
(iii)
any assessors;
(b)
to permit a claimant or representative who has been excluded to
make a statement to the court before the commencement of the
40
proceedings, or the part of the proceedings, from which he is
excluded;
(c)
to take steps to keep secret all or part of the reasons for the
court’s decision in the proceedings.

Equality Bill [HL]
Part 5 — General
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(2)
The Attorney General or, in Scotland, the Advocate General for
Scotland, may appoint a person to represent the interests of a claimant
in, or in any part of, proceedings from which the claimant or his
representatives are excluded by virtue of subsection (1).
(3)
A person may be appointed under subsection (2) only—
5
(a)
in relation to proceedings in England and Wales, if he has a
general qualification (within the meaning of section 71 of the
Courts and Legal Services Act 1990 (c. 41)), or
(b)
in relation to proceedings in Scotland, if he is—
(i)
an advocate, or
10
(ii)
qualified to practice as a solicitor in Scotland.
(4)
A person appointed under subsection (2) shall not be responsible to the
person whose interests he is appointed to represent.”
Race discrimination
90
National security
15
In section 67A of the Race Relations Act 1976 (c. 74) (national security)—
(a)
in subsection (2), for “the claimant and his representatives” substitute
“the claimant or his representatives”, and
(b)
in subsection (3)(b), for sub-paragraph (ii) substitute—
“(ii)
qualified to practice as a solicitor in Scotland.”
20
Part 5
General
91
Repeals
The enactments listed in Schedule 4 are hereby repealed to the extent specified.
92
Crown application
25
This Act applies (except as is otherwise expressly provided) to—
(a)
Ministers of the Crown,
(b)
government departments,
(c)
office-holders in the Scottish Administration (within the meaning of
section 126(7) of the Scotland Act 1998 (c. 46)), and
30
(d)
other agents of the Crown.
93
Commencement
(1)
The preceding provisions of this Act, except for sections 42, 43 and 86, shall
come into force in accordance with provision made by the Secretary of State by
order.
35
(2)
An order under subsection (1)—
(a)
shall be made by statutory instrument,
(b)
may make provision generally or only for a specified purpose,
(c)
may make different provision for different purposes, and