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Public Bill Committee: 2 July 2009                     

352

 

Equality Bill, continued

 
 

The Solicitor General

 

90

 

Clause  199,  page  142,  line  2,  at end insert—

 

‘( )    

Nothing in section 26, 30, 79, 85, 90 or 95 is to be regarded as an express

 

exception.’.

 

Member’s explanatory statement

 

This amendment would clarify that a provision specifying when a particular Part of the Bill, or

 

Chapter of a Part, does or does not apply is not to be regarded as an express exception.

 


 

New Clauses

 

Non-discrimination alterations

 

The Solicitor General

 

NC5

 

To move the following Clause:—

 

‘(1)    

This section applies if the trustees or managers of an occupational pension

 

scheme do not have power to make non-discrimination alterations to the scheme.

 

(2)    

This section also applies if the trustees or managers of an occupational pension

 

scheme have power to make non-discrimination alterations to the scheme but the

 

procedure for doing so—

 

(a)    

is liable to be unduly complex or protracted, or

 

(b)    

involves obtaining consents which cannot be obtained or which can be

 

obtained only with undue delay or difficulty.

 

(3)    

The trustees or managers may by resolution make non-discrimination alterations

 

to the scheme.

 

(4)    

Non-discrimination alterations may have effect in relation to a period before the

 

date on which they are made.

 

(5)    

Non-discrimination alterations to an occupational pension scheme are such

 

alterations to the scheme as may be required for the provisions of the scheme to

 

have the effect that they have in consequence of section 57(3).’.

 

Member’s explanatory statement

 

This amendment would ensure that trustees and managers of occupational pension schemes have

 

power to amend scheme documentation so that it conforms to the provisions of the scheme as they

 

have effect after the operation of the non-discrimination rule.

 


 

Combined discrimination: dual characteristics

 

The Solicitor General

 

nc26

 

To move the following Clause:—

 

‘(1)    

A person (A) also discriminates against another (B) if, because of a combination

 

of two relevant protected characteristics, A treats B less favourably than A treats

 

or would treat a person who does not share either of those characteristics.


 
 

Public Bill Committee: 2 July 2009                     

353

 

Equality Bill, continued

 
 

(2)    

The relevant protected characteristics are—

 

(a)    

age;

 

(b)    

disability;

 

(c)    

gender reassignment;

 

(d)    

race

 

(e)    

religion or belief;

 

(f)    

sex;

 

(g)    

sexual orientation.

 

(3)    

A does not discriminate against B by virtue of subsection (1) if, in consequence

 

of another provision of this Act, A’s treatment of B is not a relevant

 

contravention.

 

(4)    

A relevant contravention is a contravention of this Act by virtue of section 13

 

because of one of the characteristics in the combination.

 

(5)    

For the purpose of establishing a contravention of this Act by virtue of subsection

 

(1), it does not matter whether, in relation to either of the characteristics in the

 

combination, there is sufficient evidence to justify a finding that there has been a

 

relevant contravention.

 

(6)    

Proceedings relating to a contravention of this Act by virtue of subsection (1) may

 

not be brought if subsection (7) applies.

 

(7)    

This subsection applies if—

 

(a)    

a provision of an enactment (including this Act) requires, in

 

circumstances to which the provision applies, proceedings relating to a

 

relevant contravention to be brought in a specified court, and

 

(b)    

in those circumstances, the court does not have jurisdiction to determine

 

a claim relating to a relevant contravention involving the other

 

characteristic in the combination.

 

(8)    

A Minister of the Crown may by order specify other circumstances in which

 

proceedings relating to a contravention of this Act by virtue of subsection (1) may

 

not be brought; and an order under this subsection may amend this section.

 

(9)    

The reference to a court includes a reference to a tribunal and the reference to a

 

claim includes a reference to a complaint.’.

 

Member’s explanatory statement

 

This new clause would provide for the discrimination prohibited by the Bill to include

 

discrimination that is because of a combination of two protected characteristics. It would also

 

confer power to specify circumstances in which claims for such discrimination may not be brought.

 


 

Free miners

 

Mr Mark Harper

 

John Penrose

 

Mr John Baron

 

NC1

 

To move the following Clause:—

 

‘(1)    

The Dean Forest (Mines) Act 1838 is amended as follows.

 

(2)    

In section XIV (Who shall be deemed Free Miners), line 1, leave out “male”.


 
 

Public Bill Committee: 2 July 2009                     

354

 

Equality Bill, continued

 
 

(3)    

In section XV (Quarrymen to be deemed Free Miners for certain purposes), line

 

1, leave out “male”.’.

 


 

Mental Health Act 1983: Members of Parliament

 

Mr Mark Harper

 

John Penrose

 

John Baron

 

NC2

 

To move the following Clause:—

 

‘(1)    

The Mental Health Act 1983 is amended as follows.

 

(2)    

Subsections (2) to (7) of section 141 of the Mental Health Act 1983 are deleted.’.

 


 

Freedom of religious speech

 

John Mason

 

NC3

 

To move the following Clause:—

 

‘A public authority shall permit personal religious expression by those working

 

for the authority to the greatest extent possible, consistent with requirements of

 

law and the interests of workplace efficiency.’.

 

Member’s explanatory statement

 

Imitates the wording of guidelines issued by President Bill Clinton in 1997 to protect religious free

 

speech in the federal workplace.

 


 

Power for the Commission to conduct joint inquiries

 

John Mason

 

NC6

 

To move the following Clause:—

 

‘(1)    

The Equality Act 2006 is amended as follows.

 

(2)    

In section 16, after subsection (4), insert—

 

“(4A)    

The Commission may conduct an inquiry under subsection (1) jointly

 

with one or more other public authorities when—

 

(a)    

the other authority or authorities have comparable inquiry

 

powers, and


 
 

Public Bill Committee: 2 July 2009                     

355

 

Equality Bill, continued

 
 

(b)    

the matter which is the subject of the inquiry is also a matter

 

within the responsibilities of the other authority or authorities.”’.

 


 

Reasonable adjustments for babies and infants

 

John Mason

 

NC7

 

To move the following Clause:—

 

‘(1)    

The Secretary of State may by regulations make provision as to a duty on

 

providers of public services, where a physical feature puts a baby or infant aged

 

under 5 at a substantial disadvantage in relation to a relevant matter in comparison

 

with persons of other ages, to take such steps as it is reasonable to have to take to

 

avoid the disadvantage.

 

(2)    

A reference in this section to a physical feature is a reference to—

 

(a)    

a feature arising from the design or construction of a building;

 

(b)    

a feature of an approach to, exit from or access to a building;

 

(c)    

a fixture or fitting, or furniture, furnishings, materials, equipment or other

 

chattels, in or on premises or a vehicle;

 

(d)    

a feature arising from the design of a vehicle;

 

(e)    

a feature of an exit from or access to a vehicle;

 

(f)    

any other physical element or quality.

 

(3)    

Any reference in this section to chattels is to be read, in relation to Scotland, as a

 

reference to moveable property.’.

 


 

Gender identity

 

Lynne Featherstone

 

Dr Evan Harris

 

NC8

 

To move the following Clause:—

 

‘(1)    

A person has the protected characteristic of gender identity if the person is or is

 

perceived to be—

 

(a)    

a person intending to undergo, undergoing, or having undergone gender

 

reassignment, where gender reassignment means a process which is

 

undertaken under medical supervision for the purpose of reassigning the

 

person’s sex by changing physiological or other characteristics of sex,

 

and includes any part of such a process;

 

(b)    

a person living permanently in the gender role different from that

 

expected of a person of their recorded natal sex;

 

(c)    

a person who has, by virtue of the Gender Recognition Act 2004 (c.7),

 

received recognition of their acquired gender for all legal purposes; or


 
 

Public Bill Committee: 2 July 2009                     

356

 

Equality Bill, continued

 
 

(d)    

a person who has a gender identity that is different from that expected of

 

a person of their recorded natal sex, provided that behaviour is not

 

unlawful or offensive.

 

(2)    

A reference to a transgender person is a reference to a person who has the

 

protected characteristic of gender identity.

 

(3)    

In relation to the protected characteristic of gender identity—

 

(a)    

a reference to a person who has a particular protected characteristic is a

 

reference to a transgender person;

 

(b)    

a reference to persons who share a protected characteristic is a reference

 

to transgender persons.’.

 


 

Disability pay gap information

 

Mr Mark Harper

 

John Penrose

 

Mr John Baron

 

NC9

 

To move the following Clause:—

 

‘(1)    

A Minister of the Crown may by regulations require employers to publish

 

information relating to the pay of employees for the purpose of showing whether,

 

by reference to factors of such description as is prescribed, there are differences

 

in the pay of employees who have a disability and employees who do not have a

 

disability.

 

(2)    

This section does not apply to—

 

(a)    

an employer who has fewer than 250 employees;

 

(b)    

a person specified in Schedule 19.

 

(3)    

The regulations may prescribe—

 

(a)    

descriptions of employer;

 

(b)    

descriptions of employee;

 

(c)    

how to calculate the number of employees that an employer has;

 

(d)    

descriptions of information;

 

(e)    

the time at which information is to be published;

 

(f)    

the form and manner in which it is to be published.

 

(4)    

Regulations under subsection (3)(e) may not require an employer, after the first

 

publication of information, to publish information more frequently than at

 

intervals of 12 months.

 

(5)    

The regulations may make provision for a failure to comply with the

 

regulations—

 

(a)    

to be an offence punishable on summary conviction by a fine not

 

exceeding level 5 on the standard scale;

 

(b)    

to be enforced otherwise than as an offence, by such means as is

 

prescribed.

 

(6)    

The reference to a failure to comply with the regulations includes a reference to

 

a failure by a person acting on behalf of an employer.’.

 



 
 

Public Bill Committee: 2 July 2009                     

357

 

Equality Bill, continued

 
 

Representative actions

 

Sandra Osborne

 

Mr David Drew

 

Lynne Featherstone

 

Dr Evan Harris

 

NC10

 

To move the following Clause:—

 

‘(1)    

The Minister shall make regulations to permit the Equality and Human Rights

 

Commission or a registered trade union to apply to a court or tribunal as

 

appropriate for a representative action order in relation to a defined class of

 

persons (“the class”) who would benefit from the litigation of rights, or common

 

issues in relation to rights that members of the class may have as a result of the

 

provisions of this Act.

 

(2)    

The regulations shall make rules in relation to the making and termination of a

 

representative action order and its conduct.

 

(3)    

Such rules shall provide for hearings to be conducted in private when it is

 

necessary for the issues between the members of the class and the Equality and

 

Human Rights Commission or a registered trade union to be resolved and those

 

issues are subject to legal professional privilege shared by members of the class.

 

(4)    

Such rules shall make provision for the hearing of any issue as defined in

 

subsection (3) to be undertaken and managed by a different judge or tribunal from

 

the judge and tribunal that have the responsibility for determining the rights or

 

common issue in relation to rights, of the member class.’.

 


 

The right to equality

 

Lynne Featherstone

 

Dr Evan Harris

 

NC11

 

To move the following Clause:—

 

‘(1)    

In this act “the right to equality” means the fundamental rights and freedoms set

 

out in subsections (2) to (4).

 

(2)    

Everyone is equal before the law and has the right to the equal protection and

 

benefit of the law.

 

(3)    

A public authority may not discriminate against anyone on any ground or

 

combination of grounds such as colour, race, nationality, ethnic or national origin,

 

language, gender identity, sex, sexual orientation, disability, religion or belief,

 

and age.

 

(4)    

Subsections (2) and (3) do not preclude any law, programme or activity that has

 

as its object and outcome the amelioration of conditions of disadvantaged persons

 

or groups including those that are disadvantaged because of colour, race,

 

nationality, ethnic or national origin, language, gender identity, sex, sexual

 

orientation, disability, religion or belief, and age.’.

 



 
 

Public Bill Committee: 2 July 2009                     

358

 

Equality Bill, continued

 
 

Interpretation of legislation

 

Lynne Featherstone

 

Dr Evan Harris

 

NC12

 

To move the following Clause:—

 

‘(1)    

So far as it is possible to do so, primary legislation and subordinate legislation

 

must be read and given effect in a way which is compatible with the right to

 

equality.

 

(2)    

This section—

 

(a)    

applies to primary legislation and subordinate legislation whenever

 

enacted;

 

(b)    

does not affect the validity, continuing operation or enforcement of any

 

incompatible primary legislation; and

 

(c)    

does not affect the validity, continuing operation or enforcement of any

 

incompatible subordinate legislation if (disregarding any possibility of

 

revocation) primary legislation prevents removal of the incompatibility.’.

 


 

Declaration of incompatibility

 

Lynne Featherstone

 

Dr Evan Harris

 

NC13

 

To move the following Clause:—

 

‘(1)    

Subsection (2) applies in any proceedings in which a court determines whether a

 

provision of primary legislation is compatible with the right to equality.

 

(2)    

If the court is satisfied that the provision is incompatible with the right to equality,

 

it may make a declaration of that incompatibility.

 

(3)    

Subsection (4) applies in any proceedings in which a court determines whether a

 

provision of subordinate legislation, made in the exercise of a power conferred by

 

primary legislation, is compatible with the right to equality.

 

(4)    

If the court is satisfied—

 

(a)    

that the provision is incompatible with the right to equality, and

 

(b)    

that (disregarding any possibility of revocation) the primary legislation

 

concerned prevents removal of the incompatibility,

 

    

it may make a declaration of that incompatibility.

 

(5)    

In this section “court” shall have the same meaning as the meaning given in

 

section 4 of the Human Rights Act 1998.

 

(6)    

A declaration under this section (“a declaration of incompatibility”)—

 

(a)    

does not affect the validity, continuing operation or enforcement of the

 

provision in respect of which it is given; and

 

(b)    

is not binding on the parties to the proceedings in which it is made.’.

 



 
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