Equality Bill

House of Commons

Session 2008 - 09
Internet Publications
Other Bills before Parliament

Equality Bill

Equality Bill
Part 9 — Enforcement
Chapter 2 — Civil courts

(a)
a claim for judicial review;
(b)
proceedings under the Immigration Acts;
(c)
proceedings under the Special Immigration Appeals Commission Act
1997;
(d)
in Scotland, an application to the supervisory jurisdiction of the Court
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of Session.
(4)
This section is subject to any express provision of this Act conferring
jurisdiction on a court or tribunal.
(5)
The reference to a contravention of this Act includes a reference to a breach of
an equality clause or rule.
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(6)
Chapters 2 and 3 do not apply to proceedings relating to an equality clause or
rule except in so far as Chapter 4 provides for that.
(7)
This section does not apply to—
(a)
proceedings for an offence under this Act;
(b)
proceedings relating to a penalty under Part 12 (disabled persons:
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transport).
Chapter 2
Civil courts
108
Jurisdiction
(1)
A county court or, in Scotland, the sheriff has jurisdiction to determine a claim
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relating to—
(a)
a contravention of Part 3 (services and public functions);
(b)
a contravention of Part 4 (premises);
(c)
a contravention of Part 6 (education);
(d)
a contravention of Part 7 (associations);
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(e)
a contravention of section 102, 105 or 106 that relates to Part 3, 4, 6 or 7.
(2)
Subsection (1)(a) does not apply to a claim within section 109.
(3)
Subsection (1)(c) does not apply to a claim within section 110.
(4)
For the purposes of proceedings on a claim within subsection (1)(a)—
(a)
a decision in proceedings on a claim mentioned in section 109(1) that an
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act is a contravention of Part 3 is binding;
(b)
it does not matter whether the act occurs outside the United Kingdom.
(5)
The county court or sheriff—
(a)
must not grant an interim injunction or interdict unless satisfied that no
criminal matter would be prejudiced by doing so;
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(b)
must grant an application to stay or sist proceedings under subsection
(1) on grounds of prejudice to a criminal matter unless satisfied the
matter will not be prejudiced.
(6)
In proceedings in England and Wales on a claim within subsection (1), the
power under section 63(1) of the County Courts Act 1984 (appointment of
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assessors) must be exercised unless the judge is satisfied that there are good
reasons for not doing so.
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Equality Bill
Part 9 — Enforcement
Chapter 2 — Civil courts

• A gay man applies for residential housing in a local authority area, but is told that he
can choose from only three housing blocks because all homosexual people are housed
together. He could bring a discrimination claim in the county or sheriff court.
Clause 109: Immigration cases
Effect
5
365. This clause sets out which claims under the Bill are outside the jurisdiction of the
county or sheriff courts because they are being dealt with in immigration proceedings. These
are claims in relation to decisions on whether a person may enter or remain in the UK and
claims where the question of whether there has been a breach of Part 3 of the Bill (dealing with
services and public functions) has either been raised in immigration proceedings and rejected,
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or could be raised on appeal.
Background
366. This provision is designed to replicate the effect of provisions in current legislation.
Clause 110: Education cases
Effect
15
367. This clause sets out which education-related claims under the Bill are outside the
jurisdiction of the county and sheriff courts. These are claims about discrimination because of
disability in schools which should be brought instead in specialist tribunals (there is a separate
tribunal for England, for Wales and for Scotland).
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Equality Bill
Part 9 — Enforcement
Chapter 2 — Civil courts

(7)
In proceedings in Scotland on a claim within subsection (1), the power under
rule 44.3 of Schedule 1 to the Sheriff Court (Scotland) Act 1907 (appointment of
assessors) must be exercised unless the sheriff is satisfied that there are good
reasons for not doing so.
(8)
The remuneration of an assessor appointed by virtue of subsection (7) is to be
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at a rate determined by the Lord President of the Court of Session.
109
Immigration cases
(1)
A claim is within this section if it relates to the act of an immigration authority
in taking a relevant decision and—
(a)
the question whether the act is a contravention of Part 3 has been or
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could be raised on an appeal which is pending, or could be brought,
under the immigration provisions, or
(b)
it has been decided on an appeal under those provisions that the act is
not a contravention of Part 3.
(2)
The relevant decision is not—
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(a)
subject to challenge in proceedings on a claim within section 108(1)(a),
or
(b)
affected by the decision of a court in such proceedings.
(3)
For the purposes of subsection (1)(a) a power to grant permission to appeal out
of time must be ignored.
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(4)
Each of the following is an immigration authority—
(a)
the Secretary of State;
(b)
an immigration officer;
(c)
a person responsible for the grant or refusal of entry clearance (within
the meaning of section 33(1) of the Immigration Act 1971).
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(5)
The immigration provisions are—
(a)
the Special Immigration Appeals Commission Act 1997, or
(b)
Part 5 of the Nationality, Immigration and Asylum Act 2002.
(6)
A relevant decision is—
(a)
a decision under the Immigration Acts relating to the entitlement of a
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person to enter or remain in the United Kingdom;
(b)
a decision on an appeal under the immigration provisions relating to a
decision within paragraph (a).
(7)
An appeal is pending if it is pending for the purposes of section 104 of the
Nationality, Immigration and Asylum Act 2002 or (as the case may be) for the
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purposes of that section as it is applied by section 2(2)(j) of the Special
Immigration Appeals Commission Act 1997.
110
Education cases
(1)
A claim is within this section if it may be made to—
(a)
the First-tier Tribunal in accordance with Part 2 of Schedule 17,
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(b)
the Special Educational Needs Tribunal for Wales in accordance with
Part 2 of that Schedule, or
(c)
an Additional Support Needs Tribunal for Scotland in accordance with
Part 3 of that Schedule.
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Equality Bill
Part 9 — Enforcement
Chapter 2 — Civil courts

Background
368. The position for England and Wales remains unchanged. As noted in relation to clause
108 the Bill for the first time enables disability discrimination in schools cases in Scotland to
be heard in the Additional Support Needs Tribunals (Scotland) rather than the sheriff courts,
where they are heard at present.
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Clause 111: National security
Effect
369. A county or sheriff court may need to take various steps during proceedings in order
to safeguard national security. This clause enables the Civil Procedure Rules Committee (for
England and Wales) and the Sheriff Court Rules Council (for Scotland) to make rules of court
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to enable the court to exclude a claimant, representative or assessor from part or all of the
proceedings; permit a claimant or representative who has been excluded to make a statement
before the proceedings begin; and ensure that part or all of the reasons for a decision on the
merits of the case are kept secret. Where the claimant or his or her representative is excluded
from proceedings, a special advocate can be appointed to represent the claimant’s interests.
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Background
370. This provision is designed to replicate and extend powers in current legislation. The
existing powers apply in relation to some discrimination proceedings but not to those
involving sexual orientation and age. This provision extends the power so that it applies
across all the protected characteristics.
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Clause 112: Time limits
Effect
371. A person must bring a claim under the Bill in the county and sheriff courts within six
months of the alleged unlawful act taking place. If a person wants to make a claim after that
period it is at the courts’ discretion whether they grant permission to allow this. The test
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applied by the courts is what is “just and equitable” in the circumstances. This test is used to
decide whether to extend time limits in other types of claims such as negligence personal
injury claims and is used in the current legislation.
372. The exception to this rule is for claims which have been referred to a student
complaints scheme within six months or to the Equality and Human Rights Commission for
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conciliation. In these instances the time limit for bringing a claim is increased to nine months.
The six month period will only begin, in a claim involving a decision of an immigration body,
when that body has ruled that there is a breach of Part 3 and that ruling can no longer be
appealed.
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Equality Bill
Part 9 — Enforcement
Chapter 2 — Civil courts

(2)
A claim is also within this section if it must be made in accordance with appeal
arrangements within the meaning of Part 4 of that Schedule.
(3)
Schedule 17 (disabled pupils: enforcement) has effect.
111
National security
(1)
Rules of court may, in relation to proceedings on a claim within section 108,
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confer power as mentioned in subsections (2) to (4); but a power so conferred
is exercisable only if the court thinks it expedient to do so in the interests of
national security.
(2)
The rules may confer power to exclude from all or part of the proceedings—
(a)
the claimant or pursuer;
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(b)
a representative of the claimant or pursuer;
(c)
an assessor.
(3)
The rules may confer power to permit a claimant, pursuer or representative
who has been excluded to make a statement to the court before the
commencement of the proceedings, or part of the proceedings, to which the
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exclusion relates.
(4)
The rules may confer power to take steps to keep secret all or part of the
reasons for the court’s decision.
(5)
The Attorney General or, in Scotland, the Advocate General for Scotland may
appoint a person to represent the interests of a claimant or pursuer in, or in any
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part of, proceedings to which an exclusion by virtue of subsection (2)(a) or (b)
relates.
(6)
A person (P) may be appointed under subsection (5) only if—
(a)
in relation to proceedings in England and Wales, P is a person who, for
the purposes of the Legal Services Act 2007, is an authorised person in
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relation to an activity which constitutes the exercise of a right of
audience or the conduct of litigation;
(b)
in relation to proceedings in Scotland, P is an advocate or qualified to
practice as a solicitor in Scotland.
(7)
P is not responsible to the person whose interests P is appointed to represent.
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112
Time limits
(1)
Proceedings on a claim within section 108 may not be brought after the end
of—
(a)
the period of 6 months starting with the date of the act to which the
claim relates, or
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(b)
such other period as the county court or sheriff thinks just and
equitable.
(2)
If subsection (3) or (4) applies, subsection (1)(a) has effect as if for “6 months”
there were substituted “9 months”.
(3)
This subsection applies if—
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(a)
the claim relates to the act of a qualifying institution, and
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Equality Bill
Part 9 — Enforcement
Chapter 2 — Civil courts

373. Where the conduct in respect of which a claim under the Bill might arise continues
over a period of time, the time limit starts to run at the end of that period. Where it consists of
a failure to do something, the time limit starts to run when the person decides not to do the
thing in question. In the absence of evidence to the contrary, this is either when the person
does something which conflicts with doing the act in question; or at the end of the time when it
5
would have been reasonable for them to do the thing.
Background
374. This clause is designed to replicate the effect of provisions in the current legislation,
except that the provision allowing a longer time limit in respect of complaints referred to the
student complaints scheme and for conciliation by the Equality and Human Rights
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Commission is new.
Clause 113: Remedies
Effect
375. This clause gives powers to county and sheriff courts hearing claims under the Bill to
grant any remedy that the High Court or Court of Session in Scotland can grant in proceedings
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in tort or in a claim for judicial review. The main remedies available are damages (including
compensation for injuries to feelings), an injunction and a declaration. In cases based on
indirect discrimination, if the respondent proves that he or she did not intend to treat the
claimant unfavourably then the award of damages can not be considered until a court has
looked at the other remedies available to it.
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376. A court cannot grant some remedies, such as an injunction, if it would prejudice a
criminal investigation or proceedings.
377. Background
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Equality Bill
Part 9 — Enforcement
Chapter 2 — Civil courts

(b)
a complaint relating to the act is referred under the student complaints
scheme before the end of the period of 6 months starting with the date
of the act.
(4)
This subsection applies if—
(a)
the claim relates to a dispute referred for conciliation in pursuance of
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arrangements under section 27 of the Equality Act 2006, and
(b)
subsection (3) does not apply.
(5)
If it has been decided under the immigration provisions that the act of an
immigration authority in taking a relevant decision is a contravention of Part 3
(services and public functions), subsection (1) has effect as if for paragraph (a)
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there were substituted—
“(a)
the period of 6 months starting with the day after the expiry of
the period during which, as a result of section 108(2),
proceedings could not be brought in reliance on section
108(1)(a);”.
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(6)
For the purposes of this section—
(a)
conduct extending over a period is to be treated as done at the end of
the period;
(b)
failure to do a thing is to be treated as occurring when the person in
question decided on it.
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(7)
In the absence of evidence to the contrary, a person (P) is to be taken to decide
on failure to do a thing—
(a)
when P does an act inconsistent with doing the thing, or
(b)
if P does no inconsistent act, on the expiry of the period in which P
might reasonably have been expected to do the thing.
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(8)
In this section—
“immigration authority”, “immigration provisions” and “relevant
decision” each have the meaning given in section 109;
“qualifying institution” has the meaning given by section 11 of the Higher
Education Act 2004;
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“the student complaints scheme” means a scheme for the review of
qualifying complaints (within the meaning of section 12 of that Act)
that is provided by the designated operator (within the meaning of
section 13(5)(b) of that Act).
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Remedies
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(1)
This section applies if a county court or the sheriff finds that there has been a
contravention of a provision referred to in section 108(1).
(2)
The county court has power to grant any remedy which could be granted by
the High Court—
(a)
in proceedings in tort;
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(b)
on a claim for judicial review.
(3)
The sheriff has power to make any order which could be made by the Court of
Session—
(a)
in proceedings for reparation;
(b)
on a petition for judicial review.
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