Equality Bill

House of Commons

Session 2008 - 09
Internet Publications
Other Bills before Parliament

Equality Bill

Equality Bill
Part 11 — Advancement of equality
Chapter 1 — Public sector equality duty

(4)
A public authority specified in that Schedule in respect of certain specified
functions is subject to that duty only in respect of the exercise of those
functions.
(5)
A public function is a function that is a function of a public nature for the
purposes of the Human Rights Act 1998.
5
145
Power to specify public authorities
(1)
A Minister of the Crown may by order amend Part 1, 2 or 3 of Schedule 19.
(2)
The Welsh Ministers may by order amend Part 2 of Schedule 19.
(3)
The Scottish Ministers may by order amend Part 3 of Schedule 19.
(4)
The power under subsection (1), (2) or (3) may not be exercised so as to add an
10
entry—
(a)
to Part 1 relating to a relevant Welsh or Scottish authority or a cross-
border Welsh or Scottish authority;
(b)
to Part 2 relating to a person who is not a relevant Welsh authority;
(c)
to Part 3 relating to a person who is not a relevant Scottish authority.
15
(5)
A Minister of the Crown may by order amend Schedule 19 so as to make
provision relating to a cross-border Welsh or Scottish authority.
(6)
On the first exercise of the power under subsection (5) to add an entry relating
to a cross-border Welsh or Scottish authority to Schedule 19, a Minister of the
Crown must—
20
(a)
add a Part 4 to the Schedule for cross-border authorities, and
(b)
add the cross-border Welsh or Scottish authority to that Part.
(7)
Any subsequent exercise of the power under subsection (5) to add an entry
relating to a cross-border Welsh or Scottish authority to Schedule 19 must add
that entry to Part 4 of the Schedule.
25
(8)
An order may not be made under this section so as to extend the application of
section 143 unless the person making it considers that the extension relates to
a person by whom a public function is exercisable.
146
Power to specify public authorities: consultation and consent
(1)
Before making an order under a provision specified in the first column of the
30
Table, a Minister of the Crown must consult the person or persons specified in
the second column.
107

Equality Bill
Part 11 — Advancement of equality
Chapter 1 — Public sector equality duty

authority or a cross-border Scottish authority, there is a requirement to consult the Scottish
Ministers.
480. The clause also provides that, before the Welsh Ministers amend Part 2 of the
Schedule with respect to relevant Welsh authorities, they must first consult Equality and
Human Rights Commission and obtain the consent of a Minister of the Crown. The same
5
requirements apply to Scottish Ministers with respect to Part 3 of the Schedule and relevant
Scottish authorities.
Background
481. The Race Relations Act 1976 does not contain a requirement for the Lord Privy Seal
to consult before amending the Schedule of bodies subject to the general race equality duty.
10
Neither the Scottish Ministers nor the Welsh Ministers have the power to amend the Schedule.
The Disability Discrimination Act 1995 and the Sex Discrimination Act 1975 do not adopt a
list-based approach to the general duty.
Clause 147: Power to impose specific duties
Effect
15
482. This clause enables a Minister of the Crown to make regulations imposing specific
duties on public authorities listed in Part 1 of Schedule 19 to enable them to carry out the
public sector equality duty more effectively. The Welsh Ministers can similarly impose
specific duties on relevant Welsh authorities listed in Part 2 of the Schedule, and the Scottish
Ministers can impose specific duties on relevant Scottish authorities listed in Part 3 of the
20
Schedule.
483. Clause 148 deal with the imposition of specific duties on public authorities listed in
Part 4 of the Schedule.
484. The Equality and Human Rights Commission must be consulted before specific duties
are imposed.
25
Background
485. This clause replaces similar provisions in current legislation for the Lord Privy Seal
and the Scottish Ministers to impose specific duties for the race and gender public sector
equality duties, and for the Secretary of State and the Scottish Ministers to impose specific
duties for the disability public sector equality duty. The Welsh Ministers currently do not have
30
the power to impose specific duties on Welsh authorities.
486. The power has in the past been used to require listed public authorities to prepare and
publish race, disability and gender equality schemes.
E108

Equality Bill
Part 11 — Advancement of equality
Chapter 1 — Public sector equality duty

Provision
Consultees

Section 145(1)
The Commission

Section 145(1), so far as relating to a
The Welsh Ministers

relevant Welsh authority

Section 145(1), so far as relating to a
The Scottish Ministers

5

relevant Scottish authority

Section 145(5)
The Commission

Section 145(5), so far as relating to a
The Welsh Ministers

cross-border Welsh authority

Section 145(5), so far as relating to a
The Scottish Ministers

10

cross-border Scottish authority

(2)
Before making an order under section 145(2), the Welsh Ministers must—
(a)
obtain the consent of a Minister of the Crown, and
(b)
consult the Commission.
(3)
Before making an order under section 145(3), the Scottish Ministers must—
15
(a)
obtain the consent of a Minister of the Crown, and
(b)
consult the Commission.
147
Power to impose specific duties
(1)
A Minister of the Crown may by regulations impose duties on a public
authority specified in Part 1 of Schedule 19 for the purpose of enabling the
20
better performance by the authority of the duty imposed by section 143(1).
(2)
The Welsh Ministers may by regulations impose duties on a public authority
specified in Part 2 of Schedule 19 for that purpose.
(3)
The Scottish Ministers may by regulations impose duties on a public authority
specified in Part 3 of Schedule 19 for that purpose.
25
(4)
Before making regulations under this section, the person making them must
consult the Commission.
108

Equality Bill
Part 11 — Advancement of equality
Chapter 1 — Public sector equality duty

Clause 148: Power to impose specific duties: cross-border authorities
Effect
487. This clause sets out the process for determining who imposes specific duties on any
cross-border Welsh and Scottish authorities that may in time be added to Part 4 of the
Schedule.
5
488. Whenever a body is listed in Part 4 of the Schedule, beside its entry will appear a letter
corresponding to the procedure to be followed.
489. For all the procedures, the person imposing the specific duties must consult the
Equality and Human Rights Commission.
Background
10
490. In respect of the existing disability and gender public sector equality duties the
Scottish Ministers currently have the power to impose specific duties on the devolved
functions of Anglo-Scottish cross-border bodies, subject to consultation with the Lord Privy
Seal. The Lord Privy Seal has the power to impose specific duties on the non-devolved, or
reserved, functions of those Anglo-Scottish cross-border bodies, again subject to consultation
15
with the Scottish Ministers. Before imposing specific duties in respect of the existing race,
disability and gender public sector equality duties which relate to functions in Wales
exercisable by a person who is not a Welsh public authority, the Lord Privy Seal must consult
the Welsh Ministers.
E109

Equality Bill
Part 11 — Advancement of equality
Chapter 1 — Public sector equality duty

148
Power to impose specific duties: cross-border authorities
(1)
If a Minister of the Crown exercises the power in section 145(5) to add an entry
for a public authority to Part 4 of Schedule 19, the Minister must include after
the entry a letter specified in the first column of the Table in subsection (3).
(2)
Where a letter specified in the first column of the Table in subsection (3) is
5
included after an entry for a public authority in Part 4 of Schedule 19, the
person specified in the second column of the Table—
(a)
may by regulations impose duties on the authority for the purpose of
enabling the better performance by the authority of the duty imposed
by section 143(1), subject to such limitations as are specified in that
10
column;
(b)
must in making the regulations comply with the procedural
requirement specified in that column.
(3)
This is the Table—

Letter
Person by whom regulations may be made and procedural

15

requirements

A
Regulations may be made by a Minister of the Crown in

relation to the authority’s functions that are not

devolved Welsh functions.

The Minister of the Crown must consult the Welsh

20

Ministers before making the regulations.

Regulations may be made by the Welsh Ministers in

relation to the authority’s devolved Welsh functions.

The Welsh Ministers must consult a Minister of the

Crown before making the regulations.

25

B
Regulations may be made by a Minister of the Crown in

relation to the authority’s functions that are not

devolved Scottish functions.

The Minister of the Crown must consult the Scottish

Ministers before making the regulations.

30

Regulations may be made by the Scottish Ministers in

relation to the authority’s devolved Scottish functions.

The Scottish Ministers must consult a Minister of the

Crown before making the regulations.

C
Regulations may be made by a Minister of the Crown in

35

relation to the authority’s functions that are neither

devolved Welsh functions nor devolved Scottish

functions.

The Minister of the Crown must consult the Welsh

Ministers and the Scottish Ministers before making the

40

regulations.

Regulations may be made by the Welsh Ministers in

relation to the authority’s devolved Welsh functions.

The Welsh Ministers must consult a Minister of the

Crown before making the regulations.

45

Regulations may be made by the Scottish Ministers in

relation to the authority’s devolved Scottish functions.

The Scottish Ministers must consult a Minister of the

Crown before making the regulations.

D
The regulations may be made by a Minister of the

50

Crown.

The Minister of the Crown must consult the Welsh

Ministers before making the regulations.

109

Equality Bill
Part 11 — Advancement of equality
Chapter 1 — Public sector equality duty

Clause 149: Power to impose specific duties: supplementary
Effect
491. This clause provides that a specific duty imposed using the powers in clauses 147 and
148 may require public authorities to consider matters set out elsewhere by a Minister of the
Crown, or the Welsh or Scottish Ministers.
5
492. This clause also makes clear that a Minister of the Crown or the Welsh or Scottish
Ministers may impose specific duties on public authorities listed in Schedule 19 that are also
contracting authorities for public procurement purposes in relation to their public procurement
functions, for example when buying goods and services from a private firm. “Public
procurement functions” are those activities that fall within the European law public
10
procurement regime. The provisions on public procurement do not affect the extent of any
other provision that may be made using the powers in clauses 147 and 148 outside this
immediate field.
493. This clause also provides that a Minister of the Crown and the Welsh and Scottish
Ministers may modify or remove duties that they have imposed. A duty imposed by one
15
Minister of the Crown may be modified by a different Minister of the Crown.
Background
494. The current public sector equality duties do not provide for the imposition of specific
duties which require public authorities to take into account matters set out elsewhere. It is
inherent, but not explicit, in the current public sector equality duties that duties may be
20
imposed which apply to that body’s public procurement functions.
Examples
• A person exercising the power may decide to impose a specific duty that requires
specified public authorities to take into account particular national priorities set out in
a Public Service Agreement when setting their equality objectives.
25
E110

Equality Bill
Part 11 — Advancement of equality
Chapter 1 — Public sector equality duty

(4)
Before making regulations under subsection (2), the person making them must
consult the Commission.
149
Power to impose specific duties: supplementary
(1)
Regulations under section 147 or 148 may require a public authority to
consider such matters as may be specified from time to time by—
5
(a)
a Minister of the Crown, where the regulations are made by a Minister
of the Crown;
(b)
the Welsh Ministers, where the regulations are made by the Welsh
Ministers;
(c)
the Scottish Ministers, where the regulations are made by the Scottish
10
Ministers.
(2)
Regulations under section 147 or 148 may impose duties on a public authority
that is a contracting authority within the meaning of the Public Sector Directive
in connection with its public procurement functions.
(3)
In subsection (2)—
15
“public procurement functions” means functions the exercise of which is
regulated by the Public Sector Directive;
“the Public Sector Directive” means Directive 2004/18/EC of the
European Parliament and of the Council of 31 March 2004 on the
coordination of procedures for the award of public works contracts,
20
public supply contracts and public service contracts, as amended from
time to time.
(4)
Subsections (1) and (2) do not affect the generality of section 147 or 148(2)(a).
(5)
A duty imposed on a public authority under section 147 or 148 may be
modified or removed by regulations made by—
25
(a)
a Minister of the Crown, where the original duty was imposed by
regulations made by a Minister of the Crown;
(b)
the Welsh Ministers, where the original duty was imposed by
regulations made by the Welsh Ministers;
110