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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

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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.

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(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—

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(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.

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(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

 

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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

 

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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

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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.

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(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

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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.

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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)—

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“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,

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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


 
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