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Session 2008 - 09
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Other Bills before Parliament

Equality Bill


 

Equality Bill
Part 13 — Disability: miscellaneous

 
 

Part 14: General exceptions

Clause 184: Statutory provisions

Effect

588. This clause gives effect to Schedule 22, which allows differential treatment which

would otherwise be made unlawful by specific parts of the Bill, where that is required by law.

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It also allows differential treatment of pregnant women for their own protection, and allows

people of particular religions or beliefs to be appointed to specified educational posts. It also

allows rules about Crown employment to provide for differential treatment on the basis of

nationality.

Clause 185: National security

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Effect

589. This clause ensures that the Bill does not make it unlawful to do anything which is

proportionate in order to safeguard national security.

Background

590. The clause replaces similar exceptions in current legislation, narrowing those which

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excuse disability discrimination in some areas or sex discrimination. For the first time, it

provides a national security exception in relation to age and sexual orientation discrimination

outside work.

E132


 

Equality Bill
Part 14 — General exceptions

 
 

(8)   

Subsections (2) to (7) apply only in so far as provision of a like nature is not

made by the lease.

(9)   

In this section—

“improvement” means an alteration in or addition to the premises and

includes—

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(a)   

an addition to or alteration in the landlord’s fittings and

fixtures;

(b)   

an addition or alteration connected with the provision of

services to the premises;

(c)   

the erection of a wireless or television aerial;

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(d)   

carrying out external decoration.

“lease” includes a sub-lease or other tenancy, and “landlord” and “tenant”

are to be construed accordingly;

“protected tenancy” has the same meaning as in section 1 of the Rent Act

1977;

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“statutory tenancy” must be construed in accordance with section 2 of that

Act;

“secure tenancy” has the same meaning as in section 79 of the Housing Act

1985.

Part 14

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General exceptions

184     

Statutory provisions

Schedule 22 has effect.

185     

National security

A person does not contravene this Act only by doing, for the purpose of

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safeguarding national security, anything it is proportionate to do for that

purpose.

132


 

Equality Bill
Part 14 — General exceptions

 
 

Example

• Denying people of a particular nationality access to sensitive information is not

unlawful race discrimination under the Bill if it is proportionate in order to guard

against terrorist attacks.

Clause 186: Charities

5

Effect

591. This clause allows charities to provide benefits only to people who share the same

protected characteristic (for example sex, sexual orientation or disability), if this is in line with

their charitable instrument and if it is objectively justified or to prevent or compensate for

disadvantage. It remains unlawful for them to limit their beneficiaries by reference to their

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colour – and if they do their charitable instrument will be applied as if that limitation did not

exist.

592. Charities must not restrict benefits consisting of employment, contract work or

vocational training to people who share a protected characteristic, except that the clause does

allow people to provide, and the Government to agree, arrangements for, supported

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employment only for people with the same disability, or disabilities of a description to be set

out in Regulations.

593. The clause also allows certain charities to make acceptance of a religion or belief a

condition of membership, if they have done so since before 18 May 2005. It also allows

single-sex activities for the purpose of promoting or supporting a charity (such as women only

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fun-runs), and allows the charity regulators to exercise their functions in a charity’s interests,

taking account of what is said in its charitable instrument, without contravening the Bill.

Background

594. This clause replicates the effect of separate exceptions in current discrimination law

allowing charities to benefit only people who share a protected characteristic, and creates new

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exceptions along these lines for charities benefiting only people of the same age group or with

the same disability.

Examples

• It is lawful for the Women’s Institute to provide educational opportunities only to

women.

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• It is lawful for the RNIB to employ, or provide special facilities for, visually impaired

people in preference to other disabled people.

• A charitable instrument enabling the provision of benefits to black members of a

community actually enables the benefits to be provided to all members of that

community.

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• It is lawful for the Scout Association to require boys joining the Scouts to promise to

do their best to do their duty to God.

E133


 

Equality Bill
Part 14 — General exceptions

 
 

186     

Charities

(1)   

A person does not contravene this Act only by restricting the provision of

benefits to persons who share a protected characteristic if—

(a)   

the person acts in pursuance of a charitable instrument, and

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(b)   

the provision of the benefits is within subsection (2).

(2)   

The provision of benefits is within this subsection if it is—

(a)   

a proportionate means of achieving a legitimate aim, or

(b)   

for the purpose of preventing or compensating for a disadvantage

linked to the protected characteristic.

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(3)   

It is not a contravention of this Act for—

(a)   

a person who provides supported employment to treat persons who

have the same disability or a disability of a prescribed description more

favourably than those who do not have that disability or a disability of

such a description in providing such employment;

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(b)   

a Minister of the Crown to agree to arrangements for the provision of

supported employment which will, or may, have that effect.

(4)   

If a charitable instrument enables the provision of benefits to persons of a class

defined by reference to colour, it has effect for all purposes as if it enabled the

provision of such benefits—

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(a)   

to persons of the class which results if the reference to colour is ignored,

or

(b)   

if the original class is defined by reference only to colour, to persons

generally.

(5)   

It is not a contravention of this Act for a charity to require members, or persons

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wishing to become members, to make a statement which asserts or implies

membership or acceptance of a religion or belief.

(6)   

Subsection (5) applies only if—

(a)   

the charity, or an organisation of which it is part, first imposed such a

requirement before 18 May 2005, and

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(b)   

the charity or organisation has not ceased since that date to impose

such a requirement.

(7)   

It is not a contravention of section 27 for a person, in relation to an activity

which is carried on for the purpose of promoting or supporting a charity, to

restrict participation in the activity to persons of one sex.

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(8)   

A charity regulator does not contravene this Act only by exercising a function

in relation to a charity in a manner which the regulator thinks is expedient in

the interests of the charity, having regard to the charitable instrument.

(9)   

Subsection (1) does not apply to a contravention of—

(a)   

section 36;

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(b)   

section 37;

133


 

Equality Bill
Part 14 — General exceptions

 
 

• Race for Life, a women-only event which raises money for Cancer Research UK, is

lawful.

Clause 187: Charities: supplementary

Effect

595. This clause makes it clear that clause 186 does not allow charities to restrict their

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benefits to people because of colour.

596. It explains what is meant by “charity” and related expressions used in clause 186.

Clause 188: Sport

Effect

597. This clause allows separate sporting competitions to continue to be organised for men

10

and women where physical strength, stamina or physique are major factors in determining

success or failure, and in which one sex is generally at a disadvantage in comparison with the

other. It also makes it lawful to restrict participation of transsexual people in such

competitions if this is necessary to uphold fair or safe competition, but not otherwise.

598. This clause allows the existing selection arrangements of national sports teams,

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regional or local clubs or related associations to continue. It also protects “closed”

competitions where participation is limited to people who meet a requirement relating to

nationality, place of birth or residence.

Background

599. This clause replaces similar provisions in current discrimination law.

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Examples

• It would be lawful to make men and women, though not necessarily younger boys and

girls, compete in separate 100 metre races.

• It would be lawful to require participants in a county tennis championship to have

been born in that county or to have lived there for a minimum period prior to the event.

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E134


 

Equality Bill
Part 14 — General exceptions

 
 

(c)   

section 38;

(d)   

section 52, so far as relating to the provision of vocational training.

(10)   

Subsection (9) does not apply in relation to disability.

187     

Charities: supplementary

(1)   

This section applies for the purposes of section 186.

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(2)   

That section does not apply to race, so far as relating to colour.

(3)   

“Charity”—

(a)   

in relation to England and Wales, has the meaning given by the

Charities Act 2006;

(b)   

in relation to Scotland, means a body entered in the Scottish Charity

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Register.

(4)   

“Charitable instrument” means an instrument establishing or governing a

charity (including an instrument made or having effect before the

commencement of this section).

(5)   

The charity regulators are—

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(a)   

the Charity Commission for England and Wales;

(b)   

the Scottish Charity Regulator.

(6)   

“Supported employment” means facilities provided, or in respect of which

payments are made, under section 15 of the Disabled Persons (Employment)

Act 1944.

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188     

Sport

(1)   

A person does not contravene this Act, so far as relating to sex, only by doing

anything in relation to the participation of another as a competitor in a gender-

affected activity.

(2)   

A person does not contravene section 27, 31, 32 or 33, so far as relating to

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gender reassignment, only by doing anything in relation to the participation of

a transsexual person as a competitor in a gender-affected activity if it is

necessary to do so to secure in relation to the activity—

(a)   

fair competition, or

(b)   

the safety of competitors.

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(3)   

A gender-affected activity is a sport, game or other activity of a competitive

nature in circumstances in which the physical strength, stamina or physique of

average persons of one sex would put them at a disadvantage compared to

average persons of the other sex as competitors in events involving the activity.

(4)   

In considering whether a sport, game or other activity is gender-affected in

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relation to children, it is appropriate to take account of the age and stage of

development of children who are likely to be competitors.

(5)   

A person who does anything to which subsection (6) applies does not

contravene this Act only because of the nationality or place of birth of another

or because of the length of time the other has been resident in a particular area

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or place.

(6)   

This subsection applies to—

134


 

Equality Bill
Part 14 — General exceptions

 
 

Clause 189: General

Effect

600. This clause gives effect to Schedule 23, which contains a number of general

exceptions to the prohibitions against discrimination and harassment, covering acts authorised

by statute or the Government, organisations relating to religion or belief, communal

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accommodation and training provided to people who are not resident in the EEA.

Clause 190: Age

Effect

601. This clause enables a Minister of the Crown to make orders setting out exceptions to

the prohibition on discriminating against people outside the workplace because of age if they

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are over 18. These exceptions can relate to particular conduct or practices, or things done for

particular purposes, or things done under particular arrangements, as set out in any order made

under this power

602. Orders under this power may amend primary legislation including the Act resulting

from this Bill and (under clause 194(2)) are subject to the affirmative resolution procedure.

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Background

603. This is a new provision designed to allow exceptions to be made from the new

prohibitions on age discrimination in the provision of services and the exercise of public

functions.

Examples

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604. Appropriate age based treatment may include the following:

• concessionary travel for older and young people;

• disease prevention programmes such as cancer screening targeted at people in

particular age groups on the basis of clinical evidence;

• age differences in the calculation of annuities and insurance programmes which are

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reasonable and based on adequate evidence of the underlying difference in risk;

• holidays for particular age groups.

E135


 
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