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Part 14: General exceptions |
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Clause 184: Statutory provisions |
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588. This clause gives effect to Schedule 22, which allows differential treatment which |
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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 |
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people of particular religions or beliefs to be appointed to specified educational posts. It also |
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allows rules about Crown employment to provide for differential treatment on the basis of |
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Clause 185: National security |
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589. This clause ensures that the Bill does not make it unlawful to do anything which is |
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proportionate in order to safeguard national security. |
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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 |
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provides a national security exception in relation to age and sexual orientation discrimination |
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(8) | Subsections (2) to (7) apply only in so far as provision of a like nature is not |
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“improvement” means an alteration in or addition to the premises and |
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(a) | an addition to or alteration in the landlord’s fittings and |
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(b) | an addition or alteration connected with the provision of |
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services to the premises; |
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(c) | the erection of a wireless or television aerial; |
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(d) | carrying out external decoration. |
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“lease” includes a sub-lease or other tenancy, and “landlord” and “tenant” |
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are to be construed accordingly; |
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“protected tenancy” has the same meaning as in section 1 of the Rent Act |
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“statutory tenancy” must be construed in accordance with section 2 of that |
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“secure tenancy” has the same meaning as in section 79 of the Housing Act |
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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 |
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• Denying people of a particular nationality access to sensitive information is not |
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unlawful race discrimination under the Bill if it is proportionate in order to guard |
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against terrorist attacks. |
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591. This clause allows charities to provide benefits only to people who share the same |
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protected characteristic (for example sex, sexual orientation or disability), if this is in line with |
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their charitable instrument and if it is objectively justified or to prevent or compensate for |
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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 |
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592. Charities must not restrict benefits consisting of employment, contract work or |
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vocational training to people who share a protected characteristic, except that the clause does |
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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 |
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593. The clause also allows certain charities to make acceptance of a religion or belief a |
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condition of membership, if they have done so since before 18 May 2005. It also allows |
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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, |
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taking account of what is said in its charitable instrument, without contravening the Bill. |
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594. This clause replicates the effect of separate exceptions in current discrimination law |
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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 |
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• It is lawful for the Women’s Institute to provide educational opportunities only to |
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• It is lawful for the RNIB to employ, or provide special facilities for, visually impaired |
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people in preference to other disabled people. |
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• A charitable instrument enabling the provision of benefits to black members of a |
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community actually enables the benefits to be provided to all members of that |
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• It is lawful for the Scout Association to require boys joining the Scouts to promise to |
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do their best to do their duty to God. |
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(1) | A person does not contravene this Act only by restricting the provision of |
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benefits to persons who share a protected characteristic if— |
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(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). |
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(2) | The provision of benefits is within this subsection if it is— |
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(a) | a proportionate means of achieving a legitimate aim, or |
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(b) | for the purpose of preventing or compensating for a disadvantage |
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linked to the protected characteristic. |
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(3) | It is not a contravention of this Act for— |
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(a) | a person who provides supported employment to treat persons who |
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have the same disability or a disability of a prescribed description more |
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favourably than those who do not have that disability or a disability of |
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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 |
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supported employment which will, or may, have that effect. |
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(4) | If a charitable instrument enables the provision of benefits to persons of a class |
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defined by reference to colour, it has effect for all purposes as if it enabled the |
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provision of such benefits— |
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(a) | to persons of the class which results if the reference to colour is ignored, |
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(b) | if the original class is defined by reference only to colour, to persons |
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(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 |
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membership or acceptance of a religion or belief. |
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(6) | Subsection (5) applies only if— |
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(a) | the charity, or an organisation of which it is part, first imposed such a |
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requirement before 18 May 2005, and |
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(b) | the charity or organisation has not ceased since that date to impose |
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(7) | It is not a contravention of section 27 for a person, in relation to an activity |
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which is carried on for the purpose of promoting or supporting a charity, to |
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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 |
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in relation to a charity in a manner which the regulator thinks is expedient in |
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the interests of the charity, having regard to the charitable instrument. |
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(9) | Subsection (1) does not apply to a contravention of— |
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• Race for Life, a women-only event which raises money for Cancer Research UK, is |
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Clause 187: Charities: supplementary |
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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. |
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596. It explains what is meant by “charity” and related expressions used in clause 186. |
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597. This clause allows separate sporting competitions to continue to be organised for men |
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and women where physical strength, stamina or physique are major factors in determining |
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success or failure, and in which one sex is generally at a disadvantage in comparison with the |
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other. It also makes it lawful to restrict participation of transsexual people in such |
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competitions if this is necessary to uphold fair or safe competition, but not otherwise. |
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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” |
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competitions where participation is limited to people who meet a requirement relating to |
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nationality, place of birth or residence. |
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599. This clause replaces similar provisions in current discrimination law. |
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• It would be lawful to make men and women, though not necessarily younger boys and |
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girls, compete in separate 100 metre races. |
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• It would be lawful to require participants in a county tennis championship to have |
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been born in that county or to have lived there for a minimum period prior to the event. |
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(d) | section 52, so far as relating to the provision of vocational training. |
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(10) | Subsection (9) does not apply in relation to disability. |
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187 | Charities: supplementary |
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(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. |
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(a) | in relation to England and Wales, has the meaning given by the |
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(b) | in relation to Scotland, means a body entered in the Scottish Charity |
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(4) | “Charitable instrument” means an instrument establishing or governing a |
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charity (including an instrument made or having effect before the |
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commencement of this section). |
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(5) | The charity regulators are— |
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(a) | the Charity Commission for England and Wales; |
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(b) | the Scottish Charity Regulator. |
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(6) | “Supported employment” means facilities provided, or in respect of which |
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payments are made, under section 15 of the Disabled Persons (Employment) |
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(1) | A person does not contravene this Act, so far as relating to sex, only by doing |
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anything in relation to the participation of another as a competitor in a gender- |
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(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 |
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a transsexual person as a competitor in a gender-affected activity if it is |
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necessary to do so to secure in relation to the activity— |
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(b) | the safety of competitors. |
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(3) | A gender-affected activity is a sport, game or other activity of a competitive |
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nature in circumstances in which the physical strength, stamina or physique of |
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average persons of one sex would put them at a disadvantage compared to |
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average persons of the other sex as competitors in events involving the activity. |
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(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 |
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development of children who are likely to be competitors. |
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(5) | A person who does anything to which subsection (6) applies does not |
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contravene this Act only because of the nationality or place of birth of another |
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or because of the length of time the other has been resident in a particular area |
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(6) | This subsection applies to— |
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600. This clause gives effect to Schedule 23, which contains a number of general |
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exceptions to the prohibitions against discrimination and harassment, covering acts authorised |
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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. |
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601. This clause enables a Minister of the Crown to make orders setting out exceptions to |
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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 |
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particular purposes, or things done under particular arrangements, as set out in any order made |
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602. Orders under this power may amend primary legislation including the Act resulting |
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from this Bill and (under clause 194(2)) are subject to the affirmative resolution procedure. |
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603. This is a new provision designed to allow exceptions to be made from the new |
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prohibitions on age discrimination in the provision of services and the exercise of public |
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604. Appropriate age based treatment may include the following: |
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• concessionary travel for older and young people; |
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• disease prevention programmes such as cancer screening targeted at people in |
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particular age groups on the basis of clinical evidence; |
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• 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; |
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• holidays for particular age groups. |
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