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Equality Bill


 

Equality Bill
Part 15 — General and miscellaneous

 
 

(a)   

selecting one or more persons to represent a country, place or area or a

related association, in a sport or game or other activity of a competitive

nature;

(b)   

doing anything in pursuance of the rules of a competition so far as

relating to eligibility to compete in a sport or game or other such

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activity.

189     

General

Schedule 23 (general exceptions) has effect.

190     

Age

(1)   

A Minister of the Crown may by order amend this Act to provide that any of

10

the following does not contravene this Act so far as relating to age—

(a)   

specified conduct;

(b)   

anything done for a specified purpose;

(c)   

anything done in pursuance of arrangements of a specified description.

(2)   

Specified conduct is conduct—

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(a)   

of a specified description,

(b)   

carried out in specified circumstances, or

(c)   

by or in relation to a person of a specified description.

(3)   

This section is not affected by any provision of this Act which makes special

provision in relation to age.

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(4)   

The references to this Act in subsection (1) do not include references to—

(a)   

Part 5 (work);

(b)   

Chapter 2 of Part 6 (further and higher education).

Part 15

General and miscellaneous

25

Community obligations

135


 

Equality Bill
Part 15 — General and miscellaneous

 
 

Part 15: General

Clause 191 Harmonisation

Effect

605. This clause enables a Minister of the Crown to amend the Act resulting from the Bill

and the Equality Act 2006, to ensure consistency across the legislation where changes required

5

by European law would otherwise result in inconsistent provision. Section 2(2)(a) of the

European Communities Act 1972 allows a Minister by regulations or order to give effect to a

right or obligation arising out of a Community law provision. Where provisions of this Bill

and equality law of the UK more generally deal with a sector on a single basis some of the

matters covered may not be within the reach of European community law and so outside

10

s.2(2)(a). This arises for instance in the case of nationally and colour which are not dealt with

under the Community law provisions on race discrimination but are covered by the UK

provisions. Section 2(2)(b) of the European Communities Act 1972 would not allow

amendment of all relevant parts of the legislation in these circumstances, because the change

required in respect of, say nationality or colour, would not be consequential on or arising out

15

of the Community obligation. In order to retain the unitary approach to discrimination law it is

necessary to have a power such as this so that in appropriate cases amendments can also be

made to those areas of the Bill unaffected by new Community law obligations

606. A Minister may use this power only after consulting interested parties, and any

regulations must be laid before each House of Parliament for approval. A Minister must report

20

to Parliament every five years on use of this power.

Background

607. This is a new provision designed to ensure that the areas of the Bill that are covered by

European law and those that are domestic in origin do not get out of step, as was the case with

the current legislation.

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Example

• A future European Court of Justice judgment on the Race Directive requires an

amendment to alter the definition of indirect discrimination. This power could be used

to ensure that any such amendment applies to the “colour and nationality” elements of

race in the Bill, as well as those in relation to which EU law applies.

30

Clause 192: Crown application

Effect

608. This clause sets out how the Bill applies to Ministers, government departments and

certain statutory bodies – collectively known as the Crown. The clause does not affect the

Sovereign in her private capacity.

35

E136


 

Equality Bill
Part 15 — General and miscellaneous

 
 

191     

Harmonisation

(1)   

This section applies if—

(a)   

there is a Community obligation of the United Kingdom which a

Minister of the Crown thinks relates to the subject matter of the

5

Equality Acts,

(b)   

the obligation is to be implemented by the exercise of the power under

section 2(2) of the European Communities Act 1972 (the implementing

power), and

(c)   

the Minister thinks that it is appropriate to make harmonising

10

provision in the Equality Acts.

(2)   

The Minister may by order make the harmonising provision.

(3)   

Before making the order, the Minister must consult persons and organisations

the Minister thinks are likely to be affected by the harmonising provision.

(4)   

The consultation must be in such form or manner as the Minister thinks

15

appropriate.

(5)   

Unless the Minister thinks that the making of the order is a matter of urgency,

the Minister must not make the order before the end of the period of 12 weeks

after the consultation starts.

(6)   

The Equality Acts are the Equality Act 2006 and this Act.

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(7)   

Harmonising provision is provision made in relation to relevant subject matter

of the Equality Acts—

(a)   

which corresponds to the implementing provision, or

(b)   

which the Minister thinks is necessary or expedient in consequence of

or related to provision made in pursuance of paragraph (a) or the

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implementing provision.

(8)   

The implementing provision is provision made or to be made in exercise of the

implementing power in relation to so much of the subject matter of the

Equality Acts as implements a Community obligation.

(9)   

Relevant subject matter of the Equality Acts is so much of the subject matter of

30

those Acts as does not implement a Community obligation.

(10)   

A harmonising provision may amend a provision of the Equality Acts.

(11)   

The reference to this Act does not include a reference to this section or Schedule

24 or to a provision specified in that Schedule.

(12)   

A Minister of the Crown must report to Parliament on the exercise of the power

35

under subsection (2)—

(a)   

at the end of the period of 5 years starting on the day this section comes

into force;

(b)   

at the end of each succeeding period of 5 years.

Application

40

192     

Crown application

(1)   

The following provisions of this Act bind the Crown—

(a)   

Part 1 (public sector duty regarding socio-economic inequalities);

136


 

Equality Bill
Part 15 — General and miscellaneous

 
 

Background

609. This clause replicates the effect of similar provisions in current legislation. The

principle is that the machinery of government, both elected and administrative, should be

subject to the Bill in the same way as everybody else, unless there are good reasons for it not

being. The clause also replicates the arrangements in the current discrimination legislation for

5

taking proceedings against the Crown.

Example

• A government department as employer must not discriminate against an employee on

the grounds of race, just as any other employer is prohibited from doing so under the

Bill.

10

Clause 193: Information society services

Effect

610. This clause gives effect to Schedule 24, which sets out how the clauses which make it

unlawful to discriminate against, harass or victimise a person because of a protected

characteristic apply to information society service providers (see the explanatory notes to

15

Schedule 24).

Background

611. The provisions in Schedule 24 are new.

Clause 194: Exercise of power

612. This clause makes provision for the powers to make secondary legislation under the

20

Bill. Unless it is stated otherwise, they will be exercised by a Minister of the Crown and be

statutory instruments. It also provides that orders and regulations may deal with different

situations differently and include consequential and other provisions dealing with transition to

the new provisions. Under subsection (6), in some cases, such as on commencement of the

provisions of the Act the consequential provision can be used to amend an enactment and can

25

make specific provision to deal with situations that exist at the time the provisions come into

force.

E137


 

Equality Bill
Part 15 — General and miscellaneous

 
 

(b)   

Part 3 (services and public functions), so far as relating to the exercise

of public functions;

(c)   

Chapter 1 of Part 11 (public sector equality duty).

(2)   

Part 5 (work) binds the Crown as provided for by that Part.

(3)   

The remainder of this Act applies to Crown acts as it applies to acts done by a

5

private person.

(4)   

For the purposes of subsection (3), an act is a Crown act if (and only if) it is

done—

(a)   

by or on behalf of a member of the executive;

(b)   

by a statutory body acting on behalf of the Crown;

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(c)   

by or on behalf of the holder of a statutory office acting on behalf of the

Crown.

(5)   

A statutory body or office is a body or office established by an enactment.

(6)   

The provisions of Parts 2 to 4 of the Crown Proceedings Act 1947 apply to

proceedings against the Crown under this Act as they apply to proceedings in

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England and Wales which, as a result of section 23 of that Act, are treated for

the purposes of Part 2 of that Act as civil proceedings by or against the Crown.

(7)   

The provisions of Part 5 of that Act apply to proceedings against the Crown

under this Act as they apply to proceedings in Scotland which, as a result of

that Part, are treated as civil proceedings by or against the Crown.

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(8)   

But the proviso to section 44 of that Act (removal of proceedings from the

sheriff to the Court of Session) does not apply to proceedings under this Act.

193     

Information society services

Schedule 25 (information society services) has effect.

Subordinate legislation

25

194     

Exercise of power

(1)   

A power to make an order or regulations under this Act is exercisable by a

Minister of the Crown, unless expressly provided to the contrary.

(2)   

Orders, regulations or rules under this Act must be made by statutory

instrument.

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137


 

Equality Bill
Part 15 — General and miscellaneous

 
 

Clause 195: Ministers of the Crown

Effect

613. This clause establishes which Parliamentary procedures apply to the regulations and

orders which can be made by Ministers of the Crown under the Bill.

Background

5

614. In common with any Bill containing powers to make secondary legislation, this clause

is needed to set out the arrangements for how Parliament is to control the use of powers in the

Bill. It provides for any instrument amending any Act (including the Act resulting from this

Bill), any Act of the Scottish Parliament or Act or Measure of the Welsh Assembly to be made

only using the affirmative procedure. There are some exceptions. In a few other cases – for

10

example where regulations under clause 73 are made to introduce a requirement on employers

to report on their gender pay gap the affirmative procedure must also be used and the relevant

order or regulations must be approved by both Houses of Parliament before they can come into

force.

E138


 

Equality Bill
Part 15 — General and miscellaneous

 
 

(3)   

Subsection (2) does not apply to—

(a)   

a transitional exemption order under Part 1 of Schedule 11,

(b)   

a transitional exemption order under Part 1 of Schedule 12, or

(c)   

an order under paragraph 1(3) of Schedule 14 that does not modify an

enactment.

5

(4)   

Orders or regulations under this Act—

(a)   

may make different provision for different purposes;

(b)   

may include consequential, incidental, supplementary, transitional,

transitory or saving provision.

(5)   

Nothing in section 156(4), 167(4) or 175(3) affects the generality of the power

10

under subsection (4)(a).

(6)   

The power under subsection (4)(b), in its application to section 147, 148(2),

149(5), 190 or 203 or to paragraph 7(1) of Schedule 11 or paragraph 1(3) or 2(3)

of Schedule 14, includes power to amend an enactment (including, in the case

of section 190, this Act).

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195     

Ministers of the Crown

(1)   

This section applies where the power to make an order or regulations under

this Act is exercisable by a Minister of the Crown.

(2)   

A statutory instrument containing (whether alone or with other provision) an

order or regulations that amend this Act or another Act of Parliament, or an

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Act of the Scottish Parliament or an Act or Measure of the National Assembly

for Wales, is subject to the affirmative procedure.

(3)   

But a statutory instrument is not subject to the affirmative procedure by virtue

of subsection (2) merely because it contains—

(a)   

an order under section 2 (socio-economic inequalities);

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(b)   

an order under section 56 (local authority functions);

(c)   

an order under section 145 (power to specify public authorities for the

purposes of the public sector equality duty);

(d)   

an order under paragraph 1(3) of Schedule 14 that modifies an

enactment (educational charities and endowments).

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(4)   

A statutory instrument containing (whether alone or with other provision) an

order or regulations mentioned in subsection (5) is subject to the affirmative

procedure.

(5)   

The orders and regulations referred to in subsection (4) are—

(a)   

regulations under section 28 (services: ships and hovercraft);

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(b)   

regulations under section 73 (gender pay gap information);

(c)   

regulations under section 76 (work: ships and hovercraft);

(d)   

an order under section 100 (election candidates: expiry of provision);

(e)   

regulations under section 147 or 148(2) (public sector equality duty);

(f)   

regulations under section 177(4) (rail vehicle accessibility: procedure

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for exemption orders);

(g)   

an order under section 191 (Community obligations: harmonisation);

(h)   

regulations under paragraph 9(3) of Schedule 20 (rail vehicle

accessibility: determination of turnover for purposes of penalties).

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