(30-36)

House of Commons

Session 2008 - 09
Internet Publications
Other Bills before Parliament

(30-36)

Schedule 3 — Services and public functions: exceptions
Part 2 — Education

(b)
the exercise of its functions under section 1 of that Act, section 2 of
the Standards in Scotland’s Schools etc. Act 2000 (asp 6) or section 4
or 5 of the Education (Additional Support for Learning) (Scotland)
Act 2004 (asp 4) (general responsibility for education) in so far as it
relates to a matter specified in paragraph (a);
(c)
the exercise of its functions under subsection (1) of section 50 of the
Education (Scotland) Act 1980 (education of pupils in exceptional
circumstances) in so far as it consists of making arrangements of the
description referred to in subsection (2) of that section.
8     (1)
In its application to a local authority in England and Wales or an education
authority, section 27, so far as relating to sex discrimination, does not apply
to the exercise of the authority’s functions in relation to the establishment of
a school.
      (2)
But nothing in sub-paragraph (1) is to be taken as disapplying section 27 in
relation to the exercise of the authority’s functions under section 14 of the
Education Act 1996 or section 17 of the Education (Scotland) Act 1982.
9
Section 27, so far as relating to age discrimination, does not apply in relation
to anything done in connection with—
(a)
the curriculum of a school,
(b)
admission to a school,
(c)
transport to or from a school, or
(d)
the establishment, alteration or closure of schools.
10    (1)
Section 27, so far as relating to disability discrimination, does not require a
local authority in England or Wales exercising functions under the
Education Acts or an education authority exercising relevant functions—
(a)
to remove or alter a physical feature;
(b)
to provide auxiliary aids or services.
      (2)
Relevant functions are functions under—
(a)
the Education (Scotland) Act 1980;
(b)
the Education (Scotland) Act 1996;
(c)
the Standards in Scotland’s Schools etc. Act 2000;
(d)
the Education (Additional Support for Learning) (Scotland) Act
2004.
11
Section 27, so far as relating to religious or belief-related discrimination,
does not apply in relation to anything done in connection with—
(a)
the curriculum of a school;
(b)
admission to a school which has a religious ethos;
(c)
acts of worship or other religious observance organised by or on
behalf of a school (whether or not forming part of the curriculum);
(d)
the responsible body of a school which has a religious ethos;
(e)
transport to or from a school;
(f)
the establishment, alteration or closure of schools.
12
This Part of this Schedule is to be construed in accordance with Chapter 1 of
Part 6.
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Schedule 3 — Services and public functions: exceptions
Part 2 — Education

657. Examples
• a public authority will not be open to claims of religions discrimination as a result of
its decision to establish, alter or close a faith school.
• a local authority can select a person of a particular religion or belief to be a governor
of a school with a religious ethos..
658. Part 3: Health and care
Blood services: paragraph 13
Effect
657. Paragraph 13 provides that it is not unlawful for a person operating a blood service to
refuse to accept someone’s donation of blood provided they have reliable evidence that
accepting it would put the public or the individual donor at risk and that such a refusal would
not be unreasonable.
658. A blood service is a service that collects donations of human blood and blood
components to use for medical purposes, for example the NHS Blood and Transplant Special
Health Authority.
659. “Blood” includes components, for instance plasma or red blood cells.
Background
660. This provision is designed to replicate the effect of Regulation 28 of the Equality Act
(Sexual Orientation) Regulations 2007, and extend the exception to the other protected
characteristics. It also provides that a refusal to allow somebody to donate blood or blood
components because of a risk to the donor’s own health would not be unlawful.
• Examples
• If there is evidence that people who have been sexually active in a particular country
are more likely to be infected with HIV, the operator of the blood service can refuse to
accept donations of blood or blood components from people who have been sexually
active there, even if that disproportionately affects members of a particular nationality
and so might otherwise be unlawful indirect discrimination on the grounds of race.
If there is evidence that women who have recently given birth are likely to suffer detrimental
effects from giving blood or blood components, then a blood service can refuse to accept
donations from them. This would not be unlawful direct discrimination on the grounds of
maternity.
Health and Safety: paragraph 14
Effect
661. Paragraph 14 provides that it is not unlawful for a person to discriminate against a
pregnant woman by refusing to provide her with a service or only providing the service to her
on certain conditions if they reasonably believe that to do otherwise would create a risk to her
health or safety and they would take similar measures in respect of persons with other physical
conditions.
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Schedule 3 — Services and public functions: exceptions
Part 3 — Health and care

Part 3
Health and care
Blood services
13    (1)
A person operating a blood service does not contravene section 27 only by
refusing to accept a donation of an individual’s blood if—
(a)
the refusal is because of an assessment of the risk to the public, or to
the individual, based on clinical, epidemiological or other data
obtained from a source on which it is reasonable to rely, and
(b)
the refusal is reasonable.
      (2)
A blood service is a service for the collection and distribution of human
blood for the purposes of medical services.
      (3)
“Blood” includes blood components.
Health and safety
14    (1)
A service-provider (A) who refuses to provide the service to a pregnant
woman does not discriminate against her in contravention of section 27
because she is pregnant if—
(a)
A reasonably believes that providing her with the service would,
because she is pregnant, create a risk to her health or safety,
(b)
A refuses to provide the service to persons with other physical
conditions, and
(c)
the reason for that refusal is that A reasonably believes that
providing the service to such persons would create a risk to their
health or safety.
      (2)
A service-provider (A) who provides, or offers to provide, the service to a
pregnant woman on conditions does not discriminate against her in
contravention of section 27 because she is pregnant if—
(a)
the conditions are intended to remove or reduce a risk to her health
or safety,
(b)
A reasonably believes that the provision of the service without the
conditions would create a risk to her health or safety,
(c)
A imposes conditions on the provision of the service to persons with
other physical conditions, and
(d)
the reason for the imposition of those conditions is that A reasonably
believes that the provision of the service to such persons without
those conditions would create a risk to their health or safety.
Care within the family
15
A person (A) does not contravene section 27 only by participating in
arrangements under which (whether or not for reward) A takes into A’s
home, and treats as members of A’s family, persons requiring particular care
and attention.
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Schedule 3 — Services and public functions: exceptions
Part 3 — Health and care

Background
662. Provisions making it unlawful for a person to discriminate against a pregnant woman
in the provision of services were introduced into the Sex Discrimination Act 1975 by the Sex
Discrimination (Amendment) Regulations 2008. Those provisions contain an equivalent
exception on health and safety grounds.
Example
• A leisure centre could refuse to allow a pregnant woman to use certain gym equipment
(for example, a rowing machine) after a certain point in her pregnancy if it reasonably
believed that allowing her to use the equipment would create a risk to her health and
safety and it would also refuse, for example, to allow a man with a serious heart
condition to use the equipment.
• An airline could refuse to allow a pregnant woman to travel beyond her 35th week of
pregnancy if it reasonably believed that allowing her to travel would create a risk to
her health and safety and it would also refuse people with other physical conditions to
travel.
Care within the family: paragraph 15
Effect
663. Paragraph 15 is designed to ensure that people who provide foster care, or other
similar forms of care, in their own home are not subject to the prohibitions on discriminating
against, harassing or victimising a person in the provision of services while providing that
care.
664. It applies irrespective of whether or not the person is paid for providing the care
service.
Background
665. Similar provisions exist in current legislation for race, religion or belief and sexual
orientation. This provision extends the exception to all of the protected characteristics.
Examples
• A Muslim family could choose to foster only a child of the same religion. This would
not constitute discrimination against a non-Muslim child.
• A woman who is the main carer for her mother decides to provide care for another
person too, and decides to restrict any offer of care to another woman. This would not
constitute discrimination against a man who needed similar care.
Part 4: Immigration
Disability: paragraph 16
Effect
666. Paragraph 16 provides an exception from the prohibition on discriminating against a
person when providing a service or exercising a public function because they have a disability,
in relation to certain immigration decisions, including making a decision not to allow someone
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Schedule 3 — Services and public functions: exceptions
Part 4 — Immigration

Part 4
Immigration
Disability
16    (1)
This paragraph applies in relation to disability discrimination.
      (2)
Section 27 does not apply to—
(a)
a decision within sub-paragraph (3);
(b)
anything done for the purposes of or in pursuance of a decision
within that sub-paragraph.
      (3)
A decision is within this sub-paragraph if it is a decision (whether or not
taken in accordance with immigration rules) to do any of the following on
the ground that doing so is necessary for the public good—
(a)
to refuse entry clearance;
(b)
to refuse leave to enter or remain in the United Kingdom;
(c)
to cancel leave to enter or remain in the United Kingdom;
(d)
to vary leave to enter or remain in the United Kingdom;
(e)
to refuse an application to vary leave to enter or remain in the United
Kingdom.
      (4)
Section 27 does not apply to—
(a)
a decision taken, or guidance given, by the Secretary of State in
connection with a decision within sub-paragraph (3);
(b)
a decision taken in accordance with guidance given by the Secretary
of State in connection with a decision within that sub-paragraph.
Nationality and ethnic or national origins
17    (1)
This paragraph applies in relation to race discrimination so far as relating
to—
(a)
nationality;
(b)
ethnic or national origins.
      (2)
Section 27 does not apply to anything done by a relevant person in the
exercise of functions exercisable by virtue of a relevant enactment.
      (3)
A relevant person is—
(a)
a Minister of the Crown acting personally, or
(b)
a person acting in accordance with a relevant authorisation.
      (4)
A relevant authorisation is a requirement imposed or express authorisation
given—
(a)
with respect to a particular case or class of case, by a Minister of the
Crown acting personally;
(b)
with respect to a particular class of case, by a relevant enactment or
by an instrument made under or by virtue of a relevant enactment.
      (5)
The relevant enactments are—
(a)
the Immigration Acts;
(b)
the Special Immigration Appeals Commission Act 1997;
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Schedule 3 — Services and public functions: exceptions
Part 4 — Immigration

to enter the country or a decision not to allow them to remain in the country. However, this
exception only applies where the decision is necessary for the public good.
Background
667. This is a new exception.
668. An express exception was not previously needed since the Disability Discrimination
Act 1995 did not prohibit direct discrimination in the provision of services or exercise of a
public function, and because disability related discrimination, which did apply to the provision
of services or exercise of a public function, could be justified if it was necessary not to
endanger the health or safety of any person.
Example
• A person who arrived at a British airport with TB could be refused entry if this was
considered necessary to protect the health of the general public.
Nationality and ethnic origin: paragraph 17
Effect
669. Paragraph 17 provides an exception from the prohibition on discriminating against a
person in the provision of services or the exercise of a public function on the grounds of their
ethnic or national origins or nationality, in relation to the exercise of immigration functions.
Background
670. This is designed to replicate the effect of an existing provision in the Race Relations
Act 1976.
Example
• Different visa requirements for nationals of different countries, which arise for a
variety of historical and political reasons, do not constitute unlawful race
discrimination.
• Granting asylum to members of a minority ethnic group being targeted by the majority
ethnic group in a country would similarly not be unlawful discrimination.
Religion or belief: paragraph 18
Effect
671. Paragraph 18 provides an exception from the prohibition on discriminating against a
person in the provision of services or the exercise of a public function on the grounds of their
religion or belief in relation to decisions not to allow someone to enter the country or to
remove someone from the country, if that decision is made on the grounds that it is conducive
to the public good to exclude that person from the country or it is not desirable to permit the
person to remain in United Kingdom.
672. It also provides an exception for decisions relating to an application for entry
clearance or leave to enter to cover people entering the country to provide services in
connection with religion or belief, such as a minister or clergyman.
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Schedule 3 — Services and public functions: exceptions
Part 4 — Immigration

(c)
a provision made under section 2(2) of the European Communities
Act 1972 which relates to immigration or asylum;
(d)
a provision of Community law which relates to immigration or
asylum.
      (6)
The reference in sub-paragraph (5)(a) to the Immigration Acts does not
include a reference to—
(a)
sections 28A to 28K of the Immigration Act 1971 (powers of arrest,
entry and search, etc.), or
(b)
section 14 of the Asylum and Immigration (Treatment of Claimants,
etc.) Act 2004 (power of arrest).
Religion or belief
18    (1)
This paragraph applies in relation to religious or belief-related
discrimination.
      (2)
Section 27 does not apply to a decision within sub-paragraph (3) or anything
done for the purposes of or in pursuance of a decision within that sub-
paragraph.
      (3)
A decision is within this sub-paragraph if it is a decision taken in accordance
with immigration rules—
(a)
to refuse entry clearance or leave to enter the United Kingdom, or to
cancel leave to enter or remain in the United Kingdom, on the
grounds that the exclusion of the person from the United Kingdom
is conducive to the public good, or
(b)
to vary leave to enter or remain in the United Kingdom, or to refuse
an application to vary leave to enter or remain in the United
Kingdom, on the grounds that it is undesirable to permit the person
to remain in the United Kingdom.
      (4)
Section 27 does not apply to a decision within sub-paragraph (5), or
anything done for the purposes of or in pursuance of a decision within that
sub-paragraph, if the decision is taken on grounds mentioned in sub-
paragraph (6).
      (5)
A decision is within this sub-paragraph if it is a decision (whether or not
taken in accordance with immigration rules) in connection with an
application for entry clearance or for leave to enter or remain in the United
Kingdom.
      (6)
The grounds referred to in sub-paragraph (4) are—
(a)
the grounds that a person holds an office or post in connection with
a religion or belief or provides a service in connection with a religion
or belief,
(b)
the grounds that a religion or belief is not to be treated in the same
way as certain other religions or beliefs, or
(c)
the grounds that the exclusion from the United Kingdom of a person
to whom paragraph (a) applies is conducive to the public good.
      (7)
Section 27 does not apply to—
(a)
a decision taken, or guidance given, by the Secretary of State in
connection with a decision within sub-paragraph (3) or (5);
155