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Background

486.     This clause replaces section 71 of the Race Relations Act 1976, section 49A of the Disability Discrimination Act 1995 and section 76A of the Sex Discrimination Act 1975. These provisions impose similar public sector equality duties in relation to race, disability and gender (including pregnancy and maternity as an implicit part of gender, and partly covering gender reassignment) respectively. There are no equivalent public sector equality duties for age, religion or belief or sexual orientation in current legislation. The clause extends the new public sector equality duty to cover gender reassignment in full, age, religion or belief and sexual orientation.

Examples

  • The duty could lead a police authority to review its recruitment procedures to ensure they did not unintentionally deter applicants from ethnic minorities, with the aim of eliminating unlawful discrimination.

  • The duty could lead a local authority to target training and mentoring schemes at disabled people to enable them to stand as local councillors, with the aim of advancing equality of opportunity for different groups of people who have the same disability, and in particular encouraging their participation in public life.

  • The duty could lead a local authority to provide funding for a black women’s refuge for victims of domestic violence, with the aim of advancing equality of opportunity for women, and in particular meeting the different needs of women from different racial groups.

  • The duty could lead a large government department, in its capacity as an employer, to provide staff with education and guidance, with the aim of fostering good relations between its transsexual staff and its non-transsexual staff.

  • The duty could lead a local authority to review its use of internet-only access to council services; or focus “Introduction to Information Technology” adult learning courses on older people, with the aim of advancing equality of opportunity, in particular meeting different needs, for older people.

  • The duty could lead a school to review its anti-bullying strategy to ensure that it addresses the issue of homophobic bullying, with the aim of fostering good relations, and in particular tackling prejudice against gay and lesbian people.

  • The duty could lead a local authority to introduce measures to facilitate understanding and conciliation between Sunni and Shi’a Muslims living in a particular area, with the aim of fostering good relations between people of different religious beliefs.

Clause 146: Public authorities and public functions

Effect

487.     This clause supplements clause 145. It introduces the Schedule that lists the public bodies that are subject to the public sector equality duty and provides for them to be subject to this duty in respect of all of their functions unless such a body is listed only in respect of some of its functions, in which case the duty only applies to those specified functions.

488.     “Public function” is given the same meaning as it has in the Human Rights Act 1998. This term is used in subsection (2) of clause 145, which extends the public sector equality duty to persons not listed in the Schedule but who exercise public functions.

Background

489.     The public sector equality duties in current legislation specify which bodies are subject to the duties in different ways. The Race Relations Act 1976 uses a list, while the Disability Discrimination Act 1995 and the Sex Discrimination Act 1975 apply the disability equality duty and the gender equality duty to those who have “functions of a public nature”. The Bill combines the two approaches by including a list of public bodies subject to the duty, to provide legal certainty, and in addition applying the duty to anyone else who is exercising public functions (see subsection (2) of clause 145).

Clause 147: Power to specify public authorities

Effect

490.     The Schedule (Schedule 19) listing public bodies subject to the public sector equality duty will initially comprise 3 Parts. This clause enables a Minister of the Crown to make an order amending any of these parts of the Schedule. The changes might consist of adding a new body or removing an existing body, or moving a body from one Part of the Schedule to another. It also enables the Welsh Ministers and the Scottish Ministers, with the consent of a Minister of the Crown, to amend Parts 2 and 3 of the Schedule respectively, which list relevant Welsh and Scottish bodies subject to the duty.

491.     Relevant Welsh and Scottish bodies (as defined in clause 153) cannot be added to Part 1 of the Schedule. They must be included in Parts 2 and 3 respectively. Nor can cross-border Welsh and Scottish bodies (as defined in clause 153). Only a Minister of the Crown has the power to amend the Schedule in relation to cross-border Welsh and Scottish bodies. They must be added to what will become a new Part 4, which will be created when the first cross-border body is added to the Schedule.

492.     The power to add to the Schedule can only be used where the person exercising the power considers that the person being added is exercising at least one public function. This means that a wholly private company could not be added unless it were carrying out what the person exercising the power considered to be a public function.

Examples

  • A Minister of the Crown may decide that a new public body which has just been created should be included in the Schedule, and add it to the appropriate part.

  • A public body might cease its devolved activities, and so a Minister of the Crown might move it to part 1 of the Schedule from another part of the Schedule.

Clause 148: Power to specify public authorities: consultation and consent

Effect

493.     This clause sets out who a Minister of the Crown must consult before exercising a power under clause 147 to amend Schedule 19. On each occasion the Minister must consult Equality and Human Rights Commission. If the Minister is modifying the Schedule in respect of a relevant Welsh body, or a cross-border Welsh body, then he or she must also consult the Welsh Ministers. And similarly, if the amendment relates to a relevant Scottish body or a cross-border Scottish body, there is a requirement to consult the Scottish Ministers.

494.     The clause also provides that, before the Welsh Ministers amend Part 2 of the Schedule with respect to relevant Welsh bodies, they must first consult Equality and Human Rights Commission and obtain the consent of a Minister of the Crown. The same requirements apply to Scottish Ministers with respect to Part 3 of the Schedule and relevant Scottish bodies.

Background

495.     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. 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 149: Power to impose specific duties

Effect

496.     This clause enables a Minister of the Crown to make regulations imposing specific duties on public bodies 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 bodies listed in part 2 of the Schedule, and the Scottish Ministers can impose specific duties on relevant Scottish bodies listed in part 3 of the Schedule.

497.     Clause 150 deals with the imposition of specific duties on public bodies listed in part 4 of the Schedule.

498.     The Equality and Human Rights Commission must be consulted before specific duties are imposed.

Background

499.     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 the power to impose specific duties on Welsh bodies.

500.     The power has in the past been used to require listed public bodies to prepare and publish race, disability and gender equality schemes, for example.

Clause 150: Power to impose specific duties: cross-border authorities

Effect

501.     This clause sets out the process for determining who imposes specific duties on any cross-border Welsh and Scottish bodies that may in time be added to part 4 of the Schedule.

502.     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.

503.     For all the procedures, the person imposing the specific duties must consult the Equality and Human Rights Commission.

Background

504.     In respect of the existing race 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 or, in the case of the disability public sector equality duty, the Secretary of State. The Lord Privy Seal in relation to the race and gender public sector equality duties, or the Secretary of State in relation to the disability public sector equality duty, 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 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 or the Secretary of State as the case may be must consult the Welsh Ministers.

Clause 151: Power to impose specific duties: supplementary

Effect

505.     This clause provides that a specific duty imposed using the powers in clauses 149 and 150 may require public authorities to consider matters set out elsewhere by a Minister of the Crown, or the Welsh or Scottish Ministers.

506.     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 private firms. “Public procurement functions” are those activities that fall within the European law public 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 149 and 150 outside this field.

507.     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 Minister of the Crown may be modified by a different Minister of the Crown.

Background

508.     The current public sector equality duties do not provide for the imposition of specific duties which require public bodies 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 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 bodies to take into account particular national priorities set out in a Public Service Agreement when setting their equality objectives.

  • A person exercising the power may decide to impose a specific duty which requires contracting authorities to set out how they will use their procurement functions to better meet the requirements of the public sector equality duty.

Clause 152: Enforcement

Effect

509.     This clause is designed to make it clear that the duties imposed by or under Chapter 1 of Part 11 do not create any private law rights for individuals. These duties, are, however, enforceable by way of judicial review.

Background

510.     This clause is new, but it reflects the position under current legislation.

Example

  • A local council fails to give due regard to the requirements of the public sector equality duty when deciding to stop funding a local women’s refuge. An individual would not be able to sue the local council as a result and claim compensation. They would need to consider whether to pursue judicial review proceedings.

Clause 153: Interpretation

Effect

511.     This clause defines the terms used in this Chapter to refer to devolved issues.

512.     The other clauses in this Chapter refer to relevant Welsh and Scottish bodies, cross-border Welsh and Scottish bodies and devolved Welsh and Scottish functions. This clause explains what all those terms mean.

Chapter 2: Positive action

Clause 154: Positive action: general

Effect

513.     This clause provides that the Bill does not prohibit the use of positive action measures to alleviate disadvantage experienced by people who share a protected characteristic, reduce their under-representation in relation to particular activities, and meet their particular needs. It will, for example, allow measures to be targeted to particular groups, including training to enable them to gain employment, or health services to address their needs. Any such measures must be a proportionate way of achieving the relevant aim.

514.     The extent to which it is proportionate to take positive action measures which may result in people not having the relevant characteristic being treated less favourably will depend, among other things, on the seriousness of the relevant disadvantage, the extremity of need or under-representation and the availability of other means of countering them. This provision will need to be interpreted in accordance with European law which limits the extent to which the kind of action it permits will be allowed.

515.     To provide greater legal certainty about what action is proportionate in particular circumstances, the clause contains a power to make regulations setting out action which is not permitted under this clause.

516.     If positive action measures are taken in recruitment or promotion under clause 155(3) or the selection of political candidates under clause 101, those provisions will apply rather than this clause.

517.     Should the provision allowing single-sex shortlists for the selection of political candidates (clause 101 (7)) be repealed, this clause will not permit action to be taken similar to that permissible under that provision.

518.     This clause does not allow any action to be taken that would be prohibited by other legislation.

Background

519.     This clause is new. There are existing positive action provisions in current legislation, but these apply to different protected characteristics in different ways and in some cases are specific about the types of action they permit. This clause extends what is possible to the extent permitted by European law, and applies in relation to all protected characteristics.

Examples

  • Having identified that its white male pupils are underperforming at maths, a school could run supplementary maths classes exclusively for them.

  • An NHS Primary Care Trust identifies that lesbians are less likely to be aware that they are at risk of cervical cancer and less likely to access health services such as national screening programmes. It is also aware that those who do not have children do not know that they are at an increased risk of breast cancer. Knowing this it could decide to establish local awareness campaigns for lesbians on the importance of cancer screening.

Clause 155: Positive action: recruitment and promotion

Effect

520.     This clause permits an employer to take a protected characteristic into consideration when deciding who to recruit or promote, where people having the protected characteristic are at a disadvantage or are under-represented. This can be done only where the candidates are as qualified as each other. The question of whether one person is as qualified as another is not a matter only of academic qualification, but rather a judgement based on the criteria the employer uses to establish who is best for the job which could include matters such as suitability, competence and professional performance. The clause does not allow employers to have a policy or practice of automatically treating people who share a protected characteristic more favourably than those who do not have it in these circumstances; each case must be considered on its merits.

521.     The clause defines recruitment broadly, so that for example offers of partnership or pupillage, or tenancy in barristers’ chambers, are included.

522.     The clause is intended to allow the maximum extent of flexibility to address disadvantage and under-representation where candidates are as good as each other, within the confines of European law.

Background

523.     This clause is new. While current legislation allows employers to undertake a variety of positive action measures, for instance offering training and encouragement for certain forms of work, it does not allow employers to take any form of positive action at the actual point of recruitment or promotion. This clause extends what is possible to the extent permitted by European law, and applies in relation to all protected characteristics.

Examples

  • A police service which employs disproportionately low numbers of people from an ethnic minority background identifies a number of candidates who are as qualified as each other for recruitment and gives preferential selection to a candidate from an ethnic minority background. This would not be unlawful, provided the comparative merits of other candidates were also taken into consideration.

  • An employer offers a job to a woman on the basis that women are under-represented in the company’s workforce when there was a male candidate who was more qualified. This would be unlawful direct discrimination.

PART 12: DISABLED PERSONS: TRANSPORT

Chapter 1: Taxis etc.

Clause 156: Taxi accessibility regulations

Effect

524.     This clause contains a power for the Secretary of State to make regulations specifying the technical standards applying to licensed taxis and imposing requirements on taxi drivers, to enable disabled people to access taxis safely, even when seated in a wheelchair, and be carried in safety and reasonable comfort. It makes it an offence, punishable by a fine of up to £1,000, for a driver of a regulated taxi to fail to comply with the requirements of the regulations.

Background

525.     This clause is designed to replicate the effect of conditions in section 32 of the Disability Discrimination Act 1995.

526.     These conditions do not apply to taxis which are drawn by horses or other animals.

Examples

  • It would be an offence for a taxi driver not to comply with a requirement to have a ramp or other device to enable a disabled person in a wheelchair to access the taxi in safety.

  • It would be an offence for a taxi driver not to comply with a requirement to ensure the correct position of a wheelchair in the taxi so as to ensure the disabled person can travel in safety.

Clause 157: Designated transport facilities

Effect

527.     This clause enables the Secretary of State in England and Wales, or Scottish Ministers in Scotland, to make regulations applying taxi provisions contained in or made under Chapter 1 of Part 12 of the Bill or under section 20(2A) of the Civic Government (Scotland) Act 1982 to private hire vehicles used in the provision of services under a franchise agreement.

Background

528.     This clause is designed to replicate the effect of provisions in section 33 of the Disability Discrimination Act 1995.

529.     Franchise agreements exist between operators of transport facilities (premises which form part of railway stations, airports, ports and bus stations) and operators of private hire cars, in order to provide services to members of the public so that they can travel from, for example, the mainline station to their destination. This clause allows requirements to be placed on vehicles used under a franchise agreement and their drivers to ensure accessibility for disabled people.

Examples

530.     Regulations could require that the vehicles entering, and for use in, an airport to fulfil the terms of a franchise agreement must be accessible to wheelchair users.

Clause 158: Taxi licence conditional on compliance with taxi accessibility regulations

Effect

531.     This clause prevents a licensing authority granting a licence for a taxi to ply for hire unless the vehicle complies with the regulations made under clause 157, so as to ensure that licensed taxis in use are accessible by disabled passengers. The provisions do not apply if a taxi has been licensed in the preceding 28 days, so that existing vehicles can continue to be used even if they do not meet the accessibility requirements.

Background

532.     This clause is designed to replicate the effect of provisions in section 34 of the Disability Discrimination Act 1995.

Examples

  • Someone making an application for a taxi licence will need to ensure the taxi will be accessible by disabled people.

  • A driver renewing the licence for a taxi will not need to show that the vehicle meets the accessibility requirements as long as it was licensed in the 28 days preceding the grant of the new licence.

Clause 159: Exemption from taxi accessibility regulations

Effect

533.     This clause contains a power for the Secretary of State to make regulations allowing a licensing authority to apply for an order exempting it from the requirements of clause 158 if it has undertaken a consultation, published the outcome and taken into account any representations. A licensing authority may only apply for an exemption order if applying clause 158 would reduce the number of taxis in the area to an unacceptable level.

534.     The Secretary of State may grant or refuse such an order but, before deciding whether or not to do so, is required to consult the Disabled Persons Transport Advisory Committee and any other appropriate persons. In granting an exemption order, the Secretary of State may impose certain conditions. Where exemption is given from the full accessibility requirements, taxis may instead be required to be fitted with swivel seats and to conform to any safety conditions when such seats are in use.

Background

535.     This clause is designed to replicate the effect of provisions in section 35 of the Disability Discrimination Act 1995.

Example

  • A particular licensing area can apply for an exemption order if it considers that requiring all taxis to comply with the accessibility requirements would mean that licensed taxi drivers in the area would transfer from being hackney carriage drivers to private hire vehicle drivers, because the cost of purchasing accessible taxis would make their business unprofitable. The Secretary of State can agree to make an exemption order but, in doing so, can require a certain number of accessible taxis to be available in the area.

Clause 160: Passengers in wheelchairs

Effect

536.     This clause places duties on drivers of designated taxis and private hire vehicles to carry a disabled passenger while in a wheelchair; to not make an additional charge; if the passenger chooses to sit in a passenger seat, to carry the passenger’s wheelchair; to carry the passenger in safety and in reasonable comfort; and to provide reasonable assistance to enable the passenger to use the taxi. A taxi or private hire vehicle is designated if it appears on a list maintained by the local licensing authority under clause 162.

537.     A driver of a designated taxi or private hire vehicle who refuses to carry a wheelchair user commits an offence punishable by a fine of up to £1,000.

 
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Prepared: 19 November 2009