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Background

599.     This clause replicates the effect of provisions inserted in the Disability Discrimination Act 1995 by the Disability Discrimination Act 2005.

PART 13: DISABILITY: MISCELLANEOUS

Clause 184: Reasonable adjustments

Effect

600.     This clause applies the supplementary provisions on reasonable adjustments set out in Schedule 21 to the fields of services, premises, work, education, and associations where a person providing a service, or delivering functions, an employer, or an education provider, or an association is required to consider reasonable adjustments to premises which it rents and would require the landlord’s consent to proceed.

Clause 185: Improvements to let dwelling houses

Effect

601.     This clause provides a procedure for a disabled tenant or occupier of rented residential premises to seek consent to make a disability-related improvement to the premises where the lease allows a tenant to make an improvement only with the consent of the landlord. The landlord may not unreasonably withhold consent, but may place reasonable conditions on the consent. A landlord who refuses consent must set out the reasons for that refusal. In deciding whether a refusal or condition is unreasonable, the onus is on the landlord to show that it is not. This clause applies to all leases of residential property used as the occupier or tenant’s only or main residence, other than a protected tenancy, a statutory tenancy or a secure tenancy. That is because similar rights already apply in respect of those tenancies under the Housing Acts 1980 and 1985.

602.     This clause applies only in England and Wales.

Background

603.     This clause replaces similar provisions in the Disability Discrimination Act 1995.

Examples

  • A disabled tenant who has mobility problems asks her landlord to consent to the installation of a walk-in shower and a grab rail to help her use the lavatory. Her landlord refuses consent. It would be for the landlord to give reasons for the refusal, and to show that it was not unreasonable.

  • The landlord consents to the fitting of the grab rail and shower, on condition that their colour matches the other bathroom fittings, and that they must be removed if the disabled person moves out of the property. These might be reasonable conditions, but it is for the landlord to show that they are.

PART 14: GENERAL EXCEPTIONS

Clause 186: Statutory provisions

Effect

604.     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. 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 187: National security

Effect

605.     This clause ensures that the Bill does not make it unlawful to do anything which is proportionate in order to safeguard national security.

Background

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

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 188: Charities

Effect

607.     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 colour - and if they do their charitable instrument will be applied as if that limitation did not exist.

608.     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 employment only for people with the same disability, or disabilities of a description to be set out in Regulations.

609.     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 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

610.     This clause replaces and harmonises separate exceptions in current discrimination law allowing charities to benefit only people of the same sex, racial group, religion or belief or sexual orientation, and creates new exceptions along these lines for charities benefiting only people of the same age group or with the same disability. This clause also replicates the effect of other exceptions for charities in current discrimination law, and creates a new exception in subsection (7) allowing participation in activities to promote or support charities to be restricted to men or women.

Examples

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

  • 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.

  • It is lawful for the Scout Association to require children joining the Scouts to promise to do their best to do their duty to God.

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

Clause 189: Charities: supplementary

Effect

611.     This clause makes it clear that clause 188 does not allow charities to restrict their benefits to people because of colour.

612.     It explains what is meant by “charity” and related expressions used in clause 188.

Clause 190: Sport

Effect

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

614.     In addition, this clause allows the existing selection arrangements of national sports teams, 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

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

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.

Clause 191: General

Effect

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

Clause 192: Age

Effect

617.     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 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.

618.     Orders under this power may amend primary legislation including the Act resulting from this Bill and (under clause 197(2)) are subject to the affirmative resolution procedure.

Background

619.     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

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

  • holidays for particular age groups.

PART 15: GENERAL

Clause 193 Harmonisation

Effect

621.     This clause enables a Minister of the Crown by order to amend the Act resulting from the Bill and the Equality Act 2006, to ensure consistency across the legislation where changes required 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 section 2(2)(a). This arises for instance in the case of nationality 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 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

622.     A Minister may use this power only after consulting interested parties, and must lay any order before each House of Parliament for debate and approval. The Minister will also have to show in the explanatory memorandum that the consultation and other threshold requirements in the clause have been met in each and every case. A Minister must report to Parliament every five years on the use of this power.

Background

623.     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.

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.

Clause 194: Crown application

Effect

624.     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.

Background

625.     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 taking proceedings against the Crown.

Example

  • A government department as employer must not discriminate against an employee because of race, just as any other employer is prohibited from doing so under the Bill.

Clause 195: Information society services

Effect

626.     This clause gives effect to Schedule 25, which sets out how the clauses which make it unlawful to discriminate against, harass or victimise a person apply to information society service providers (see the explanatory notes to Schedule 25).

Background

627.     The provisions in Schedule 25 are new.

Clause 196: Exercise of power

628.     This clause makes provision for the powers to make secondary legislation under the 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 make specific provision to deal with situations that exist at the time the provisions come into force.

Clause 197: Ministers of the Crown

Effect

629.     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

630.     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 example where regulations under clause 75 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.

Clause 198: The Welsh Ministers

Effect

631.     This clause establishes the Parliamentary procedures that apply to regulations and orders under the Bill made by Welsh Ministers.

632.     Most do not automatically need to be considered by the National Assembly for Wales. However, in most cases they can be opposed, in which case they may be considered by the Assembly in plenary session. Instruments imposing specific duties on public authorities or cross border authorities must be considered before they can come into force.

Background

633.     In common with any Bill containing powers to make secondary legislation, this clause is needed to set out who is to make regulations and orders (usually a Minister), how their effect may vary according to particular circumstances and the arrangements for Assembly control over their exercise.

Clause 199: The Scottish Ministers

Effect

634.     This clause establishes the parliamentary procedures that apply to regulations and orders under the Bill made by Scottish Ministers.

635.     Most do not automatically need to be debated by the Scottish Parliament. However, in most cases they can be opposed, in which case a debate may be held. Instruments imposing specific duties on public authorities or cross border authorities must be debated before they can come into force.

Background

636.     In common with any Bill containing powers to make secondary legislation, this clause is needed to set out who is to make regulations and orders (usually a Minister), how their effect may vary according to particular circumstances and the arrangements for Parliamentary control over their exercise.

Clause 200: Amendments, repeals and revocations

Effect

637.     This clause gives effect to Schedules 26 and 27. Schedule 26 contains amendments to other Acts which are necessary as a consequence of the Bill’s provisions. Schedule 27 lists the provisions in current legislation which will cease to have effect when the relevant provisions of the Bill are brought into force.

Clause 201: General interpretation

Effect

638.     This clause explains what is meant by various words and phrases which appear in more than one Part of the Bill.

Background

639.     While a key objective of the Bill is to present discrimination law in plain language and most words used in the Bill have an ordinarily obvious meaning, it is sometimes necessary to make clear the specific legal meaning of some words and phrases that are used several times in the Bill.

640.     Other important words and phrases appear in only one Part or Chapter of the Bill. Where necessary these are defined in the Part or Chapter where they appear. Others are not defined at all, either because they are clear, or because they are to be interpreted in accordance with the Interpretation Act 1978.

Examples

  • It is necessary to clarify in this clause that “detriment” excludes harassment, to make it clear that where the Bill provides explicit harassment protection, it is not possible to bring a claim for direct discrimination by way of detriment on the same facts. Where explicit harassment protection is not provided (for example in the case of sexual orientation under Part 6, Chapter 1 (education in Schools)), detriment includes treatment which would amount to harassment.

  • The Equality and Human Rights Commission is mentioned in a number of clauses. It therefore makes sense to refer to “the Commission” throughout and define it in this clause.

  • “Parent” is used in a number of places in the Bill, including the victimisation provisions and several Schedules. Rather than seeking to produce a new definition, this clause explains that the existing definitions in the relevant Education Acts apply.

Clause 202: References to maternity leave, etc.

Effect

641.     This clause explains what is meant by the different periods of maternity leave which are referred to in the Bill.

Background

642.     The rights of female employees to statutory maternity leave are provided for in the Employment Rights Act 1996. Compulsory maternity leave, ordinary maternity leave and additional maternity leave are the three types of maternity leave provided for in sections 72(1), 71(1) and 73(1) of that Act respectively.

Clause 203: Index of defined expressions

Effect

643.     This clause gives effect to Schedule 28, which provides an index of the expressions that are defined in the Bill.

Clause 204: Money

Effect

644.     This clause is included to comply with rules of procedure on financial matters. It does not, of itself, authorise expenditure that is not covered elsewhere in the Bill.

Clause 205: Commencement

Effect

645.     This clause sets out when some of the provisions in the Bill come into effect, and how the rest will be brought into force. The clauses relating to commencement, short title, subordinate legislation and interpretation will all come into force automatically on the day on which the Act receives Royal Assent. The rest of the Bill will be brought into force by commencement orders made by a Minister of the Crown. The orders will set out the date on which specific provisions start to have legal effect.

Clause 206: Extent

Effect

646.     This clause explains that all of the provisions of the Bill are part of the law of England and Wales.

647.     All of the provisions of the Bill, except for clause 185 (improvements to let dwelling houses), are also part of the law of Scotland.

648.     In relation to Northern Ireland, the Bill is not part of Northern Ireland’s law, except for the following,

  • clause 79 (offshore work),

  • clause 102 (expiry of Sex Discrimination (Election Candidates) Act 2002).

Clause 207: Short title

Effect

649.     This clause sets out the short title of the Act.

Schedule 1: Disability: supplementary provision

Effect

650.     Part 1 of this Schedule clarifies the definition of disability in clause 6 and provides a number of regulation making powers to enable the definition to be amended at a later date if required.

651.     Part 2 describes what can be included in guidance about the definition of disability and prescribes adjudicating bodies which are obliged to take account of guidance, the role of Ministers in developing and publishing guidance and the associated parliamentary procedures.

Background

652.     This Schedule replaces similar provisions in the Disability Discrimination Act 1995. However, the Bill introduces one change by removing a requirement to consider a list of eight capacities, such as mobility or speech, hearing or eyesight, when considering whether or not a person is disabled. This change will make it easier for some people to demonstrate that they meet the definition of a disabled person. It will assist those who currently find it difficult to show that their impairment adversely affects their ability to carry out a normal day-to-day activity which involves one of these capacities.

Example

  • A man with depression finds even the simplest of tasks or decisions difficult, for example getting up in the morning and getting washed and dressed. He is also forgetful and can’t plan ahead. Together, these amount to a “substantial adverse effect” on his ability to carry out normal day-to-day activities. The man has experienced a number of separate periods of this depression over a period of two years, which have been diagnosed as part of an underlying mental health condition. The impairment is therefore considered to be “long-term” and he is a disabled person for the purposes of the Bill.

Schedule 2: Services and public functions: reasonable adjustments

Effect

653.     This Schedule explains how the duty to make reasonable adjustments in clause 20 applies to a service provider or person exercising a public function where a disabled person is placed at a substantial disadvantage. It includes definitions of “substantial disadvantage” and “physical features” and stipulates that the duty does not require fundamental changes to the nature of the service. As the duty is owed to disabled persons generally, it is an anticipatory duty which means service providers and people exercising public functions must anticipate the needs of disabled people and make appropriate reasonable adjustments.

654.     This Schedule also explains how the duty to make reasonable adjustments in clause 20 applies to operators of transport vehicles. It specifies that the duty applies in different ways to different types of vehicle. It provides that a transport service provider is not required to make adjustments to the physical features of vehicles or to whether vehicles are provided, except in specified circumstances. It provides a power to make regulations to allow further amendments to be made to this paragraph in the future.

 
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Prepared: 19 November 2009