Equality Bill

House of Lords

Session 2009 - 10
Internet Publications
Other Bills before Parliament

Equality Bill

Equality Bill
Part 14 — General exceptions
120

(5)
The charity regulators are—
(a)
the Charity Commission for England and Wales;
(b)
the Scottish Charity Regulator.
(6)
Section 106(5) applies to references in subsection (5) of section 191 to members,
or persons wishing to become members, of a charity.
5
(7)
“Supported employment” means facilities provided, or in respect of which
payments are made, under section 15 of the Disabled Persons (Employment)
Act 1944 (c. 10).
193
Sport
(1)
A person does not contravene this Act, so far as relating to sex, only by doing
10
anything in relation to the participation of another as a competitor in a gender-
affected activity.
(2)
A person does not contravene section 29, 33, 34 or 35, so far as relating to
gender reassignment, only by doing anything in relation to the participation of
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—
(a)
fair competition, or
(b)
the safety of competitors.
(3)
A gender-affected activity is a sport, game or other activity of a competitive
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
average persons of the other sex as competitors in events involving the activity.
(4)
In considering whether a sport, game or other activity is gender-affected in
relation to children, it is appropriate to take account of the age and stage of
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
contravene this Act only because of the nationality or place of birth of another
or because of the length of time the other has been resident in a particular area
or place.
(6)
This subsection applies to—
30
(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
35
activity.
194
General
Schedule 23 (general exceptions) has effect.
195
Age
(1)
A Minister of the Crown may by order amend this Act to provide that any of
40
the following does not contravene this Act so far as relating to age—
(a)
specified conduct;
(b)
anything done for a specified purpose;

Equality Bill
Part 15 — General and miscellaneous
121

(c)
anything done in pursuance of arrangements of a specified description.
(2)
Specified conduct is conduct—
(a)
of a specified description,
(b)
carried out in specified circumstances, or
(c)
by or in relation to a person of a specified description.
5
(3)
An order under this section may—
(a)
confer on a Minister of the Crown or the Treasury a power to issue
guidance about the operation of the order (including, in particular,
guidance about the steps that may be taken by persons wishing to rely
on an exception provided for by the order);
10
(b)
require the Minister or the Treasury to carry out consultation before
issuing guidance under a power conferred by virtue of paragraph (a);
(c)
make provision (including provision to impose a requirement) that
refers to guidance issued under a power conferred by virtue of
paragraph (a).
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(4)
Guidance given by a Minister of the Crown or the Treasury in anticipation of
the making of an order under this section is, on the making of the order, to be
treated as if it has been issued in accordance with the order.
(5)
For the purposes of satisfying a requirement imposed by virtue of subsection
(3)(b), the Minister or the Treasury may rely on consultation carried out before
20
the making of the order that imposes the requirement (including consultation
carried out before the commencement of this section).
(6)
Provision by virtue of subsection (3)(c) may, in particular, refer to provisions
of the guidance that themselves refer to a document specified in the guidance.
(7)
This section is not affected by any provision of this Act which makes special
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provision in relation to age.
(8)
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
30
General and miscellaneous
Community obligations
196
Harmonisation
(1)
This section applies if—
(a)
there is a Community obligation of the United Kingdom which a
35
Minister of the Crown thinks relates to the subject matter of the
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
40
(c)
the Minister thinks that it is appropriate to make harmonising
provision in the Equality Acts.

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Part 15 — General and miscellaneous
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(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
appropriate.
5
(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.
(7)
Harmonising provision is provision made in relation to relevant subject matter
10
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
implementing provision.
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(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
those Acts as does not implement a Community obligation.
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(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
under subsection (2)—
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(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
197
Crown application
30
(1)
The following provisions of this Act bind the Crown—
(a)
Part 1 (public sector duty regarding socio-economic inequalities);
(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).
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(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
private person.
(4)
For the purposes of subsection (3), an act is a Crown act if (and only if) it is
done—
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(a)
by or on behalf of a member of the executive,

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Part 15 — General and miscellaneous
123

(b)
by a statutory body acting on behalf of the Crown, or
(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
5
proceedings against the Crown under this Act as they apply to proceedings in
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
10
that Part, are treated as civil proceedings by or against the Crown.
(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.
198
Information society services
Schedule 25 (information society services) has effect.
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Subordinate legislation
199
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
20
instrument.
(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
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enactment.
(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.
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(5)
Nothing in section 161(4), 172(4) or 180(3) affects the generality of the power
under subsection (4)(a).
(6)
The power under subsection (4)(b), in its application to section 37, 152, 153(2),
154(5), 195 or 208 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
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of section 195 or 208, this Act).
(7)
In the case of section 208, provision by virtue of subsection (4)(b) may be
included in a separate order from the order that provides for the
commencement to which the provision relates; and, for that purpose, it does
not matter—
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(a)
whether the order providing for the commencement includes provision
by virtue of subsection (4)(b);
(b)
whether the commencement has taken place.
200
Ministers of the Crown
(1)
This section applies where the power to make an order or regulations under
5
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 Act
of the Scottish Parliament or an Act or Measure of the National Assembly for
Wales, is subject to the affirmative procedure.
10
(3)
But a statutory instrument is not subject to the affirmative procedure by virtue
of subsection (2) merely because it contains—
(a)
regulations under section 2 (socio-economic inequalities);
(b)
an order under section 59 (local authority functions);
(c)
an order under section 150 (power to specify public authorities for the
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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).
(4)
A statutory instrument containing (whether alone or with other provision) an
order or regulations mentioned in subsection (5) is subject to the affirmative
20
procedure.
(5)
The orders and regulations referred to in subsection (4) are—
(a)
regulations under section 30 (services: ships and hovercraft);
(b)
regulations under section 78 (gender pay gap information);
(c)
regulations under section 81 (work: ships and hovercraft);
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(d)
an order under section 105 (election candidates: expiry of provision);
(e)
regulations under section 152 or 153(2) (public sector equality duty);
(f)
regulations under section 182(4) (rail vehicle accessibility: procedure
for exemption orders);
(g)
an order under section 196 (Community obligations: harmonisation);
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(h)
regulations under paragraph 9(3) of Schedule 20 (rail vehicle
accessibility: determination of turnover for purposes of penalties).
(6)
A statutory instrument other than one mentioned in subsection (2) or (4) is
subject to the negative procedure.
(7)
But a statutory instrument is not subject to the negative procedure by virtue of
35
subsection (6) merely because it contains—
(a)
an order under section 181(1) (rail vehicle accessibility: exemptions);
(b)
an order under section 208 (commencement) that does not amend an
Act of Parliament, an Act of the Scottish Parliament or an Act or
Measure of the National Assembly for Wales.
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(8)
If a statutory instrument is subject to the affirmative procedure, the order or
regulations contained in it must not be made unless a draft of the instrument is
laid before and approved by a resolution of each House of Parliament.
(9)
If a statutory instrument is subject to the negative procedure, it is subject to
annulment in pursuance of a resolution of either House of Parliament.
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(10)
If a draft of a statutory instrument mentioned in subsection (2) or (4) would,
apart from this subsection, be treated for the purposes of the Standing Orders
of either House of Parliament as a hybrid instrument, it is to proceed in that
House as if it were not a hybrid instrument.
201
The Welsh Ministers
5
(1)
This section applies where the power to make an order or regulations under
this Act is exercisable by the Welsh Ministers.
(2)
A statutory instrument containing (whether alone or with other provision)
regulations mentioned in subsection (3) is subject to the affirmative procedure.
(3)
The regulations referred to in subsection (2) are—
10
(a)
regulations under section 152 or 153(2) (public sector equality duty:
powers to impose specific duties);
(b)
regulations under section 154(5) that amend an Act of Parliament or an
Act or Measure of the National Assembly for Wales (public sector
equality duty: power to modify or remove specific duties).
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(4)
A statutory instrument other than one mentioned in subsection (2) is subject to
the negative procedure.
(5)
If a statutory instrument is subject to the affirmative procedure, the regulations
contained in it must not be made unless a draft of the instrument is laid before
and approved by a resolution of the National Assembly for Wales.
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(6)
If a statutory instrument is subject to the negative procedure, it is subject to
annulment in pursuance of a resolution of the National Assembly for Wales.
202
The Scottish Ministers
(1)
This section applies where the power to make an order, regulations or rules
under this Act is exercisable by the Scottish Ministers.
25
(2)
A statutory instrument containing (whether alone or with other provision)
regulations mentioned in subsection (3) is subject to the affirmative procedure.
(3)
The regulations referred to in subsection (2) are—
(a)
regulations under section 37 (power to make provision about
adjustments to common parts in Scotland);
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(b)
regulations under section 152 or 153(2) (public sector equality duty:
powers to impose specific duties);
(c)
regulations under section 154(5) that amend an Act of Parliament or an
Act of the Scottish Parliament (public sector equality duty: power to
modify or remove specific duties).
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(4)
A statutory instrument other than one mentioned in subsection (2) is subject to
the negative procedure.
(5)
If a statutory instrument is subject to the affirmative procedure, the regulations
contained in it must not be made unless a draft of the instrument is laid before
and approved by a resolution of the Scottish Parliament.
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(6)
If a statutory instrument is subject to the negative procedure, it is subject to
annulment in pursuance of a resolution of the Scottish Parliament.