Equality Bill

House of Lords

Session 2009 - 10
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Equality Bill

Equality Bill
Schedule 3 — Services and public functions: exceptions
Part 4 — Immigration
140

(c)
a provision made under section 2(2) of the European Communities
Act 1972 which relates to immigration or asylum, and
(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
5
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).
10
Religion or belief
18    (1)
This paragraph applies in relation to religious or belief-related
discrimination.
      (2)
Section 29 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-
15
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
20
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
25
to remain in the United Kingdom.
      (4)
Section 29 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).
30
      (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—
35
(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
40
(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 29 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);
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Equality Bill
Schedule 3 — Services and public functions: exceptions
Part 5 — Insurance, etc.
141

(b)
a decision taken in accordance with guidance given by the Secretary
of State in connection with a decision within either of those sub-
paragraphs.
Interpretation
19
A reference to entry clearance, leave to enter or remain or immigration rules
5
is to be construed in accordance with the Immigration Act 1971.
Part 5
Insurance, etc.
Services arranged by employer
20    (1)
Section 29 does not apply to the provision of a relevant financial service if
10
the provision is in pursuance of arrangements made by an employer for the
service-provider to provide the service to the employer’s employees, and
other persons, as a consequence of the employment.
      (2)
“Relevant financial service” means—
(a)
insurance or a related financial service, or
15
(b)
a service relating to membership of or benefits under a personal
pension scheme (within the meaning given by section 1 of the
Pension Schemes Act 1993).
      (3)
“Service-provider” has the meaning given in section 29.
Disability
20
21    (1)
It is not a contravention of section 29, so far as relating to disability
discrimination, to do anything in connection with insurance business if—
(a)
the thing is done by reference to information that is both relevant to
the assessment of the risk to be insured and from a source on which
it is reasonable to rely, and
25
(b)
it is reasonable to do the thing.
      (2)
“Insurance business” means business which consists of effecting or carrying
out contracts of insurance; and that definition is to be read with—
(a)
section 22 of the Financial Services and Markets Act 2000,
(b)
any relevant order under that Act, and
30
(c)
Schedule 2 to that Act.
Sex, gender reassignment, pregnancy and maternity
22    (1)
It is not a contravention of section 29, so far as relating to relevant
discrimination, to do anything in relation to an annuity, life insurance
policy, accident insurance policy or similar matter involving the assessment
35
of risk if—
(a)
the thing is done by reference to actuarial or other data from a source
on which it is reasonable to rely, and
(b)
it is reasonable to do the thing.
      (2)
In the case of a contract of insurance, or a contract for related financial
40
services, entered into before 6 April 2008, sub-paragraph (1) applies only in

Equality Bill
Schedule 3 — Services and public functions: exceptions
Part 5 — Insurance, etc.
142

relation to differences in premiums and benefits that are applicable to a
person under the contract.
      (3)
In the case of a contract of insurance, or a contract for related financial
services, entered into on or after 6 April 2008, sub-paragraph (1) applies only
in relation to differences in premiums and benefits if—
5
(a)
the use of sex as a factor in the assessment of risk is based on relevant
and accurate actuarial and statistical data,
(b)
the data are compiled, published (whether in full or in summary
form) and regularly updated in accordance with guidance issued by
the Treasury,
10
(c)
the differences are proportionate having regard to the data, and
(d)
the differences do not result from costs related to pregnancy or to a
woman’s having given birth in the period of 26 weeks ending on the
day on which the thing is done.
      (4)
“Relevant discrimination” is—
15
(a)
gender reassignment discrimination;
(b)
pregnancy and maternity discrimination;
(c)
sex discrimination.
      (5)
For the purposes of the application of sub-paragraph (3) to gender
reassignment discrimination by virtue of section 13, that section has effect as
20
if in subsection (1), after “others” there were inserted “of B’s sex”.
      (6)
In the application of sub-paragraph (3) to a contract entered into before 22
December 2008, paragraph (d) is to be ignored.
Existing insurance policies
23    (1)
It is not a contravention of section 29, so far as relating to relevant
25
discrimination, to do anything in connection with insurance business in
relation to an existing insurance policy.
      (2)
“Relevant discrimination” is—
(a)
age discrimination;
(b)
disability discrimination;
30
(c)
gender reassignment discrimination;
(d)
pregnancy and maternity discrimination;
(e)
race discrimination;
(f)
religious or belief-related discrimination;
(g)
sex discrimination;
35
(h)
sexual orientation discrimination.
      (3)
An existing insurance policy is a policy of insurance entered into before the
date on which this paragraph comes into force.
      (4)
Sub-paragraph (1) does not apply where an existing insurance policy was
renewed, or the terms of such a policy were reviewed, on or after the date on
40
which this paragraph comes into force.
      (5)
A review of an existing insurance policy which was part of, or incidental to,
a general reassessment by the service-provider of the pricing structure for a
group of policies is not a review for the purposes of sub-paragraph (4).
      (6)
In this paragraph—
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Equality Bill
Schedule 3 — Services and public functions: exceptions
Part 6 — Separate and single services
143

“insurance business” has the meaning given in paragraph 21;
“service-provider” has the meaning given in section 29.
Part 6
Separate and single services
Separate services for the sexes
5
24    (1)
A person does not contravene section 29, so far as relating to sex
discrimination, by providing separate services for persons of each sex if—
(a)
a joint service for persons of both sexes would be less effective, and
(b)
the limited provision is a proportionate means of achieving a
legitimate aim.
10
      (2)
A person does not contravene section 29, so far as relating to sex
discrimination, by providing separate services differently for persons of
each sex if—
(a)
a joint service for persons of both sexes would be less effective,
(b)
the extent to which the service is required by one sex makes it not
15
reasonably practicable to provide the service otherwise than as a
separate service provided differently for each sex, and
(c)
the limited provision is a proportionate means of achieving a
legitimate aim.
      (3)
This paragraph applies to a person exercising a public function in relation to
20
the provision of a service as it applies to the person providing the service.
Single-sex services
25    (1)
A person does not contravene section 29, so far as relating to sex
discrimination, by providing a service only to persons of one sex if—
(a)
any of the conditions in sub-paragraphs (2) to (7) is satisfied, and
25
(b)
the limited provision is a proportionate means of achieving a
legitimate aim.
      (2)
The condition is that only persons of that sex have need of the service.
      (3)
The condition is that—
(a)
the service is also provided jointly for persons of both sexes, and
30
(b)
the service would be insufficiently effective were it only to be
provided jointly.
      (4)
The condition is that—
(a)
a joint service for persons of both sexes would be less effective, and
(b)
the extent to which the service is required by persons of each sex
35
makes it not reasonably practicable to provide separate services.
      (5)
The condition is that the service is provided at a place which is, or is part
of—
(a)
a hospital, or
(b)
another establishment for persons requiring special care,
40
supervision or attention.
      (6)
The condition is that—

Equality Bill
Schedule 3 — Services and public functions: exceptions
Part 6 — Separate and single services
144

(a)
the service is provided for, or is likely to be used by, two or more
persons at the same time, and
(b)
the circumstances are such that a person of one sex might reasonably
object to the presence of a person of the opposite sex.
      (7)
The condition is that—
5
(a)
there is likely to be physical contact between a person (A) to whom
the service is provided and another person (B), and
(b)
B might reasonably object if A were not of the same sex as B.
      (8)
This paragraph applies to a person exercising a public function in relation to
the provision of a service as it applies to the person providing the service.
10
Gender reassignment
26    (1)
A person does not contravene section 29, so far as relating to gender
reassignment discrimination, only because of anything done in relation to a
matter within sub-paragraph (2) if the conduct in question is a proportionate
means of achieving a legitimate aim.
15
      (2)
The matters are—
(a)
the provision of separate services for persons of each sex;
(b)
the provision of separate services differently for persons of each sex;
(c)
the provision of a service only to persons of one sex.
Services relating to religion
20
27    (1)
A minister does not contravene section 29, so far as relating to sex
discrimination, by providing a service only to persons of one sex or separate
services for persons of each sex, if—
(a)
the service is provided for the purposes of an organised religion,
(b)
it is provided at a place which is (permanently or for the time being)
25
occupied or used for those purposes, and
(c)
the limited provision of the service is necessary in order to comply
with the doctrines of the religion or is for the purpose of avoiding
conflict with the strongly held religious convictions of a significant
number of the religion’s followers.
30
      (2)
The reference to a minister is a reference to a minister of religion, or other
person, who—
(a)
performs functions in connection with the religion, and
(b)
holds an office or appointment in, or is accredited, approved or
recognised for purposes of, a relevant organisation in relation to the
35
religion.
      (3)
An organisation is a relevant organisation in relation to a religion if its
purpose is—
(a)
to practise the religion,
(b)
to advance the religion,
40
(c)
to teach the practice or principles of the religion,
(d)
to enable persons of the religion to receive benefits, or to engage in
activities, within the framework of that religion, or
(e)
to foster or maintain good relations between persons of different
religions.
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Equality Bill
Schedule 3 — Services and public functions: exceptions
Part 7 — Transport
145

      (4)
But an organisation is not a relevant organisation in relation to a religion if
its sole or main purpose is commercial.
Services generally provided only for persons who share a protected characteristic
28
If a service is generally provided only for persons who share a protected
characteristic, a person (A) who normally provides the service for persons
5
who share that characteristic does not contravene section 29(1) or (2)—
(a)
by insisting on providing the service in the way A normally provides
it, or
(b)
if A reasonably thinks it is impracticable to provide the service to
persons who do not share that characteristic, by refusing to provide
10
the service.
Part 7
Transport
Application to disability
29
This Part of this Schedule applies in relation to disability discrimination.
15
Transport by air
30    (1)
Section 29 does not apply to—
(a)
transporting people by air;
(b)
a service provided on a vehicle for transporting people by air.
      (2)
Section 29 does not apply to anything governed by Regulation (EC) No
20
1107/2006 of the European Parliament and of the Council of 5 July 2006
concerning the rights of disabled persons and persons with reduced
mobility when travelling by air.
Transport by land
31    (1)
Section 29 does not apply to transporting people by land, unless the vehicle
25
concerned is—
(a)
a hire-vehicle designed and constructed for the carriage of
passengers and comprising no more than 8 seats in addition to the
driver’s seat,
(b)
a hire-vehicle designed and constructed for the carriage of
30
passengers, comprising more than 8 seats in addition to the driver’s
seat and having a maximum mass not exceeding 5 tonnes,
(c)
a hire-vehicle designed and constructed for the carriage of goods and
having a maximum mass not exceeding 3.5 tonnes,
(d)
a vehicle licensed under section 48 of the Local Government
35
(Miscellaneous Provisions) Act 1976 or section 7 of the Private Hire
Vehicles (London) Act 1998 (or under a provision of a local Act
corresponding to either of those provisions),
(e)
a private hire car (within the meaning of section 23 of the Civic
Government (Scotland) Act 1982),
40
(f)
a public service vehicle (within the meaning given by section 1 of the
Public Passenger Vehicles Act 1981),

Equality Bill
Schedule 4 — Premises: reasonable adjustments
146

(g)
a vehicle built or adapted to carry passengers on a railway or
tramway (within the meaning, in each case, of the Transport and
Works Act 1992),
(h)
a taxi,
(i)
a vehicle deployed to transport the driver and passengers of a vehicle
5
that has broken down or is involved in an accident, or
(j)
a vehicle deployed on a system using a mode of guided transport
(within the meaning of the Transport and Works Act 1992).
      (2)
Paragraph 4 of Schedule 2 applies for the purposes of this paragraph as it
applies for the purposes of paragraph 3 of that Schedule.
10
Part 8
Supplementary
Power to amend
32    (1)
A Minister of the Crown may by order amend this Schedule—
(a)
so as to add, vary or omit an exception to section 29, so far as relating
15
to disability, religion or belief or sexual orientation;
(b)
so as to add, vary or omit an exception to section 29(6), so far as
relating to gender reassignment, pregnancy and maternity, race or
sex.
      (2)
For the purposes of an order under sub-paragraph (1)(a), so far as relating to
20
disability, which makes provision in relation to transport by air, it does not
matter whether the transport is within or outside the United Kingdom.
      (3)
An order must not be made unless the Minister has consulted the
Commission.
      (4)
Nothing in this paragraph affects the application of any other provision of
25
this Act to conduct outside England and Wales or Scotland.
Schedule 4
Section 38

Premises: reasonable adjustments
Preliminary
1
This Schedule applies where a duty to make reasonable adjustments is
30
imposed on A by this Part.
The duty in relation to let premises
2     (1)
This paragraph applies where A is a controller of let premises.
      (2)
A must comply with the first and third requirements.
      (3)
For the purposes of this paragraph, the reference in section 20(3) to a
35
provision, criterion or practice of A’s includes a reference to a term of the
letting.