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1. These explanatory notes relate to the Equality Bill as brought from the House of Commons on 3rd December 2009. They have been prepared by the Government Equalities Office, the Department for Work and Pensions (in respect of provisions relating to disability and pensions), the Department for Children, Schools and Families and the Department for Business, Innovation and Skills (in respect of provisions relating to education), the Department for Transport (in respect of provisions relating to disability and transport) and the Department for Business, Innovation and Skills (in respect of provisions relating to work exceptions). Their purpose is to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
3. Domestic discrimination law has developed over more than 40 years since the first Race Relations Act in 1965. Subsequently, other personal characteristics besides race have been protected from discrimination and similar conduct, sometimes as a result of domestic initiatives and sometimes through implementing European Directives.
4. The domestic law is now mainly contained in the following legislation (where applicable, as amended):
5. The main European Directives affecting domestic discrimination legislation are:
6. In addition, in July 2008 the Commission of the European Communities published a new draft Directive which would prohibit discrimination on grounds of disability, religion or belief, sexual orientation and age, in access to goods and services, housing, education, social protection, social security and social advantage. This Directive is under negotiation.
7. In February 2005, the Government set up the Discrimination Law Review to address long-term concerns about inconsistencies in the current discrimination law framework. The Review was tasked with considering the fundamental principles of discrimination legislation and its underlying concepts, and the opportunities for creating a clearer and more streamlined framework of equality legislation which produces better outcomes for those who experience disadvantage. As noted in the Reviews terms of reference: Any proposals will have due regard to better regulation principles and take into account the need to minimise bureaucratic burdens on business and public services. A key priority will be seeking to achieve greater consistency in the protection afforded to different groups while taking into account evidence that different legal approaches may be appropriate for different groups.
8. In June 2007 the Department for Communities and Local Government published a consultation paper, A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain. This was followed in June and July 2008 by two Command Papers published by the Government Equalities Office: Framework for a Fairer Future - the Equality Bill (Cm 7431); and The Equality Bill - Government Response to the Consultation (Cm 7454). In January 2009, the Government published the New Opportunities White Paper (Cm 7533) which, amongst other things, committed the Government to considering legislation to address disadvantage associated with socio-economic inequality.
9. The following further documents have been published by the Government Equalities Office since the Bill was introduced: in April 2009, Equality Bill: Assessing the impact of a multiple discrimination provision (a summary of responses was published in October 2009); in June 2009, Equality Bill: Making it work - Policy proposals for specific duties; and Equality Bill: Making it work - Ending age discrimination in services and public functions.
10. The Bill has two main purposes - to harmonise discrimination law, and to strengthen the law to support progress on equality.
11. The Bill will bring together and re-state all the enactments listed in paragraph 4 above and a number of other related provisions. It will harmonise existing provisions to give a single approach where appropriate. Most of the existing legislation will generally be repealed. The Equality Act 2006 will remain in force (as amended by the Bill) so far as it relates to the constitution and operation of the Equality and Human Rights Commission; and the Disability Discrimination Act 1995, so far as it relates to Northern Ireland.
12. The Bill will also strengthen the law in a number of areas. It will:
13. The Bill consists of 15 Parts and 28 Schedules. The general arrangement of the Bill is as follows:
14. A revised (regulatory) Impact Assessment has been published on introduction of the Bill. It breaks down the estimated costs and benefits according to the type of measure (for example, simplification of definitions) and the sector (for example, public or private sector). It also distinguishes between one-off and recurring costs and benefits.
15. The Bill and regulations under it will involve some costs to the public sector. The Government estimates in the Impact Assessment that one-off public sector costs will amount to around £16 million and will arise primarily from the costs of familiarisation with the new legislation. It estimates that recurring public sector costs will amount to between £7 million and £41 million per year. These recurring costs would arise primarily from an increase in the number of discrimination cases in the courts and tribunals, involving public sector organisations. The Government estimates that the costs will be offset by benefits including from simplification and harmonisation of the legislation and resulting guidance, amounting to £13 million to £43 million per year.
16. The main measures exclusive to the public sector are new duties on public authorities.
17. The Government expects the duty on certain public authorities to consider socio-economic disadvantage (clause 1) to result in some familiarisation costs (which the Impact Assessment estimates at around £130 per authority).
18. The general public sector equality duty (clause 148), in practice will mean that the public authorities to which the duty applies will need, when thinking about or reviewing new or existing policies, programmes and services, to consider the impact of their decisions on people with the protected characteristics of age, race, disability, sex, pregnancy and maternity, sexual orientation, religion or belief or gender reassignment.
19. Public sector costs are more likely to be associated with the specific equality duties that will be imposed under the powers provided in the Bill at clauses 152, 153 and 154. The current specific equality duties in relation to race, gender and disability have included the requirements to consult, to draw up schemes or action plans and set out processes for assessing the equality impact of new policies, programmes and services as well as monitoring performance. The Government has just consulted on the approach to be adopted in setting out specific duties, and a separate Impact Assessment accompanied that consultation. The aim of the new single general duty and specific duties is to achieve cost neutrality overall.
20. A further area where costs may arise for the public sector is the application of the prohibition on age discrimination in the provision of goods, facilities and services to the provision of health and social care. The extent of the costs will depend on a number of factors, on which the Government has just consulted. These include: the use of the power to make exceptions from the age prohibition; the ability of organisations objectively to justify differential treatment based on age (and thus make it lawful); the timing of commencement of the prohibition and accompanying exceptions.
21. Apart from costs and benefits for the equality duty and the ban on age discrimination in services and public functions, the Government estimates the total additional costs and benefits of the Bill to be as follows, according to the Impact Assessment:
22. A revised (Equality) Impact Assessment has been published on introduction of the Bill. It was drawn up in accordance with guidance issued by the Equality and Human Rights Commission. It considers the impact of the Bill in terms of how it will affect people because of race, disability, sex including pregnancy or maternity, gender reassignment, age, sexual orientation and religion or belief.
23. The assessment finds that the measures set out in the Bill are designed to achieve greater consistency in the treatment of each group; and that to this extent, members of all these groups will benefit from clearer and simpler legislation.
24. The Bills measures which the assessment identifies as having the greatest impact on certain groups are:
25. The impact of the Bill on the environment, in terms of using raw materials for the production of guidance, leaflets and similar publications, is likely to be minimal. This is because information about the new legislation will simply replace what would have been produced to explain the legislation it replaces.
26. The Bill forms part of the law of England and Wales. It also, with the exception of one clause, forms part of the law of Scotland. There are also a few provisions which form part of the law of Northern Ireland.
27. As far as territorial application is concerned, in relation to Part 5 (work) and following the precedent of the Employment Rights Act 1996, the Bill leaves it to tribunals to determine whether the law applies, depending for example on the connection between the employment relationship and Great Britain. However, the Bill contains a power to specify territorial application of Part 5 in relation to ships and hovercraft (clause 81) and offshore work (clause 82). In relation to the non-work provisions, the Bill is again generally silent on territorial application, leaving it to the courts to determine whether the law applies. However, in a limited number of specific cases, express provision is made for particular provisions of the Bill to apply (or potentially apply) outside the United Kingdom. Thus, clause 29(9) provides for the prohibitions in respect of the provision of services or the exercise of public functions to apply in relation to race and religion or belief to the granting of entry clearance, even where the act in question takes place outside the United Kingdom. Also, clause 30 contains a similar power to that in Part 5 to specify the territorial application of the services provisions of Part 3 in relation to ships and hovercraft.
28. The Bill contains provisions that trigger the Sewel Convention in relation to Scotland. The Scottish Ministers can already impose specific equality duties on Scottish public bodies and on the devolved functions of cross-border bodies following appropriate consultation. Provisions in this Bill will replicate this situation. The Scottish Ministers will be able to impose specific duties on relevant Scottish bodies (clause 152) and by order to amend Part 3 of Schedule 19 which lists the relevant Scottish bodies to which the general public sector equality duty applies (clause 150). A procedure will be specified in relation to imposition of specific duties on cross-border Scottish bodies added to Schedule 19 by a Minister of the Crown. The procedure enables the Scottish Ministers to impose specific duties in relation to the devolved Scottish functions of the cross-border bodies. The Bill also contains a number of provisions which confer additional powers on the Scottish Ministers to make secondary legislation, for example: a power for the Scottish Ministers to add a relevant Scottish body to the bodies subject to the duty in clause 1 to consider socio-economic inequalities and to make consequential amendments (clause 2); the power to make procedural rules for the hearing of disability discrimination claims by the Additional Support Needs Tribunals for Scotland (paragraph 10 of Schedule 17); the power, on the application of the governing body of an educational establishment (and if satisfied that it would be educationally beneficial) to modify an endowment whose benefits are restricted to persons of one sex (paragraph 2 of Schedule 14); the power to prescribe the regulator, qualifications body and relevant qualifications in Scotland (clause 96); the power to make transitional exemption orders for single-sex education authorities or grant-aided schools in Scotland which alter their admissions arrangements so as to cease being a single-sex establishment (paragraph 4 of Schedule 11); a power to make regulations in relation to designated transport facilities (clause 160).
29. The Sewel Convention provides that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament. The Deputy First Minister of Scotland has indicated agreement to seek consent on the matters indicated in the above paragraph. If there are subsequently amendments relating to such matters which trigger the Convention, or if there are provisions which alter the executive competence of Scottish Ministers, the consent of the Scottish Parliament will be sought for them.
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