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Equality Bill


 

EQUALITY BILL


EXPLANATORY NOTES

INTRODUCTION

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.

Background and summary

Background

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):

  • the Equal Pay Act 1970;

  • the Sex Discrimination Act 1975;

  • the Race Relations Act 1976;

  • the Disability Discrimination Act 1995;

  • the Employment Equality (Religion or Belief) Regulations 2003;

  • the Employment Equality (Sexual Orientation) Regulations 2003;

  • the Employment Equality (Age) Regulations 2006;

  • the Equality Act 2006, Part 2;

  • the Equality Act (Sexual Orientation) Regulations 2007.

5.     The main European Directives affecting domestic discrimination legislation are:

  • Council Directive 75/117/EEC on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women;

  • Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, as amended by the European Parliament and Council Directive 2002/73/EC;

  • Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin;

  • Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation;

  • Council Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services;

  • European Parliament and Council Directive 2006/54/EC (as recast) on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation. Also relevant in this context is Article 141 of the Treaty Establishing the European Community. (Official Journal C 325/33 of 24th December 2002).

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 Review’s 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.

Summary

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:

  • place a new duty on certain public bodies to consider socio-economic disadvantage when making strategic decisions about how to exercise their functions;

  • extend the circumstances in which a person is protected against discrimination, harassment or victimisation because of a protected characteristic;

  • extend the circumstances in which a person is protected against discrimination by allowing people to make a claim if they are directly discriminated against because of a combination of two relevant protected characteristics;

  • create a duty on listed public bodies when carrying out their functions and on other persons when carrying out public functions to have due regard when carrying out their functions to: the need to eliminate conduct which the Bill prohibits; the need to advance equality of opportunity between persons who share a relevant protected characteristic and those who do not; and the need to foster good relations between people who share a relevant protected characteristic and people who do not. The practical effect is that listed public bodies will have to consider how their policies, programmes and service delivery will affect people with the protected characteristics;

  • allow an employer or service provider or other organisation to take positive action so as to enable existing or potential employees or customers to overcome or minimise a disadvantage arising from a protected characteristic;

  • extend the permission for political parties to use women-only shortlists for election candidates to 2030;

  • enable an employment tribunal to make a recommendation to a respondent who has lost a discrimination claim to take certain steps to remedy matters not just for the benefit of the individual claimant (who may have already left the organisation concerned) but also the wider workforce.

Overview of the structure of the Bill

13.     The Bill consists of 15 Parts and 28 Schedules. The general arrangement of the Bill is as follows:

PARTSUMMARY
Part 1Imposes a duty on certain public bodies to have due regard to socio-economic considerations in making strategic decisions.
Part 2 including Schedule 1Establishes the key concepts on which the Bill is based including:

the characteristics which are protected (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation);

the definitions of direct discrimination (including because of a combination of two relevant protected characteristics), discrimination arising from disability, indirect discrimination, harassment and victimisation.
These key concepts are then applied in the subsequent Parts of the Bill.

Part 3 including Schedules 2 and 3Makes it unlawful to discriminate against, harass or victimise a person when providing a service (which includes the provision of goods or facilities) or when exercising a public function.
Part 4 including Schedules 4 and 5Makes it unlawful to discriminate against, harass or victimise a person when disposing of (for example, by selling or letting) or managing premises.
Part 5 including Schedules 6, 7, 8 and 9Makes it unlawful to discriminate against, harass or victimise a person at work or in employment services. Also contains provisions relating to equal pay between men and women; pregnancy and maternity pay; provisions making it unlawful for an employment contract to prevent an employee disclosing his or her pay to a colleague; and a power to require private sector employers to publish gender pay gap (the size of the difference between men and women’s pay expressed as a percentage) information about differences in pay between men and women.
Part 6 including Schedules 10, 11, 12, 13 and 14Makes it unlawful for education bodies to discriminate against, harass or victimise a school pupil or student or applicant for a place.
Part 7 including Schedules 15 and 16Makes it unlawful for associations (for example, private clubs and political organisations) to discriminate against, harass or victimise members, associates or guests.
Part 8Prohibits other forms of conduct, including discriminating against or harassing of an ex-employee or ex-pupil, for example: instructing a third party to discriminate against another; or helping someone discriminate against another. Also determines the liability of employers and principals in relation to the conduct of their employees or agents.
Part 9 including Schedule 17Deals with enforcement of the Bill’s provisions, through the civil courts (in relation to services and public functions; premises; education; and associations) and the employment tribunals (in relation to work and related areas, and equal pay).
Part 10Makes terms in contracts, collective agreements or rules of undertakings unenforceable or void if they result in unlawful discrimination, harassment or victimisation.
Part 11 including Schedules 18 and 19Establishes a general duty on public authorities to have due regard, when carrying out their functions, to the need: to eliminate unlawful discrimination, harassment or victimisation; to advance equality of opportunity; and to foster good relations.
Also contains provisions which enable an employer or service provider or other organisation to take positive action to overcome or minimise a disadvantage arising from people possessing particular protected characteristics.
Part 12 including Schedule 20Requires taxis, other private hire vehicles, public service vehicles (such as buses) and rail vehicles to be accessible to disabled people and to allow them to travel in reasonable comfort.
Part 13 including Schedule 21Deals with consent to make reasonable adjustments to premises and improvements to let dwelling houses.
Part 14 including Schedules 22 and 23Establishes exceptions to the prohibitions in the earlier parts of the Bill in relation to a range of conduct, including action required by an enactment; protection of women; educational appointments; national security; the provision of benefits by charities and sporting competitions.
Part 15 including Schedules 24, 25, 26, 27 and 28Contains a power for a Minister of the Crown to harmonise certain provisions in the Bill with changes required to comply with EU obligations. Also contains general provisions on application to the Crown, subordinate legislation, interpretation, commencement and extent.

Summary of the Impact Assessments

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.

Public sector costs and manpower effects

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.

Other costs and benefits

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:

  • in year 1 following commencement, the cost will be from £237 million to £279 million as a result of additional discrimination cases and the need for people to familiarise themselves with the new law. In the same year, the improved efficiencies as a result of the Bill will produce benefits (including wider economic benefits of £63 million) ranging from £93 million to around £125 million. Therefore, in year 1, the Bill might produce a net cost of £112 million to £186 million.

  • after year 1, average costs will range from £25 million to £66 million per year (consisting mainly of the costs of additional cases) and average benefits (including wider economic benefits as above) from £91 million to £123 million.

  • costs to the private sector comprise one-off costs of £197 million, consisting mainly of familiarisation costs in year 1; and recurring costs of £15 million to £21 million per year, consisting mainly of costs of additional court and tribunal cases and compensation awards.

Summary of the (Equality) 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 Bill’s measures which the assessment identifies as having the greatest impact on certain groups are:

  • the general public sector equality duty on public bodies (clause 148) which will replace the three existing duties (relating to race, gender, disability) with a single duty covering race, sex, pregnancy and maternity, gender reassignment, disability, age, sexual orientation and religion or belief. Therefore, the new duty will extend additionally to people with certain protected characteristics (age, religion or belief, sexual orientation; and fully to transsexual people). In practice, public authorities will need to think about the impact of their policies, programmes and services on these new groups of people, as well as their impact in respect of race, gender and disability;

  • the definition of direct discrimination (clause 13). This also covers, in respect of the protected characteristics (except marriage and civil partnership; or pregnancy and maternity), protection of people who associate with people with those characteristics (for example, are related to or care for them as part of their family); and protection of people who are wrongly perceived to possess those characteristics. Until now, protection from discrimination because of association and perception has been limited to the protected characteristics of race, religion or belief and sexual orientation. For age, where protection is only provided in employment and related areas, there is protection in relation to perception but not association. There is no protection in relation to perception or association for disability, sex, and gender reassignment. The effect of the Bill is therefore to extend protection based on association and perception to these protected characteristics across all fields in the Bill (with the exception, in relation to age, of children below the age of 18 outside the employment field);

  • the Bill provides protection if individuals experience discrimination because of a combination of two relevant protected characteristics (clause 14), for example as a black woman, which a black man or white woman would not experience. This is called dual discrimination. The Equality Impact Assessment maintains that a dual discrimination provision is likely to have a significant impact on race equality as the majority of incidents of discrimination because of a combination of characteristics involve race (based on evidence from research undertaken by Citizen Advice).

  • for people whatever their age (except children below the age of 18, who are specifically excluded), the Bill provides protection against age discrimination in the provision of goods, facilities and services and the exercise of public functions (clauses 4, 5 and 13);

  • for disabled people, the Bill provides for simplification of definitions and (Schedule 4, paragraphs 5-7) a requirement on landlords to make adjustments to common parts of let residential premises, where reasonable, and for protection against discrimination arising from a person’s disability (clause 15); and a provision which limits the use of pre-employment disability-related enquiries to after an applicant has been given the opportunity to demonstrate his or her suitability for the post except in specified circumstances;

  • for anyone who belongs to a disadvantaged or under-represented group, in employment, or as the recipient of a service, the Bill provides scope for voluntary positive action to address this (clause 157);

  • from the perspective of sexual orientation and religion or belief, the main impact is through including these characteristics in the public sector equality duty (see above);

  • from the perspective of race, the main impact is simplification of the criteria and tests that apply, including in indirect discrimination (clause 19). This removes a series of long-standing anomalies resulting from implementation of the Race Directive in 2000 by extending protection to colour and nationality on the same terms as for all other forms of racial discrimination.

Carbon impact

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.

Territorial extent and application

General

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.

Scotland

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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