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Example

  • A new design of vehicle, which does not conform to the current accessibility regulations, is to be trialled. The Secretary of State makes an order allowing the use of the vehicle in a restricted environment, specifying the permitted areas and times of operation, so that its performance can be tested.

Clause 177: Reviews and appeals

Effect

586.     If the Secretary of State refuses to approve a vehicle as a “type vehicle”, this clause allows the applicant to ask the Secretary of State to review of the decision on payment of a fee. It also gives a right of appeal to the Secretary of State of any refusal to issue an accessibility or approval certificate. It also allows the Secretary of State to set out the appeals procedure in regulations.

Background

587.     This clause replicates the provisions contained in Section 44 of the Disability Discrimination Act 1995.

Example

  • A vehicle manufacturer is refused approval of a new bus design as a “type vehicle”. The manufacturer asks the Secretary of State to review the decision and pays the required fee. The Secretary of State must review the decision and any supporting written evidence or representations, and can confirm, vary or reverse the original decision.

Clause 178: Fees

Effect

588.     This clause contains a power for the Secretary of State make fees regulations and to charge fees in accordance with them for processing applications for approval as a “type vehicle”, processing accessibility and approval certificates, issuing duplicate certificates and conducting reviews and appeals. Fees are not likely to be greater than the amount needed to cover costs. The clause allows provision for repaying fees in whole or part in certain circumstances, for example, on a successful appeal.

Background

589.     This clause replicates the provisions contained in section 45 of the Disability Discrimination Act 1995.

Example

  • An applicant may have to pay a fee for accessibility and approval certificates for a public service vehicle, to cover the cost of dealing with the application and inspection process.

Clause 179: Interpretation

Effect

590.     This clause explains the meaning of terms used in this chapter, for example, “accessibility certificate”, “approval certificate”, “PSV accessibility regulations” and “regulated public service vehicle”.

Chapter 3: Rail vehicles

Clause 180: Rail vehicle accessibility regulations

Effect

591.     This clause includes powers for the Secretary of State to make regulations to ensure that trains, trams and certain other guided transport systems are accessible to disabled people including wheelchair users.

592.     However, due to the limited definition of “rail vehicle” used in this clause, its scope is limited to rail vehicles which do not operate on the “interoperable rail system”. Regulations made under this clause could therefore only be applicable for the most part to light rail vehicles (those used on metro, underground and tram systems and prescribed modes of guided transport).

593.     All rail vehicles must comply with accessibility standards, or have an appropriate exemption in place, by no later than 1st January 2020.

594.     Before making any regulations under this clause, the Secretary of State must first consult with the Disabled Persons Transport Advisory Committee and other representative organisations.

Background

595.     This clause replicates the provisions of section 46 of the Disability Discrimination Act 1995 as amended by the Disability Discrimination Act 2005.

Example

  • All new rail vehicles introduced on metro, underground or tram systems, or prescribed modes of guided transport, will need to be fully accessible or seek an exemption (under clause 181) if there are compelling circumstances which mean they cannot comply.

Clause 181: Exemptions from rail vehicle accessibility regulations

Effect

596.     This clause contains a power for the Secretary of State to make orders (“exemption orders”) authorising a regulated rail vehicle to be used in passenger service even though it does not comply with accessibility standards, or the way it is to be used would not comply with such standards.

597.     It provides for regulations to specify who may apply for an exemption order, what information needs to be supplied, how the exemption regime will operate, how long an exemption order can apply and measures for revocation. This list is not exhaustive.

598.     Before granting an exemption order, the Secretary of State must first consult with the Disabled Persons Transport Advisory Committee and such other persons as considered appropriate.

Background

599.     This clause replicates the provisions of section 47 of the Disability Discrimination Act 1995 as amended by the Disability Discrimination Act 2005.

Example

  • The exemption power can be used to exempt a specified rail vehicle, or a rail vehicle of a specified description or the use of such a vehicle in specified circumstances. So, for example, all the vehicles used on a particular network (such as a heritage or tourist railway or tramway) could be exempted.

Clause 182: Procedure for making exemption orders

Effect

600.     This clause provides that exemption orders made under clause 181 may, at the discretion of the Secretary of State, be subject to either the draft affirmative resolution or the negative resolution procedure. It sets out the procedure for the exercise of this discretion and enables regulations to be made setting out the criteria under which a decision will be made.

601.     The Secretary of State is required to consult the Disabled Persons Transport Advisory Committee, and other appropriate persons, before making such regulations, which are themselves subject to the draft affirmative resolution procedure.

Background

602.     This clause replicates sections 67(5A) and 67A of the Disability Discrimination Act 1995 as inserted by the Disability Discrimination Act 2005 (which are in force).

Clause 183: Annual report on exemption orders

Effect

603.     This clause requires the Secretary of State to produce an annual report (“the report”) on the use of powers to exempt regulated rail vehicles from accessibility requirements. The report will be produced for each calendar year and must contain details of all exemption orders made under clause 181. It must also contain information about the consultation on both applications for exemption orders and the exercise of discretion under clause 182. The report must be laid before both Houses of Parliament.

Background

604.     This clause replicates the provisions of the Disability Discrimination Act 1995 section 67B as inserted by the Disability Discrimination Act 2005 (which are in force).

Clause 184: Rail vehicle accessibility: compliance

Effect

605.     This clause relates to the provisions of Schedule 20 which contain powers to introduce compliance certification and a civil enforcement regime with associated penalties.

606.     Commencement of subsection (1) would bring Schedule 20 into effect. However, subsection (2) provides that, if not commenced (either fully or to any extent) before the end of 2010, the clause and Schedule 20 would be automatically repealed.

Background

607.     Schedule 20 replicates the provisions of the Disability Discrimination Act 1995 sections 47A to 47M as inserted by the Disability Discrimination Act 2005 (but not yet in force).

608.     This clause is necessary since the Department for Transport has recently completed a consultation on the reappraisal of the introduction of compliance certification and civil enforcement powers for rail vehicle accessibility, as provided for by amendments introduced into the Disability Discrimination Act 1995 by the Disability Discrimination Act 2005 but not yet in force. The consultation period ended on 3rd July 2009 but, in order to accommodate possible outcomes of the consultation exercise (i.e. implementation of compliance certification and civil enforcement powers or otherwise) on the face of the Bill, it has been necessary to include these provisions in the Schedule.

609.     Consultation responses indicate that the Government's preferred option of not commencing the provisions contained in Schedule 20 is widely supported by stakeholders.

Clause 185: Interpretation

Effect

610.     This clause includes cross references to explanations as to what is meant by the terms “rail vehicle”, “regulated rail vehicle” and “rail vehicle accessibility regulations” used throughout this Chapter of the Bill. It also defines what is meant by use “for carriage”.

Background

611.     This clause replicates the provisions of the Disability Discrimination Act 1995 as amended by the Disability Discrimination Act 2005.

Chapter 4: Supplementary

Clause 186: Forgery etc.

Effect

612.     This clause makes it a criminal offence for a person to forge, alter, use, lend, or allow another person to use a, public service vehicle accessibility certificate, public service vehicle “type” certificate or any exemption certificate issued in respect to assisting disabled passengers in taxis or carriage of assistance dogs, or to make or have in his possession a document which resembles such a certificate, with intent to deceive. It is also an offence to knowingly make a false statement in order to obtain any of these certificates.

Background

613.     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 187: Reasonable adjustments

Effect

614.     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 188: Improvements to let dwelling houses

Effect

615.     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.

616.     This clause applies only in England and Wales.

Background

617.     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 189: Statutory provisions

Effect

618.     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 190: National security

Effect

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

Background

620.     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 191: Charities

Effect

621.     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.

622.     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.

623.     The clause also allows certain charities to make acceptance of a religion or belief a condition of membership, and to refuse members access to benefits if they do not accept a religion or belief where membership itself is not subject to such a condition, if they have done so since before 18th 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

624.     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 192: Charities: supplementary

Effect

625.     This clause makes it clear that clause 191 does not allow charities to restrict their benefits to people because of colour.

626.     It explains what is meant by “charity” and related expressions used in clause 191.

Clause 193: Sport

Effect

627.     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.

628.     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

629.     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 194: General

Effect

630.     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 195: Age

Effect

631.     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. Orders can provide for a Minister of the Crown or the Treasury to issue guidance, for consultation about the guidance and can impose requirements that refer to the guidance.

Background

632.     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

633.     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 196 Harmonisation

Effect

634.     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

635.     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

636.     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 197: Crown application

Effect

637.     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

638.     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 198: Information society services

Effect

639.     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

640.     The provisions in Schedule 25 are new.

Clause 199: Exercise of power

 
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Prepared: 4 December 2009