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Effect

641.     This clause makes provision for the powers to make secondary legislation under the Bill. Unless it is stated otherwise, they will be exercised by a Minister of the Crown and be statutory instruments. It also provides that orders and regulations may deal with different situations differently and include consequential and other provisions dealing with transition to the new provisions.

642.     In some cases, the power to make consequential provision can be exercised to amend an enactment, including, in relation to clause 195 (age) and clause 208 (commencement) the act arising out of this Bill, for example, this would enable a consequential amendment to be made to this Bill where it is necessary to update a reference to other legislation that is passed after this Bill receives Royal Assent but before it comes into force.

643.     The clause also enables matters that need to be dealt with on commencement of a particular section such as transitional provisions and consequential amendments to be dealt with in more than one order and, if necessary, at different times and by different procedures. For example, it would enable consequential amendments to primary legislation, which require the affirmative Parliamentary procedure, to be dealt with in a separate commencement order or orders from other provisions which do not require a parliamentary procedure.

Background

644.     As with any Bill delegating the power to legislate, this clause is needed to set out the arrangements for how Ministers are to exercise such delegated power. This is a large Bill with some 14 powers that confer power to amend primary legislation. Much of the Bill involves consolidation and harmonisation of the existing law, so that the range of possible consequential amendments is likely to be limited. It is thought convenient to specify in one place those powers to amend primary legislation that include a power to make consequential amendments to primary legislation. It is also thought that having a general power of the kind more usually found in current legislation might lead to duplication in those cases where it is considered that power to make consequential amendments is required and might raise doubt in those cases where it is not.

Clause 200: Ministers of the Crown

Effect

645.     This clause establishes which Parliamentary procedures apply to the regulations and orders which can be made by Ministers of the Crown under the Bill.

Background

646.     In common with any Bill containing powers to make secondary legislation, this clause is needed to set out the arrangements for how Parliament is to control the use of powers in the Bill. It provides for any instrument amending any Act (including the Act resulting from this Bill), any Act of the Scottish Parliament or Act or Measure of the Welsh Assembly to be made only using the affirmative procedure. There are some exceptions. In a few other cases - for example where regulations under clause 78 are made to introduce a requirement on employers to report on their gender pay gap the affirmative procedure must also be used and the relevant order or regulations must be approved by both Houses of Parliament before they can come into force.

Clause 201: The Welsh Ministers

Effect

647.     This clause establishes the Parliamentary procedures that apply to regulations and orders under the Bill made by Welsh Ministers.

648.     Most do not automatically need to be considered by the National Assembly for Wales. However, in most cases they can be opposed, in which case they may be considered by the Assembly in plenary session. Instruments imposing specific duties on public authorities or cross border authorities must be considered before they can come into force.

Background

649.     In common with any Bill containing powers to make secondary legislation, this clause is needed to set out who is to make regulations and orders (usually a Minister), how their effect may vary according to particular circumstances and the arrangements for Assembly control over their exercise.

Clause 202: The Scottish Ministers

Effect

650.     This clause establishes the Parliamentary procedures that apply to regulations and orders under the Bill made by Scottish Ministers.

651.     Most do not automatically need to be debated by the Scottish Parliament. However, in most cases they can be opposed, in which case a debate may be held. Instruments imposing specific duties on public authorities or cross border authorities must be debated before they can come into force.

Background

652.     In common with any Bill containing powers to make secondary legislation, this clause is needed to set out who is to make regulations and orders (usually a Minister), how their effect may vary according to particular circumstances and the arrangements for Parliamentary control over their exercise.

Clause 203: Amendments, repeals and revocations

Effect

653.     This clause gives effect to Schedules 26 and 27. Schedule 26 contains amendments to other Acts which are necessary as a consequence of the Bill’s provisions. Schedule 27 lists the provisions in current legislation which will cease to have effect when the relevant provisions of the Bill are brought into force.

Clause 204: General interpretation

Effect

654.     This clause explains what is meant by various words and phrases which appear in more than one Part of the Bill.

Background

655.     While a key objective of the Bill is to present discrimination law in plain language and most words used in the Bill have an ordinarily obvious meaning, it is sometimes necessary to make clear the specific legal meaning of some words and phrases that are used several times in the Bill.

656.     Other important words and phrases appear in only one Part or Chapter of the Bill. Where necessary these are defined in the Part or Chapter where they appear. Others are not defined at all, either because they are clear, or because they are to be interpreted in accordance with the Interpretation Act 1978.

Examples

  • It is necessary to clarify in this clause that “detriment” excludes harassment, to make it clear that where the Bill provides explicit harassment protection, it is not possible to bring a claim for direct discrimination by way of detriment on the same facts. Where explicit harassment protection is not provided (for example in the case of sexual orientation under Part 6, Chapter 1 (education in Schools)), detriment includes treatment which would amount to harassment.

  • The Equality and Human Rights Commission is mentioned in a number of clauses. It therefore makes sense to refer to “the Commission” throughout and define it in this clause.

  • “Parent” is used in a number of places in the Bill, including the victimisation provisions and several Schedules. Rather than seeking to produce a new definition, this clause explains that the existing definitions in the relevant Education Acts apply.

Clause 205: References to maternity leave, etc.

Effect

657.     This clause explains what is meant by the different periods of maternity leave which are referred to in the Bill.

Background

658.     The rights of female employees to statutory maternity leave are provided for in the Employment Rights Act 1996. Compulsory maternity leave, ordinary maternity leave and additional maternity leave are the three types of maternity leave provided for in sections 72(1), 71(1) and 73(1) of that Act respectively.

Clause 206: Index of defined expressions

Effect

659.     This clause gives effect to Schedule 28, which provides an index of the expressions that are defined in the Bill.

Clause 207: Money

Effect

660.     This clause is included to comply with rules of procedure on financial matters. It does not, of itself, authorise expenditure that is not covered elsewhere in the Bill.

Clause 208: Commencement

Effect

661.     This clause sets out when some of the provisions in the Bill come into effect, and how the rest will be brought into force. The clauses relating to commencement, short title, subordinate legislation and interpretation will all come into force automatically on the day on which the Act receives Royal Assent. The rest of the Bill will be brought into force by commencement orders made by a Minister of the Crown. The orders will set out the date on which specific provisions start to have legal effect.

Clause 209: Extent

Effect

662.     This clause explains that all of the provisions of the Bill are part of the law of England and Wales.

663.     All of the provisions of the Bill, except for clause 188 (improvements to let dwelling houses), are also part of the law of Scotland.

664.     In relation to Northern Ireland, the Bill is not part of Northern Ireland’s law, except for the following,

  • clause 82 (offshore work),

  • clause 105 (expiry of Sex Discrimination (Election Candidates) Act 2002).

Clause 210: Short title

Effect

665.     This clause sets out the short title of the Act.

Schedule 1: Disability: supplementary provision

Effect

666.     Part 1 of this Schedule clarifies the definition of disability in clause 6 and provides a number of regulation making powers to enable the definition to be amended at a later date if required.

667.     Part 2 describes what can be included in guidance about the definition of disability and prescribes adjudicating bodies which are obliged to take account of guidance, the role of Ministers in developing and publishing guidance and the associated parliamentary procedures.

Background

668.     This Schedule replaces similar provisions in the Disability Discrimination Act 1995. However, the Bill introduces one change by removing a requirement to consider a list of eight capacities, such as mobility or speech, hearing or eyesight, when considering whether or not a person is disabled. This change will make it easier for some people to demonstrate that they meet the definition of a disabled person. It will assist those who currently find it difficult to show that their impairment adversely affects their ability to carry out a normal day-to-day activity which involves one of these capacities.

Example

  • A man with depression finds even the simplest of tasks or decisions difficult, for example getting up in the morning and getting washed and dressed. He is also forgetful and can’t plan ahead. Together, these amount to a “substantial adverse effect” on his ability to carry out normal day-to-day activities. The man has experienced a number of separate periods of this depression over a period of two years, which have been diagnosed as part of an underlying mental health condition. The impairment is therefore considered to be “long-term” and he is a disabled person for the purposes of the Bill.

Schedule 2: Services and public functions: reasonable adjustments

Effect

669.     This Schedule explains how the duty to make reasonable adjustments in clause 20 applies to a service provider or person exercising a public function where a disabled person is placed at a substantial disadvantage. It includes definitions of “substantial disadvantage” and “physical features” and stipulates that the duty does not require fundamental changes to the nature of the service. As the duty is owed to disabled persons generally, it is an anticipatory duty which means service providers and people exercising public functions must anticipate the needs of disabled people and make appropriate reasonable adjustments.

670.     This Schedule also explains how the duty to make reasonable adjustments in clause 20 applies to operators of transport vehicles. It specifies that the duty applies in different ways to different types of vehicle. It provides that a transport service provider is not required to make adjustments to the physical features of vehicles or to whether vehicles are provided, except in specified circumstances. It provides a power to make regulations to allow further amendments to be made to this paragraph in the future.

Background

671.     This Schedule replaces similar provisions in the Disability Discrimination Act 1995.

Examples

  • The manager of a large shop in a national chain installs a ramp, automatic entry doors, hearing induction loops and waives the “no dogs policy” in respect of assistance dogs, to comply with the duty to make reasonable adjustments.

  • A police officer is carrying out a public function when interviewing a witness who is deaf. Arranging a British Sign Language / English interpreter for the interview might be a reasonable adjustment to make.

  • It might be a reasonable adjustment for a rail service provider to arrange an alternative catering service for disabled people who cannot get to the buffet or dining car, or to provide assistance from staff where passengers have a sensory or physical impairment.

Schedule 3: Services and public functions: exceptions

672.     This Schedule sets out exceptions from the prohibitions on discriminating against, harassing or victimising a person when providing services or exercising a public function set out in clause 29 of the Bill.

Part 1: Constitutional matters: paragraphs 1-5

Effect

673.     Part 1 of this Schedule provides that the prohibitions do not apply to:

  • the exercise of parliamentary functions and functions linked to the undertaking of parliamentary business;

  • preparing, making, approving or considering primary legislation or particular forms of secondary legislation, including legislation of the Scottish Parliament and the National Assembly for Wales;

  • exercising judicial functions or deciding not to commence or continue criminal proceedings

674.     Part 1 also provides that the prohibition on discriminating against a person when exercising a public function does not apply to the armed forces in respect of the protected characteristics of age, disability, gender reassignment and sex when the reason for such acts is to ensure combat effectiveness.

675.     It also provides that the prohibitions on discriminating against, harassing or victimising a person when providing a service or exercising a public function do not apply to the Security Service, the Security Intelligence Service, the Government Communication Headquarters (GCHQ) or any part of the armed forces assisting GCHQ.

Background

676.     Part 1 of this Schedule is designed to replicate the effect of exceptions contained in current legislation where discrimination, harassment and victimisation in the exercise of a public function is already prohibited, and apply the exception to relevant protected characteristics.

Examples

  • Activity related to the preparation and making of primary legislation, such as this Bill, would be excepted from the prohibition on discrimination. However, activity related to the making of a bye-law by a local authority would not be within the exceptions in this Schedule.

  • A decision of a judge on the merits of a case would be within the exceptions in this Schedule. An administrative decision of court staff, about which contractor to use to carry out maintenance jobs or which supplier to use when ordering stationery would not be.

Part 2: Education

Education: paragraph 6

Effect

677.     Paragraph 6 provides that the prohibitions on discrimination in Part 3 do not, so far as they relate to age, or religion or belief, apply to a local authority performing its function under sections 13 and 14 of the Education Act 1996 which relate to providing primary and secondary schools for children in a given catchment area.

Background

678.     Similar exceptions for religion or belief were in the Equality Act 2006. The age exceptions are new because of the extension of age discrimination law in this Bill.

679.     The reason for the provision in paragraph 6 is to prevent a local authority being bound to provide schools for pupils of different faiths, or no faith, or for particular age groups, in every catchment area.

Examples

  • Catholic parents will not be able to claim that their local authority is discriminating unlawfully if there is no Catholic school in their catchment area, or if there are fewer places in Catholic schools than in Church of England schools.

  • Parents of secondary age children will not be able to claim that it is age discrimination if their children have to travel further than younger ones to reach their school.

Education: paragraph 7

Effect

680.     Paragraph 7 makes similar provision for Scotland as is made by paragraph 6.

Education: paragraph 8

Effect

681.     This paragraph provides an exception from the prohibition on sex discrimination in Part 3 in relation only to the establishment of a school. A local authority will not be prevented from establishing single sex schools, but must provide similar numbers of places for boys and girls.

Background

682.     This provision is designed to replicate the effect of provisions in the Sex Discrimination Act 1975.

Education: paragraph 9

Effect

683.     Paragraph 9 excepts from the prohibition on age discrimination in Part 3 (to the extent that it is not excepted elsewhere), the exercise by any public authority of functions in a number of areas that relate to schools.

Background

684.     These exceptions ensure that policies and practices which relate to things which schools are allowed to do under the Bill do not become unlawful when carried out by public authorities.

Examples

  • School admissions policies can continue to be based on the ages of prospective pupils.

  • School transport can be provided for children of a particular age only.

Education: paragraph 10

Effect

685.     Paragraph 10 provides an exception for local authorities, from the provisions requiring reasonable adjustments in Part 3, in respect of their activities in relation to school education, from the requirement to alter physical features of premises or provide auxiliary aids and services when making reasonable adjustments for disabled people.

Background

686.     These exceptions are designed to replicate the effect of provisions in the Disability Discrimination Act 1995 and ensure that local authorities, when carrying out their education functions, do not have to take account of altering physical features or providing auxiliary aids and services since such things will fall within the requirements on them to produce accessibility strategies as set out in Schedule 12. This mirrors the requirements placed on schools themselves.

Education: paragraph 11

Effect

687.     Paragraph 11 provides an exception from the prohibition on religious or belief-related discrimination in Part 3 (to the extent that it is not excepted elsewhere), in relation to the exercise by any public authority of functions in a number of areas that relate to faith and non-faith educational institutions. In relation to all schools those areas are the curriculum, collective worship, school transport and the establishment, alteration and closure of schools; and in relation to schools which have a religious ethos the exception also applies to admission of pupils and the responsible body of such a school.

Background

688.     This provision is designed to replicate the effect of provisions in Part 2 of the Equality Act 2006. It ensures that policies and practices which relate to things which schools are allowed to do under the Bill do not become unlawful when carried out by public authorities.

Examples

  • A public authority will not be open to claims of religious discrimination as a result of its decision to establish, alter or close a faith school.

  • A local authority can select a person of a particular religion or belief to be a governor of a school with a religious ethos.

Part 3: Health and care

Blood services: paragraph 13

Effect

689.     Paragraph 13 provides that it is not unlawful for a person operating a blood service to refuse to accept someone’s donation of blood provided they have reliable evidence that accepting it would put the public or the individual donor at risk and that such a refusal would not be unreasonable.

690.     A blood service is a service that collects donations of human blood and blood components to use for medical purposes, for example the NHS Blood and Transplant Special Health Authority.

691.     “Blood” includes components, for instance plasma or red blood cells.

Background

692.     This provision is designed to replicate the effect of Regulation 28 of the Equality Act (Sexual Orientation) Regulations 2007, and extend the exception to the other protected characteristics. It also provides that a refusal to allow somebody to donate blood or blood components because of a risk to the donor’s own health would not be unlawful.

Examples

  • If there is evidence that people who have been sexually active in a particular country are more likely to be infected with HIV, the operator of the blood service can refuse to accept donations of blood or blood components from people who have been sexually active there, even if that disproportionately affects members of a particular nationality and so might otherwise be unlawful indirect discrimination because of race.

  • If there is evidence that women who have recently given birth are likely to suffer detrimental effects from giving blood or blood components, then a blood service can refuse to accept donations from them. This would not be unlawful direct discrimination because of maternity.

Health and Safety: paragraph 14

Effect

693.     Paragraph 14 provides that it is not unlawful for a person to discriminate against a pregnant woman by refusing to provide her with a service or only providing the service to her on certain conditions if they reasonably believe that to do otherwise would create a risk to her health or safety and they would take similar measures in respect of persons with other physical conditions.

Background

694.     Provisions making it unlawful for a person to discriminate against a pregnant woman in the provision of services were introduced into the Sex Discrimination Act 1975 by the Sex Discrimination Act 1975 (Amendment) Regulations 2008. Those provisions contain an equivalent exception on health and safety grounds.

Example

  • A leisure centre could refuse to allow a pregnant woman to use certain gym equipment (for example, a rowing machine) after a certain point in her pregnancy if it reasonably believed that allowing her to use the equipment would create a risk to her health and safety and it would also refuse, for example, to allow a man with a serious heart condition to use the equipment.

  • An airline could refuse to allow a pregnant woman to travel beyond her 35th week of pregnancy if it reasonably believed that allowing her to travel would create a risk to her health and safety and it would also refuse people with other physical conditions to travel.

Care within the family: paragraph 15

Effect

695.     Paragraph 15 is designed to ensure that people who provide foster care, or other similar forms of care, in their own home are not subject to the prohibitions on discriminating against, harassing or victimising a person in the provision of services while providing that care.

696.     It applies irrespective of whether or not the person is paid for providing the care service.

 
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Prepared: 4 December 2009