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Educational appointments etc: religious belief: paragraphs 3 and 4
967. Paragraph 3 provides an exception from the provisions on sex or religious discrimination for certain posts in schools or institutions of further or higher education where their governing instrument requires the head teacher or principal to be of a particular religious order, or that a particular academic position must be held by a woman, or where the legislation or instrument which establishes a professorship requires the holder to be an ordained priest. In the case of academic positions reserved to women, the exception only applies where the governing instrument was made before 16th January 1990.
968. There is an order-making power conferred on a Minister of the Crown to withdraw the exception either in relation to a particular institution or a class of institutions.
969. Paragraph 4 provides that it is not unlawful discrimination for schools which have a religious character or ethos (often referred to as faith schools) to do certain things which are permitted by the School Standards and Framework Act 1998. This includes:
970. Paragraph 3 is designed to replicate the effect of provisions in section 5 of the Employment Act 1989.
971. Universities restrict Canon Professorships to certain religions since such posts can only be held by ordained Ministers.
972. Paragraph 4 is designed to replicate the effect of regulation 39 of the Employment Equality (Religion or Belief) Regulations 2003.
Crown employment etc.: paragraph 5
973. Paragraph 5 allows restrictions on the employment of foreign nationals in the civil, diplomatic, armed or security and intelligence services and by certain public bodies. It also allows restrictions on foreign nationals holding public offices.
974. The paragraph replaces similar provisions in the Race Relations Act 1976.
Acts authorised by statute or the executive: paragraph 1
975. This paragraph allows direct nationality discrimination and indirect race discrimination on the basis of residency requirements where the discrimination is required by law, Ministerial arrangements or Ministerial conditions.
976. The paragraph replaces a similar exception in the Race Relations Act 1976.
Organisations relating to religion or belief: paragraph 2
977. Paragraph 2 provides an exception for religious or belief organisations with regard to the provisions in the Bill relating to services and public functions, premises and associations.
978. The types of organisation that can use this exception are those that exist to: practice, advance or teach a religion or belief; allow people of a religion or belief to participate in any activity or receive any benefit related to that religion or belief; promote good relations between people of different religions or beliefs. Organisations whose main purpose is commercial cannot use this exception.
979. The exception allows an organisation (or a person acting on its behalf) to impose restrictions on membership of the organisation; participation in its activities; the use of any goods, facilities or services that it provides; and the use of its premises. However, any restriction can only be imposed by reference to a persons religion or belief or their sexual orientation.
980. In relation to religion or belief, the exception can only apply where a restriction is necessary to comply with the purpose of the organisation or to avoid causing offence to members of the religion or belief that the organisation represents.
981. In relation to sexual orientation, the exception can only apply where it is necessary to comply with the doctrine of the organisation or in order to avoid conflict with the strongly held convictions of members of the religion or belief that the organisation represents. However, if an organisation contracts with a public body to carry out an activity on that bodys behalf then it cannot discriminate because of sexual orientation in relation to that activity.
982. The exception also enables ministers of religion to restrict participation in the activities that they carry out in the performance of their functions as a minister and access to any goods, facilities or services they provide in the course of performing those functions.
983. This paragraph replicates the effect of similar provisions in Part 2 of the Equality Act 2006 and the Equality Act (Sexual Orientation) Regulations 2007.
Communal accommodation: paragraph 3
984. This paragraph provides an exception to the general prohibition of sex and gender reassignment discrimination. It allows communal accommodation to be restricted to one sex only, as long as the accommodation is managed as fairly as possible for both men and women. It sets out factors which must be considered when restricting communal accommodation to one sex only, and provides that discriminatory treatment of transsexual people must be objectively justified.
985. Communal accommodation is defined as residential accommodation which includes shared sleeping accommodation which should only be used by members of one sex for privacy reasons.
986. Where such accommodation is refused in the field of work, or a benefit linked to such accommodation is refused, alternative arrangements must be made where reasonable so as to compensate the person concerned.
987. This paragraph replaces similar provisions in the Sex Discrimination Act 1975. The scope of the exception has been extended from employment, education and services to all fields.
Training provided to non-EEA residents, etc: paragraph 4
988. Paragraph 4 allows less favourable treatment because of a persons nationality in relation to training and associated benefits that are intended for people who do not live in an EEA state, as long as the training provider believes that the person will not subsequently use the skills obtained in Great Britain. This means that an EEA resident cannot claim to have been discriminated against in relation to this type of activity.
989. Employment or contract work can be covered by this exception where its sole or main purpose is the provision of training in skills. Special provision is made in relation to defence training to reflect current arrangements to help provide other nations with the skills to assist the United Kingdom in addressing global conflict and supporting the United Kingdom on multi-national operations.
990. The main purpose of this provision is to enable people from developing countries to acquire vital skills which may not be available in their country of residence. It replaces similar provisions in the Race Relations Act 1976. The general rule on non-residence has been extended from Great Britain to include all EEA states, except in relation to defence training which is provided to forces from other EEA states as well as those outside the EEA.
991. This Schedule sets out the provisions of the Bill to which the power in clause 196 does not apply. These are largely provisions where all the equality provisions are clearly governed by Community law or where power exists under other legislation to deal with any anomalies that may otherwise arise. Accordingly it will not be possible to amend these provisions using the power in clause 196 to bring them into line, where needed, with changes in European law.
992. This Schedule ensures that the provisions of the Bill do not conflict with the requirements of Directive 2000/31/EC of the European Parliament and of the Council of 8th June 2000 (the E-Commerce Directive). It provides that where an information society service provider (the provider) is established in Great Britain, the provisions of the Bill apply to anything done by the provider in providing the information society service in another EEA state. By contrast, where the provider is established in an EEA state other than the United Kingdom, then the Bill does not apply to anything done by the provider in providing the information society service, even within Great Britain. Various exceptions to the provisions of the Bill are provided in respect of intermediary internet service providers who carry out activities essential for the operation of the internet.
993. These provisions are new. They are necessary to ensure the United Kingdom correctly transposes the E-Commerce Directive.
994. This Schedule sets out a number of amendments to the following acts: the Local Government Act 1988, the Employment Act 1989 and the Equality Act 2006. These amendments are necessary to ensure that these Acts refer accurately to the new provisions contained in the Bill and work properly with those new provisions. For example, where a new term or a new definition is used in the Bill and an existing Act refers to the term in current legislation which is being repealed, the existing Act needs to be amended to refer to the new term or definition.
Local Government Act 1988: paragraphs 1 to 4
995. This paragraph amends Part 2 of the Local Government Act 1988 (the 1988 Act) so as to provide that the public bodies to which that Part applies may exercise a function by reference to a non-commercial matter to the extent that the authorities consider it necessary or expedient to do so in order to comply with the equality duty.
996. Section 17 of the 1988 Act prevents public bodies to which that Part applies from introducing certain non-commercial matters into the procurement process; these are set out at subsection 5 of that Act. Section 18 of the 1988 Act ensured that section 17 of that Act did not restrict those authorities from complying with their duties under the Race Relations Act 1976. It achieved this by permitting those authorities to ask six approved questions of their contractors.
997. The Local Government Best Value (Exclusion of Non- commercial Considerations) Order 2001 (S.I. 2001/9090) modified sections 17(5)(a) and (d) of the 1988 Act so that matters relating to the terms and conditions of employment etc. of a contractors workforce, and the conduct of contractors or their workers in industrial disputes cease to be non-commercial matters only so far as necessary or expedient to permit or facilitate compliance with the best value requirements of the Local Government Act 1999 or the Transfer of Undertakings (Protection of Employment Regulations) 1981. Similar amendments were made for Scotland and Wales.
Equality Act 2006: paragraph 13
998. This amendment to the Equality Act 2006 allows the Equality and Human Rights Commission to use its enforcement powers, such as the power to conduct investigations and the power to apply for an injunction, in relation to unlawful direct and indirect discrimination under the Bill, including the making of arrangements which would result in direct discrimination, if applied to an individual. It can also use its powers in relation to discrimination arising from disability and discrimination in cases where the relationship between the parties has ended.
999. It allows the Equality and Human Rights Commission to use its powers whether or not it knows or suspects that an individual has been affected by the discrimination. It makes clear that nothing in the Equality Act 2006 affects an individuals right to bring a claim under the Bill.
1000. This amendment partially replaces provisions in current discrimination law relating to discriminatory practices and discriminatory advertisements. The substantive prohibition against discriminatory practices and advertisements is no longer required as it is covered elsewhere in the Bill. This amendment therefore only covers the enforcement aspects of those clauses. Enforcement by the Equality and Human Rights Commission has been extended to cover both direct and indirect discrimination because of any of the protected characteristics, as well as discrimination arising from disability.
1001. This Schedule lists the current legislative provisions which will cease to have effect once the relevant provisions in the Bill come into force.
1002. This Schedule lists the terms and expressions which are defined in the Bill and refers the reader to the provision in the Bill where the definition can be found.
These notes refer to the Equality Bill
as brought from the House of Commons on 3rd December 2009
[HL Bill 20]
Ordered to be Printed,
3rd December 2009
(c) Parliamentary copyright House of Lords 2009
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HL Bill 20EN 54/5
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