In my view the provisions of the Equality Bill are compatible with the Convention
1. These explanatory notes relate to the Equality Bill [Bill 85] as introduced in the House of Commons on 24 April 2009. They have been prepared by the Government Equalities Office, the Department for Work and Pensions (in respect of provisions relating to disability), the Department for Children, Schools and Families and Department for Innovation, Universi-ties 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, Enterprise and Regulatory Reform (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.Following the approval by the House on 30 March of the First Report from the Procedure Committee (House of Commons Paper No. 377), the notes on each clause appear opposite that clause. The aim is to make the explanatory material easier to use.
BACKGROUND AND SUMMARY
4.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 ini-tiatives and sometimes through implementing European Directives.
5.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.
6.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 24 December 2002).
7.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.
8.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 con-sistency in the protection afforded to different groups while taking into account evidence that different legal approaches may be appropriate for different groups.”
9.In June 2007 the Department for Communities and Local Government published a con-sultation paper, A Framework for Fairness: Proposals for a Single Equality Bill for Great Brit-ain. 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 disad-vantage associated with socio-economic inequality.
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 5 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 con-stitution 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 authorities to consider socio-economic disadvantage when taking 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;
create a duty on listed public authorities 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 authorities 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:
Imposes a duty on certain public authorities to have due regard to socio-economic considerations in deciding their strategic priorities.
Part 2 including Schedule 1
Establishes 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, 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 3
Makes 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 5
Makes 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 9
Makes 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 14
Makes 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 16
Makes it unlawful for associations (for example, private clubs and political organisations) to discriminate against, harass or victimise members, associates or guests.
Prohibits 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 17
Deals 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).
Makes 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 19
Establishes 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 20
Requires 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 21
Deals with consent to make reasonable adjustments to premises and improvements to let dwelling houses.
Part 14 including Schedules 22 and 23
Establishes 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 28
Contains 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. The (regulatory) Impact Assessment 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 £13 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 £5 million and £39 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 organisa-tions. The Government estimates that the costs will be offset by benefits including from sim-plification 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 £135 per authority).
18.The general public sector equality duty (clause 143), 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 factor in 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 power provided in the Bill at clause 147 and 148. The current spe-cific 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 will be consulting, during the passage of the Bill, on the approach to be adopted in setting out specific duties, and a separate Impact Assessment will accompany that consulta-tion. 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 pro-hibition 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 will be consulting further during the Bill’s passage through Parliament. 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 the Government’s estimated costs and benefits for the equality duty and the ban on age discrimination in services and public functions, it 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 £233 million to £272 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 £60 million) rang-ing from £85 million to £115 million. Therefore, in year 1, the Bill might produce a net cost of £117 million to £187 million.
after year 1, average costs will range from £19 million to £59 million per year (consisting mainly of the costs of additional cases) and average benefits (including wider economic benefits as above) from £88 million to £120 million.
costs to the private sector comprise one-off costs of £211 million, consisting mainly of familiarisation costs in year 1; and recurring costs of £11 million to £17 million per year, consisting mainly of costs of additional court and tribunal cases and compensation awards.
Summary of the (Equality) Impact Assessment
22.The (Equality) Impact Assessment 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 authorities (clause 143) 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, sex-ual orientation and religion or belief. Therefore, the new duty will extend additionally to people with certain protected characteristics (age, religion or belief, sexual orienta-tion; 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 on grounds 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);
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 14);
for anyone who belongs to an under-represented group, in employment, or as the recipient of a service, the Bill provides scope for voluntary positive action to increase representation (clause 152);
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 18). 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.
25.The impact of the Bill on the environment, in terms of using raw materials for the pro-duction of guidance, leaflets and similar materials, 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
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 appli-cation of Part 5 in relation to ships and hovercraft (clause 76) and offshore work (clause 77). In relation to the non-work provisions, the Bill is again generally silent on territorial applica-tion, 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 27(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 28 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 authori-ties and on the devolved
functions of cross-border authorities following appropriate
consultation. Provisions in this Bill will replicate this situation.
The Scottish Ministers will be able to impose specific duties
on relevant Scottish authorities (clause 147) and by order to
amend Part 3 of Schedule 19 which lists the relevant Scottish
authorities to which the general public sector equality duty
applies (clause 145). A procedure will be specified in relation
to imposition of specific duties on cross-border Scottish authorities
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
authorities. The Bill also contains a number of provisions which
confer additional powers on Scottish Ministers to make secondary
legislation, for example: 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 91); 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 155).
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.
30. Under the Welsh devolution settlement the subject matter of equal opportunities
is not devolved to Wales. Clause 2 of the Bill provides a power
for Welsh Ministers to add any relevant Welsh authority to
the authorities subject to the duty in clause 1 to consider
socio-economic inequalities. The Bill also confers powers on
the Welsh Ministers in relation to the public sector equality
duty. Clause 147 gives Welsh Ministers power to impose specific
duties on relevant Welsh authorities and clause 145 gives them
power by order to amend Part 2 of Schedule 19 which specifies
relevant Welsh authorities subject to the general public sector
equality duty. A procedure is specified in relation to the imposition
of specific duties on cross- border Welsh authorities added
to Schedule 19 by a Minister of the Crown. The procedure enables
the Welsh Ministers to impose specific duties in relation to
the devolved Welsh functions of the cross-border authorities
or provide for specific duties to be imposed by a Minister of
the Crown only after consultation with the Welsh Ministers.
31. Equal opportunities and discrimination are “transferred matters” under the Northern Ireland Act 1998. As such, with a few exceptions the Bill does not form part of the law of Northern Ireland. As a result, the Disability Discrimination Act 1995 (as amended), which extends throughout the United Kingdom, will remain in force for Northern Ireland as the repeal of that Act only forms part of the law of England and Wales and Scotland.
32.Clause 77 enables an Order in Council to provide that Northern Ireland legislation applies in the case of persons in offshore work; and the provisions of clause 100 amend the Sex Discrimination (Election Candidates) Act 2002 with the effect that the extension of the expiry date for women-only shortlists will apply in Northern Ireland as well as Great Britain.
Compatibility with the European Convention on Human Rights
33. Section 19 of the Human Rights Act requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of the Human Rights Act).
34.The Lord Privy Seal has stated that in her view the provisions of the Bill are compatible with the Convention rights.
Transposition of EU Directives
35. The Bill does not itself implement EU Directives for the first time. It replaces earlier legislation which has implemented EU Directives, most of which is set out in paragraph 5 above.
36.The following provisions will come into force on the day on which the Act is passed:
the whole of Part 15 (except clauses 193 (which brings Schedule 24 into effect) and 198 (which brings the Schedules of amendments and repeals into effect);
clause 179(2) which repeals Schedule 20 (on rail vehicle accessibility) if the Schedule is not brought into force before the end of 2010.
37.The remainder will be brought into force on a day or days appointed by commencement
order made by a Minister of the Crown.