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Wales

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 the Welsh Ministers to add any relevant Welsh body to the bodies subject to the duty in clause 1 to consider socio-economic inequalities and to make consequential amendments. The Bill also confers powers on the Welsh Ministers in relation to the public sector equality duty. Clause 152 gives Welsh Ministers power to impose specific duties on relevant Welsh bodies and clause 150 gives them power by order to amend Part 2 of Schedule 19 which specifies relevant Welsh bodies subject to the general public sector equality duty. A procedure is specified in relation to the imposition of specific duties on cross-border Welsh bodies 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 bodies or provide for specific duties to be imposed by a Minister of the Crown only after consultation with the Welsh Ministers.

Northern Ireland

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 82 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 105 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 1998 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 Convention rights (as defined by section 1 of that Act). The Rt. Hon. Baroness Royall of Blaisdon, Leader of the House of Lords, has made a statement under section 19(1)(a) of that Act that in her view the provisions of the Bill are compatible with Convention rights.

34.     The main Articles of the Convention which are engaged by provisions in the Bill are Article 8 (right to respect for private and family life), Article 9 (right to freedom of thought, conscience and religion), Article 10 (right to freedom of expression), Article 11 (right to freedom of association), Article 14 (prohibiting discrimination in the field of enjoyment of rights guaranteed by the Convention) and Article 1 of Protocol 1 (right to peaceful enjoyment of property). The Bill is a rights-enhancing piece of legislation the majority of which is required to implement the UK’s obligations under EU law. (The two main areas of the Bill which do not involve implementation of EU law, the imposition of the public sector equality duty and the socio-economic duty, do not give rise to any human rights issues as they are not structured in such a way that they will impinge upon any Convention rights.) The most significant issues arising under the Convention are where exceptions to the prohibition on discrimination are provided or the rights to non-discrimination conflict with each other and there is a need to balance them.

35.     Wherever the Bill provides for exceptions to the general rule against discrimination the Government has considered the impact of such an exception on the Convention rights of individuals. Where Convention rights are potentially engaged by these exceptions, the Government has concluded that they are pursuing a legitimate aim in a proportionate manner and that the exceptions are sufficiently tightly drawn to ensure this result.

36.     An example of such consideration can be seen in the exceptions provided in Schedule 23 to permit religious organisations to discriminate because of religion or belief or on grounds of sexual orientation which apply only in certain limited circumstances. The Government has considered the need to balance competing rights under the Convention in framing these exceptions and they are designed to strike an appropriate balance. The exception for religious organisations which would allow them to discriminate because of sexual orientation is more narrowly drawn than the exception for discrimination on the basis of religion or belief. The religion or belief exception allows action which would otherwise be unlawful, provided that the limitation is imposed to comply with the tenets of the organisation or to avoid causing offence on religious grounds to a significant number of persons of the religion to which the organisation relates. However, to benefit from the exception to the prohibition of discrimination on the basis of sexual orientation, it must be shown that the restriction is necessary to comply with the doctrine of the organisation or to avoid conflict with the strongly held religious convictions of a significant number of the religion’s followers.

37.     It might be contended that in drawing the exception regarding religion or belief more widely than that for sexual orientation, less weight is given to the rights of those of a particular religion or belief (different from that of the religious organisation) than to those of a particular sexual orientation. The Government has made clear that the reason for drawing the balance at a different point is because under the religion or belief exception, it is open for religious organisations to be ecumenical if they so choose but in order not to infringe the Article 9 and 11 rights of such organisations, they should not be required to be ecumenical; and that in relation to the sexual orientation exception, it is not justified for a religious organisation to discriminate on the basis of a person’s sexual orientation unless it can be clearly established that it is intimately linked to the doctrine of the religion, i.e. required by the tenets of the religion or of considerable importance to the religion’s followers.

38.     The balance which has been struck between competing rights throughout the Bill is also demonstrated by clause 101 and the exception to it at Schedule 16, which are designed to balance the Article 8 and 11 freedoms of individuals (and associations) to determine their associates (and members) against the Article 8 and 11 (read with 14) freedoms of individuals to associate without discrimination. Where there is such a conflict between competing interests, States must find a fair and proper balance. The Government has concluded that imposing a general prohibition on discrimination in this area but allowing single characteristic clubs to continue strikes the correct balance. It ensures that although the ability of a person to become a member of a club should not, in general, be dependent on particular protected characteristics, individuals and associations may still choose to associate with or limit their membership to those who share a particular protected characteristic. The availability of other clubs ensures that the restriction on Article 11 rights, as prescribed by law, is proportionate to the legitimate aim of protecting the Article 11 rights of others who would wish to join single-characteristic clubs. Moreover, the Government concludes that there is no violation of Article 14 because any difference in treatment is proportionate to the legitimate aim of protecting the rights and freedoms of others.

39.     Some stakeholders have been concerned that applying the somewhat broader domestic definition of harassment (compared with the EU definition) to the characteristics of religion or belief, sexual orientation and gender reassignment could infringe Article 9 and Article 10 Convention rights. The Government concludes that such protection is compatible with Convention rights on the basis that Article 10 and Article 9(2) rights are qualified rights which may be restricted to protect the rights of others and because the relevant provisions of the Bill need to be read compatibly with those rights, in accordance with section 23 of the Human Rights Act. The Bill does not extend protection from harassment outside the workplace to all protected characteristics. This is also considered by the Government to be compliant with Article 14 (assuming another substantive article is engaged) because giving different levels of protection of this kind in some circumstances to different protected groups does not amount to discrimination on grounds of their protected characteristic for purposes of Article 14.

40.     Another issue arising under the Convention is the compatibility of the power at clause 116 of the Bill to make special provision for procedure in discrimination cases in the civil courts where the interests of national security need to be protected. The exercise of the power in clause 116 could potentially infringe some of the implicit procedural guarantees of the right to a fair trial protected by Article 6. However, the Government’s view is that the power is capable of being exercised in a compliant manner because the right to access to a court is not absolute. For example, it is possible to modify judicial procedures so as to safeguard national security concerns about the nature and sources of intelligence information while according the individual a substantial degree of procedural justice. Any rules made in exercise of the power in clause 116 must be consistent with Article 6(1) and are themselves reviewable. To that effect, the provisions permitting an excluded person to make a statement to the court before their exclusion and allowing representation by someone with adequate clearance give the court the necessary discretion to draft rules which are proportionate to the aim of safeguarding national security.

Transposition of EU Directives

41.     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 4 above.

Commencement

42.     The following provisions will come into force on the day on which the Act is passed:

  • the whole of Part 15 (except clauses 198 (which brings Schedule 25 into effect) and 203 (which brings the Schedules of amendments and repeals into effect);

  • clause 184(2) which repeals Schedule 20 (on rail vehicle accessibility) if the Schedule is not brought into force before the end of 2010.

43.     The remainder will be brought into force on a day or days appointed by commencement order made by a Minister of the Crown.

COMMENTARY ON CLAUSES

PART 1: SOCIO-ECONOMIC INEQUALITIES

Clause 1: Public sector duty regarding socio-economic inequalities

Effect

44.     This clause requires specified public bodies, when making strategic decisions such as deciding priorities and setting objectives, to consider how their decisions might help to reduce the inequalities associated with socio-economic disadvantage. Such inequalities could include inequalities in education, health, housing, crime rates, or other matters associated with socio-economic disadvantage. It will be for public bodies subject to the duty to determine which socio-economic inequalities they are in a position to influence.

45.     The duty applies to the listed public bodies, which have strategic functions - these include Government departments, local authorities and NHS bodies. In addition, the duty applies to other public bodies which work in partnership with a local authority to draw up the sustainable community strategy for an area, when they are drawing up that strategy. These partner public bodies are specified in the Local Government and Public Involvement in Health Act 2007.

46.     Public bodies are required to take into account guidance issued by a Minister of the Crown when deciding how to fulfil the duty.

47.     The duty does not require public bodies to consider how to reduce inequalities resulting from people being subject to immigration control.

Background

48.     This is a new provision.

Examples

  • The Department of Health decides to improve the provision of primary care services. They find evidence that people suffering socio-economic disadvantage are less likely to access such services during working hours, due to their conditions of employment. The Department therefore advises that such services should be available at other times of the day.

  • Under the duty, a Regional Development Agency (RDA), when reviewing its funding programmes, could decide to amend the selection criteria for a programme designed to promote business development, to encourage more successful bids from deprived areas. The same RDA could also decide to continue a programme aimed at generating more jobs in the IT sector which, despite not contributing to a reduction in socio-economic inequalities, has wider economic benefits in attracting more well-paid jobs to the region. This decision would comply with the duty, because the RDA would have given due consideration to reducing socio-economic inequalities.

  • The duty could lead a local education authority, when conducting a strategic review of its school applications process, to analyse the impact of its campaign to inform parents about the applications process, looking particularly at different neighbourhoods. If the results suggest that parents in more deprived areas are less likely to access or make use of the information provided, the authority could decide to carry out additional work in those neighbourhoods in future campaigns, to ensure that children from deprived areas have a better chance of securing a place at their school of choice.

Clause 2: Power to amend section 1

Effect

49.     This clause enables a Minister of the Crown or, in the case of Welsh or Scottish bodies, the Welsh or Scottish Ministers to make regulations amending the list of public bodies which are subject to the duty in clause 1, and to limit or extend the functions of a listed body to which the duty applies. The duty can only be imposed on Welsh or Scottish bodies that carry out the same or a similar role to those carried out by a body listed in clause 1.

50.     It also enables the Welsh or Scottish Ministers to make other consequential amendments to clause 1 which they consider are needed as a result of adding bodies to clause 1. This includes adding a power for the Welsh or Scottish Ministers to issue guidance for Welsh or Scottish bodies respectively and to impose a requirement that those bodies take the relevant guidance into account. Where they issue guidance to bodies they have listed, the Welsh or Scottish Ministers can remove the requirement for those bodies to take into account guidance issued by a Minister of the Crown.

51.     It also provides that a Minister of the Crown may not apply the duty to any devolved Welsh or Scottish functions.

Background

52.     This is a new provision.

Examples

  • A new public body is created in England to deal with regeneration. The Minister decides that it should give consideration to reducing socio-economic inequalities when making strategic decisions. The Minister makes regulations to add the body to the list in clause 1.

  • The Welsh Ministers decide they would like the duty to apply to local authorities in Wales, starting a year after the duty starts to apply in England. They consult the relevant Minister of the Crown, and make regulations to apply the duty to those bodies from their proposed commencement date.

  • The Welsh Ministers then decide they would like to issue guidance to Welsh local authorities on how to fulfil the duty. They consult the relevant Minister of the Crown about this, and take into account the guidance the Minister of the Crown has issued in relation to English local authorities. They then issue their guidance, which Welsh local authorities must take account of in fulfilling the duty.

Clause 3: Enforcement

Effect

53.     This clause ensures that individuals have no recourse to private law because of a failure by a public body to comply with the duty imposed by clause 1. This means that individuals will not be able to claim damages for breach of statutory duty for a breach of this duty. However, this clause does not prevent an individual from bringing judicial review proceedings against a public body which is covered by the duty, if he or she believes the public body has not considered socio-economic disadvantage when taking decisions of a strategic nature.

Background

54.     This is a new provision.

Example

  • An individual feels that the socio-economic disadvantages he faces should entitle him to a flat in a new social housing development, ahead of those whom he judges to be less disadvantaged. However, there is no provision in this Bill for him to bring a case against the local council or other public body in such circumstances.

PART 2: KEY CONCEPTS

Chapter 1: Protected characteristics

Clause 4: The protected characteristics

Effect

55.     This clause lists the characteristics that are protected by subsequent provisions in the Bill.

Background

56.     The protected characteristics listed are the same as those currently protected by discrimination legislation in Great Britain.

Clause 5: Age

Effect

57.     This clause establishes that where the Bill refers to the protected characteristic of age, it means a person belonging to a particular age group. An age group includes people of the same age and people of a range of ages. Where people fall in the same age group they share the protected characteristic of age.

Background

58.     This clause replaces a provision in the Employment Equality (Age) Regulations 2006.

Examples

  • An age group would include “over fifties” or twenty-one year olds.

  • A person aged twenty-one does not share the same characteristic of age with “people in their forties”. However, a person aged twenty-one and people in their forties can share the characteristic of being “under fifty”.

Clause 6: Disability

Effect

59.     This clause establishes who is to be considered as having the protected characteristic of disability and is a disabled person for the purposes of the Bill. With Schedule 1 and regulations to be made under that Schedule, it will also establish what constitutes a disability. Where people have the same disability, they share the protected characteristic of disability.

60.     It provides for Ministers to issue statutory guidance to help those who need to decide whether a person has a disability for the purposes of the Bill.

Background

61.     This clause, Schedule 1, and regulations to be made under Schedule 1 replace similar provisions in the Disability Discrimination Act 1995 and provisions in secondary legislation made under that Act.

Examples

  • A man works in a warehouse, loading and unloading heavy stock. He develops a long-term heart condition and no longer has the ability to lift or move heavy items of stock at work. Lifting and moving such heavy items is not a normal day-to-day activity. However, he is also unable to lift, carry or move moderately heavy everyday objects such as chairs, at work or around the home. This is an adverse effect on a normal day-to-day activity. He is likely to be considered a disabled person for the purposes of the Bill.

  • A young woman has developed colitis, an inflammatory bowel disease. The condition is a chronic one which is subject to periods of remissions and flare-ups. During a flare-up she experiences severe abdominal pain and bouts of diarrhoea. This makes it very difficult for her to travel or go to work. This has a substantial adverse effect on her ability to carry out normal day-to-day activities. She is likely to be considered a disabled person for the purposes of the Bill.

Clause 7: Gender reassignment

Effect

62.     This clause defines the protected characteristic of gender reassignment for the purposes of the Bill as where a person has proposed, started or completed a process to change his or her sex. A transsexual person has the protected characteristic of gender reassignment.

63.     The clause also explains that a reference to people who have or share the common characteristic of gender reassignment is a reference to all transsexual people. A woman making the transition to being a man and a man making the transition to being a woman both share the characteristic of gender reassignment, as does a person who has only just started out on the process of changing his or her sex and a person who has completed the process.

Background

64.     This clause replaces similar provisions in the Sex Discrimination Act 1975 but changes the definition by no longer requiring a person to be under medical supervision to come within it.

Examples

  • A person who was born physically male decides to spend the rest of his life living as a woman. He declares his intention to his manager at work, who makes appropriate arrangements, and she then starts life at work and home as a woman. After discussion with her doctor and a Gender Identity Clinic, she starts hormone treatment and after several years she goes through gender reassignment surgery. She would be undergoing gender reassignment for the purposes of the Bill.

  • An unemployed person who was born physically female decides to spend the rest of her life as a man. He starts and continues to live as a man. He decides not to seek medical advice as he successfully ‘passes’ as a man without the need for any medical intervention. He would be undergoing gender reassignment for the purposes of the Bill.

Clause 8: Marriage and civil partnership

Effect

65.     This clause defines the protected characteristic of marriage and civil partnership. People who are not married or civil partners do not have this characteristic.

66.     The clause also explains that people who have or share the common characteristics of being married or of being a civil partner can be described as being in a marriage or civil partnership. A married man and a woman in a civil partnership both share the protected characteristic of marriage and civil partnership.

Background

67.     This clause replaces similar provisions in the Sex Discrimination Act 1975.

Examples

  • A person who is engaged to be married is not married and therefore does not have this protected characteristic.

  • A divorcee or a person whose civil partnership has been dissolved is not married or in a civil partnership and therefore does not have this protected characteristic.

Clause 9: Race

Effect

68.     This clause defines the protected characteristic of race. For the purposes of the Bill, “race” includes colour, nationality and ethnic or national origin.

69.     The clause explains that people who have or share characteristics of colour, nationality or ethnic or national origin can be described as belonging to a particular racial group. A racial group can be made up of two or more different racial groups.

Background

70.     This clause replaces similar provisions in the Race Relations Act 1976.

Examples

  • Colour includes being black or white.

  • Nationality includes being a British, Australian or Swiss citizen.

  • Ethnic or national origin includes being from a Roma background or of Chinese heritage.

  • A racial group could be “black Britons” which would encompass those people who are both black and who are British citizens.

Clause 10: Religion or belief

Effect

71.     This clause defines the protected characteristic of religion or philosophical belief, which is stated to include for this purpose a lack of religion or belief. It is a broad definition in line with the freedom of thought, conscience and religion guaranteed by Article 9 of the European Convention on Human Rights. The main limitation for the purposes of Article 9 is that the religion or belief must have a clear structure and belief system. Denominations or sects within a religion can be considered to be a religion or belief, such as Protestants and Catholics within Christianity. This clause provides that people who are of the same religion or belief share the protected characteristic of religion or belief. Depending on the context this could mean people who, for example, share the characteristic of being Protestant or people who share the characteristic of being Christian.

 
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Prepared: 4 December 2009