Equality Bill [HL]

House of Lords

Session 2005 - 06
Internet Publications
Other Bills before Parliament

Equality Bill [HL]

Equality Bill [HL]
Part 2 — Discrimination on grounds of religion or belief
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Instructing or causing discrimination or harassment
(1)
It is unlawful for a person to instruct another to unlawfully discriminate or to
unlawfully harass.
(2)
It is unlawful for a person to cause or attempt to cause another to unlawfully
discriminate or to unlawfully harass.
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(3)
It is unlawful for a person to induce or attempt to induce another to unlawfully
discriminate or to unlawfully harass.
(4)
For the purposes of subsection (3) inducement may be direct or indirect.
(5)
In this section a reference to unlawful discrimination or harassment is a
reference to discrimination or harassment which is unlawful by virtue of any
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of sections 48 to 54.
(6)
Proceedings in respect of a contravention of this section may be brought only—
(a)
by the Commission for Equality and Human Rights, and
(b)
in accordance with section 27.
General exceptions
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58
Statutory requirements
Nothing in this Part shall make it unlawful to do anything which is necessary,
or in so far as it is necessary, for the purpose of complying with—
(a)
an Act of Parliament,
(b)
an Act of the Scottish Parliament,
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(c)
legislation made or to be made—
(i)
by a Minister of the Crown,
(ii)
by Order in Council,
(iii)
by the Scottish Ministers or a member of the Scottish Executive,
(iv)
by the National Assembly for Wales, or
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(v)
by or by virtue of a Measure of the General Synod of the Church
of England, or
(d)
a condition or requirement imposed by a Minister of the Crown by
virtue of anything listed in paragraphs (a) to (c).
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Organisations relating to religion or belief
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(1)
This section applies to an organisation the purpose of which is—
(a)
to practice a religion or belief,
(b)
to advance a religion or belief,
(c)
to teach the practice or principles of a religion or belief,
(d)
to enable persons of a religion or belief to receive any benefit, or to
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engage in any activity, within the framework of that religion or belief,
or
(e)
to improve relations, or maintain good relations, between persons of
different religions or beliefs.
(2)
But this section does not apply to an organisation whose sole or main purpose
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is commercial.

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(3)
Nothing in this Part shall make it unlawful for an organisation to which this
section applies or anyone acting on behalf of or under the auspices of an
organisation to which this section applies—
(a)
to restrict membership of the organisation,
(b)
to restrict participation in activities undertaken by the organisation or
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on its behalf or under its auspices,
(c)
to restrict the provision of goods, facilities or services in the course of
activities undertaken by the organisation or on its behalf or under its
auspices, or
(d)
to restrict the use or disposal of premises owned or controlled by the
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organisation.
(4)
Nothing in this Part shall make it unlawful for a minister—
(a)
to restrict participation in activities carried on in the performance of his
functions in connection with or in respect of an organisation to which
this section relates, or
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(b)
to restrict the provision of goods, facilities or services in the course of
activities carried on in the performance of his functions in connection
with or in respect of an organisation to which this section relates.
(5)
But subsections (3) and (4) permit a restriction only in so far as it is necessary
or expedient—
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(a)
having regard to the purpose of the organisation, or
(b)
to avoid causing offence, on grounds of the religion or belief to which
the organisation relates, to persons of that religion or belief.
(6)
In subsection (4) the reference to a minister is a reference to a minister of
religion, or other person, who—
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(a)
performs functions in connection with a religion or belief to which an
organisation, to which this section applies, relates, and
(b)
holds an office or appointment in, or is accredited, approved or
recognised for purposes of, an organisation to which this section
applies.
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60
Charities relating to religion or belief
(1)
Nothing in this Part shall make it unlawful for a person to provide benefits
only to persons of a particular religion or belief, if—
(a)
he acts in pursuance of a charitable instrument, and
(b)
restricting the benefits to persons of that religion or belief is necessary
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or expedient having regard to the provisions of the charitable
instrument.
(2)
In this section “charitable instrument”—
(a)
means an instrument establishing or governing a charity, and
(b)
includes a charitable instrument made before the commencement of
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this section.
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Faith schools, &c.
(1)
Nothing in this Part shall make it unlawful for an educational institution
established or conducted for the purpose of providing education relating to, or
within the framework of, a specified religion or belief—
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(a)
to restrict the provision of goods, facilities or services, or

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(b)
to restrict the use or disposal of premises.
(2)
But subsection (1) permits a restriction only in so far as it is necessary or
expedient—
(a)
having regard to the purpose of the institution, or
(b)
to avoid causing offence, on grounds of the religion or belief to which
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the institution relates, to persons connected with the institution.
(3)
In this Part a reference to the provision of facilities or services shall not, in so
far as it applies to an educational institution, include a reference to educational
facilities or educational services provided to students of the institution.
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Education, training and welfare
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Nothing in this Part shall make it unlawful to do anything by way of—
(a)
meeting special needs for education, training or welfare of persons of a
religion or belief, or
(b)
providing ancillary benefits in connection with meeting the needs
mentioned in paragraph (a).
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63
Care within family
Nothing in this Part shall make it unlawful for a person to take into his home,
and treat in the same manner as a member of his family, a person who requires
a special degree of care and attention (whether by reason of being a child or an
elderly person or otherwise).
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National security
Nothing in this Part shall make unlawful anything which is done for, and
justified by, the purpose of safeguarding national security.
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Amendment of exceptions
(1)
The Secretary of State may by order amend this Part so as to—
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(a)
create an exception to a prohibition under this Part,
(b)
vary an exception to a prohibition under this Part, or
(c)
remove an exception to a prohibition under this Part.
(2)
Before making an order under subsection (1) the Secretary of State shall consult
the Commission for Equality and Human Rights.
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(3)
An order under subsection (1)—
(a)
may include transitional, incidental or consequential provision
(including provision amending an enactment (including an enactment
in or under an Act of the Scottish Parliament)),
(b)
may make provision generally or only for specified cases or
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circumstances,
(c)
may make different provision for different cases or circumstances,
(d)
shall be made by statutory instrument, and
(e)
may not be made unless a draft has been laid before and approved by
resolution of each House of Parliament.
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Enforcement
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Restriction of proceedings
(1)
Except as provided by this Act, no proceedings, whether criminal or civil, may
be brought against a person on the grounds that an act is unlawful by virtue of
this Part.
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(2)
But subsection (1) does not prevent—
(a)
an application for judicial review,
(b)
proceedings under the Immigration Acts,
(c)
proceedings under the Special Immigration Appeals Commission Act
1997 (c. 68), or
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(d)
in Scotland, the exercise of the jurisdiction of the Court of Session to
entertain an application for reduction or suspension of an order or
determination or otherwise to consider the validity of an order or
determination, or to require reasons for an order or determination to be
stated.
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Claim of unlawful action
(1)
A claim that a person has done anything that is unlawful by virtue of this Part
may be brought in a county court (in England and Wales) or in the sheriff court
(in Scotland) by way of proceedings in tort (or reparation) for breach of
statutory duty.
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(2)
Proceedings in England and Wales alleging that any of the following bodies
has acted unlawfully by virtue of section 51 or 53 may not be brought unless
the claimant has given written notice to the Secretary of State; and those bodies
are—
(a)
a local education authority, and
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(b)
the responsible body of an educational establishment listed in the Table
in section 51.
(3)
Proceedings in Scotland alleging that any of the following bodies has acted
unlawfully by virtue of section 51 or 53 may not be brought unless the pursuer
has given written notice to the Scottish Ministers; and those bodies are—
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(a)
an education authority, and
(b)
the responsible body of an educational establishment listed in the Table
in section 51.
(4)
In subsection (1) the reference to a claim that a person has done an unlawful act
includes a reference to a claim that a person is to be treated by virtue of this Part
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as having done an unlawful act.
(5)
In proceedings under this section, if the claimant (or pursuer) proves facts from
which the court could conclude, in the absence of a reasonable alternative
explanation, that an act which is unlawful by virtue of this Part has been
committed, the court shall assume that the act was unlawful unless the
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respondent (or defender) proves that it was not.
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Immigration
(1)
Proceedings may not be brought under section 67 alleging that a person has
acted unlawfully by virtue of section 54 if the question of the lawfulness of the

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act could be raised (and has not been raised) in immigration proceedings
(disregarding the possibility of proceedings brought out of time with
permission).
(2)
If in immigration proceedings a court or tribunal has found that an act was
unlawful by virtue of section 54, a court hearing proceedings under section 67
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shall accept that finding.
(3)
In this section “immigration proceedings” means proceedings under or by
virtue of—
(a)
the Immigration Acts, or
(b)
the Special Immigration Appeals Commission Act 1997 (c. 68).
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Remedies
(1)
This section applies to proceedings under section 67.
(2)
A court may, in addition to any remedy available to it in proceedings for tort,
grant any remedy that the High Court could grant in proceedings for judicial
review.
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(3)
A court may not award damages in proceedings in respect of an act that is
unlawful by virtue of section 46(3) if the respondent proves that there was no
intention to treat the claimant unfavourably on grounds of religion or belief.
(4)
A court may award damages by way of compensation for injury to feelings
(whether or not other damages are also awarded).
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(5)
In the application of this section to proceedings in Scotland—
(a)
a reference to the High Court shall be taken as a reference to the Court
of Session,
(b)
a reference to tort shall be taken as a reference to reparation,
(c)
a reference to the respondent shall be taken as a reference to the
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defender, and
(d)
a reference to the claimant shall be taken as a reference to the pursuer.
(6)
This section is subject to section 54(5).
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Timing
(1)
Proceedings under section 67 may be brought only—
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(a)
within the period of six months beginning with the date of the act (or
last act) to which the proceedings relate, or
(b)
with the permission of the court in which the proceedings are brought.
(2)
In relation to immigration proceedings within the meaning of section 68, the
period specified in subsection (1)(a) above shall begin with the first date on
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which proceedings under section 67 may be brought.
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Information
(1)
In this section—
(a)
a reference to a claimant is a reference to a person who has brought
proceedings under this Part,
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(b)
a reference to a potential claimant is a reference to a person who—

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(i)
thinks he may have been the subject of an act that is unlawful by
virtue of this Part, and
(ii)
wishes to consider whether to bring proceedings under this
Part, and
(c)
a person questioned by a potential claimant for the purpose of
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considering whether to bring proceedings is referred to as a potential
respondent.
(2)
The Secretary of State shall by order prescribe—
(a)
forms by which a claimant or potential claimant may question the
respondent or a potential respondent about the reasons for an action or
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about any matter that is or may be relevant, and
(b)
forms by which a respondent or potential respondent may reply (if he
wishes).
(3)
A claimant’s or potential claimant’s questions, and a respondent or potential
respondent’s replies, (in each case whether or not put by a prescribed form)
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shall be admissible as evidence in proceedings in respect of the act to which the
questions relate if (and only if) the questions are put—
(a)
within the period of six months beginning with the date of the act (or
last act) to which they relate, and
(b)
in such manner as the Secretary of State may prescribe by order.
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(4)
A court may draw an inference from—
(a)
a failure to reply to a claimant’s or potential claimant’s questions
(whether or not put by a prescribed form) within the period of eight
weeks beginning with the date of receipt, or
(b)
an evasive or equivocal reply to a claimant’s or potential claimant’s
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questions (whether or not put by a prescribed form).
(5)
The Secretary of State may by order amend subsection (3)(a) so as to substitute
a new period for that specified.
(6)
In the application of this section to Scotland—
(a)
a reference to a claimant or potential claimant shall be taken as a
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reference to a pursuer or potential pursuer, and
(b)
a reference to a respondent or potential respondent shall be taken as a
reference to a defender or potential defender.
(7)
An order under this section—
(a)
shall be made by statutory instrument, and
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(b)
shall be subject to annulment in pursuance of a resolution of either
House of Parliament.
(8)
This section is subject to section 54(6).
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National security
(1)
Rules of court may make provision for enabling a county court or sheriff court
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in which a claim is brought under section 67, where the court considers it
expedient in the interests of national security—
(a)
to exclude from all or part of the proceedings—
(i)
the claimant;
(ii)
the claimant’s representatives;
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(iii)
any assessors;

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(b)
to permit a claimant or representative who has been excluded to make
a statement to the court before the commencement of the proceedings,
or the part of the proceedings, from which he is excluded;
(c)
to take steps to keep secret all or part of the reasons for the court’s
decision in the proceedings.
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(2)
The Attorney General or, in Scotland, the Advocate General for Scotland, may
appoint a person to represent the interests of a claimant in, or in any part of,
proceedings from which the claimant or his representatives are excluded by
virtue of subsection (1).
(3)
A person may be appointed under subsection (2) only—
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(a)
in relation to proceedings in England and Wales, if he has a general
qualification (within the meaning of section 71 of the Courts and Legal
Services Act 1990 (c. 41)), or
(b)
in relation to proceedings in Scotland, if he is—
(i)
an advocate, or
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(ii)
a solicitor who by virtue of section 25A of the Solicitors
(Scotland) Act 1980 (c. 46) has rights of audience in the Court of
Session or the High Court of Justiciary.
(4)
A person appointed under subsection (2) shall not be responsible to the person
whose interests he is appointed to represent.
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Validity and revision of contracts
(1)
A term of a contract is void where—
(a)
its inclusion renders the making of the contract unlawful by virtue of
this Part,
(b)
it is included in furtherance of an act which is unlawful by virtue of this
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Part, or
(c)
it provides for the doing of an act which would be unlawful by virtue
of this Part.
(2)
Subsection (1) does not apply to a term the inclusion of which constitutes, or is
in furtherance of, or provides for, unlawful discrimination against or
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harassment of, a party to the contract; but the term shall be unenforceable
against that party.
(3)
A term in a contract which purports to exclude or limit a provision of this Part
is unenforceable by a person in whose favour the term would operate apart
from this subsection.
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(4)
Subsection (3) does not apply to a contract settling a claim under section 67.
(5)
On the application of a person interested in a contract to which subsection (1)
applies, a county court or sheriff court may make an order for removing or
modifying a term made unenforceable by that subsection; but an order shall
not be made unless all persons affected—
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(a)
have been given notice of the application (except where notice is
dispensed with in accordance with rules of court), and
(b)
have been afforded an opportunity to make representations to the
court.
(6)
An order under subsection (5) may include provision in respect of a period
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before the making of the order.