Office of Public Sector Information

74 Orders and regulations

(1)Any power of a Minister of the Crown to make orders or regulations under the provisions of this Act F1. . . shall be exercisable by statutory instrument.

(2)An order made by a Minister of the Crown under the preceding provisions of this Act [F2(except section 73(1))] , and any regulations made under section [F356(5), (6) or] 75(5)(a) [F4or (9A)], shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(3)An order under this Act may make different provision in relation to different cases or classes of case, may exclude certain cases or classes of case, and may contain transitional provisions and savings.

(4)Any power conferred by this Act to make orders include power (exercisable in the like manner and subject to the like conditions) to vary or revoke any order so made.

(5)F5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

75 Application to Crown etc

(1)This Act applies—

(a)to an act done by or for purposes of a Minister of the Crown or government department; or

(b)to an act done on behalf of the Crown by a statutory body, or a person holding a statutory office,

as it applies to an act done by a private person.

(2)Parts II and IV apply to—

(a)service for purposes of a Minister of the Crown or government department, other than service of a person holding a statutory office; or

(b)service on behalf of the Crown for purposes of a person holding a statutory office or purposes of a statutory body; or

(c)service in the armed forces,

as they apply to employment by a private person, and shall so apply as if references to a contract of employment included references to the terms of service.

[F1(2A)Subsections (1) and (2) do not apply in relation to the provisions mentioned in subsection (2B).

(2B)Sections 19B to 19F, sections 71 to 71E (including Schedule 1A) and section 76 bind the Crown; and the other provisions of this Act so far as they relate to those provisions shall be construed accordingly (including, in particular, references to employment in Part IV).]

(3)Subsections (1) [F2to (2B)] have effect subject to [F3sections 76A and 76B].

(4)Subsection (2) of section 8 and subsection (4) of section 27 shall have effect in relation to any ship, aircraft or hovercraft belonging to or possessed by Her Majesty in right of the Government of the United Kingdom as it has effect in relation to a ship, aircraft or hovercraft such as is mentioned in paragraph (a) or (b) of the subsection in question; and section 8(3) shall apply accordingly.

(5)Nothing in this Act shall—

(a)invalidate any rules (whether made before or after the passing of this Act) restricting employment in the service of the Crown or by any public body prescribed for the purposes of this subsection by regulations made by the Minister for the Civil Service to persons of particular birth, nationality, descent or residence; or

(b)render unlawful the publication, display or implementation of any such rules, or the publication of advertisements stating the gist of any such rules.

In this subsection “employment" includes service of any kind, and “public body" means a body of persons, whether corporate or unincorporate, carrying on a service or undertaking of a public nature.

(6)The provisions of Parts II to IV of the M1Crown Proceedings Act 1947 shall apply to proceedings against the Crown under this Act as they apply to proceedings in England and Wales which by virtue of section 23 of that Act are treated for the purposes of Part II of that Act as civil proceedings by or against the Crown, F4. . . .

(7)The provisions of Part V of the Crown Proceedings Act 1947 shall apply to proceedings against the Crown under this Act as they apply to proceedings in Scotland which by virtue of the said Part are treated as civil proceedings by or against the Crown, except that in their application to proceedings under this Act the proviso to section 44 of that Act (removal of proceedings from the sheriff court to the Court of Session) shall not apply.

(8)This subsection applies to any complaint by a person (“the complainant") that another person—

(a)has committed an act of discrimination against the complainant which is unlawful by virtue of section 4; or

(b)is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination against the complainant,

if at the time when the act complained of was done the complainant was serving in the armed forces and the discrimination in question relates to his service in those forces.

[F5(9)No complaint to which subsection (8) applies shall be presented to an [F6employment tribunal] under section 54 unless—

(a)the complainant has made [F7a service complaint in respect of the act complained of] ; and

(b)the Defence Council have made a determination with respect to the [F8service complaint] .

(9A)Regulations may make provision enabling a complaint to which subsection (8) applies to be presented to an [F6employment tribunal] under section 54 in such circumstances as may be specified by the regulations, notwithstanding that subsection (9) would otherwise preclude the presentation of the complaint to an [F6employment tribunal].

(9B)Where a complaint is presented to an [F6employment tribunal] under section 54 by virtue of regulations under subsection (9A), [F9the service complaint procedures] may continue after the complaint is so presented.]

(10)In this section—

(a) “the armed forces" means any of the naval, military or air forces of the Crown . . . F10;

[F11(aa) “regulations" means regulations made by the Secretary of State;

[F12(ac) “service complaint” means a complaint under section 334 of the Armed Forces Act 2006;

(ad) “the service complaint procedures” means the procedures prescribed by regulations under that section;]]

(b) “statutory body" means a body set up by or in pursuance of an enactment, and “statutory office" means an office so set up; and

(c)service “for purposes of" a Minister of the Crown or government department does not include service in any office in Schedule 2 (Ministerial offices) to the M2House of Commons Disqualification Act 1975 as for the time being in force.

[F175A Application to House of Commons staff

(1)Parts II and IV apply to an act done by an employer of a relevant member of the House of Commons staff, and to service as such a member, as they apply to an act done by and to service for the purposes of a Minister of the Crown or government department, and accordingly apply as if references to a contract of employment included references to the terms of service of such a member.

(2)In this section “relevant member of the House of Commons staff" has the same meaning as in [F2section 195 of the Employment Rights Act 1996]; and [F3subsections (6) to (12)] of that section (person to be treated as employer of House of Commons staff) apply, with any necessary modifications, for the purposes of Parts II and IV as they apply by virtue of this section.]

[F175B Application to House of Lords staff

(1)Parts II and IV apply in relation to employment as a relevant member of the House of Lords staff as they apply in relation to other employment.

(2)In this section “relevant member of the House of Lords staff" has the same meaning as in [F2section 194 of the Employment Rights Act 1996]; and [F2subsection (7)] of that section applies for the purposes of this section.]

76 Government appointments outside s. 4

(1)[F1Subsection (2)] applies to any appointment by a Minister of the Crown or government department to an office or post where section 4 does not apply in relation to the appointment.

(2)In making the appointment, and in making the arrangements for determining who should be offered the office or post, the Minister of the Crown or government department shall not do an act which would be unlawful under section 4 if the Crown were the employer for the purposes of this Act.

[F2(3)Subsection (5) applies to—

(a)any recommendation made by a Minister of the Crown or government department in relation to an appointment to an office or post where section 4 does not apply in relation to the appointment; and

(b)any approval given by such a Minister or department in relation to any such appointment.

(4)Subsection (5) also applies to—

(a)any recommendation made by a Minister of the Crown or government department in relation to a conferment by the Crown of a dignity or honour; and

(b)any approval given by such a Minister or department in relation to any such conferment.

(5)In making the recommendation, or giving the approval, and in making the arrangements for determining who should be recommended or approved, the Minister of the Crown or government department shall not do an act which would be unlawful under section 4 if the recommendation or approval were an offer of employment and the Crown were the employer for the purposes of this Act.

(6)Subsections (3) to (5) do not apply in relation to the making of negative recommendations.

(7)Subsection (9) applies to—

(a)any negative recommendation made by a Minister of the Crown or government department, or any refusal to make a recommendation by such a Minister or department, in relation to an appointment to an office or post where section 4 does not apply in relation to the appointment; and

(b)any approval refused by such a Minister or department in relation to any such appointment.

(8)Subsection (9) also applies to—

(a)any negative recommendation made by a Minister of the Crown or government department, or any refusal to make a recommendation by such a Minister or department, in relation to a conferment by the Crown of a dignity or honour; and

(b)any approval refused by such a Minister or department in relation to any such conferment.

(9)In making a negative recommendation or in refusing to make a recommendation or give an approval, and in making the arrangements for determining whether to make such a recommendation or refusal, the Minister of the Crown or government department shall not do an act which would be unlawful under section 4 if the recommendation or refusal were a refusal to offer the person concerned employment and the Crown were the employer for the purposes of this Act.

(10)[F3subsections (11) and (11B) apply] in relation to any appointment to an office or post where section 4 does not apply and—

(a)the appointment is made by a Minister of the Crown or government department; or

(b)the office or post is an office or post in relation to which a Minister of the Crown or government department has made a recommendation (other than a negative recommendation) or given an approval.

(11)A Minister of the Crown or government department shall not do an act in connection with—

(a)the terms of the appointment;

(b)access for the person appointed to opportunities for promotion, transfer or training, or to any other benefits, facilities or services; or

(c)the termination of the appointment, or subjecting the person appointed to any other detriment;

which would be unlawful under section 4 if the Crown were the employer for the purposes of this Act.

[F4(11A)In subsection (11)(c) reference to the termination of the appointment includes, where the act is committed on the grounds of race or ethnic or national origins, reference—

(a)to the termination of the appointment by the expiration of any period (including a period expiring by reference to an event or circumstance), not being a termination immediately after which the appointment is renewed on the same terms and conditions; and

(b)to the termination of the appointment by any act of the person appointed (including the giving of notice) in circumstances such that he is entitled to terminate the appointment by reason of the conduct of the Minister or the department, as the case may be.

(11B)It is unlawful for a Minister of the Crown or government department to subject to harassment a person who has been appointed, or who is seeking or being considered for, the appointment.]

(12)The High Court may, on an application for judicial review, make a declaration to the effect that a Minister of the Crown or government department has [F5 contravened—

(a)subsection (5);

(b)subsection (9);

(c)in relation to an appointment falling within subsection (10)(b), subsection (11); or

(d)subsection (11B),

and may award damages in respect of the contravention] .

(13)In Scotland, the Court of Session may, in a petition for judicial review, grant declarator to the like effect and may award damages in respect of the contravention.

[F6(14)The provision made by subsection (12) in respect of judicial review does not affect the ability, where an act on grounds of race or ethnic or national origins, or harassment, is alleged, to present a complaint to an employment tribunal under section 54A(1).]

(15)In this section—]

(a)references to refusal include references to deliberate omission;

(b)references to Ministers of the Crown and government departments include references to the [F7Welsh Ministers, the First Minister for Wales, the Counsel General to the Welsh Assembly Government ] and any part of the Scottish Administration; and

(c)references to Ministers of the Crown and government departments so far as they relate to the making of a recommendation or a refusal to make a recommendation, or the giving or refusal of an approval, in relation to a conferment of a peerage for life under section 1 of the M1Life Peerages Act 1958 include references to any body established by a Minister of the Crown to make such a recommendation to the Prime Minister or to determine whether to give such an approval.]]

[F176ZAOther office holders

(1)It is unlawful for a relevant person, in relation to an appointment to an office or post to which this section applies, to discriminate against a person on the grounds of race or ethnic or national origins—

(a)in the arrangements which he makes for the purpose of determining to whom the appointment should be offered;

(b)in the terms on which he offers him the appointment; or

(c)by refusing or deliberately omitting to offer him the appointment.

(2)It is unlawful for a relevant person, in relation to a person who has been appointed to an office or post to which this section applies, to discriminate against him on grounds of race or ethnic or national origins—

(a)in the terms of the appointment;

(b)in the way he affords him access to opportunities for promotion, transfer, training or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them;

(c)by terminating the appointment; or

(d)by subjecting him to any other detriment in relation to the appointment.

(3)It is unlawful for a relevant person, in relation to an office or post to which this section applies, to subject to harassment a person who has been appointed to, or is seeking or being considered for appointment to, such an office or post.

(4)Subsections (1) and (2) do not apply to any act in relation to an office or post where, if the office or post constituted employment, the act would be lawful by virtue of section 4A (exception for genuine occupational requirement).

(5)Subsection (2) does not apply to benefits, facilities or services of any description if the relevant person is concerned with the provision (for payment or not) of benefits, facilities or services of that description to the public, or a section of the public to which the person belongs, unless—

(a)that provision differs in a material respect from the provision of the benefits, facilities or services to persons appointed to offices or posts which are the same as, or not materially different from, that to which the person has been appointed;

(b)the provision of the benefits, facilities or services to the person appointed is regulated by the terms and conditions of his appointment; or

(c)the benefits, facilities or services relate to training.

(6)In subsection (2)(c) reference to the termination of the appointment includes reference—

(a)to the termination of the appointment by the expiration of any period (including a period expiring by reference to an event or circumstance), not being a termination immediately after which the appointment is renewed on the same terms and conditions; and

(b)to the termination of the appointment by any act of the person appointed (including the giving of notice) in circumstances such that he is entitled to terminate the appointment by reason of the conduct of the relevant person.