2006 Chapter 3

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These Notes refer to the Equality Act 2006 (c. 3) which received Royal Assent on 16 February 2006

EQUALITY ACT 2006

     EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Equality Act which received Royal Assent on 16 February 2006. They have been prepared by the Department of Trade and Industry and (in relation to sections 7, 9 and 18) the Department for Constitutional Affairs and (in relation to sections 44 to 80) the Home Office in order to assist the reader in understanding the Act. They do not form a part of the Act and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.

3.     The Act relates to matters within the responsibilities of the Secretary of State for Trade and Industry, the Secretary of State for Constitutional Affairs, the Secretary of State for Work and Pensions and the Home Secretary. The Secretary of State for Education and Skills has a key interest in education matters within the Act. References to the Secretary of State in the Act mean any Secretary of State. In practice, some of the functions conferred upon the Secretary of State will be exercised by the Secretary of State for Trade and Industry, the Secretary of State for Constitutional Affairs, the Home Secretary and the Secretary of State for Work and Pensions jointly and others by only one of them or by the Secretary of State for Education and Skills. This will reflect their respective ministerial portfolios. In one case an order-making power is conferred specifically on the Lord Chancellor - as described in more detail in the commentary on section 28. The order-making power in section 50(4) will be exercisable only by the Secretary of State for Education and Skills. The power to make regulations under section 82 will be exercisable by the Office of the First Minister and the Deputy First Minister in Northern Ireland.

SUMMARY

4.     The Act's main provisions:

• establish the Commission for Equality and Human Rights (CEHR) and define its purpose and functions;

• make unlawful discrimination on the grounds of religion or belief in the provision of goods, facilities and services, education, the use and disposal of premises, and the exercise of public functions;

• enable provision to be made for discrimination on the grounds of sexual orientation in the provision of goods, facilities and services, education, the use and disposal of premises and the exercise of public functions;

and

• create a duty on public authorities to promote equality of opportunity between women and men ('the gender duty'), and prohibit sex discrimination and harassment in the exercise of public functions.

5.     The CEHR will take on the work of the existing equality Commissions (the Equal Opportunities Commission (EOC), the Commission for Racial Equality (CRE), and the Disability Rights Commission (DRC)) and will additionally assume responsibility for promoting equality and combating unlawful discrimination in three new strands, namely sexual orientation, religion or belief, and age. The CEHR will also have responsibility for the promotion of human rights.

BACKGROUND

6.     The Sex Discrimination Act 1975 (c. 65) (SDA), Race Relations Act 1976 (c. 74) (RRA) and the Disability Rights Commission Act 1999 (c. 17) (DRCA) created the EOC, CRE, and DRC respectively. The founding legislation confers responsibility on the Commissions for combating unlawful discrimination and promoting equality of opportunity as regards gender, race or disability. The EOC has responsibilities for the SDA and Equal Pay Act 1970, the CRE has responsibility for the RRA and the DRC enforces the Disability Discrimination Act (DDA).

7.     The Employment Equality (Sexual Orientation) Regulations 2003 (S.I. 2003/1661) and Employment Equality (Religion or Belief) Regulations 2003 (S.I. 2003/1660) made unlawful discrimination on the grounds of sexual orientation and religion or belief in employment and vocational training. These Regulations implement the UK's obligations under the EC Employment Directive (Directive 2000/78/EC). Legislation is also being prepared to prohibit age discrimination in these areas, as required by the Employment Directive. There is currently no statutory institution with responsibility for promoting equality or combating unlawful discrimination in these new equality strands. Similarly, although all public authorities must adhere to the provisions of the Human Rights Act 1998, there is currently no statutory body charged with promoting human rights in Great Britain.

8.     In October 2002, the Government issued a consultation paper ("Equality and Diversity: Making it Happen - Consultation on future structures for equality institutions") comprising a review of existing institutional support for equality legislation and options for the future, in particular the feasibility of creating a single equality Commission for Great Britain. A majority of respondents to the consultation supported the establishment of a single equality body.

9.     In October 2003, the Government announced its intention to bring together the work of the existing Commissions in a new body that would also take responsibility for new laws on age, religion or belief and sexual orientation, and for the first time provide institutional support for human rights.

10.     The White Paper (Cm 6185 "Fairness for All: A New Commission for Equality and Human Rights") was published on 12 May 2004. The White Paper set out the Government's detailed proposals for the CEHR, including its role, duties and powers, and outlined the way in which the CEHR will deliver services to its key stakeholders. Views were invited on the proposals by 6 August 2004, and the Government's response to that consultation was published on 18 November 2004.

THE ACT

11.     The Act is in five Parts and has four Schedules.

12.     Part 1 including Schedules 1, 2 and 3 establishes the CEHR and sets out its duties, general powers, enforcement powers and the interpretation of this Part of the Act. Dissolution of the existing equality Commissions is also covered in this Part of the Act.

13.     Part 2 sets out provisions prohibiting discrimination on grounds of religion or belief in the provision of goods, facilities and services, education, the use and disposal of premises and the exercise of public functions.

14.     Part 3 allows provision to be made by regulations prohibiting discrimination on grounds of sexual orientation in the provision of goods, facilities and services, education, the use and disposal of premises and the exercise of public functions.

15.     Part 4 sets out provisions prohibiting sex discrimination in the exercise of public functions and creates a duty on all public authorities to have due regard to the need to eliminate unlawful discrimination and harassment and to promote equality of opportunity between women and men.

16.     Part 5 including Schedule 4 contains general supplementary material including repeals, Crown application, commencement and extent.

COMMENTARY ON SECTIONS

Part 1: The Commission for Equality and Human Rights

Section 1: Establishment 17.     Section 1 establishes the CEHR.

Section 2: Constitution, &c.

18.     Section 2 introduces Schedule 1 which sets out provisions relating to the constitution of the CEHR; its members (the Commissioners); their appointment criteria; and their tenure of office; the tenure of office of the Chairman and the deputy Chairman; regulation of its proceedings; appointment of its staff; appointment of its Investigating Commissioners; its powers of delegation and the committees to which certain functions must be delegated; preparation of its annual report; remuneration of Commissioners and staff; its financial arrangements; and its status.

Section 3: General duty

19.     Section 3 sets out the outcomes for society that the CEHR is required to work towards. It explains the rationale for the CEHR, combining work in equality, human rights and good relations between different groups in society. The CEHR is required to exercise its functions in Part 1 in order to work towards the outcomes set out in this section.

Section 4: Strategic plan

20.     Section 4 places the CEHR under a duty to publish and lay before Parliament, a strategic plan setting out the activities or types of activity it plans to carry out, the timetable for these activities, and the priorities for these activities (or the principles on how these priorities should be determined).

21.     Subsection (2) requires the CEHR to review its strategic plan at least once every three years from publication, although it does not have to revise the plan after each review if it does not think it appropriate to do so. The CEHR must publish the original plan and each revision of it, and ensure that the plan and each revision is sent to the Secretary of State to lay before Parliament.

Section 5: Strategic plan: consultation

22.     Section 5 places the CEHR under a duty to consult on the preparation and review of its strategic plan. The CEHR is required to consult with those who have knowledge or experience relevant to the CEHR's functions and others the CEHR considers appropriate. The CEHR is also required to issue a general invitation to make representations, to ensure it is able to consult with as large a group of people as possible.

23.     The CEHR will be required to take account of any representations it receives in the course of its consultation.

Section 6: Disclosure

24.     Section 6 creates a summary criminal offence of unauthorised disclosure by a former or current Commissioner, Investigating Commissioner, employee, or member of a committee established by the Commission, of information provided to the CEHR by third parties in the course of an inquiry, investigation, assessment, compliance notice process, or a negotiation to obtain an agreement. Information obtained through the exercise of its other functions will be subject to disclosure in accordance with the Freedom of Information Act 2000. Subsection (3) provides an exhaustive list of categories for which a disclosure can be authorised. They are disclosure made: for the purpose of the exercise of a function of the CEHR under any of sections 16, 20, 21, 24, 25, 31 and 32; in a report of an inquiry, investigation, or assessment published by the CEHR; in pursuance of an order of a court or tribunal; with the consent of each person to whom the disclosed information relates; in a manner that ensures that no person to whom the disclosed information relates can be identified; for the purpose of civil or criminal proceedings to which the CEHR is party, or; if the information was acquired by the CEHR more than 70 years before the date of the disclosure. Subsection (3) does not permit disclosure of information provided by, or relating to, an intelligence service. Such material can only be disclosed under subsection (4) where the intelligence service has given its consent. Subsection (6) provides that the penalty for a summary conviction shall be a fine up to the statutory maximum i.e. £5,000.

Section 7: Scotland: human rights

25.     Section 7 provides that the CEHR may not take human rights action in relation to matters falling within the devolved competence of the Scottish Parliament, except with the consent of a person established by Act of the Scottish Parliament whose principal duties relate to human rights (for example a Human Rights Commissioner). "Human rights action" is defined in subsection (2).

Section 8: Equality and diversity

26.     Sections 8 to 12 set out the duties of the CEHR. Later sections in Part 1 set out the general powers the CEHR has to meet its obligations under these duties.

27.     Section 8 sets out the CEHR's duties in relation to equality and diversity. The provisions require the CEHR to promote understanding of, and encourage good practice in relation to, equality and diversity (whether or not this relates to compliance with the equality enactments (as listed in section 33)), promote equality of opportunity, promote awareness and understanding of rights under the equality enactments and to work towards the elimination of unlawful discrimination and harassment, including through using its enforcement powers.

28.     Subsection (3) clarifies that the Commission may promote the favourable treatment of disabled persons in carrying out its equality and diversity duties. This provision ensures the Commission's work is consistent with the requirements of the Disability Discrimination Act 1995. Subsection (4) defines disabled persons for the purposes of this Act.

Section 9: Human rights

29.     Section 9 sets out the CEHR's duties in relation to human rights. The provisions require the CEHR to promote understanding of the importance of human rights, encourage good practice in relation to human rights, and promote awareness, understanding and protection of human rights. In addition, the CEHR will be required to encourage public authorities to comply with section 6 of the Human Rights Act 1998 (c.42) (HRA) (which prohibits them from acting in a way which is incompatible with the Convention rights as defined in section 1 of the HRA).

30.     The latter duty applies only in relation to public authorities ("public authority" is defined in section 6 of the HRA). However, in relation to the more general duties under this section, the CEHR will not be limited to dealing with public authorities. It will, for example, also be able to provide encouragement to the voluntary and commercial sectors to adopt appropriate human rights standards as the basis of the relationship with their clients and customers in the provision of their services.

31.     Subsection (2) makes clear that the CEHR may take action under this section in respect of human rights other than the "Convention rights" set out in Schedule 1 to the HRA. However, subsection (3) requires the CEHR to have particular regard to the importance of exercising its powers in relation to the Convention rights.

32.     Subsection (4) requires the CEHR to take account of relevant human rights when fulfilling its duties under sections 8 and 10.

Section 10: Groups

33.     Section 10 sets out the CEHR's duties in relation to promoting good relations between members of different groups, within different groups, and between members of different groups and wider society. It also requires the CEHR to work towards eliminating prejudice against members of groups and enabling members of groups to participate in society, for example in challenging racism in the media, or enabling disabled people to become involved in civic activities.

34.     Subsections (2) and (3) define groups as people who share one of the attributes listed in subsection (2), including smaller groups who may share an attribute in addition to the one by which that group is defined, such as Muslim women, or Black and minority ethnic lesbians and gay men, or young disabled people. Groups may or may not consider themselves to be "communities". The Commission's work with groups can apply to communities as well as groups.

35.     Subsection (4) ensures that, in carrying out its duties under this section, the CEHR should have particular regard to the need to exercise its powers in relation to groups defined by reference to race, religion or belief.

36.     Subsection (5) ensures that in carrying out its duties in relation to working with groups, the Commission may promote or encourage the favourable treatment of disabled people, to ensure consistency with the general approach of the Disability Discrimination Act.

Section 11: Monitoring the law

37.     Section 11 sets out the obligations and powers of the CEHR to keep the equality and human rights enactments under review and provide advice and recommendations on the law and proposed changes to the law.

38.     Subsection (1) requires the CEHR to monitor the effectiveness of the equality and human rights enactments. The equality and human rights enactments are listed in section 33 and, for the purposes of this section, include the whole of this Act (subsection (3)(c)). Subsections (2)(a) and (b) enable but do not require the CEHR to advise the Government about the effectiveness of the equality and human rights enactments and to recommend changes. Subsections (2)(c) and (d) enable the CEHR to give advice to the Government or the devolved administrations in Scotland or Wales about the effect of legislation (not limited to the equality and human rights enactments) or the likely effect of any proposed changes to the law.

Section 12: Monitoring progress

39.     Section 12 places the CEHR under a duty to publish reports on what progress has been made towards the achievement of desirable outcomes i.e. the results to aim for in encouraging and supporting the development of the society described in section 3. To meet its obligations under this duty, the CEHR will need to evaluate available evidence in order to identify desired outcomes for society and the indicators by reference to which progress can be measured. The CEHR will be required to consult widely on which of these should be priorities for the CEHR to monitor.

40.     Once the CEHR has determined what outcomes and indicators are priorities, it will use the indicators to monitor progress towards the outcomes over a period of time. The CEHR is required to publish a report within three years of this section coming into force, and every three years thereafter. The Secretary of State must lay the progress report before Parliament.

Section 13: Information, advice, &c.

41.     Section 13 sets out the general powers available to the CEHR, and the general activities it can undertake, to carry out any or all of its duties. These activities are publishing or disseminating ideas and information, giving advice and guidance, undertaking research and providing education or training.

42.     Subsections (1)(e) and (f) permit the CEHR to work in partnership with others, or to arrange for others to carry out any of the listed activities. This may include contractual or grant-based partnerships.

43.     Subsection (2) confirms that advice given under this section does not include the preparation of documents to be used for the purpose of legal proceedings. The CEHR has separate powers to provide such advice in respect of particular types of legal proceedings, as laid down in section 28.

Section 14: Codes of practice

44.     Section 14 enables the CEHR to issue a code of practice in respect of specified areas of discrimination legislation, to assist in compliance with the legislation and to promote equality of opportunity. Additionally, the CEHR may issue a code of practice on specified provisions of landlord and tenant and housing legislation.

45.     Subsection (1) lists the areas in the equality enactments (as defined in section 33) in relation to which the CEHR is to be able to issue codes of practice.

46.     Subsections (3) and (4) set out the circumstances and the areas of landlord and tenant and housing legislation on which a code can be issued giving practical guidance to landlords and tenants in England or Wales (subsection (2)) and in Scotland (subsection (3)).

47.     Subsection (5) places an obligation upon the CEHR to comply with a direction of the Secretary of State to prepare a code of practice in respect of a matter not currently covered by this section but which the Secretary of State expects to add by means of the order-making power provided in section 15(6) to vary the range of matters on which the CEHR may prepare a code of practice.

48.     Subsection (6) requires the CEHR to publish for consultation proposals for any code of practice.

49.     Subsection (7) prevents the CEHR from issuing a code of practice unless it has been approved in draft by the Secretary of State and then laid before Parliament. Either House of Parliament may pass a resolution disapproving the draft code within 40 days of it being laid. If no such resolution is passed, subsection (8) provides that the code of practice will come into force on a day specified by order by the Secretary of State.

50.     Subsection (9) requires the Secretary of State to consult Scottish Ministers and the National Assembly for Wales prior to approving a draft code of practice or commencing a code of practice which relates to the duties on the public sector regarding the general and specific duties for race, gender or disability under the RRA, SDA and DDA, respectively.

51.     Subsection (10) requires the Secretary of State to consult the Scottish Ministers prior to approving a draft code of practice or commencing a code of practice issued under subsection (4) which gives practical guidance to landlords and tenants of houses in Scotland.

Section 15: Codes of practice: supplemental

52.     Subsection (1) of this section makes provision for the codes of practice issued under section 14 to be revised. Subsection (3) provides for any code to be revoked by an order made by the Secretary of State at the request of the CEHR. An order to revoke a code will be subject to the negative resolution Parliamentary procedure.

53.     Subsection (4) describes the legal effect of a code of practice. It provides that a failure to comply with a provision of a code of practice does not itself give rise to criminal or civil proceedings, but a code of practice is admissible in such proceedings and must be taken into account by a court or tribunal if the court or tribunal considers the code to be relevant.

54.     Subsection (5) disapplies the requirement in subsection (4)(b) for a court or tribunal to take account of a code of practice issued under section 14(4). However, the Housing (Scotland) Act 2006 provides for the Scottish courts and tribunals to take account of such codes.

55.     Subsection (6) provides for an order-making power to allow the Secretary of State to vary the range of matters that codes of practice may address. In accordance with section 39(4), any such order will be subject to the affirmative resolution procedure.

Section 16: Inquiries

56.     Section 16 gives the CEHR a power to conduct inquiries into matters relating to its duties in respect of equality and diversity, human rights and groups. These could be thematic (for example into the causes of unequal outcomes), sectoral (looking at inequality in, for example, the uptake of health screening services or at the employment of disabled people in particular sectors, e.g. the retail sector) or relate to one or more named parties.

57.     Subsection (2) provides that if the CEHR begins to suspect that a person who is the subject of an inquiry may have committed an unlawful act (i.e. a breach of the equality enactments, as set out in sections 33 & 34), it should not continue to consider that act as part of the inquiry. The CEHR can, however, use the information acquired in the course of an inquiry as the basis on which to launch an investigation. The CEHR is under a duty to ensure that so far as possible, those aspects of an inquiry which concern the person being investigated or which require his involvement are not pursued while the investigation is in progress.

58.     Subsection (3) provides that the report of an inquiry may not conclude, expressly or by necessary implication, that a specified or identifiable person has committed an unlawful act. Nor may the report refer to the activities of a person in terms that will harm the person unless it is necessary in order that the report adequately reflect the results of the inquiry.

59.     Subsection (4) provides that restrictions on the CEHR considering unlawful acts under the equality enactments should not impact on the CEHR's consideration and reporting of human rights matters in the course of an inquiry.

60.     Subsection (5) provides that the CEHR, in circumstances where the findings are in the opinion of the CEHR of an adverse nature, must allow a specified or identifiable person at least 28 days in which to make written representations on the draft of a report which records findings which relate to that person, and requires the CEHR to consider any such representations.

61.     Schedule 2 sets out the provisions relating to terms of reference, representations, evidence, reports and recommendations and effects of reports in relation to inquiries, investigations and assessments. Commentary on Schedule 2 can be found below.

Section 17: Grants

62.     Section 17 provides the CEHR with a power to make grants to others, in pursuance of any of its duties under sections 8 to 10. This is a power currently available only to the CRE under section 44 of the RRA.

63.     Subsection (2) allows the CEHR to attach conditions, including as to repayment, to the financial assistance that it provides.

64.     Subsection (3) provides that, where the CEHR provides financial assistance in the exercise of its powers to co-operate with or assist others under Part 1 of the Act, it may do so only in accordance with the provisions of section 17.