Section 52: Public authorities: general
196.Subsection (1) prohibits discrimination on grounds of religion or belief in the exercise of the functions of all public authorities.
197.Subsection (2) defines “public authority” as including any person who has functions of a public nature and “function” as any function of a public nature.
198.Exceptions to these provisions are set out in subsections (3) and (4). Subsection (3) follows the pattern of similar legislation and excepts a list of bodies, such as the Houses of Parliament, the Security Services and GCHQ.
199.Subsections (4)(a) to (e) exclude the exercise of judicial functions and legislative processes (including those of the General Synod of the Church of England).Subsection (4)(f) excepts a decision to prevent someone entering the country, or to deport someone from the country, where this decision is made on the grounds that it is conducive to the public good, or that it is undesirable to permit the person to remain in the United Kingdom. Subsection (4)(g) extends the exception on immigration matters to cover people entering the country to provide services in connection with a religion or belief, such as a minister or clergyman. This exception is required because the immigration services necessarily discriminate against certain religious groups for the purposes of recognising people as entering the country to provide religious services.
200.Subsection (4)(j) excepts a decision related to criminal proceedings, where a decision has been taken not to prosecute.
201.Subsections (4)(k) (i), (iii), (v) and (vi) except from the prohibition on discrimination (insofar as it is not excepted elsewhere), the exercise of any public functions in a number of areas that relate to faith and non-faith educational institutions. Those areas are:
The Curriculum – the prohibitions in this section will not apply to action in relation to the school curriculum. See the note for section 50(2)(a).
Collective worship – the prohibitions in this section will not apply to acts of worship or other religious observance organised by or on behalf of an educational institution. See the note for section 50(2)(b).
Transport – an LEA or other responsible body can provide subsidised transport to a faith or non-faith school for those pupils who live a distance away and whose parents wish them to attend such a school for reasons related to belief or non-belief. They will not be obliged by this legislation to provide a similar service for pupils who choose for other reasons to attend a school which is not close to their home.
Establishment, alteration or closure – a public authority will not have to answer discrimination charges as a result of its decision to establish, alter or close any particular school.
202.Subsections (4)(k)(ii) and (iv) except further exercises of public functions from the prohibition on discrimination in this section, but only in respect of those schools which have a religious ethos. Those functions are:
Admissions – faith schools can operate a selective admissions policy, prioritising those children of a specific religion or belief.
Governing bodies – religion or belief can be legitimate criteria in the selection of governors for schools with a religious ethos, and places on the governing body may be restricted to or reserved for people of that religion or belief.
203.Subsection (4)(l) excepts from the effect of this section the exercising of the power under section 2 of the Local Government Act 2000 which provides for local authorities to promote the economic, social and environmental well-being of their area.
204.Subsection 4(m) excepts from this section actions which are provided for by the provisions in the Employment Equality (Religion or Belief) Regulations 2003 or by another provision of this Part. Where actions would be unlawful by virtue of section 46 but for an express exemption, those actions are not excepted from section 50 by subsection (4)(m). This ensures that goods, facilities and services provided by public authorities will be covered by section 50 if they are exempted under section 46 but not covered by any of the exemptions in relation to section 51.
205.When the court is hearing a case brought in respect of section 52, it cannot grant an injunction unless it is satisfied that to do so will not prejudice any criminal proceedings or a criminal investigation. Similarly, a court must stay or desist proceedings brought in respect of section 52 when there is a risk that criminal proceedings or a criminal investigation could be prejudiced by the case continuing.
206.Subsection (6) refers to section 70(4). It relates to the answers that a person, accused of an unlawful act under this Part, may give to a questionnaire prescribed by the Secretary of State, and the inferences that can be drawn from a failure to answer, or from an evasive or equivocal answer. Under subsection (6), inferences cannot be drawn from an absent or evasive answer if:
the person questioned reasonably asserts that there was a risk of prejudicing criminal proceedings or a criminal investigation, or of revealing the reason for not instituting or not continuing criminal proceedings; or
the reply is of a kind, or is given or withheld in circumstances specified, in an order by the Secretary of State.
