Equality Act 2010, Schedule 23, paragraph 1

Acts authorised by statute or the executive

SCHEDULE 23 General exceptions

1 (1) This paragraph applies to anything done—

(a) in pursuance of an enactment;

(b) in pursuance of an instrument made by a member of the executive under an enactment;

(c) to comply with a requirement imposed (whether before or after the passing of this Act) by a member of the executive by virtue of an enactment;

(d) in pursuance of arrangements made (whether before or after the passing of this Act) by or with the approval of, or for the time being approved by, a Minister of the Crown;

(e) to comply with a condition imposed (whether before or after the passing of this Act) by a Minister of the Crown.

(2) A person does not contravene Part 3, 4, 5 or 6 by doing anything to which this paragraph applies which discriminates against another because of the other's nationality.

(3) A person (A) does not contravene Part 3, 4, 5 or 6 if, by doing anything to which this paragraph applies, A discriminates against another (B) by applying to B a provision, criterion or practice which relates to—

(a) B's place of ordinary residence;

(b) the length of time B has been present or resident in or outside the United Kingdom or an area within it.

Definitions used in Schedule 23, paragraph 1 2

enactment

“enactment” means an enactment contained in—

(a)

an Act of Parliament,

(b)

an Act of the Scottish Parliament,

(c)

an Act or Measure of the National Assembly for Wales, or

(d)

subordinate legislation;

Defined in s.212(1) · see it in the full Act
Member

(10) “Member”, in relation to an occupational pension scheme, means an active member, a deferred member or a pensioner member (within the meaning, in each case, given by section 124 of the Pensions Act 1995 ).

Defined in s.212(10) · see it in the full Act

Cases considering Schedule 23, paragraph 1 4

Tigere, R (On the Application Of) v Secretary of State for Business, Innovation And Skills

[2014] EWCA Civ 1216 · 31 July 2014Limits

The paragraph is relied on as limiting Equality Act claims involving nationality, ordinary residence and residence duration where discrimination is required by legislation or statutory instrument. The court holds that it does not permit free passage through the ECHR. (see paras [23]-[24])

the3million Ltd & Ors, R (On the Application Of) v The Minister for the Cabinet Office

[2021] EWHC 245 (Admin) · 11 February 2021Disapplies

Paragraph 1 of Schedule 23 excluded nationality discrimination in respect of things done pursuant to an enactment. The court held that it independently defeated the challenge to the statutory registration requirements. (see paras [116]-[117])

AB, R (on the application of) v Secretary of State for the Home Department

[2024] EWCA Civ 369 · 18 April 2024

The court treated the ministerial authorisation under this provision as the formal basis for nationality-based biometric deferral in the Ukraine scheme. It held that the authorisation was not unlawful under Article 14. (see paras [15]; [60])

What each judgment says about Schedule 23, paragraph 1 is in the case-law panel in the full Act.

Amendments and notes

1 notes from legislation.gov.uk

Commencement

  1. I156Sch. 23 para. 1 wholly in force at 1.10.2012; Sch. 23 not in force at Royal Assent see s. 216; Sch. 23 in force for certain purposes at 1.10.2010 by S.I. 2010/2317, art. 2(14)(e) (with art. 15); Sch. 23 in force for remaining purposes at 1.10.2012 by S.I. 2012/1569, art. 3(g)