Many of the powers which this Act gives to the DRC are similar to powers which the Sex Discrimination Act 1975 and the Race Relations Act 1976 give to the EOC and the CRE. But there is no equivalent under those Acts for the agreements for which this section provides. It gives the DRC the power to enter into a legally binding written agreement with a person if it has reason to believe that he may have committed, or may be committing, an unlawful act. The unlawful acts covered in this section are the same as those described in section 4 in relation to non-discrimination notices and, in common with section 4, section 5 contains a power for the Secretary of State to extend the scope of the provision by making regulations prescribing other unlawful acts. Among acts which might be considered for inclusion in regulations are acts breaching section 6 of the Human Rights Act 1998 which affect disabled persons.
Subsection (2) provides that when a statutory agreement is entered into the DRC will agree not to take any relevant enforcement action in relation to the unlawful act in question. In return, the named person will undertake not to commit any further unlawful acts of the same kind and to take any action that is specified in the agreement. These undertakings are binding and enforceable through the courts (for enforcement by the DRC, see subsection (8) and paragraph 23 of Schedule 3). Under subsection (4) “relevant enforcement action” means beginning or continuing a formal investigation or taking further steps towards issuing a non-discrimination notice.
Subsection (6) provides for an agreement to include supplementary matters, such as action that may be taken in the event of a breakdown of the agreement or the circumstances in which either party may terminate the agreement. It also allows the parties to consent to vary or revoke the agreement.
Subsection (7) allows the Secretary of State to make regulations authorising other terms to be included in an agreement which are not to be enforceable by an order under subsection (8). Those terms might relate to agreeing to take action which would be considered to be good practice.
Commentary on Sections Section 5: Agreements in lieu of enforcement action