House of Commons Hansard Debates for 27 Mar 1995

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(3) With the consent of the Commissioner concerned, the Secretary of State may alter the terms of an appointment so as to make a full-time Commissioner into a part-time Commissioner or vice versa, or for any other purpose.

(4) A Commissioner may resign by notice to the Secretary of State.

(5) The Secretary of State may terminate the appointment of a Commissioner if satisfied that--

(a) without the consent of the Commission, he failed to attend the meetings of the Commission during a continuous period of six months beginning not earlier than nine months before the termination; or (b) he is an undischarged bankrupt, or has made an arrangement with his creditors, or is insolvent within the meaning of paragraph 9(2) of Schedule 3 to the Conveyancing and Feudal Reform (Scotland Act) 1970 or who is otherwise unable to pay his debts; or

(6) Past service as a Commissioner is no bar to re-appointment. Tenure of office of chairman and deputy chairman

8.--(1) The chairman and deputy chairman shall hold and vacate those offices in accordance with the terms of his appointment, and may resign by notice to the Secretary of State.

(2) The office of the chairman or deputy chairman is vacated if he ceases to be a Commissioner.

(3) Past service as chairman or deputy chairman is no bar to re- appointment.

Remuneration of Commissioners

9. The Secretary of State may pay, or make such payments towards the provision of, such remuneration, pensions, allowances or gratuities to or in respect of the Commissioners or any of them as, with the consent of the Minister for the Civil Service, he may determine.

10. Where a person ceases to be a Commissioner otherwise than on the expiry of his term of office, and it appears to the Secretary of State that there are special circumstances which make it right for that person to receive compensation, the Secretary of State may with the consent of the Minister for the Civil Service direct the Commission to make to that person a payment of such amount as, with the consent of that Minister, the Secretary of State may determine. Staff

11. The Commission may, after consultation with the Secretary of State, appoint such officers and servants as they think fit, subject to the approval of the Minister for the Civil Service as to numbers and as to remuneration and other terms and conditions of service. 12.--(1) Employment with the Commission shall be included among the kinds of employment to which a superannuation scheme under section 1 of the Superannuation Act 1972 can apply, and accordingly in Schedule 1 to that Act (in which those kinds of employment are listed) the words "Disability Rights Commission" shall be inserted at the appropriate place in alphabetical order.

(2) Where a person who is employed by the Commission and is by reference to that employment a participant in a scheme under section 1 of the Superannuation Act 1972 becomes a Commissioner, the Minister for the Civil Service may determine that his service as a Commissioner shall be treated for the purposes of the scheme as service as an employee of the Commission; and his rights under the schemes shall not be affected by paragraph 9.

13. The Employers' Liability (Compulsory Insurance) Act 1969 shall not require insurance to be effected by the Commission.

Proceedings and Business

14.--(1) Subject to the provisions of this Act, the Commission may make arrangements for the regulation of their proceedings and business, and may vary or revoke those arrangements.

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(2) The arrangements may, with the approval of the Secretary of State, provide for the discharge under the general direction of the Commission of any of the Commission's functions by a committee of the Commission, or by two or more Commissioners.

(3) Anything done by or in relation to a committee, or Commissioners, in the discharge of the Commission's functions shall have the same effect as if done by or in relation to the Commission.

15. The validity of any proceedings of the Commission shall not be affected by any vacancy among the members of the Commission or by any defect in the appointment of any Commissioner.

16. The quorum for meetings of the Commission shall in the first instance be determined by a meeting of the Commission attended by not fewer than five Commissioners.

Finance

17. The Secretary of State shall pay to the Commission expenses incurred or to be incurred by it under paragraphs 11 and 12 with the consent of the Minister for the Civil Service and Treasury, and shall pay to the Commission such sums as the Secretary of State thinks fit for enabling the Commission to meet other expenses.

18.--(1) The Commission shall keep proper accounts of their income and expenditure, and shall prepare and send to the Secretary of State statements of account in relation to each financial year of the Commission.

(2) The financial year of the Commission shall be the twelve months ending on 31st March.

Disqualification Acts

19. In Part II of Schedule I to the House of Commons Disqualification Act 1975 (bodies of which all members are disqualified under those Acts) there shall (at the appropriate place in alphabetical order) be inserted the following entry:

"The Disability Rights Commission".

Investigations

20. In respect of general investigations or investigations of complaints undertaken by the Commission the Secretary of State shall prescribe by regulations--

(a) the procedure whereby the Commission may require a person to furnish such information as they think will assist in any investigation, and the time, manner and form in which such information is to be furnished;

(b) the procedures to be followed in the case of that person failing to supply that information; and

(c) the penalties to be imposed in the case of that person failing to supply that information; save that such penalties shall not exceed level 3 of the standard scale on summary conviction in respect of such a failure and level 4 in respect of each day on which the failure in continued after conviction in respect thereof.

21.--(1) In respect of general investigations of complaints undertaken by the Commission the Secretary of State shall prescribe by regulations--

(a) the circumstances in which, following such an investigation, the Commission may issue to a person a notice of prohibition of discrimination, which shall be known as a non-discrimination notice;

(b) the manner and form in which such a notice shall be issued; (c) the procedures to be adopted in investigation whether such a notice is being complied with; and

(d) the procedures to be followed in the case of a

non-discrimination notice not being complied with.

(2) Regulations made in accordance with sub-paragraph (1) above shall prescribe, in the case of an alleged discrimination by one person against another, the arrangements whereby the Commission may--

(a) in the case of discrimination in contravention of Part II of this Act, refer the matter to an industrial tribunal, and

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(b) in the case of discrimination in contravention of Part III of this Act, apply to a county court for an injunction, or a sheriff court for an order, restraining the respondent from such discrimination,

but nothing in those regulations shall prevent an individual from making a claim of discrimination the subject of civil proceedings. Annual Report

22.--(1) As soon as possible after 31st March in each year, the Commission shall make to the Secretary of State a report on their activities during the year, hereinafter referred to as an "annual report".

(2) Each annual report shall include a general survey of developments during the period to which it relates in respect of matters falling within the scope of the Commission's duties. (3) The Secretary of State shall lay a copy of the annual report before each House of Parliament and shall cause the report to be published.'.

Amendment No. 23, in schedule 3, page 32, line 32, leave out from beginning to end of line 13 on page 34.

Amendment No. 56, in page 33, line 3, after `chairman', insert `provided that both the chairman and the deputy chairman shall be persons who at the time of their appointment are disabled persons or authorised representatives of disabled persons appointed pursuant to section 1 of the Disabled Persons (Services, Consultation and Representation) Act 1986 or section 1 of the Disabled Persons (Northern Ireland) Act 1989.'.

Amendment No. 57, in page 33, line 13, leave out `try to'. Amendment No. 58, in page 33, line 15, leave out

`parents or guardians of disabled persons'

and insert

`authorised representatives of disabled persons appointed pursuant to section 1 of the Disabled Persons (Services, Consultation and Representation) Act 1986 or section 1 of the Disabled Persons (Northern Ireland) Act 1989.'.

Amendment No. 59, in page 33, line 32, leave out from beginning to end of line 43 and insert--

`6. The Council may, after consultation with the Secretary of State, appoint such officers and servants as it thinks fit, subject to the approval of the Minister for the Civil Service as to numbers and as to remuneration and other terms and conditions of service. 7.--(1) The Secretary of State shall pay to the Council-- (a) expenses incurred, or to be incurred, by it under paragraph 6, with the consent of the Minister for the Civil Service and the Treasury, and

(b) such other sums as, with the approval of the Treasury, he determines to be required for enabling the Council to meet other expenses which it has incurred, or will incur.

(2) The Council shall keep proper accounts of its income and expenditure and shall prepare and transmit to the Secretary of State statements of accounts in relation to each financial year of the Council which shall be included in the annual report made under paragraph 9 below.

Amendment No. 25, in schedule 6, page 37, line 7, leave out from `Act' to end of line 9 and insert

`for "Disability Rights Commission" substitute "Disability Rights Commission for Northern Ireland".'.

Amendment No. 26, in page 37, line 10, leave out from beginning to end of line 14 on page 39 and insert--

`(2) In section ( Disability Rights Commission )--

(a) in subsection (1), for "Disability Rights Commission" substitute "Disability Rights Commission for Northern Ireland"; (b) for "Secretary of State" in each place where it occurs substitute "Department of Health and Social Services";

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(c) in subsection (6) for "Parliament" in the first place where it occurs substitute "the Assembly" and for "either House of Parliament" substitute "the Assembly";

(d) in subsection 7, for "either House of Parliament", "that House", and "Parliament" respectively, substitute "the Assembly" and for the words from "prorogued" to the end of the subsection substitute "or during which the Assembly has not sat for any continuous period of more than four days.".'.

Amendment No. 60, in page 37, line 10, leave out from `State"' to end of line 33 and insert

`substitute "Department of Health and Social Services".'. Amendment No. 62, in page 39, line 20, leave out from beginning to end of line 8 on page 40 and insert--

`16. In section ( Investigations by the Council: procedure ), for "Secretary of State" substitute "Department of Health and Social Services".

16A. In section ( Investigations by the Council:

anti-discriminatory notices, etc. )--

(a) in subsection (1), for "Secretary of State" substitute "a Northern Ireland department", and

(b) in subsection (2)(b), leave out ", or a sheriff court for an order,".'.

Amendment No. 63, in page 44, line 24, leave out `6'.

Amendment No. 64, in page 44, line 26, leave out `7(d) for "Treasury"' and insert

`6 and 7 for "Treasury" in each place where it occurs'. Amendment No. 27, in page 45, line 43, at end add--

`29. In Schedule ( The Disability Rights Commission )--

(a) in the heading, after "Commission", insert "for Northern Ireland.",

(b) for "Secretary of State" in each place where it occurs, substitute "Department of Health and Social Services";

(c) in paragraph 3 for the words from "the Commission" to the end of the paragraph substitute "the Commissioners are resident in Northern Ireland.";

(d) in paragraphs 9, 10, 11, 12 and 17 for "Minister for the Civil Service" or "Minister for the Civil Service and Treasury", substitute "Department of Finance and Personnel in Northern Ireland"; (e) for paragraph 19 substitute --

"19. In Part II of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (bodies of which all members are disqualified) there shall be inserted at the appropriate place the following entry:

`Disability Rights Commission for Northern Ireland'.".

(f) in paragraph 21(2)(b), leave out ", or a sheriff court for an order,";

(g) in paragraph 22(3), for "each House of Parliament" substitute "the Assembly".'.

Mr. Clarke: I am delighted with the growing support for our measures.

New clause 1 and the associated new clauses and amendments deal with the disability rights commission and go to the heart of the Bill. The first test of good law is whether it is enforceable: the Bill fails that test. Ministers have resisted a disability rights commission, despite the overwhelming force of the arguments in its favour--not least those expressed in Committee.

Why do not the Government listen even to Conservative Members? The hon. Member for Stratford-on-Avon (Mr. Howarth), who has made distinguished contributions on the subject, made clear his view on Second Reading--and no doubt he will do so today if he catches your eye, Mr. Deputy Speaker. He

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described the Government's proposals for an advisory council as opposed to an effective commission as insufficient, and he was right.

The hon. Member for Exeter (Sir J. Hannam) suggested that something stronger than an advisory organisation might be required, and he called on the Minister to reconsider his opposition to a commission. We will learn tonight whether the Minister has paid any heed to that call, and whether, in the absence of any response, Conservative Members will join us in the Lobby voting for a positive response. In The Guardian last Wednesday, Jonathan Kaye, who is a member of the Conservative party and has responsibility for disability policy in the Bow group, joined the chorus of support for a fruitful, powerful commission. He predicted that, if the Government do not create a commission now, they will be forced to do so in two years' time because the Bill will not work without one--a view with which I entirely agree.

Mr. Kaye noted that, under Government proposals, Britain will be the only country to pass such legislation without creating a suitable enforcement body to ensure compliance. He asked why a party claiming to be dedicated to law and order--as the Conservative party increasingly does--seems reluctant to provide the means to enforce a law. He asked why the Government have placed themselves in that unbelievable position. The Minister should try to give a convincing answer.

New clauses and amendments on the amendment paper include those in the names of the hon. Members for Stratford-on-Avon and for Brighton, Kemptown (Sir A. Bowden), and propose to add to the powers of the national disability council powers similar to those that we propose for the disability rights commission. Conservative and Opposition Members are on common ground on that issue, and I hope that we go through the Lobby together at the end of this debate. That which matters more than anything else is not the name but the substance, and in substance we are agreed. The Bill needs more than any other improvement the establishment of a body with powers to investigate and to eliminate discrimination against disabled people.

The Government's proposals will not only make British law uniquely unenforceable by international standards but put disability discrimination in a new legal category at home. Models for anti-discrimination law exist, and legislation on discrimination on grounds of race or gender include provision for enforcement--and so they should.

That is the right road to follow, yet the Government have deliberately chosen not to follow it in respect of disabled people. They propose to give disability discrimination a lower status than race or sex discrimination. If the commission model works in other areas, it should work for disability, yet the Government ignore the existence of other models of anti -discrimination law at home and abroad. Parliament has provided the best protection that it can devise against race or sex discrimination, as it should, but it is asked to provide second-class protection for disabled people.

Mr. Tim Devlin (Stockton, South): Does the hon. Gentleman agree that it would be far better to have just one commission named the commission for fair

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employment to deal with race, sex, disablement and other forms of discrimination--instead of establishing another miniature empire?

Mr. Clarke: If the hon. Gentleman takes that view, it would have been more helpful if he had tabled an amendment or a new clause. His idea may sound progressive, but for that reason the Minister for Social Security and Disabled People would have resisted it. Even the logic that he promotes is not something that the Department would find appealing.

Disabled people should have more than just the law on their side--they need law enforcement. Our proposals would create a commission with a range of powers. The disability rights commission would be able to provide assistance, including financial and legal assistance, to disabled people seeking redress for acts of discrimination. That alone is profoundly important for what we regard as a free society. The commission would be able to carry out general investigations, to determine whether discrimination--including indirect discrimination, of which there is much evidence--was taking place and to encourage employers and service providers to comply with the law.

The commission would, where necessary, be able to bring proceedings to compel employers or service providers to obey the law. There is no reason why it should not. The idea squares with the Government's approach to many other matters, including race and gender. We believe that the onus should not always be on disabled people to prove that they have suffered discrimination, or to take action to obtain a remedy. Alleged discriminators should be obliged to show that their practices comply with the law. Investigative powers for the commission will ensure that practices that discriminate are found out and remedied sooner rather than later. The very existence of such powers will encourage compliance with the law.

Most cases brought to the Commission for Racial Equality under the Race Relations Act 1976 are settled without the need to go to court. That is important to the overwhelming case for a commission. The Government appear to anticipate that the same will happen here--and we hope that they are right. But the point that they seem to miss is that most race discrimination cases are settled out of court precisely because the alleged discriminators know that the CRE has the powers to enforce the law, so they sensibly choose to comply at an early stage.

The disability rights commission would have a general duty to work towards the elimination of discrimination--as the Commission for Racial Equality and the Equal Opportunities Commission do. This duty would involve promoting awareness of the profoundly important issue of disability discrimination. That would save many people and organisations from finding themselves in breach of the law in the first place. The commission would be free to initiate its own research and education in pursuit of its wider objectives. That too would allow it to achieve prevention rather than cure- -an idea that should appeal to the Minister and the Government.

The powers that we propose are complementary. The commission that we envisage would quickly build up the necessary expertise to allow it to draft effective codes of practice and to recommend to Ministers practical improvements to the law. That is far more effective and

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efficient than the Government's approach. It is a way of promoting equality, instead of relying on complainants pursuing their cases, given that so many impediments are placed in their way.

The Commission for Racial Equality has found that

"promotional work is greatly strengthened by the awareness of employers that, if it fails, formal investigations are possible . . . Guidance and codes are heavily based on the information that has come . . . through formal investigations and individual complaints." Investigative powers and promotional duties go together, therefore, and form a coherent package which we propose and support. Disabled people want that package too, and for employers and service providers the existence of a credible national body with the authority to oversee and to enforce the law provides a clear point of reference and source of guidance for those who wish to know how to proceed. The Institute of Personnel Development and the Employers Forum on Disability have both called for a national body with powers, status and resources equivalent to those of the Commission for Racial Equality and the Equal Opportunities Commission. The CBI has also expressed disquiet about the lack of clarity in the plans for the Government's national disability council--in particular about whether it can carry out independent research, and about its interaction with the other equality commissions and the arbitration service ACAS. In the CBI's words:

"The latter is particularly important given the potential complications arising from overlaps of jurisdiction in cases of compound discrimination".

That is a diplomatic and technical way of putting it.

8.15 pm

Let me put it another way: employers want to know what happens when an employee or job applicant is discriminated against more than once. For example, what happens when a disabled woman is refused promotion for no apparent reason? Most employers do not want to discriminate unfairly, and rightly want to ensure that their competitors do not obtain an unfair advantage by unfair discrimination.

The unacceptable answer is that, under the Government's proposals, a disabled woman will have much more effective redress if she suffered discrimination on account of her gender than if she did on account of her disability. If the former applied, the Equal Opportunities Commission might take up her case, provide her with legal and financial support, issue a notice of non-discrimination against her employer and impose financial penalties if the employer failed to co-operate--all laudable and practical steps. If the same disabled woman suffered unfair discrimination because of her disability, however, the Government-proposed national disability council would be able to do absolutely nothing.

The plain fact is that the council will be able to monitor discrimination but not do anything about it. It will be able to advise the Government in certain areas, but not to tell anyone if the Government choose not to follow its advice. It will be able to offer draft codes of practice, but only when asked to do so by the Secretary of State. That is simply not good enough. Disabled people want and are entitled to first-class protection under the law.

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