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Disability Rights Commission Bill [H.L.]

These notes refer to the Disability Rights Commission Bill [H.L.] as brought from the House of Lords on 24th March 1999 [Bill 73] Disability Rights Commission Bill [H.L.] EXPLANATORY NOTES INTRODUCTION 1.     These explanatory notes relate to the Disability Rights Commission Bill as brought from the House of Lords on 24th March 1999. They have been prepared by the Department for Education and Employment (DfEE) in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament. 2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a provision does not seem to require any explanation or comment, none is given. SUMMARY 3.     The Bill's main purpose is to establish the Disability Rights Commission (DRC). The DRC is given general duties and powers together with specific powers enabling it to: work towards the elimination of discrimination against disabled people; promote the equalisation of opportunities for disabled people; take steps to encourage good practice in the treatment of disabled people; keep the Disability Discrimination Act 1995 (DDA 1995) under review; assist disabled people by offering information, advice and support in taking cases forward; provide information and advice to employers and service providers; undertake formal investigations; prepare statutory codes of practice providing practical guidance on how to comply with the law; and arrange independent conciliation between service providers and disabled people in the area of access to goods and services. BACKGROUND 4.     In July 1998, the Government issued a consultation paper on the role and functions of the proposed DRC (Cm 3977 "Promoting disabled people's rights - Creating a Disability Rights Commission fit for the 21st Century"). It sought views by 16 October 1998. 5.     The DDA 1995 provides for the establishment of the National Disability Council (NDC). Like the Commission for Racial Equality (CRE) and the Equal Opportunities Commission (EOC), this body provides advice to the Secretary of State concerning matters within its field of expertise. Like those bodies it also has functions in connection with the preparation of codes of practice. Unlike them, however, the NDC cannot initiate litigation nor support individuals seeking to enforce rights nor does it have powers of investigation. 6.     This Bill abolishes the NDC, replaces it with the DRC and confers upon the new body expanded functions akin to those of the CRE and EOC. Like the NDC before it, the DRC will cover England, Scotland and Wales. THE BILL 7.     The Bill has 15 clauses and 5 Schedules. Its provisions fall into two broad areas: the establishment of the DRC, its constitution and related matters (see clause 1 and Schedules 1 and 2); and the functions of the DRC (see clauses 2 to 10 and Schedule 3). 8.     The term "disabled person" used throughout the Bill carries the same meaning as in the DDA 1995. It means a person who has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. COMMENTARY ON CLAUSES Clause 1: The Disability Rights Commission Subsection (1) establishes the DRC. Subsection (2) provides for the DRC to be funded by the Secretary of State (out of money provided by Parliament) though some of its expenses can be recovered out of charges under clause 2(4) and by recovery of costs under clause 7. Subsection (3) introduces Schedule 1 which sets out provisions relating to the constitution of the DRC; its members (the commissioners) and their tenure of office; the tenure of office of the chairman and the deputy chairman; remuneration, pensions etc of commissioners; appointment of staff; regulation of proceedings; powers of delegation; finance; and preparation of annual reports (see below). Paragraph 2(2) and (3) require that a majority of the commissioners appointed to the DRC are disabled or persons who have had a disability, but provide flexibility with regard to the order of the first three appointments. Paragraph 6(2) provides for either the chairman or a deputy chairman of the DRC to be a disabled person or a person who has had a disability. Paragraphs 15 and 16 require the DRC to prepare annual accounts and reports and to submit them to the Secretary of State. The DRC is required to include within its annual report an account of work done with other organisations. The Bill leaves the DRC free to set up offices wherever it thinks best to enable it to fulfil its functions, but administrative arrangements will be made to ensure that it operates at least one office in England, in Scotland and in Wales. Clause 2: General functions Subsection (1) sets out the general duties of the DRC. Later in the Bill the DRC is given a number of specific functions but its general duties and powers set out in subsection (1) , with subsection (2), will enable the DRC to undertake a wide range of activities, for example, to run conferences, seminars and workshops; to provide advice and assistance on making reasonable adjustments; and to devise guidance specifically for employers and service providers in particular sectors. Subsection (2)(a) enables the DRC to give advice to the Government on any aspect of the law or proposed changes to the law for any purpose connected with the elimination of discrimination and the performance of its other functions. Subsection (3) requires the DRC to make proposals or give advice when asked to do so by the Government. Subsections (2) and (3) would enable advice to be sought or given by the DRC upon amendments to the DDA 1995, implementation of any relevant Directive issued by the European Union or upon legislation on such subjects as housing where the needs of disabled people might be relevant. Subsection (2)(c) enables the DRC to carry out research and to provide information and advice for any purpose connected with the performance of its functions. It also enables the DRC to support other people to undertake these activities. Subsection (4) enables the DRC to charge a fee for any facilities or services it makes available, such as attendance at a conference which it has arranged. Subsection (5) provides (in keeping with the DDA 1995) for the DRC's work to embrace both disabled people and people who have had a disability. It also defines the types of discrimination which the DRC must work to eliminate as those set out in Parts II and III of the DDA 1995 which cover discrimination in the areas of: employment; the provision of goods, facilities and services; and the management and disposal (selling, letting etc) of premises. Clause 3: Formal investigations Clause 3 gives the DRC the power to conduct formal investigations and requires it to do so if asked by the Secretary of State. A general investigation may be undertaken to find out what is happening in particular sectors of society or in relation to particular kinds of activity. A named party investigation may confine the investigation to the activities of one or more named persons (individuals or organisations). This is the form of investigation which must be used if the DRC wants to investigate a case where it has reason to believe that a person has committed or is committing unlawful acts (paragraph 3 of Schedule 3). For the purposes of a named party investigation, an unlawful act means discrimination which is made unlawful by Part II (employment) or Part III (access to goods, services, facilities and premises) of the DDA 1995 or any other unlawful act which may be prescribed by the Secretary of State in regulations. 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. A formal investigation may also be undertaken to monitor compliance with a non-discrimination notice (see clause 4) or a statutory agreement (see clause 5). Subsection (4) enables the DRC to nominate one or more commissioners, with or without one or more additional commissioners, to conduct a formal investigation on its behalf and to delegate any of its functions in relation to the investigation to the persons nominated. It would be for the DRC to make the decision to initiate an investigation. Thereafter it would be for the DRC or the commissioner(s) nominated to set the terms of reference and to make decisions about progressing at each of the statutory steps in the investigation process dealt with in clauses 4 and 5 and Part I of Schedule 3. Schedule 2 sets out provisions relating to the appointment, tenure of office, remuneration, pensions etc of additional commissioners appointed for a formal investigation. Additional commissioners may be appointed by the DRC with the approval of the Secretary of State. Schedule 3 sets out the detailed procedure to be followed in conducting a general or named party investigation. The key stages are: for every formal investigation the DRC or the Secretary of State must draw up terms of reference before further steps can be taken. In the case of an investigation requested by the Secretary of State, the Secretary of State will draw up terms of reference after consulting the DRC. In all other cases, the terms of reference will be drawn up by the DRC itself (sub-paragraphs 2(1) and 2(2)); the DRC must publish or give notice of the holding of an investigation. Where the DRC has reasons for believing that a person may have committed or be committing an unlawful act, it is required to inform the person in advance of its proposal to investigate the matter and to offer him the opportunity to make representations (sub-paragraph 3(3)); the DRC may serve a notice on any person requiring him to give information orally or in writing or to produce documents. If the investigation is into unlawful discrimination by a named person and it is that person who has failed to comply with the notice, the DRC may serve the notice on its own initiative. If the information or documents required are in the hands of others the DRC must first obtain authorisation from the Secretary of State. Where a person fails to comply with a notice requiring information or documents, or where the DRC has reasonable cause to believe that he intends not to comply with it, an application may be made to a county court or the sheriff for an order requiring compliance (paragraphs 4 and 5); and the DRC must prepare and publish a report of its findings in any formal investigation. When it is able to do so consistently with its duties and the object of the report the DRC must exclude any prejudicial material about an individual's private or business affairs (paragraph 7). Clause 4: Non-discrimination notices When the DRC becomes satisfied in the course of a formal investigation that a person is committing, or has committed, an act of unlawful discrimination, the Bill gives it the power to issue a notice requiring the person to cease committing the discrimination and not to act in the same way in the future. Such notices may be issued in respect of any act made unlawful by Part II (employment) or Part III (access to goods, services, facilities and premises) of the DDA 1995. Subsection (6) contains a power for the Secretary of State to extend the scope of the provision by making regulations prescribing that it is to apply to any other unlawful act. 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 (3) gives the Secretary of State the power to make regulations to extend what may be required by non-discrimination notices. Subsection (4) describes some of the ways in which that power could be used. It might be used to allow the DRC to specify what existing policies or arrangements need to be changed to ensure that further acts of discrimination do not occur and, linked to this, a requirement on the person on whom the notice is served to produce an action plan setting out what he intends to do and by when. Part II of Schedule 3 sets out detailed arrangements connected with issuing a non-discrimination notice. Paragraph 8 requires the DRC to give the person concerned notice that it is considering issuing a non-discrimination notice and to take account of any representations made as a result before a non-discrimination notice is issued. Paragraph 10 enables the person concerned to appeal against any requirement imposed by a non-discrimination notice, after it has been issued, to an employment tribunal or county/sheriff court. Paragraph 12 enables the DRC to apply to the court for an order to enforce compliance with a non-discrimination notice if the notice has become final (paragraph 11) and the recipient of the notice fails to comply with it or the DRC has reasonable cause to believe that he intends not to comply with it. Paragraph 13 requires the DRC to maintain a register of non-discrimination notices which have become final and to make it publicly available. Paragraph 18 gives the Secretary of State the power to make regulations on other matters relating to the conduct of formal investigations and the issue of non-discrimination notices. This may include, for example, regulations specifying any time limits to apply to the various stages through which both the investigation process and the issue of a non-discrimination notice pass. Clause 5: Agreements in lieu of enforcement action Many of the powers which this Bill 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 clause 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 and it has decided to conduct a formal named party investigation. The unlawful acts covered are the same as those described in clause 4 in relation to non-discrimination notices, but with a separate power to make regulations prescribing particular descriptions of act for the purpose of this clause. 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 to stop the investigation and to take no further steps towards the issue of a non-discrimination notice and the named person will agree to abide by the requirements which he has agreed to be included. Those requirements must be ones capable of being specified in a non-discrimination notice, and are enforceable by an order under subsection (6). Subsection (4) authorises other terms to be included which are not to be enforceable by an order under subsection (6). Those terms might relate to circumstances in which the agreement will terminate or a party to the agreement has the right to terminate it. Subsection (5) also enables a statutory agreement to be revoked or varied with the agreement of both parties. Subsection (6) allows the DRC to apply to the court for an order to enforce the agreement if it is broken or the DRC has reasonable cause to believe that it will be broken. Clause 6: Assistance in relation to proceedings This clause gives the DRC a power to give assistance to individuals in relation to actual or potential legal proceedings. Subsection (1)(a) allows the DRC to give assistance in respect of all proceedings brought under Part II (employment) and Part III (access to goods, facilities, services and premises) of the DDA 1995. Such disputes can include cases where a non-disabled person alleges he has been victimised for a reason set out in section 55 of that Act. The DDA 1995 makes it unlawful for a person to be victimised for: bringing, or giving evidence or information in connection with, proceedings under the Act; doing anything else under the Act; or alleging that someone has contravened the Act. Subsection (1)(b) gives the Secretary of State a power to extend by regulations the list of proceedings in relation to which the DRC can provide assistance under this section. Subsection (2) sets out criteria for the DRC to take into account when deciding whether to give assistance to an applicant in relation to proceedings. Subsection (3) deals with the range of assistance the DRC may provide. Subsection (5) enables the DRC to delegate to its employees any of its functions under this section. Clause 7: Recovery of expenses of providing assistance When a person who has been assisted by the DRC becomes entitled to have relevant costs repaid to him by another party, for example under a court order or as part of a settlement, this clause entitles the DRC to recover its expenses out of the amount repaid. Clause 8: Codes of practice At present the Secretary of State and the NDC share the task of preparing and issuing codes of practice. This clause inserts a new section 53A in the DDA 1995 to replace sections 51 to 54 of that Act. The result is that the Secretary of State will no longer have the power to issue or revise codes of practice containing practical guidance in the field of employment or to ask the NDC to prepare proposals for a code on any matter. Instead the DRC will be able to replace codes issued under the old section 51 or 53 with its own codes. Section 53A(1) and (6) enable the DRC to issue and revise codes of practice in the fields of employment and access to goods, facilities, services and premises and Section 53A(2) requires the DRC to do so when asked by the Secretary of State. The codes of practice can give practical guidance upon the provisions contained in Part II and Part III of the DDA 1995. Section 53A(8) requires a court or tribunal to take into account any provision of a code which appears to it to be relevant to the question in hand but makes it clear that failure to observe any provision of a code does not of itself make a person liable to any proceedings. Section 53A(3) requires the DRC to publish for consultation proposals for any code of practice. Where the Commission is revising part of an existing code, it need not consult about parts which are not being revised (Section 53A(7)). Section 53A(4) prevents the DRC from issuing a code of practice unless it has been approved first by the Secretary of State and then laid before Parliament. Clause 9: Conciliation of disputes under Part III of 1995 Act This clause amends section 28 of the DDA 1995. The Secretary of State will no longer have the power to make arrangements for the provision of advice and assistance to promote the settlement of disputes arising under Part III of the DDA 1995. That power will be replaced by the DRC's power to make arrangements for the provision of conciliation services in this area. The clause provides that the DRC should have regard to the desirability of securing (so far as reasonably practicable) that conciliation services are available to all those who want them for disputes arising under Part III of the DDA 1995. The clause does not make conciliation mandatory or rule out other alternative dispute resolution methods. Nor does it prevent an individual taking steps in proceedings at the same time as or before conciliation. The DRC may make arrangements for the provision of conciliation services with an individual conciliator or with a body which will secure that others fulfil that function. It will not be able to provide these services itself through its members or employees (subsection (3)). The DRC will be required to ensure that any arrangements made include safeguards to prevent the disclosure to members or employees of the DRC of information which is communicated to a person providing conciliation services, except by consent or for the purpose of monitoring the arrangements (subsection (4)). Any information communicated during the consultation process will not be admissible in evidence in any proceedings without the consent of the person who communicated it. Subsections (3) and (4) will help to maintain the independence of the conciliation service from the DRC's function of assisting parties. Paragraph 3 of Schedule 4 amends paragraph 6(2) of Schedule 3 of the DDA 1995. The result is that, as has been the case with conciliation arranged by the Secretary of State, the period within which proceedings can be taken (normally 6 months) will be extended by 2 months where an individual considering taking proceedings under Part III of the DDA 1995 consults an organisation appointed under the new section 28 of the DDA 1995. The Advisory, Conciliation and Arbitration Service (ACAS) will continue to provide a conciliation service in the field of employment. Clause 10: Procedure for amending s.7(1) of the 1995 Act This clause amends subsections (3) to (10) of section 7 of the DDA 1995 (exemption for small businesses). Section 7(2) of that Act enables the Secretary of State by order to amend the threshold exempting small businesses from Part II of the Act (the current threshold is 15). The effect of the amendment is that the requirement for the Secretary of State to conduct a review before making an order to amend the threshold will be replaced by a requirement for the Secretary of State to consult the DRC and, as at present, employer and disability organisations. Before any changes are made, the Secretary of State will be required to publish a summary of the views expressed to him in consultations. Clause 11: Regulations This clause provides for any regulations made under the Act to be subject to Parliamentary scrutiny through the negative resolution procedure. This means that the regulations will be shown to Parliament but only be debated if a Member or a Peer seeks such a debate. Clause 15: Short title, commencement and extent This clause provides for provisions of the Act to be brought into force by one or more commencement orders. In accordance with usual practice, such orders will not need to be shown to Parliament. FINANCIAL EFFECTS OF THE BILL The budget for the DRC in 1999-2000 is £3 million and £11 million in 2000-2001 and 2001-2002. The figures for 2000-2001 and 2001-2002 are provisional and may be adjusted within the DfEE's overall Comprehensive Spending Review settlement. Final figures will be confirmed in the course of 1999 and 2000 respectively. EFFECTS OF THE BILL ON PUBLIC SERVICE MANPOWER Commissioners and staff of the DRC will not be civil servants but will be paid by the DRC whose expenses are payable out of public funds by the Secretary of State. The transfer to the DRC of functions relating to statutory codes of practice and other guidance material, currently prepared by civil servants in the DfEE, should lead to a small reduction in central government manpower needs. SUMMARY OF THE REGULATORY APPRAISAL The Bill imposes no compliance costs on business. COMMENCEMENT The Bill will come into force on the date or dates specified by order by the Secretary of State. EUROPEAN CONVENTION ON HUMAN RIGHTS Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The Parliamentary Under Secretary of State for Employment and Equal Opportunities in the Commons, Mrs Hodge, has made the following statement: In my view the provisions of the Disability Rights Commission Bill are compatible with the Convention rights.