Disability Rights Commission Bill [H.L.]

Disability Rights Commission Bill [H.L.] - continued	House of Commons

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Persistent discrimination.

6. - (1) This section applies during the period of five years beginning on the date on which-

(a) a non-discrimination notice served on a person,

(b) a finding by a court or tribunal in proceedings under section 8 or 25 of the 1995 Act that a person has committed an act which is unlawful discrimination for the purposes of any provision of Part II or III of that Act; or

(c) a finding by a court or tribunal in any other proceedings that a person has committed an act of a description prescribed under subsection (4)(b),

has become final.

(2) If during that period it appears to the Commission that unless restrained the person concerned is likely to do one or more unlawful acts, the Commission may apply to a county court for an injunction, or to the sheriff for interdict, restraining him from doing so.

(3) The court, if satisfied that the application is well-founded, may grant the injunction or interdict in the terms applied for or in more limited terms.

(4) In this section "unlawful act" means-

(a) an act which is unlawful discrimination for the purposes of any provision of Part II or III of the 1995 Act; or

(b) any other unlawful act of a description prescribed for the purposes of this section.

(5) A finding of a court or tribunal becomes final for the purposes of this section when an appeal against it is dismissed, withdrawn or abandoned or when the time for appealing expires without an appeal having been brought.

Assistance in relation to proceedings.

7. - (1) This section applies to-

(a) proceedings which an individual has brought or proposes to bring under section 8 or 25 of the 1995 Act (complaints and claims about unlawful discrimination under Parts II and III); and

(b) proceedings of a description prescribed for the purposes of this subsection, being proceedings in which an individual who has or has had a disability relies or proposes to rely on a matter relating to that disability.

(2) Where the individual concerned applies to the Commission for assistance in relation to any proceedings to which this section applies, the Commission may grant the application on any of the following grounds-

(a) that the case raises a question of principle;

(b) that it is unreasonable to expect the applicant to deal with the case unaided (because of its complexity, because of the applicant's position in relation to another party or for some other reason);

(3) If the Commission grants an application, it may-

(a) provide or arrange for the provision of legal advice;

(b) arrange for legal or other representation (which may include any assistance usually given by a solicitor or counsel);

(d) provide or arrange for the provision of any other assistance which it thinks appropriate.

(4) Subsection (3)(b) does not affect the law and practice as to who may represent a person in relation to any proceedings.

(5) The Commission may authorise any employee of the Commission to exercise such of its functions under this section as it may determine.

Recovery of expenses of providing assistance.

8. - (1) This section applies where-

(a) the Commission has given an individual assistance under section 7 in relation to any proceedings; and

(b) any costs or expenses (however described) have become payable to him by another person in respect of the matter in connection with which the assistance is given.

(2) A sum equal to any expenses incurred by the Commission in providing the assistance shall be a first charge for the benefit of the Commission on the costs or expenses concerned.

(3) It is immaterial for the purposes of this section whether the costs or expenses concerned are payable by virtue of a decision of a court or tribunal, an agreement arrived at to avoid proceedings or to bring them to an end, or otherwise.

(4) The charge created by this section is subject to-

(a) any charge under the Legal Aid Act 1988 and any provision in that Act for payment of any sum to the Legal Aid Board; and

(b) any charge or obligation for payment in priority to other debts under the Legal Aid (Scotland) Act 1986 and any provision in that Act for payment of any sum into the Scottish Legal Aid Fund.

(5) Provision may be made by regulations made by the Secretary of State for the determination of the expenses of the Commission in cases where this section applies.

Codes of practice.

9. - (1) The following section shall be inserted at the beginning of Part VII of the 1995 Act (supplemental)-

"Codes of practice.	53A. - (1) The Disability Rights Commission may prepare and issue codes of practice giving practical guidance-
	(a) to employers, service providers or other persons to whom provisions of Part II or Part III apply on how to avoid discrimination or on any other matter relating to the operation of those provisions in relation to them; or
	(b) to any persons on any other matter, with a view to-
	(i) promoting the equalisation of opportunities for disabled persons and persons who have had a disability, or
	(ii) encouraging good practice regarding the treatment of such persons,
	in any field of activity regulated by any provision of Part II or Part III.
	(2) The Commission shall, when requested to do so by the Secretary of State, prepare a code of practice dealing with the matters specified in the request.
	(3) In preparing a code of practice the Commission shall carry out such consultations as it considers appropriate (which shall include the publication for public consultation of proposals relating to the code).
	(4) The Commission may not issue a code of practice unless-
	(a) a draft of it has been submitted to and approved by the Secretary of State and laid by him before both Houses of Parliament; and
	(b) the 40 day period has elapsed without either House resolving not to approve the draft.
	(5) If the Secretary of State does not approve a draft code of practice submitted to him he shall give the Commission a written statement of his reasons.
	(6) A code of practice issued by the Commission-
	(a) shall come into effect on such day as the Secretary of State may by order appoint;
	(b) may be revised in whole or part, and re-issued, by the Commission; and
	(c) may be revoked by an order made by the Secretary of State at the request of the Commission.
	(7) Where the Commission proposes to revise a code of practice-
	(a) it shall comply with subsection (3) in relation to the revisions; and
	(b) the other provisions of this section apply to the revised code of practice as they apply to a new code of practice.
	(8) Failure to observe any provision of a code of practice does not of itself make a person liable to any proceedings, but any provision of a code which appears to a court or tribunal to be relevant to any question arising in any proceedings under Part II or Part III shall be taken into account in determining that question.
	(9) In this section-
	"code of practice" means a code of practice under this section;
	"discrimination" means anything which is unlawful discrimination for the purposes of any provision of Part II or Part III; and
	"40 day period" has the same meaning in relation to a draft code of practice as it has in section 3 in relation to draft guidance."

(2) The Commission may treat any consultation undertaken by the National Disability Council under section 52(2) of the 1995 Act as being as effective for the purposes of section 53A(3) of that Act as if it had been undertaken by the Commission.

(3) Nothing in this section affects the Commission's powers apart from this section to give practical guidance on matters connected with its functions.

Conciliation of disputes under Part III of the 1995 Act.

10. For section 28 of the 1995 Act (arrangements by the Secretary of State with a view to the settlement of disputes under Part III) there shall be substituted the following section-

"Conciliation of disputes.	28. - (1) The Commission may make arrangements with any other person for the provision of conciliation services by, or by persons appointed by, that person in relation to disputes arising under this Part.
	(2) In deciding what arrangements (if any) to make the Commission shall have regard to the desirability of securing, so far as reasonably practicable, that conciliation services are available for all disputes arising under this Part which the parties may wish to refer to conciliation.
	(3) No member or employee of the Commission may provide conciliation services in relation to disputes arising under this Part.
	(4) The Commission shall ensure that any arrangements under this section include appropriate safeguards to prevent the disclosure to members or employees of the Commission of information obtained by a person in connection with the provision of conciliation services in pursuance of the arrangements.
	(5) Subsection (4) does not apply to information relating to a dispute which is disclosed with the consent of the parties to that dispute.
	(6) Subsection (4) does not apply to information which-
	(a) is not identifiable with a particular dispute or a particular person; and
	(b) is reasonably required by the Commission for the purpose of monitoring the operation of the arrangements concerned.
	(7) Anything communicated to a person while providing conciliation services in pursuance of any arrangements under this section is not admissible in evidence in any proceedings except with the consent of the person who communicated it to that person.
	(8) In this section "conciliation services" means advice and assistance provided by a conciliator to the parties to a dispute with a view to promoting its settlement otherwise than through the courts."

Procedure for amending s.7(1) of the 1995 Act.

11. For subsections (3) to (10) of section 7 of the 1995 Act (exemption for small businesses) there shall be substituted the following subsections-

	"(3) Before making an order under subsection (2) the Secretary of State shall consult-
	(a) the Disability Rights Commission;
	(b) such organisations representing the interests of employers as he considers appropriate; and
	(c) such organisations representing the interests of disabled persons in employment or seeking employment as he considers appropriate.
	(4) The Secretary of State shall, before laying an order under this section before Parliament, publish a summary of the views expressed to him in his consultations."

Prepared 21 May 1999