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Disabled People (Duties Of Public Authorities) Bill

These notes refer to the Disabled People (Duties of Public Authorities) Bill as introduced in the House of Commons on 11th December 2002 [Bill 32] DISABLED PEOPLE (DUTIES OF PUBLIC AUTHORITIES) BILL EXPLANATORY NOTES INTRODUCTION 1.     These notes relate to the Disabled People (Duties of Public Authorities) Bill as introduced in the House of Commons on 11 December 2002. They have been prepared by the Department for Work and Pensions, with the consent of Bridget Prentice, the Member in charge of the Bill, in order to assist the reader in understanding 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.     These 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 clause or part of a clause does not seem to require any explanation or comment, none is given. BACKGROUND AND SUMMARY 3.     This Bill amends the Disability Discrimination Act 1995 ("the DDA"), which contains provisions making it unlawful to discriminate against a disabled person in relation to employment and education, the provision of goods, facilities and services and certain other activities. 4.     It inserts in the DDA provisions along similar lines to those contained in sections 71 to 71E of the Race Relations Act 1976 ("the 1976 Act"), as substituted by the Race Relations (Amendment) Act 2000 ("the 2000 Act"). Section 71 of the 1976 Act imposes a new duty on certain bodies exercising public functions: they are required, when carrying out their functions, to have due regard to the need to eliminate unlawful discrimination and to promote equality of opportunity and good relations between persons of different racial groups. 5.     This Bill is intended to ensure that bodies which exercise public functions (referred to in these notes as "public bodies" or "public sector bodies") "mainstream" disability rights issues when exercising those functions. [Bill 32-EN]     53/2 This means, in broad terms, that public bodies, when making decisions, or when developing or implementing a new policy, must make a consideration of the needs of disabled persons an integral part of the policy-making or decision-taking process - with a view to improving opportunities for, and eliminating discrimination against, such persons. THE BILL 6.     The Bill places public sector bodies under a twin-pronged general statutory duty that will require them, when carrying out their functions, to have regard to two principles. The principles are: that unlawful discrimination against and unlawful harassment of disabled people must be eliminated; and that equalisation of opportunity for disabled people is to be pursued. 7.     As mentioned, the Bill seeks to mirror (where appropriate) the approach taken in section 71 of the 1976 Act, and the intention is that the general duty will apply to the same bodies which are currently subject to duties in or under that section. 8.     The new duty requires public bodies to take account of the principles in a way that is proportionate according to the decisions or policies they have to make. In common with the provisions of section 71 of the 1976 Act, this duty to have regard allows public sector bodies to balance all the factors affecting the exercise of their functions, including resources, and to decide for themselves how to achieve the outcomes required by the duty. 9.     The Bill allows the Secretary of State to place selected public bodies under specific duties. (Under corresponding provisions in section 71 of the 1976 Act, such duties have been placed on larger public bodies with an executive function.) The intention is that the specific duties would be designed to assist public sector bodies in fulfilling the general duty described above. COMMENTARY ON CLAUSES Clause 1: Persons exercising public functions - statutory duties 10.     Subsection (1) of clause 1 inserts seven new sections (59A to 59G) at the beginning of Part 8 of the DDA. In summary, these provide as follows. New section 59A: Duties of persons exercising public functions 11.     New section 59A(1) confers a power on the Secretary or State, by order, to specify persons who, in exercising their functions, are to have regard to the principles that unlawful discrimination against and unlawful harassment of disabled people must be eliminated; and that equalisation of opportunity for disabled people should be pursued. It is envisaged that an order made under this provision will specify almost all public bodies and other persons exercising public functions. Those bodies would range from government departments, bodies forming part of the National Health Service and local authorities to much smaller public bodies. The list of bodies to be specified is likely to be very similar to the comprehensive list in Schedule 1A to the 1976 Act (inserted by the 2000 Act, and amended subsequently by orders). 12.     Enforcement of the duty in new section 59A(1) will be by judicial review only. 13.     New section 59A(2) would prevent the Secretary or State from specifying in an order to be made under subsection (1) a person or body that did not exercise any public functions. But he could still specify private bodies that exercise some public functions, for example the BBC. 14.     New section 59A(3) allows the Secretary of State to make regulations imposing specific duties on specified public bodies in order to ensure the better performance by those bodies of the general duty. The Secretary of State may only make such regulations after consulting the Disability Rights Commission ("the DRC"). Specific duties might take the form of a requirement on a public body to say what measures it plans to take in respect of equalising opportunity for disabled people. And, following a suitable interval, for that body to report on the outcome achieved. 15.     These specific duties will be enforceable by the DRC through the procedures set out in new sections 59F and 59G. This is to be contrasted with the general duty contained in new section 59A(1), which is to be enforceable by judicial review only. 16.     New section 59A(5) allows the Secretary of State to amend, by order, the list of bodies subject to the general duty. The intention is that he will exercise this power by removing bodies from or adding bodies to the list contained in the original order under new section 59A(1). A body added to that list must be a body exercising functions of a public nature. 17.     There are some cases where only certain functions carried out by a particular body are of a public nature. New section 59A(7) ensures that, in these cases, the duties to be imposed under subsections (1) and (3) would apply only to such public functions. New section 59B: Persons exercising public functions - supplementary 18.     New section 59B(1) defines unlawful discrimination and unlawful harassment for the purpose of new section 59A(1)(a) as that which constitutes discrimination or harassment, and which is unlawful, by virtue of any provision of the DDA. Note that harassment for a reason that relates to a person's disability is to be prohibited when the government implements the requirements of Directive 2000/78/EC (which establishes a general framework for equal treatment in employment and occupation). This aspect of the Bill has been drafted with a view to impending changes to the DDA to be made by regulations implementing this part of the Directive. The Government intends to lay before Parliament later this session such regulations, made under section 2(2) of the European Communities Act 1972. 19.     New section 59B(3) ensures that the broad definition of disability (which includes a past disability) which applies for the purposes of certain parts of the DDA also applies for the purposes of these new provisions. 20.     New section 59B(4) enables the Secretary of State, when making subordinate legislation under new section 59A(1), (3) or (5), to make incidental, supplemental or consequential provision, including the amendment of other enactments. This power might be used, for example, to remove or tidy up overlapping - or indeed conflicting - statutory duties that apply to bodies already subject to an existing duty to promote equality of opportunity for disabled people. New section 59C: Persons exercising public functions - Scotland and Wales 21.     New section 59C deals with issues relating to Scotland and Wales. Under these provisions, the power to apply specific duties to certain categories of body that fall within the competence of the Scottish Parliament is transferred to the Scottish Executive. In addition, the Secretary of State is required to consult the National Assembly for Wales before making regulations imposing specific duties on bodies with functions exercisable in relation to Wales. And he must obtain the consent of the Assembly before making regulations for bodies that exercise their functions only in relation to Wales. New section 59D: Persons exercising public functions - codes of practice 22.     New section 59D confers a power on the DRC to issue codes of practice giving practical guidance in relation to the performance by public bodies of their duties under new section 59A. This includes the power to give guidance relating to any specific duties to which a body is subject by virtue of new section 59A(3). The Secretary of State may also require the DRC to issue a code of practice dealing with whichever matters he specifies. 23.     A code of practice has to be laid in draft before Parliament, in line with the procedure set out in section 53A of the DDA (as inserted by section 9 of the Disability Rights Commission Act 1999 and amended by sections 36(1) and (2) of the Special Educational Needs and Disability Act 2001) for issuing codes of practice. However, the procedure is modified so that the Secretary of State is required to consult the Scottish Executive and the National Assembly for Wales on a code before approving it and laying it before Parliament. New section 59E: Persons exercising public functions - further provisions in relation to codes of practice 24.     New section 59E contains supplementary provisions in relation to the DRC's power to issue codes of practice. The DRC may revise a code of practice and if it does so must follow the procedure set out in new section 59D. A code of practice can only be revoked by order of the Secretary of State, at the request of the DRC. These provisions are in line with the provisions relating to codes of practice issued by the DRC under section 53A of the DDA. 25.     New section 59E(5) provides that a failure to comply with the provisions of a code of practice issued by the DRC will not in itself make a person liable in criminal or civil proceedings. But under new section 59E(6), a court or tribunal may take account of a failure to comply with the provisions of a code of practice in determining any question arising in such proceedings. New section 59F: Persons exercising public functions - compliance notices 26.     New section 59F sets out the framework for the enforcement of specific duties imposed by regulations under new section 59A(3). The DRC may issue a compliance notice if it is satisfied that a public body has failed to comply with any specific duty imposed by such regulations. A compliance notice would require the public body to comply with the duty concerned and to inform the DRC of the steps it has taken (or is taking) to do so. It could also require the public body to give the DRC other information that may be required in order to verify that the duty has been complied with. New section 59G: Persons exercising public functions - enforcement of compliance notices 27.     New section 59G contains provisions about the enforcement of compliance notices. The DRC may apply to a county court (or, in Scotland, a sheriff court) for an order requiring the public body concerned to provide the information required by a compliance notice served under new section 59F, if the body has failed to do so (or if the DRC has reason to believe it does not intend to do so). The provision also enables the DRC to apply for a court order requiring a public body to comply with a requirement of a compliance notice, if the DRC considers that the body has not achieved such compliance. Such an application may be made within three months after service of the compliance notice. The court may grant the order in the terms applied for or in more limited terms. 28.     Subsection (2) of clause 1 contains consequential amendments to section 67 of the DDA. These are necessary as the affirmative resolution procedure (which requires parliamentary approval of a statutory instrument) is to be used in relation to the exercise of the power in new section 59A(1); and also where consequential amendments to other enactments are made by virtue of the powers in section 59A(3) and (5). Clause 3: Short Title and Extent 29.     The Bill does not extend to Northern Ireland. Note that the DDA itself does extend to Northern Ireland, subject to the modifications mentioned in Schedule 8 to that Act. However, discrimination is now an area which is devolved to Northern Ireland, so the new provisions inserted into the DDA by this Bill will not apply there. FINANCIAL EFFECTS OF THE BILL AND EFFECTS ON PUBLIC SERVICE MANPOWER The financial effects of the Bill and its effects on public service manpower will be minimal. SUMMARY OF THE REGULATORY APPRAISAL A draft Regulatory Impact Assessment has been prepared by the Department for Work and Pensions and copies are available from: Matt Wisbey Disability Unit Department for Work and Pensions 6th Floor Adelphi 1-11 John Adam Street London WC2N 6HT COMMENCEMENT 30.     Clause 2 of the Bill gives the Secretary of State power to bring clause 1 of the Act into force by order. Clauses 2 and 3 come into force on Royal Assent.