Disability Discrimination Bill [HL]

House of Commons

Session 2004 - 05
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Other Bills before Parliament

Disability Discrimination Bill [HL]

Disability Discrimination Bill [HL]
1

NOTE: The words marked in bold type were inserted by the Lords to avoid
questions of privilege.
A
Bill
To
amend the Disability Discrimination Act 1995; and for connected purposes.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
Public authorities
1
Councillors and members of the Greater London Authority
In the 1995 Act, after section 14D there is inserted—
“Relationships between locally-electable authorities and their members
15A
Interpretation of sections 15B and 15C
5
(1)
Sections 15B and 15C apply to the following authorities—
(a)
the Greater London Authority;
(b)
a county council (in England or Wales);
(c)
a county borough council (in Wales);
(d)
a district council (in England);
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(e)
a London borough council;
(f)
the Common Council of the City of London;
(g)
the Council of the Isles of Scilly;
(h)
a council constituted under section 2 of the Local Government
etc. (Scotland) Act 1994;
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(i)
a parish council (in England); and
(j)
a community council (in Wales or Scotland).
(2)
In relation to a member of an authority to which sections 15B and 15C
apply, a reference in those sections to his carrying-out of official
business is to his doing of anything—
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(a)
as member of the authority;

Bill 71 53/4

Disability Discrimination Bill [HL]
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(b)
as member of any body to which he is appointed by, or is
appointed following nomination by, the authority or a group of
bodies that includes the authority; or
(c)
as member of any other body if it is a public body.
(3)
In this section and sections 15B and 15C “member”, in relation to the
5
Greater London Authority, means Mayor of London or member of the
London Assembly.
15B
Authorities and their members: discrimination and harassment
(1)
It is unlawful for an authority to which this section applies to
discriminate against a disabled person who is a member of the
10
authority—
(a)
in the opportunities which it affords the disabled person to
receive training, or any other facility, for his carrying-out of
official business;
(b)
by refusing to afford, or deliberately not affording, the disabled
15
person any such opportunities; or
(c)
by subjecting the disabled person to any other detriment in
connection with his carrying-out of official business.
(2)
It is unlawful for an authority to which this section applies to subject a
disabled person who is a member of the authority to harassment in
20
connection with his carrying-out of official business.
(3)
A member of an authority to which this section applies is not subjected
to a detriment for the purposes of subsection (1)(c) by reason of—
(a)
his not being appointed or elected to an office of the authority;
(b)
his not being appointed or elected to, or to an office of, a
25
committee or sub-committee of the authority; or
(c)
his not being appointed or nominated in exercise of any power
of the authority, or of a group of bodies that includes the
authority, to appoint, or nominate for appointment, to any
body.
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(4)
Regulations may make provision as to the circumstances in which
treatment is to be taken to be justified, or is to be taken not to be
justified, for the purposes of section 3A(1)(b) as it has effect for the
interpretation of “discriminate” in subsection (1).
(5)
Regulations under subsection (4) may (in particular) provide for
35
section 3A(3) to apply with prescribed modifications, or not to apply,
for those purposes; but treatment of a disabled person cannot be
justified under subsection (4) if it amounts to direct discrimination
falling within section 3A(5).
(6)
If, in a case falling within section 3A(1) as it has effect for the
40
interpretation of “discriminate” in subsection (1), an authority to which
this section applies is under a duty imposed by section 15C in relation
to a disabled person but fails to comply with that duty, its treatment of
that person cannot be justified under subsection (4) unless it would
have been justified even if it had complied with that duty.
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15C
Authorities and their members: duty to make adjustments
(1)
Subsection (2) applies where—

Disability Discrimination Bill [HL]
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(a)
a provision, criterion or practice applied by or on behalf of an
authority to which this section applies, or
(b)
any physical feature of premises occupied by, or under the
control of, such an authority,

places a disabled person who is a member of the authority at a
5
substantial disadvantage, in comparison with members of the authority
who are not disabled persons, in connection with his carrying-out of
official business.
(2)
It is the duty of the authority to take such steps as it is reasonable, in all
the circumstances of the case, for it to have to take in order to prevent
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the provision, criterion or practice, or feature, having that effect.
(3)
Subsection (2) does not impose any duty on an authority to which this
section applies in relation to a member of the authority who is a
disabled person if the authority does not know, and could not
reasonably be expected to know, that the member—
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(a)
has a disability; and
(b)
is likely to be affected in the way mentioned in subsection (1).
(4)
Regulations may make provision, for purposes of this section—
(a)
as to circumstances in which a provision, criterion or practice,
or physical feature, is to be taken to have the effect mentioned
20
in subsection (1);
(b)
as to circumstances in which a provision, criterion or practice,
or physical feature, is to be taken not to have the effect
mentioned in subsection (1);
(c)
as to circumstances in which it is, or as to circumstances in
25
which it is not, reasonable for an authority to have to take steps
of a prescribed description;
(d)
as to steps which it is always, or as to steps which it is never,
reasonable for an authority to have to take;
(e)
as to things which are, or as to things which are not, to be
30
treated as physical features.”
2
Discrimination by public authorities
In the 1995 Act, after section 21A there is inserted—
“Public authorities
21B
Discrimination by public authorities
35
(1)
It is unlawful for a public authority to discriminate against a disabled
person in carrying out its functions.
(2)
In this section, and sections 21D and 21E, “public authority”—
(a)
includes any person certain of whose functions are functions of
a public nature; but
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(b)
does not include any person mentioned in subsection (3).
(3)
The persons are—
(a)
either House of Parliament;
(b)
a person exercising functions in connection with proceedings in
Parliament;
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Disability Discrimination Bill [HL]
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(c)
the Security Service;
(d)
the Secret Intelligence Service;
(e)
the Government Communications Headquarters; and
(f)
a unit, or part of a unit, of any of the naval, military or air forces
of the Crown which is for the time being required by the
5
Secretary of State to assist the Government Communications
Headquarters in carrying out its functions.
(4)
In relation to a particular act, a person is not a public authority by virtue
only of subsection (2)(a) if the nature of the act is private.
(5)
Regulations may provide for a person of a prescribed description to be
10
treated as not being a public authority for purposes of this section and
sections 21D and 21E.
(6)
In the case of an act which constitutes discrimination by virtue of
section 55, subsection (1) of this section also applies to discrimination
against a person who is not disabled.
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(7)
Subsection (1)—
(a)
does not apply to anything which is unlawful under any
provision of this Act other than subsection (1); and
(b)
does not, subject to subsections (8) and (9), apply to anything
which would be unlawful under any such provision but for the
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operation of any provision in or made under this Act.
(8)
Subsection (1) does apply in relation to a public authority’s function of
appointing a person to, and in relation to a public authority’s functions
with respect to a person as holder of, an office or post if—
(a)
none of the conditions specified in section 4C(3) is satisfied in
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relation to the office or post; and
(b)
sections 4D and 4E would apply in relation to an appointment
to the office or post if any of those conditions was satisfied.
(9)
Subsection (1) does apply in relation to a public authority’s functions
with respect to a person as candidate or prospective candidate for
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election to, and in relation to a public authority’s functions with respect
to a person as elected holder of, an office or post if—
(a)
the office or post is not membership of a House of Parliament,
the Scottish Parliament, the National Assembly for Wales or an
authority mentioned in section 15A(1);
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(b)
none of the conditions specified in section 4C(3) is satisfied in
relation to the office or post; and
(c)
sections 4D and 4E would apply in relation to an appointment
to the office or post if—
(i)
any of those conditions was satisfied, and
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(ii)
section 4F(1) (but not section 4C(5)) was omitted.
(10)
Subsections (8) and (9)—
(a)
shall not be taken to prejudice the generality of subsection (1),
but
(b)
are subject to section 21C(5).
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21C
Exceptions from section 21B(1)
(1)
Section 21B(1) does not apply to—

Disability Discrimination Bill [HL]
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(a)
a judicial act (whether done by a court, tribunal or other
person); or
(b)
an act done on the instructions, or on behalf, of a person acting
in a judicial capacity.
(2)
Section 21B(1) does not apply to any act of, or relating to, making,
5
confirming or approving—
(a)
an Act, an Act of the Scottish Parliament or an Order in Council;
or
(b)
an instrument made under an Act, or under an Act of the
Scottish Parliament, by—
10
(i)
a Minister of the Crown;
(ii)
a member of the Scottish Executive; or
(iii)
the National Assembly for Wales.
(3)
Section 21B(1) does not apply to any act of, or relating to, imposing
conditions or requirements of a kind falling within section 59(1)(c).
15
(4)
Section 21B(1) does not apply to—
(a)
a decision not to institute criminal proceedings;
(b)
where such a decision is made, an act done for the purpose of
enabling the decision to be made;
(c)
a decision not to continue criminal proceedings; or
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(d)
where such a decision is made—
(i)
an act done for the purpose of enabling the decision to
be made; or
(ii)
an act done for the purpose of securing that the
proceedings are not continued.
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(5)
Section 21B(1) does not apply to an act of a prescribed description.
21D
Meaning of “discrimination” in section 21B
(1)
For the purposes of section 21B(1), a public authority discriminates
against a disabled person if—
(a)
for a reason which relates to the disabled person’s disability, it
30
treats him less favourably than it treats or would treat others to
whom that reason does not or would not apply; and
(b)
it cannot show that the treatment in question is justified under
subsection (3), (5) or (7)(c).
(2)
For the purposes of section 21B(1), a public authority also discriminates
35
against a disabled person if—
(a)
it fails to comply with a duty imposed on it by section 21E in
circumstances in which the effect of that failure is to make it—
(i)
impossible or unreasonably difficult for the disabled
person to receive any benefit that is or may be conferred,
40
or
(ii)
unreasonably adverse for the disabled person to
experience being subjected to any detriment to which a
person is or may be subjected,

by the carrying-out of a function by the authority; and
45
(b)
it cannot show that its failure to comply with that duty is
justified under subsection (3), (5) or (7)(c).

Disability Discrimination Bill [HL]
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(3)
Treatment, or a failure to comply with a duty, is justified under this
subsection if—
(a)
in the opinion of the public authority, one or more of the
conditions specified in subsection (4) are satisfied; and
(b)
it is reasonable, in all the circumstances of the case, for it to hold
5
that opinion.
(4)
The conditions are—
(a)
that the treatment, or non-compliance with the duty, is
necessary in order not to endanger the health or safety of any
person (which may include that of the disabled person);
10
(b)
that the disabled person is incapable of entering into an
enforceable agreement, or of giving an informed consent, and
for that reason the treatment, or non-compliance with the duty,
is reasonable in the particular case;
(c)
that, in the case of treatment mentioned in subsection (1),
15
treating the disabled person equally favourably would in the
particular case involve substantial extra costs and, having
regard to resources, the extra costs in that particular case would
be too great;
(d)
that the treatment, or non-compliance with the duty, is
20
necessary for the protection of rights and freedoms of other
persons.
(5)
Treatment, or a failure to comply with a duty, is justified under this
subsection if the acts of the public authority which give rise to the
treatment or failure are a proportionate means of achieving a legitimate
25
aim.
(6)
Regulations may make provision, for purposes of this section, as to
circumstances in which it is, or as to circumstances in which it is not,
reasonable for a public authority to hold the opinion mentioned in
subsection (3)(a).
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(7)
Regulations may—
(a)
amend or omit a condition specified in subsection (4) or make
provision for it not to apply in prescribed circumstances;
(b)
amend or omit subsection (5) or make provision for it not to
apply in prescribed circumstances;
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(c)
make provision for purposes of this section (in addition to any
provision for the time being made by subsections (3) to (5)) as to
circumstances in which treatment, or a failure to comply with a
duty, is to be taken to be justified.
21E
Duties for purposes of section 21D(2) to make adjustments
40
(1)
Subsection (2) applies where a public authority has a practice, policy or
procedure which makes it—
(a)
impossible or unreasonably difficult for disabled persons to
receive any benefit that is or may be conferred, or
(b)
unreasonably adverse for disabled persons to experience being
45
subjected to any detriment to which a person is or may be
subjected,

by the carrying-out of a function by the authority.

Disability Discrimination Bill [HL]
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(2)
It is the duty of the authority to take such steps as it is reasonable, in all
the circumstances of the case, for the authority to have to take in order
to change that practice, policy or procedure so that it no longer has that
effect.
(3)
Subsection (4) applies where a physical feature makes it—
5
(a)
impossible or unreasonably difficult for disabled persons to
receive any benefit that is or may be conferred, or
(b)
unreasonably adverse for disabled persons to experience being
subjected to any detriment to which a person is or may be
subjected,
10

by the carrying-out of a function by a public authority.
(4)
It is the duty of the authority to take such steps as it is reasonable, in all
the circumstances of the case, for the authority to have to take in order
to—
(a)
remove the feature;
15
(b)
alter it so that it no longer has that effect;
(c)
provide a reasonable means of avoiding the feature; or
(d)
adopt a reasonable alternative method of carrying out the
function.
(5)
Regulations may prescribe—
20
(a)
matters which are to be taken into account in determining
whether any provision of a kind mentioned in subsection (4)(c)
or (d) is reasonable;
(b)
categories of public authorities to whom subsection (4) does not
apply.
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(6)
Subsection (7) applies where an auxiliary aid or service would—
(a)
enable disabled persons to receive, or facilitate the receiving by
disabled persons of, any benefit that is or may be conferred, or
(b)
reduce the extent to which it is adverse for disabled persons to
experience being subjected to any detriment to which a person
30
is or may be subjected,

by the carrying-out of a function by a public authority.
(7)
It is the duty of the authority to take such steps as it is reasonable, in all
the circumstances of the case, for the authority to have to take in order
to provide that auxiliary aid or service.
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(8)
Regulations may make provision, for purposes of this section—
(a)
as to circumstances in which it is, or as to circumstances in
which it is not, reasonable for a public authority to have to take
steps of a prescribed description;
(b)
as to steps which it is always, or as to steps which it is never,
40
reasonable for a public authority to have to take;
(c)
as to what is, or as to what is not, to be included within the
meaning of “practice, policy or procedure”;
(d)
as to things which are, or as to things which are not, to be
treated as physical features;
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(e)
as to things which are, or as to things which are not, to be
treated as auxiliary aids or services.