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]
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(9)
Nothing in this section requires a public authority to take any steps
which, apart from this section, it has no power to take.
(10)
This section imposes duties only for the purposes of determining
whether a public authority has, for the purposes of section 21B(1),
discriminated against a disabled person; and accordingly a breach of
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any such duty is not actionable as such.”
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Duties of public authorities
In the 1995 Act, after section 49 there is inserted—
“Part 5A
Public authorities
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49A
General duty
(1)
Every public authority shall in carrying out its functions have due
regard to—
(a)
the need to eliminate discrimination that is unlawful under this
Act;
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(b)
the need to eliminate harassment of disabled persons that is
related to their disabilities;
(c)
the need to promote equality of opportunity between disabled
persons and other persons;
(d)
the need to take steps to take account of disabled persons’
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disabilities, even where that involves treating disabled persons
more favourably than other persons;
(e)
the need to promote positive attitudes towards disabled
persons; and
(f)
the need to encourage participation by disabled persons in
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public life.
(2)
Subsection (1) is without prejudice to any obligation of a public
authority to comply with any other provision of this Act.
49B
Meaning of “public authority” in Part 5A
(1)
In this Part “public authority”—
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(a)
includes any person certain of whose functions are functions of
a public nature; but
(b)
does not include—
(i)
any person mentioned in section 21B(3);
(ii)
the Scottish Parliament; or
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(iii)
a person, other than the Scottish Parliamentary
Corporate Body, exercising functions in connection with
proceedings in the Scottish Parliament.
(2)
In relation to a particular act, a person is not a public authority by virtue
only of subsection (1)(a) if the nature of the act is private.
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(3)
Regulations may provide for a person of a prescribed description to be
treated as not being a public authority for the purposes of this Part.

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49C
Exceptions from section 49A(1)
(1)
Section 49A(1) does not apply to—
(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
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in a judicial capacity.
(2)
Section 49A(1) does not apply to any act of, or relating to, making or
approving an Act of Parliament, an Act of the Scottish Parliament or an
Order in Council.
(3)
Section 49A(1)(c) and (d) do not apply to—
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(a)
an act done in connection with recruitment to any of the naval,
military or air forces of the Crown; or
(b)
an act done in relation to a person in connection with service by
him as a member of any of those forces.
(4)
Regulations may provide for section 49A(1)(a), (b), (c) or (d) not to
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apply to an act of a prescribed description.
49D
Power to impose specific duties
(1)
The Secretary of State may by regulations impose on a public authority,
other than a relevant Scottish authority or a cross-border authority,
such duties as the Secretary of State considers appropriate for the
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purpose of ensuring the better performance by that authority of its duty
under section 49A(1).
(2)
The Secretary of State may by regulations impose on a cross-border
authority such duties as the Secretary of State considers appropriate for
the purpose of ensuring the better performance by that authority of its
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duty under section 49A(1) so far as relating to such of its functions as
are not Scottish functions.
(3)
The Scottish Ministers may by regulations impose on a relevant
Scottish authority such duties as the Scottish Ministers consider
appropriate for the purpose of ensuring the better performance by that
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authority of its duty under section 49A(1).
(4)
The Scottish Ministers may by regulations impose on a cross-border
authority such duties as the Scottish Ministers consider appropriate for
the purpose of ensuring the better performance by that authority of its
duty under section 49A(1) so far as relating to its Scottish functions.
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(5)
Before making regulations under any of subsections (1) to (4), the
person making the regulations shall consult the Disability Rights
Commission.
(6)
Before making regulations under subsection (1) or (2) in relation to
functions exercisable in relation to Wales by a public authority that is
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not a relevant Welsh authority, the Secretary of State shall consult the
National Assembly for Wales.
(7)
The Secretary of State shall not make regulations under subsection (1)
or (2) in relation to a relevant Welsh authority except with the consent
of the National Assembly for Wales.
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(8)
Before making regulations under subsection (2), the Secretary of State
shall consult the Scottish Ministers.
(9)
Before making regulations under subsection (4), the Scottish Ministers
shall consult the Secretary of State.
(10)
In this section—
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“relevant Scottish authority” means—
(a)
a member of the Scottish executive or a junior Scottish
Minister;
(b)
the Registrar General of Births, Deaths and Marriages
for Scotland, the Keeper of the Registers of Scotland or
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the Keeper of the Records of Scotland;
(c)
any office of a description specified in an Order in
Council under section 126(8)(b) of the Scotland Act 1998
(other non-ministerial office in the Scottish
Administration); or
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(d)
a public body, public office or holder of a public office—
(i)
which (or who) is not a cross-border authority or
the Scottish Parliamentary Corporate Body;
(ii)
whose functions are exercisable only in or as
regards Scotland; and
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(iii)
some at least whose functions do not (within the
meaning of the Scotland Act 1998) relate to
reserved matters;
“cross-border authority” means a cross-border public authority
within the meaning given by section 88(5) of the Scotland Act
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1998;
“Scottish functions” means functions which are exercisable in or as
regards Scotland and which do not (within the meaning of the
Scotland Act 1998) relate to reserved matters;
“relevant Welsh authority” means—
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(a)
the National Assembly for Wales; or
(b)
a public authority whose functions are exercisable only
in relation to Wales.
49E
Duties under section 49D: compliance notices
(1)
Where the Disability Rights Commission is satisfied that a public
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authority has failed to comply with, or is failing to comply with, a duty
imposed on it by regulations under section 49D, the Commission may
serve a notice on it.
(2)
The following provisions of this section apply to a notice served on an
authority under subsection (1).
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(3)
The notice shall require the authority—
(a)
to comply with the duty concerned; and
(b)
to furnish the Commission, by the end of the period of 28 days
beginning with the day on which the notice is served, with
details of the steps that it has taken, or is taking, to comply with
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the duty.
(4)
The notice may also require the authority to furnish the Commission
with other information specified in the notice if the Commission

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reasonably requires the information in order to verify that the duty has
been complied with.
(5)
The notice shall specify the time by which the authority is to furnish
information which it is required to furnish under subsection (4).
(6)
A time specified under subsection (5) shall not be later than the end of
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the three months beginning with the day on which the notice is served.
(7)
The notice may specify the manner and form in which the authority is
to furnish information which the notice requires it to furnish to the
Commission.
(8)
The notice shall not require the authority—
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(a)
to furnish information which it could not be compelled to
furnish in evidence in civil proceedings before the High Court;
or
(b)
to furnish information which it could not be compelled to
furnish in evidence in civil proceedings before the Court of
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Session.
49F
Enforcement of compliance notices
(1)
If—
(a)
a public authority on which a notice has been served under
section 49E fails to furnish the Disability Rights Commission, in
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accordance with the notice, with any information required by
the notice, or
(b)
the Commission has reasonable cause to believe that a public
authority on which a notice has been served under section 49E
does not intend to furnish the information required by the
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notice,

the Commission may apply to a county court or, in Scotland, the sheriff
for an order requiring the authority to furnish any information required
by the notice.
(2)
If on an application under subsection (1) the court is satisfied that either
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of the conditions specified in paragraphs (a) and (b) of that subsection
is met, the court may grant the order in the terms applied for or in more
limited terms.
(3)
If—
(a)
the period of three months beginning with the day on which a
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notice is served on a public authority under section 49E has
ended,
(b)
the notice required the authority to comply with a duty
imposed on it by regulations under section 49D, and
(c)
the Commission considers that the authority has not complied
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with the duty,

the Commission may apply to a county court or, in Scotland, the sheriff
for an order requiring the authority to comply with the duty.
(4)
If on an application under subsection (3) the court is satisfied—
(a)
that the conditions specified in paragraphs (a) and (b) of that
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subsection are met, and
(b)
that the authority has not complied with the duty,

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the court may grant the order in the terms applied for or in more
limited terms.
(5)
The sanctions in section 49E and this section shall be the only sanctions
for breach of any duty imposed by regulations under section 49D, but
without prejudice to the enforcement of any other provision of this Act
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(where the breach is also a contravention of that provision).”
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Police
(1)
Section 64A of the 1995 Act (police) shall have effect with the following
amendments.
(2)
In subsections (3) to (5) (the bringing of, and compensation and costs in,
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proceedings against the police under Part 2), after “Part 2” (in each place) there
is inserted “or 3”.
(3)
In subsection (4) (bringing of proceedings under Part 2 which, by virtue of
subsection (1), are to be brought against chief officer of police), for “subsection
(1)” there is substituted “this section”.
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Transport
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Application of sections 19 to 21 of the 1995 Act to transport vehicles
In the 1995 Act, after section 21 there is inserted—
“21ZA
Application of sections 19 to 21 to transport vehicles
(1)
Section 19(1) (a), (c) and (d) do not apply in relation to a case where the
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service is a transport service and, as provider of that service, the
provider of services discriminates against a disabled person—
(a)
in not providing, or in providing, him with a vehicle; or
(b)
in not providing, or in providing, him with services when he is
travelling in a vehicle provided in the course of the transport
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service.
(2)
For the purposes of section 21(1), (2) and (4), it is never reasonable for a
provider of services, as a provider of a transport service—
(a)
to have to take steps which would involve the alteration or
removal of a physical feature of a vehicle used in providing the
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service;
(b)
to have to take steps which would—
(i)
affect whether vehicles are provided in the course of the
service or what vehicles are so provided, or
(ii)
where a vehicle is provided in the course of the service,
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affect what happens in the vehicle while someone is
travelling in it.
(3)
Regulations may provide for subsection (1) or (2) not to apply, or to
apply only to a prescribed extent, in relation to vehicles of a prescribed
description.
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(4)
In this section—
“transport service” means a service which (to any extent) involves
transport of people by vehicle;

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“vehicle” means a vehicle for transporting people by land, air or
water, and includes (in particular)—
(a)
a vehicle not having wheels, and
(b)
a vehicle constructed or adapted to carry passengers on
a system using a mode of guided transport;
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“guided transport” has the same meaning as in the Transport and
Works Act 1992.”
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Rail vehicles: application of accessibility regulations
(1)
In section 46 of the 1995 Act (rail vehicle accessibility regulations), before
subsection (5) there is inserted—
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“(4A)
The Secretary of State shall exercise the power to make rail vehicle
accessibility regulations so as to secure that on and after 1st January
2020 every rail vehicle is a regulated rail vehicle, but this does not affect
the powers conferred by subsection (5) or section 47(1) or 67(2).”
(2)
In that section, for the definition in subsection (6) of “rail vehicle” there is
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substituted—
““rail vehicle” means a vehicle constructed or adapted to carry
passengers on any railway, tramway or prescribed system;”.
(3)
For section 47(1) of the 1995 Act (rail vehicle accessibility regulations: power to
exempt use of vehicles of specified descriptions or in specified circumstances)
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there is substituted—
“(1)
The Secretary of State may by order (an “exemption order”)—
(a)
authorise the use for carriage of a regulated rail vehicle even
though the vehicle does not conform with the provisions of rail
vehicle accessibility regulations with which it is required to
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conform;
(b)
authorise a regulated rail vehicle to be used for carriage
otherwise than in conformity with the provisions of rail vehicle
accessibility regulations with which use of the vehicle is
required to conform.
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(1A)
Authority under subsection (1)(a) or (b) may be for—
(a)
any regulated rail vehicle that is specified or is of a specified
description; or
(b)
use in specified circumstances of—
(i)
any regulated rail vehicle, or
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(ii)
any regulated rail vehicle that is specified or is of a
specified description.”
(4)
In the 1995 Act, after section 67 there is inserted—
“67A
Exercise of discretion under section 67(5A)
(1)
Before the Secretary of State decides which of the parliamentary
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procedures available under section 67(5A) is to be adopted in
connection with the making of any particular order under section 47(1),
he must consult the Disabled Persons Transport Advisory Committee.

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(2)
An order under section 47(1) may be made without a draft of the
instrument that contains it having been laid before, and approved by a
resolution of, each House of Parliament only if—
(a)
regulations under subsection (3) are in force; and
(b)
the making of the order without such laying and approval is in
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accordance with the regulations.
(3)
Regulations may set out the basis on which the Secretary of State, when
he comes to make an order under section 47(1), will decide which of the
parliamentary procedures available under section 67(5A) is to be
adopted in connection with the making of the order.
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(4)
Before making regulations under subsection (3), the Secretary of State
must consult—
(a)
the Disabled Persons Transport Advisory Committee; and
(b)
such other persons as he considers appropriate.”
(5)
In the 1995 Act, after section 67A (which is inserted by subsection (4)) there is
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inserted—
“67B
Annual report on rail vehicle exemption orders
(1)
The Secretary of State must after each 31st December prepare, in respect
of the year that ended with that day, a report on—
(a)
the exercise in that year of the power to make orders under
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section 47(1); and
(b)
the exercise in that year of the discretion under section 67(5A).
(2)
A report under subsection (1) must (in particular) contain—
(a)
details of each order made under section 47(1) in the year in
respect of which the report is made; and
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(b)
details of consultation carried out under sections 47(3) and
67A(1) in connection with orders made in that year under
section 47(1).
(3)
The Secretary of State must lay before each House of Parliament each
report that he prepares under this section.”
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Rail vehicles: accessibility compliance certificates
(1)
In the 1995 Act, after section 47 there is inserted—
“47A
Rail vehicle accessibility compliance certificates
(1)
A regulated rail vehicle to which this subsection applies shall not be
used for carriage unless a rail vehicle accessibility compliance
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certificate is in force for the vehicle.
(2)
Subsection (1) applies to a regulated rail vehicle if the vehicle—
(a)
is prescribed; or
(b)
is of a prescribed class or description.
(3)
A rail vehicle accessibility compliance certificate is a certificate that the
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Secretary of State is satisfied that the regulated rail vehicle conforms
with those provisions of rail vehicle accessibility regulations with
which the vehicle is required to conform.