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Disability Discrimination Bill [HL]

 

     These notes refer to the Disability Discrimination Bill [HL] as brought from the House of Lords on 1st March 2005 [Bill 71]

DISABILITY DISCRIMINATION BILL [HL]

     

     EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Disability Discrimination Bill [HL] as brought from the House of Lords on 1st March 2005. They have been prepared by the Department for Work and Pensions, the Department for Transport (in relation to clauses 5 to 9) and the Department for Education and Skills (in relation to clause 15) 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.     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. Where a clause or part of a clause does not seem to require any explanation or comment, none is given.

SUMMARY AND BACKGROUND

3.     The Bill makes substantial amendments to the Disability Discrimination Act 1995 ("DDA") building on amendments already made to that Act by other legislation since 1999. The Department for Work and Pensions intends to produce and publish a draft composite version of the DDA which will show how that Act would look if the measures in the Bill were approved by Parliament.

4.     The DDA, as originally enacted, contained provisions making it unlawful to discriminate against a disabled person in relation to employment, the provision of goods, facilities and services, and the disposal and management of premises. It also contained some provisions relating to education; and enabled the Secretary of State for Transport to make regulations with a view to facilitating the accessibility of taxis, public service vehicles and rail vehicles for disabled people.

[Bill 71—EN]     53/4

5.     In December 1997, the Government established the Disability Rights Task Force, an independent body comprising members from disability organisations, the private and public sectors and trade unions, to advise it on how best to meet its 1997 manifesto commitment to look at securing comprehensive and enforceable civil rights for disabled people. As a result of the Task Force's first recommendations, the Government established, in April 2000, the Disability Rights Commission. (The constitution and functions of the Commission are set out in the Disability Rights Commission Act 1999.)

6.     In December 1999, the Task Force published its final report to Government: "From Exclusion to Inclusion". This recommended a number of major extensions to the Act's coverage and refinements to its detail.

7.     The Government published an interim response to the Task Force's recommendations in 2000 and, in March 2001, published its final response "Towards Inclusion - Civil Rights for Disabled People". That response, which was also a consultation document, set out the Government's proposals for taking forward those of the Task Force's recommendations with which it agreed. One immediate response was to introduce the Special Educational Needs and Disability Act 2001 which extended the DDA so as to make it unlawful to discriminate against disabled pupils and students seeking access to education in schools and colleges.

8.     The Government has already taken forward the main employment proposals set out in "Towards Inclusion" in the Disability Discrimination Act 1995 (Amendment) Regulations 2003 1 ("the Amendment Regulations"), made under section 2(2) of the European Communities Act 1972 in order to implement the disability aspects of the EC Employment Directive (2000/78/EC). These Regulations, which came into force on 1 October 2004, make significant changes to the DDA which were also proposed by the Task Force including: ending the exemption of small employers from the scope of the DDA; and bringing within its ambit a number of excluded occupations, such as the police, fire-fighters, prison officers and partners in business partnerships. The Regulations also make other changes not proposed by the Task Force. (See also the Disability Discrimination (Pensions) Regulations 2003 2, which amend Part 2 DDA to bring its provisions into line with Directive 2000/78/EC in relation to discrimination concerning occupational pension schemes.)

1 S.I. 2003/1673.

2 S.I. 2003/2770.

9.     This Bill takes forward the Government's remaining proposals. A draft version of the Bill was published in December 2003 for pre-legislative scrutiny. It was considered by a Joint Committee of both Houses, who reported their findings on 27 May 2004. The Government published its response to the Joint Committee's report on 15 July 2004. Further details can be viewed on the Department for Work and Pensions' disability website (www.disability.gov.uk). The Bill contains provisions giving effect to many of the Committee's recommendations, as well as new provisions which did not appear in the draft Bill: see in particular clauses 6 to 8 (rail vehicles), clause 9 (disabled persons' parking badges), clause 15 (general qualifications bodies) and clause 16 (improvements to let dwelling houses).

TERRITORIAL EXTENT

10.     The Bill extends to Great Britain, save for Clause 9 and the related disabled persons' "blue badge" parking provisions and Clause 16 (improvements to let dwelling houses), both of which extend only to England and Wales. Provision corresponding to the "blue badge" provisions already applies in Scotland, and the Scottish Executive is considering what steps to take in relation to disability-related adaptations to people's homes.

11.     Equal opportunities are in principle reserved to the Westminster Parliament, but the imposition of duties on office-holders in the Scottish administration, on any Scottish public authority with mixed functions or no reserved functions, or on cross-border public authorities in respect of their Scottish functions is an exception to this rule and falls within the devolved competence of the Scottish Parliament 3. Clause 3 of this Bill will impose duties on public authorities with the aim of promoting equality of opportunity for disabled people. This therefore falls partly within the competence of the Scottish Parliament. The Scottish Parliament has confirmed (on 24 February 2005) that it is content for Parliament to legislate for Scotland in this devolved area.

3 See section L2 of Part 2 of Schedule 5 to the Scotland Act 1998.

12.     The Bill does not extend to Northern Ireland since disability discrimination and transport are "transferred matters" under the Northern Ireland Act 1998. As regards Wales, the Bill confers no new powers on the National Assembly to make orders or regulations, save in relation to clause 9 (the "blue badge" parking provisions).

SUMMARY

13.     The Bill's measures will:

Public authorities

i)     Clause 1: bring councillors, and members of the Greater London Authority, within the scope of the DDA;

ii)     Clause 2: ensure that, with some exceptions, functions of public authorities not already covered by the DDA are brought within its scope (so that it would be unlawful for a public authority, without justification, to discriminate against a disabled person when exercising its functions);

iii)     Clause 3: introduce a new duty on public authorities requiring them, when exercising their functions, to have due regard to the need to eliminate harassment of and unlawful discrimination against disabled persons, to promote positive attitudes towards disabled persons, to encourage participation by disabled persons in public life, and to promote equality of opportunity between disabled persons and other persons;

iv)     Clause 4: amend section 64A of the DDA so as to clarify who the correct defendant is in the case of a claim of discrimination being made against a police officer under Part 3 of the DDA and authorise payment of compensation from the police fund in relation to such a claim;

Transport

v)     Clause 5: provide that the current exemption from sections 19 to 21 of the DDA (which deal with the provision of goods, facilities and services to the public) for transport services extends only to transport vehicles themselves, and create a power to enable that exemption to be lifted for different vehicles at different times and to differing extents;

vi)      Clause 6: amend the definition of 'rail vehicle' in Part 5 of the DDA to enable rail vehicle accessibility regulations to be applied to all rail vehicles, enable the regulations to be applied to the refurbishment of rail vehicles, clarify and extend the current power to grant exemptions from the requirements, change the exemption process and include a requirement for the Secretary of State to produce an annual report on the making of exemptions;

vii)     Clause 7: introduce new provisions requiring rail vehicle accessibility compliance certificates to be obtained for prescribed rail vehicles;

viii)     Clause 8: replace the existing criminal offence for use of a rail vehicle which does not conform with rail vehicle accessibility regulations with a civil enforcement system, and set out the procedure for imposing civil penalties, including a right of appeal to a court;

ix)     Clause 9: amend the Chronically Sick and Disabled Persons Act 1970 so as to provide for the recognition in England and Wales of disabled persons' parking badges issued outside Great Britain;

Other matters

x)     Clause 10: amend the DDA's new provision on discriminatory advertisements (section 16B, as inserted by the Amendment Regulations) so as to impose liability on a third party who publishes a discriminatory advertisement (for example, a newspaper) as well as the person placing the advertisement;

xi)     Clause 11: amend the DDA in respect of group insurance arrangements;

xii)     Clause 12: bring within the scope of Part 3 of the DDA private clubs with 25 or more members;

xiii)     Clause 13: impose a duty to provide reasonable adjustments on landlords and others who manage rented premises;

xiv)     Clause 14: confer a power to modify or end the current small dwellings exemption in section 23 and new sections 24B and 24H (as inserted by clause 13 of the Bill) of the DDA;

xv)     Clause 15: make it unlawful for general qualifications bodies to discriminate against disabled persons in relation to the award of prescribed qualifications;

xvi)     Clause 16: make provision for cases where a tenant seeks consent to make an improvement to a let dwelling house to facilitate the enjoyment of the premises by a disabled occupier (which could include himself), including provision for the Disability Rights Commission to make available a conciliation service, to provide assistance in legal proceedings in any dispute arising on the landlord's withholding of his consent and to issue codes of practice on consent to such improvements;

xvii)     Clause 17: extend section 56 of the DDA so as to provide a procedure for questions and replies, not only for claims under Part 2 of the DDA but also for claims under Part 3 of the DDA;

xviii)     Clause 18: amend the definition of disability in respect of people with mental illnesses; deem people with HIV infection, multiple sclerosis, or cancer to be disabled for the purposes of the DDA; and clarify that there is no implied limitation to the scope of the regulation-making power which enables people to be deemed to be disabled;

Supplementary

xix)     Clauses 19 and 20: deal with minor and consequential amendments and repeals, the short title, extent and commencement;

xx)      Schedule 1: make minor and consequential amendments to the DDA and other enactments;

xxi)     Schedule 2: provide for the repeal of provisions contained in the DDA and other enactments.

COMMENTARY ON CLAUSES

Clause 1: Councillors

14.     Clause 1 inserts new sections 15A, 15B and 15C into Part 2 of the DDA, as amended by the Amendment Regulations. The new provisions make it unlawful for the locally-electable authorities listed in new section 15A(1) to discriminate against their members in relation to the carrying-out of official business.

15.     New section 15A(1) sets out the authorities to which the new provisions apply. These include all local authorities in England, Wales and Scotland and the Greater London Authority.

16.     The duties imposed on locally-electable authorities by the new provisions only apply where a member is carrying out "official business". By virtue of new section 15A(2), a member carries out official business where he does anything in his capacity as: a member of his own authority; a member of any body to which he is appointed by his own authority or a group of authorities that includes his own authority; or a member of any other public body. Whether an authority actually has power to provide training or other facilities (see new section 15B(1)(a)) to its members for their carrying-out of any particular official business will be determined by the legislation from which the authority derives its powers.

17.     New section 15B(1) makes it unlawful for an authority to discriminate against a disabled member: in relation to opportunities which it affords its members to receive training or any other facility it makes available to its members for the carrying-out of official business; or by subjecting the disabled member to any other detriment in relation to the carrying-out of official business. "Discrimination" bears the meaning set out in section 3A of the DDA (as inserted by the Amendment Regulations).

18.     New section 15B(2) makes it unlawful for an authority to subject a disabled member to harassment in relation to the carrying-out of official business. "Harassment" is defined in section 3B of the DDA (as inserted by the Amendment Regulations).

19.     New section 15B(3) provides for a number of matters to be excluded from the scope of the duties imposed by new section 15B(1). These are: election or appointment to an office of an authority (such as a cabinet post); election or appointment to a committee or sub-committee of an authority, or to an office of a committee or sub-committee (such as chairman); and appointments to any other body to which an authority, or a group of bodies including that authority, has the power to appoint or nominate (such as a police authority).

20.     New section 15B(4) and (5) enable the Secretary of State to make regulations relating to the justification for less favourable treatment. New section 15B(4) permits regulations to be made prescribing the circumstances in which treatment is to be taken to be justified or not to be justified. New section 15B(5) allows regulations made under subsection (4) to modify or disapply the justification for less favourable treatment set out in section 3A(3) of the DDA (as inserted by the Amendment Regulations). However, this power cannot be used to justify less favourable treatment which amounts to direct discrimination, which is defined in section 3A(5) of the DDA (as inserted by the Amendment Regulations).

21.     New section 15B(6) imposes a limitation on the justifications that may be provided for in regulations under section 15B(4). The effect is that an authority which fails to comply with a duty to make a reasonable adjustment in relation to a disabled person cannot justify its treatment unless it would have been justified even if it had complied with the duty. See section 3A(6) of the DDA for a similar provision which applies to the rest of Part 2 of the DDA.

22.     New section 15C sets out the duty of an authority to make reasonable adjustments in relation to its disabled members and broadly follows the pattern of Part 2 of the Act. An authority will be under a duty to make an adjustment where a provision, criterion or practice it applies, or which is applied on its behalf, or a physical feature of premises which it occupies or controls, places a disabled member at a substantial disadvantage in comparison with non-disabled members in relation to the carrying-out of official business. In these circumstances, an authority will be under a duty to take reasonable steps to prevent the provision, criterion, practice or physical feature from having that effect. Section 15C(3) provides that the duty in subsection (2) does not apply if the authority could not reasonably be expected to know that the member has a disability and is likely to be affected in the way mentioned in subsection (1).

23.     New section 15C(4) enables the Secretary of State to make regulations elaborating on the duty to make adjustments.

24.     A victim of unlawful discrimination or harassment contrary to the new provisions would be able to bring enforcement proceedings in an employment tribunal under section 17A 4 of the DDA.

4 The Amendment Regulations renumber section 8 of the DDA as section 17A.

25.     Schedule 1 includes a number of minor and consequential amendments arising out of new sections 15A to 15C (see the commentary below).

Clause 2: Discrimination by public authorities

26.     This clause inserts new sections 21B to 21E into the DDA and thereby extends its scope to cover almost all the functions of public authorities. This brings the DDA into line with section 19B of the Race Relations Act 1976 ("RRA") (as inserted by the Race Relations (Amendment) Act 2000, section 1).

27.     In general terms, the effect of the insertion of new sections 21B to 21E into the DDA will be to prohibit discrimination, where not already covered elsewhere in the DDA, in the exercise of all public functions other than (in broad terms) those of legislation, prosecution, judicial acts, and state security. This new prohibition of discrimination will therefore cover decisions by Ministers, local authorities, the police and other governmental organisations. The definition of discrimination is more extensive than its equivalent in the RRA as discrimination can include not making a reasonable adjustment to the way the function is carried out. This might mean that a public authority would have to exercise a function in a different way for a disabled person where it would be reasonable to do so (for example, visiting a person at home rather than requiring them to attend a Government building), or to supplement the exercise of a function with an additional act, where it would be reasonable to do so (such as the provision of an interpreter for a deaf person). An act that would otherwise amount to discrimination can however be justified in certain circumstances under new section 21D(3) to (5).

28.     A victim of unlawful discrimination contrary to the new provisions could bring enforcement proceedings in the county court (or, in Scotland, in the sheriff court) under section 25 of the DDA.

New section 21B: Discrimination by public authorities

29.     New section 21B(1) makes it unlawful for a public authority to discriminate against a disabled person in carrying out its functions. It should be noted, however, that section 21B(1) is subject to section 59 of the DDA. This means that section 21B(1) will not apply where a public authority is exercising a statutory power and has no discretion as to whether or how to exercise that power, or no discretion as to how to perform its duties.

30.     Section 21B(2) defines "public authority" for the purposes of sections 21B, 21D and 21E. The definition is the same as that used in section 19B(2) of the RRA. It is also the same as the definition used in section 6(3)(b) of the Human Rights Act 1998. The definition is subject to the exceptions in new section 21B(3). It is also subject to the proviso in new section 21B(4), which specifies that a body will not be a public authority if the nature of the act being carried out is private. For example, the BBC would not be considered to be a public authority when carrying out its commercial activities.

31.     Section 21B(5) provides a regulation-making power that will allow for specified public authorities to be exempted from the prohibition of discrimination in section 21B(1).

32.     Section 21B(7) sets the boundaries between the new public authority duty in section 21B(1) and the other provisions of the DDA. The intention is, in broad terms, that where something is unlawful under another provision of the DDA, that other provision, and not section 21B(1), will apply. This principle applies in the same way where something would be unlawful but for the operation of any other provision of the DDA or regulations made under it (for example, a proviso or an exception). So where, for example, a public authority is an employer or a service provider, its acts as an employer or as a service provider will be governed by the existing DDA provisions relevant to that sphere of activity (Part 2 in the case of employment, sections 19 to 21 in the case of the provision of services). It will not also be liable, as a public authority, for the same acts under section 21B(1).

33.     Section 21B(8) creates an exception, for the case of office holders, to the general principle set out by section 21B(7). Under certain conditions and where sections 4C to 4E do not apply to appointment to the office or post in question, section 21B(1) will apply both to the function of appointing and to other functions of the public authority vis-...-vis the holder of the office. An example might be the function of a local education authority when appointing a school governor, which is an office not covered by the terms of section 4C.

34.     Section 21B(9) creates, under certain conditions, a further exception to the general principle created by section 21B(7) for the case of certain elected office or post holders. Under certain conditions and where sections 4C to 4E do not apply to appointment to the office or post in question, section 21B(1) will apply to functions of a public authority in relation to a candidate or prospective candidate for certain public offices or posts and to functions of the authority vis-...-vis the elected office holder once he holds office. This means, for example, that functions of a local education authority in organising an election of parent school governors would be covered by section 21B(1). The election itself is not a function of a public authority and is not covered by section 21B(1). The functions of the public authority in relation to the parent governor, once elected, would also be covered by section 21B(1).

New section 21C: Exceptions from section 21B(1)

35.     New section 21C sets out a number of functions to which section 21B(1) will not apply. New section 21C(1), (2) and (3) provide exemptions from section 21B(1) for judicial and legislative acts. There is also an exemption in new section 21C(4) concerning the institution of criminal proceedings.

36.     There is a regulation-making power in new section 21C(5) which will allow other functions to be exempted from the effect of the prohibition of discrimination in new section 21B(1).

New section 21D: Meaning of "discrimination"

37.     New section 21D defines the meaning of discrimination for the purposes of section 21B(1). The definition of discrimination mirrors, insofar as it is possible to do so, the definition of discrimination used for service providers in section 20 of the DDA.

38.     There are two forms of discrimination. The first form is set out in new section 21D(1) and is the less favourable treatment of a disabled person for a reason related to his disability, where the public authority cannot show that the treatment in question is justified under section 21D(3), (5) or (7)(c).

39.     The second form of discrimination is set out in new section 21D(2). In order for this sort of discrimination to be proved, an individual must show that, to his or her detriment, the public authority has failed to comply with a duty imposed by new section 21E, and the authority must be unable to show that its failure is justified under new section 21D(3), (5) or (7)(c).

New section 21D(3) to (5): Justification

40.     New section 21D(3) to (5) deal with the way in which a public authority may justify treatment or a failure to comply with the section 21E duty that indicates a prima facie breach of section 21D(1) or 21D(2).

41.     New section 21D(5) sets out one possible justification: the public authority concerned must show that the treatment, or failure to comply with the section 21E duty, is a proportionate means of achieving a legitimate aim. It is envisaged that a public authority will be able to rely on this justification only in relation to matters of public interest (for example, the detection of crime) that, subject to an assessment of proportionality, can be said to be sufficiently important to override the right conferred by new section 21B(1). There is a regulation-making power in new section 21D(7)(b) to provide that this justification should not apply in certain circumstances and to amend or remove the justification. In connection with this power, see also the new section 67(3A) inserted by paragraph 33(4) of Schedule 1 to the Bill.

42.     New section 21D(4) sets out further conditions of justification. A public authority has to satisfy the requirements of new section 21D(3) in order to justify the discriminatory treatment or failure.

43.     A public authority must first show that it holds the opinion that one or more of the conditions set out in section 21D(4) is satisfied. These conditions concern: health and safety (new section 21D(4)(a)); incapacity to give consent (new section 21D(4)(b)); and protecting the rights and freedoms of others (new section 21D(4)(d)). There is also a justification relating to extra costs (new section 21D(4)(c)) that is available only in relation to less favourable treatment discrimination, as defined in section 21D(1).

44.     Once a public authority proves that it holds the opinion that one of these conditions is satisfied, it must then show - on the basis of new section 21D(3)(b) - that it is reasonable, in all the circumstances of the case, for it to hold that opinion. If both of the steps in new section 21D(3) are satisfied, then the public authority can justify the less favourable treatment or failure to comply with the section 21E duty.

45.     New section 21D(6) contains a regulation-making power in relation to the public authority's assessment of justification for its acts. This power would allow the Secretary of State to stipulate the circumstances in which it is or is not reasonable for the public authority to hold the opinion mentioned in subsection (3)(a). The regulation-making power will apply in relation to a public authority's ability to justify less favourable treatment or a failure to comply with the reasonable adjustment duty: the power will allow circumstances to be stipulated in which it is, and is not, reasonable for a public authority to hold the opinion that a condition of justification applies.

46.     New section 21D(7)(a) provides a regulation-making power to amend, or remove, a condition of justification listed in new section 21D(4), or to make provision for a justification not to apply in specified circumstances. New section 21D(7)(b) is mentioned in the note on new section 21D(5) above. New section 21D(7)(c) gives a regulation-making power to add new justifications to those already existing in new section 21D(3) to (5).

 
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