Fifth Standing Committee on Delegated Legislation

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Fifth Standing Committee on Delegated Legislation

The Committee consisted of the following Members:

Chairman:

Hugh Bayley

†Alexander, Danny (Inverness, Nairn, Badenoch and Strathspey) (LD)
†Dowd, Jim (Lewisham, West) (Lab)
†Heathcoat-Amory, Mr. David (Wells) (Con)
†Heppell, Mr. John (Vice-Chamberlain of Her Majesty’s Household)
†Jenkins, Mr. Brian (Tamworth) (Lab)
Jones, Mr. David (Clwyd, West) (Con)
†Joyce, Mr. Eric (Falkirk) (Lab)
Lancaster, Mr. Mark (North-East Milton Keynes) (Con)
Laws, Mr. David (Yeovil) (LD)
†Liddell-Grainger, Mr. Ian (Bridgwater) (Con)
†McGuire, Mrs. Anne (Parliamentary Under-Secretary of State for Work and Pensions)
†Mallaber, Judy (Amber Valley) (Lab)
†Randall, Mr. John (Uxbridge) (Con)
†Sarwar, Mr. Mohammad (Glasgow, Central) (Lab)
†Short, Clare (Birmingham, Ladywood) (Lab)
†Slaughter, Mr. Andrew (Ealing, Acton and Shepherd’s Bush) (Lab)
†Walley, Joan (Stoke-on-Trent, North) (Lab)
      
Emily Commander, Committee Clerk

† attended the Committee

 
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Thursday 10 November 2005

[Hugh Bayley in the Chair]

Draft Disability Discrimination (Private Clubs etc.) Regulations 2005

2.30 pm

The Parliamentary Under-Secretary of State for Work and Pensions (Mrs. Anne McGuire): I beg to move,

That the Committee has considered the draft Disability Discrimination (Private Clubs etc.) Regulations 2005.

It is a delight to see you in the Chair, Mr. Bayley. It is the first time that I have sat on a Committee that you have chaired. I know that you will bring to our Committee your customary courtesy and firmness.

The Government came to power in 1997 with a commitment to establish comprehensive civil rights for disabled people, which we renewed in our 2001 manifesto. We have fulfilled that commitment with a programme of legislative improvements to civil rights for disabled people to help to deliver the equality that I hope that we all want for our citizens. As a Government we take great pride in our record. We set up the Disability Rights Commission to provide disabled people with assistance in enforcing their civil rights; it came into being in April 2000. We have widened, strengthened and deepened civil rights for disabled people through changes to the Disability Discrimination Act 1995. The Special Educational Needs and Disability Act 2001 was groundbreaking in extending rights for young disabled people in education. We have implemented in full the requirements on providers of goods, facilities and services provided for in the 1995 Act to make reasonable adjustments. The final duties, in relation to physical features of premises, came into force on 1 October 2004.

The Disability Discrimination Act 1995 (Amendment) Regulations 2003, which were debated in Committee in June 2003, came into force on 1 October 2004. They implemented for employment the disability provisions of the European Union’s framework employment directive 2000/78/EC. All employers, with the exception of the armed forces and a wider number of bodies in the employment field previously not covered, have been brought within the employment provisions of the 1995 Act.

More recently the Disability Discrimination Act 2005 contained new rights and responsibilities in relation to locally elected authorities and their members and public authorities, including the significant duty on them to promote equality for disabled people. There were provisions on transport and education, and the definition of disability was widened to cover people with HIV infection, cancer and multiple conditions effective from the point of diagnosis. There were also provisions on private clubs, which is why we are here today.

Before I set out the principles of the draft regulations, I should state that in my view they are compatible with the European convention on human rights.

 
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The principle that private members’ clubs should be covered by the 1995 Act was established by the successful passage into law of the Disability Discrimination Act 2005, which inserted new sections 21H to 21J into the 1995 Act. Those provisions were designed to be similar to those that apply to private members’ clubs under the Race Relations Act 1976 so that there would be broad parity between duties imposed on private clubs under the different strands of anti-discrimination legislation.

Up to that point private members clubs were not subject to the DDA rules relating to providers of goods, services and facilities, except where clubs provided their services to the general public or to a section of the public. In future it will be unlawful for a private members’ club with 25 or more members to discriminate against a disabled person who is a member, associate or a guest of the club, or against someone who is a prospective member or prospective guest, for reasons related to their disability. Clubs must not treat disabled people less favourably for a reason related to their disability than a non-disabled person to whom the reason does not apply. We intend the duties to commence on 5 December 2005.

Clubs must not fail to comply with any duty to make reasonable adjustments—I stress “reasonable”. We intend that to apply from 4 December 2006. In a very limited range of circumstances, justification of less favourable treatment or of failure to make reasonable adjustments is possible. Those principles already apply to providers of goods, services and facilities to members of the public under the 1995 Act. We are extending the principles to private members’ clubs, so far as is practical, bearing in mind the relationship that such clubs have with their members, associates and guests. There are therefore some differences of detail to deal with the particular circumstances of clubs.

Turning to the specifics as they apply to private clubs, part 2 of the draft regulations applies to the duties on private clubs, intended to apply from 5 December 2005, not to treat disabled people less favourably than non-disabled people for a reason related to the disabled person’s disability. The draft regulations support the duties in section 21G of the 1995 Act, modify or expand the circumstances in which less favourable treatment may be justified, and replicate the legislative provisions for existing providers of goods, services and facilities.

Regulation 3 means that a club cannot justify treating a disabled person less favourably in certain circumstances if they have someone else acting for them. In the circumstances set out in the regulation, the justification in the Act that permits less favourable treatment is disapplied. Regulations 4 and 5 provide additional justification for less favourable treatment by private clubs in relation to guarantees and deposits for benefits, facilities or services provided to a disabled person—for example, where a guarantee on goods sold to members is provided, or there is a deposit for goods hired out to members. When it is reasonable to do so, the financial risk may be transferred from the club to the disabled person in relation to damage caused to goods for a reason related to the person’s disability where that damage is greater or the cost of replacement higher than that at which the club would normally refund, repair or replace the goods or return the deposit.

Part 3 of the regulations is about reasonable adjustments and is intended to apply to private clubs from 4 December 2006. Regulation 6 is at the heart of the
 
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part: it sets out the reasonable adjustment duties on private clubs in relation to members, associates and guests. The regulation covers broadly the same ground as the DDA in relation to the providers of goods, services and facilities to the general public or a section of the public, and in the same way. For example, the duties are anticipatory: clubs must think about the likely needs of any actual or future disabled members, associates or guests and act to meet them in advance of a person actually facing difficulties. Any breach of the duty is, however, only enforceable by a disabled person who is adversely affected, as described.

The club will be under a duty to make adjustments to its policies, practices and procedures and to physical features that make it impossible or unreasonably difficult for disabled members, associates or guests to make use of the benefits, facilities or services provided to others. There is also a duty on clubs to provide auxiliary aids where they would enable disabled members, associates or guests to make use of a benefit, facility or service, or help them to do so.

Regulation 7 deals with the adjustments that may be necessary when continued membership or rights to continued associate membership are in question—adjustments that are necessary to stop people losing their membership or associate membership rights because of disability discrimination. Regulations 8 and 9 deal with the adjustments that have been necessary for prospective members and prospective guests. The duties on clubs in all three regulations are framed along the same lines as the main duties in regulation 6.

Regulations 10, 11 and 12 deal with the issues relating to reasonable adjustment to physical features and broadly reflect what the law already provides for in relation to providers of goods, services and facilities under the 1995 Act and associated secondary legislation. Regulation 10 sets out examples of what is meant by “physical feature” in the context of regulation 6—for example, any feature on the premises occupied by the club that makes the approach, access or exit unreasonably difficult. Regulation 11 explains what happens when a private club is under an obligation to secure the permission of a third party before it makes an adjustment. The most common example of this is if under the terms of a mortgage the lender must give consent to any changes because of the need to be sure that their security for the loan is not affected. The club does not have to make the adjustment until consent is given.

Regulation 12 and the schedule explain the circumstances in which it will not be considered reasonable for a club to have to remove or alter a physical feature. That applies where the physical feature concerned was provided in or in connection with a building to enable disabled people to have access to the building and where the feature satisfies a relevant design standard set out in the relevant building legislation in England and Wales and the equivalent in Scotland. The schedule refers to the relevant parts of these rules.

Regulation 13 provides for two circumstances in which a club can justify a failure to comply with a duty to make adjustments, and the modification necessary to disapply the defence of justification in the case of a person who lacks capacity, but where someone is acting on his or her behalf. The first part of regulation 14 reflects
 
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provisions already applied in relation to providers of goods, services and facilities under part III of the 1995 Act. The second part is unique to private members’ clubs.

Regulation 14(a) ensures that nothing in relation to the reasonable adjustment duties in part 3 of the regulations requires private clubs to do anything that would fundamentally alter the nature of the benefits, facilities and services they provide. Our policy is designed to protect the rights of homeowners who are also members or associates of a club and allow a private club to meet in their own homes. A homeowner would be under no obligation to agree to make changes to his or her home that might prevent normal enjoyment of the property; the duty to make adjustments is imposed on the club itself rather than on its members. However, if the homeowner is a member or associate of a club that is an unincorporated association, the position would, I am advised, not be so clear cut without specific provision. Regulation 14(b) puts the position beyond doubt in these very specific circumstances.

The DRC is consulting on a revised code of practice for part III of the DDA which will include practical advice and guidance for private members’ clubs on meeting the new duties. In due course the revised part III code will be submitted to my right hon. Friend the Secretary of State, who will lay it before Parliament.

The need to consult on the policy with clubs meant that the reasonable adjustment duties could not be set out in the 2005 Act. We therefore made the first use of the regulation-making powers subject to the affirmative procedure to allow for parliamentary scrutiny.

I appreciate the courtesy shown to me by hon. Members for what was, I hope, a detailed explanation of the regulations. I commend the draft regulations to the Committee.

2.43 pm

Mr. David Heathcoat-Amory (Wells) (Con): Mr. Bayley, I apologise to you and the Minister for being a moment or two late in arriving. When I arrived, the Minister was already on her feet but I heard the great majority of her speech. I thank her for her detailed explanation of the regulations and of the thinking behind them, which has answered several of my questions. However, I have a number of points to ask her about.

Will the Minister say a little more about regulation 4 in part 2, which sets out the circumstances in which less favourable treatment of disabled people is justified? I am sure that there is a perfectly good explanation because the provisions are of some age now: they originally appeared in the 1995 Act, so presumably they are now understood, accepted and working. On the face of it, it is not altogether clear why the provision of a guarantee by a club to refund to disabled people the price of benefits and facilities if those benefits are unsatisfactory should exempt them from the provisions of the regulations. Perhaps the hon. Lady will say a little more about why the provision is phrased as it is, how it will work in practice and whether and how it is valid to exempt clubs from the force of the regulations in those circumstances.

The background to the regulations is familiar to the Committee. There has been a substantial element of cross-party support throughout the process. The 1995 Act was passed under a Conservative Government, the 2005 Act builds on that Act and extends it, and the regulations flow from it. I do not want to strike an
 
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adversarial note because a lot of discussion took place during the passage of the 2005 Act and the regulations are therefore not unexpected, but I wish to raise an additional—perhaps more substantive—point on checking and enforcement.

The regulatory impact assessment published with the explanatory memorandum is satisfactory as far as it goes, but it cannot go very far because apparently no one has the slightest idea how many clubs the regulations will apply to. The RIA makes a number of rather heroic guesses, assessments and assumptions and comes to the view that there are about 9,000 clubs, but it acknowledges in paragraph 4.8 that

“there is no authoritative data on the numbers of clubs that will meet the definition of a ‘private club’”.

Not only does that render the cost assessment highly speculative, but it raises the question of who will do the checking. Whose responsibility will it be to ensure that the regulations are adhered to? There is always a danger of Parliament and other bodies passing rules and regulations on disability issues and thinking that that is the end of the matter; the benefit to the disabled is apparent only when the rules and regulations take effect on the ground.

Is it realistic to expect clubs to implement all the regulations without any external checking, particularly given that there is some evidence of widespread ignorance of the present law? The consultation with small businesses threw up the fact that, as the RIA states, participants’ overall knowledge of the 1995 Act is “limited”. That is no surprise: we have all heard anecdotal evidence of it from clubs in our constituencies.

I cannot be alone in having a number of political clubs in my locality. There are three Conservative clubs, all of which make good provision for disabled members, so I do not expect that the regulations will cause them difficulties. On the other hand, those clubs tend only to respond to requests. For instance, if there are no blind or partially-sighted members, the clubs are unlikely to circulate their rules in large type or Braille. The menu in the club to which I go most often is not produced in a form that would be suitable for blind people because there are no blind members. If there were, and if a request were made to help the blind, I am certain that the committee would respond. However, on the face of it, the clubs must make these provisions in anticipation of a future member requiring such changes. If they do not, presumably they will be in breach of the regulations, but is it realistic to expect that they will be visited, checked or audited by a body that will pick that up? I should be grateful if the Minister said a little more about enforcement and advertising. Given the ignorance of the 1995 and 2005 Acts, it is a little disturbing that we are going ahead with more regulations when many people are ignorant of a law that has been in force for 10 years.

My final point, which flows from that, is on the complexity of the regulations. They are not unduly opaque, but lay people have difficulty with parliamentary drafting and the jargon which it inevitably uses from to time. Do the Government intend to consolidate all the regulations into a single equality Act to make the legislation simpler and clearer, which will make it easier for people on the ground to understand what they should comply with? Ignorance of the law is no excuse and people must comply with regulations,
 
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however complex, but it will be easier for people who are not legally trained and have only an incidental acquaintance with parliamentary publications if there is a single, simple document which they can read, be familiar with and comply with.

2.52 pm

Danny Alexander (Inverness, Nairn, Badenoch and Strathspey) (LD): I start by congratulating the Minister on and thanking her for her customarily clear and detailed exposition, with which I have become familiar during my short time here.

I welcome and support the draft regulations and their objectives for private clubs. As the right hon. Member for Wells (Mr. Heathcoat-Amory) said, the 2005 Act had strong support from all parties, including the Liberal Democrats, and the regulations will in large measure put into practice some of the provisions of that Act.

I support the right hon. Gentleman’s point about the overall complexity of equality legislation. The regulations are necessary, but highlight the fact that the corpus of discrimination and equality legislation is becoming more and more complicated. I know that the Government wish to introduce a single equality Act to simplify the laws on equality and to put them on a similar footing. I hope that that will be introduced promptly when the legislation to create the commission for equality and human rights is enacted. I would welcome anything that the Minister can say about the timing of that legislation and about simplicity.

Regulation 3 covers

“Circumstances in which mental incapacity justification does not apply”.

I should be grateful to hear from the Minister whether the regulations include or apply to people who are making use of the independent advocacy services that are becoming more common in all our constituencies. Those services often provide a great deal of support and help to people with mental health problems. It would be appropriate if the regulation were to apply to such people.

I welcome the anticipatory nature of the duty to make reasonable adjustments because that will encourage clubs to be proactive and not to wait for a challenge to be made. Regulation 6, which applies to people who are already are club members, is clear and comprehensive. I would, however, like to hear more about regulation 8, which deals with persons who might wish to become members of a club. Unlike regulation 6, it does not cover the physical features of club premises. I would welcome reassurance from the Minister that the anticipatory duty under regulation 6 will serve to ensure that clubs make adjustments to their physical features. We do not want a situation in which the regulations do not require a club that has no disabled members to make adjustments to physical features that act as a barrier to people with disabilities becoming members of the club. The regulations must apply equally to people who wish to become members of clubs.

I am keen to hear more about how the Government intend to ensure that the regulations will be implemented and how sufficient information will be provided to clubs to ensure that they understand the obligations that the regulations place on them. What
 
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information will be made available to clubs? How will it be made available? For example, will it be made available through voluntary organisations, MPs, community groups or local councils? As the right hon. Member for Wells clearly stated, it is important that clubs understand their new duties. It would be useful to know whether there are any plans to ensure that clubs have access to advice or support in respect of funding that might be available in different localities for the reasonable adjustments that they may be required to make. The RIA estimates the expected cost to clubs of implementing the regulations to be between £5 million and £6 million. In that context, any information about funding that might be available in different parts of the country to assist clubs in making the adjustments would be gratefully received.

On making use of the voluntary sector to ensure that the regulations are implemented, one organisation that could be a valuable source of information for clubs is Assist UK, which used to be the Disabled Living Centres Council. In that context, I was disappointed that changes to section 64 funding have meant that that organisation has lost some funding and may be less able to provide such services.

I would also be interested to hear more about the somewhat ambiguous result of the consultation on the RIA itself. In response to the question, “Do you agree with the regulatory impact proposals?” 28 per cent. agreed and 72 per cent. expressed a broad range of other views. There seems to be some uncertainty among those consulted about the likely impact of the regulations. What steps will the Department take to monitor the impact of the regulations on clubs and to ensure that unnecessary expense is not caused by the provision of poor information or misinformation from third parties, which could lead clubs to believe that they have additional duties that, in fact, they do not?

Subject to answers to those questions, the regulations are broadly welcome. As the Minister said, they will improve the lives of and opportunities for disabled people. I look forward to the Minister’s response.

2.59 pm

Mr. Brian Jenkins (Tamworth) (Lab): I welcome the regulations but wish to ask the Minister one question for clarification. She will be aware that not all clubs have modern buildings. A club in my constituency is in a listed building and other Members must have in their constituency clubs in listed and heritage buildings. Such clubs may get a costing that they think is reasonable, but by the time they have finished negotiating with the local authority or English Heritage, they may feel that the costing has been gold-plated. If a club does not have the funds to make the adjustment but is willing to do so to in a way that meets the requirements, is there any way that the Government can help? Could the Government find funding to give clubs interest-free loans while they undertake that work, or could clubs seek local authority grants? Although local authorities come up with some money, it often does not cover the full cost. The clubs that require extra funding should feel that there is some support while they implement the regulations. If the Minister can clarify that, I should be grateful.

 
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Mrs. McGuire: I thank members of the Committee for the useful and interesting debate that we have had about these important regulations. The extension of the scope of part III of the Disability Discrimination Act 1995 to cover larger private clubs means that the 1995 Act will protect disabled people from disability discrimination in relation to a range of the goods, services and facilities that they use. I hope that my answers to Members who raised issues are satisfactory and that they will support the regulations. Some points were made by both the right hon. Member for Wells and the hon. Member for Inverness, Nairn, Badenoch and Strathspey (Danny Alexander)—we need to get a shorter title for the hon. Gentleman.

I shall deal first with the reasonable test. I understand the right hon. Gentleman’s point, but I hope that we can keep our minds focused on practical issues. We are placing with the same weight on private clubs the duties that we place on other providers of goods, services and facilities because we consider that that is the right and practical way to proceed. In all honesty, many private clubs are already familiar with those duties because they offer goods, services and facilities such as room hire to the public. It would be confusing to them if they had two sets of duties: one for the element of their business that relates to private hire and the other arising from the regulations before us today.

I am happy to confirm to both Opposition spokesmen that the anticipatory duty in the regulations means that clubs will have to consider reasonable adjustments to physical features not only for current members, associates and guests but for disabled people who become members, associates or guests. Reasonable adjustments made to physical features should, in practice, be available to prospective members and guests where the club allows them access to the premises.

The right hon. Gentleman asked about the regulatory impact assessment. We consulted on the cost of the use of the regulation-making powers for private clubs. We asked specifically about the costs of training, but we did not receive much helpful information.

On the point made by my hon. Friend the Member for Tamworth (Mr. Jenkins) it is important to note that clubs will have to do only what is reasonable in all circumstances. There will be cases in which it is impossible to make adjustments, perhaps because of the physical features or the historical nature of buildings. However, architects, local authorities and so on are becoming increasingly skilful at adapting buildings to suit physical accessibility.

The other issue, which relates to the comment made by the right hon. Member for Wells, is that not all adjustments need to be physical renovations or refurbishments of a building. He mentioned the older members of some of the Conservative clubs in his area. I am sure that many of us have clubs—perhaps not of such distinction as Conservative clubs—that have older members. Adjustments such as providing menus in a larger typeface are not a great imposition, nor is seeking ways in which a club can identify services to people who have a hearing impairment as many older people do, for example, by having notebooks and pencils available. We must start to think creatively and
 
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laterally. We always seem to consider disability access in terms of physical access to buildings. We need to broaden our horizons and deal with the reality of disability, rather than think exclusively about mobility.

Both Opposition spokesmen highlighted the apparent complexity of equality and disability law. The Government fully understand those concerns, which have been raised by the DRC. The terms of reference of the discrimination law review include

“consideration of the opportunities for creating a simpler, fairer and more streamlined legislative framework in a Single Equality Act. Any proposals will have to have due regard to better regulation principles and take into account the need to minimise bureaucratic burdens on businesses and public services. A key priority will be seeking to achieve greater consistency in the protection afforded to different groups while taking into account evidence that different legal approaches may also be appropriate for different groups.”

We are considering how to consolidate the law on discrimination. The discrimination law review has been specifically charged with so doing.

The right hon. Member for Wells made the important point that there was no point in us sitting here on a Thursday afternoon at three o’clock but not ensuring that the regulations passed are communicated to those that they will impact on. I have already acknowledged the importance of communication, having communicated through the newsletter of the Clubs and Institutes Union in August this year and with members of the Committee of Registered Clubs Associations representing some 5,500 private clubs, which have been offered the same article. In addition, the DRC revised code of practice on part III of the DDA will include material to give private clubs practical guidance on their new duties, which leads back to the comments made by my hon. Friend the Member for Tamworth. Once laid before Parliament, the code will be published later next year in good time for December 2006.

On checking and enforcement, we are in touch with many of the intermediary and umbrella organisations that represent social clubs. They are becoming increasingly aware of the new duties, partly because
 
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many of them have already taken them into account through that part of their business that includes hiring out. We are also considering an awareness campaign for the small and medium-sized enterprise sector, as we have done in respect of previous changes in the law.

The right hon. Gentleman mentioned guarantees. Regulation 4 does not exempt clubs from their duties under the DDA. The regulation provides an additional justification for less favourable treatment by a club, but only in relation to additional damage caused to goods as a result of a person’s disability and only where reasonable to do so. The word “reasonable” is threaded all the way through the legislation.

The hon. Member for Inverness, Nairn, Badenoch and Strathspey mentioned the consultation responses. I agree that the responses to the RIA leave some uncertainty, but the costs are only illustrative, not prescriptive. In practice, clubs will decide on adjustments at an individual level. The DRC will, I hope, be effective in offering guidance and support.

Finally, I will pick up on a point made both by the hon. Gentleman and by my hon. Friend the Member for Tamworth. Attractive though the offer was for the Government to make available interest-free loans—my hon. Friend was not so specific, but he highlighted funding—the costs should be borne by the service provider. That is the position under the DDA and will be the position under the regulations.

Many clubs making reasonable adjustments and finding ways to open up access will find the same thing that businesses have found in the past few years. There is a significant market out there—disabled people have significant spending power. Many people become disabled through their working lives and they continue to work. They still want the opportunities of joining clubs or accessing goods and facilities. Clubs will find that the life of their club community will be enriched by finding ways to extend their goods, services and facilities.

Question put and agreed to.

Resolved,

That the Committee has considered the draft Disability Discrimination (Private Clubs etc.) Regulations 2005.

Committee rose at twelve minutes past Three o’clock.

 

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Prepared 11 November 2005