DDB 91 Sir Peter Large
Submission by Sir Peter Large CBE to the Joint
Committee on the Draft Disability Discrimination
Bill
DRAFT DISABILITY DISCRIMINATION BILL -
SUGGESTIONS FOR CHANGES
I Introduction
1.1 In 1977, Lord Morris, then
serving as Minister for Disabled People in the House of Commons,
asked me to chair the Silver Jubilee Access Committee which he
established to campaign for improved access for disabled people
during the Silver Jubilee celebrations. Its report, "Can
Disabled People Go Where You Go?", published in 1979, noted
Worrying instances of discrimination against disabled people and
recommended further investigations.
1.2 Accordingly, Lord Morris asked me to chair a
successor committee, the Committee on Restrictions Against Disabled
People (CORAD) "to consider the architectural and social
barriers which may result in discrimination against disabled people
and prevent them from making full use of facilities available
to the general public; and to make recommendations."
1.3 CORAD reported in February 1982. It recommended
anti-discrimination legislation covering employment, education,
the provision of goods, facilities and services, insurance, transport,
property rights, occupational pension schemes, membership of associations
and clubs, and civic duties and functions. CORAD also recommended
a regulatory body or Commission with powers to investigate, conciliate
and if necessary take legal action on individual complaints.
1.4 It is therefore satisfying to note that many
of CORAD's recommendations are featured in the Disability Discrimination
Act 1995 (DDA), the DDA 1995 (Amendment) Regulations 2003, the
DDA 1995 (Pensions) Regulations 2003, the Disability Rights Commission
(DRC) Act 1999 and the Special Educational Needs and Disability
Act 2001. When coupled with this draft Disability Discrimination
Bill all these measures go a long way towards implementing CORAD's
recommendations and in one or two areas, even goes beyond them.
1.5 Many disabled people will therefore join me in
warmly welcoming the current draft Disability Discrimination Bill.
1.6 However, as might be expected, some issues appear
me to remain to be tackled or are inadequately covered. These
issues are examined in the following paragraphs. A summary of
these issues is given in section 10 below.
2 Clause 3 - Accessible
transport
2.1 Clause 3 is welcome in ensuring that the blanket
exclusion, from Part Ill of the DDA, of providers of any service
so far as it consists of the use of any means of transport, applies
only to the provision or non-provision or suitability or unsuitability
of the transport vehicles themselves.
2.2 Clause 3 is also welcome in enabling various
types of vehicle to be brought under the full provisions of Part
Ill of the DDA at various times in various degrees.
2.3 However, end dates of January 2012 and 2025,
when, respectively, all taxis and all rail vehicles are to be
accessible, leave a very great deal to be desired considering
that anti-discrimination legislation was first broached by CORAD
in 1982 and that the DDA was brought in in 1995.
2.4 Unfortunately, Clause 3 will have no effect on
various unnecessary acts of discrimination on aircraft and ferries
even when the services are confined to the UK. I believe these
various acts could be made illegal on internal, UK services alone
without adversely affecting our services' international competitiveness.
The Bill should include the power to effect this through regulations.
3 Clause 4 - Access
to the outdoor environment
3.1 Pedestrianisation schemes that do not take account
of the limited mobility range of disabled people from a car, bus
or train, seriously limit where disabled people can go. This limitation
is steadily growing. Unfortunately, car-free housing estates now
threaten to limit where some disabled people can live and further
limitations threaten with the possibility of congestion charging
that, without the exemptions of London's scheme, could seriously
disadvantaging disabled people who depend on cars to travel beyond
the confines of their homes. Disabled people are also currently
sometimes barred access to nature trails and cycle routes.
3.2 It has never been clear whether any of these
issues, or anything else to do with highways, pavements or footpaths,
are covered by virtue of sections 19-21 of the DDA. If they are
not, it is absolutely essential to ensure that all are covered
by Clause 4 of the draft Bill. Assurances that they are would
be welcome.
3.3 However, even if they are fully covered by Clause
4, because some issues associated with some of them can also be
covered by sections 19-21 of the DDA, it would be appropriate
to ensure that the threshold requiring reasonable adjustments
should be the same in all cases. The Notes to the Bill assert
that the threshold "very much less favourable" to a
disabled person is intended to be comparable with that in section
21(1) in the DDA: "impossible or unreasonably difficult"
for a disabled person to make use of a service. If that is so,
one could ask why the wording in the two cases is not identical.
3.4 The DRC make the same observation but go further
by drawing attention to the Special Educational Needs and Disability
Act 2001 and the employment sections of the DDA where the wording
used is "substantial disadvantage". As lawyers are likely
to give markedly different interpretations to different wording,
I would strongly support the DRC's proposal to amend section 21
of the DDA and Clause 4 to refer to "substantial disadvantage''.
4 Further changes to Clause 4
4.1 On CORAD it was our hope that new legislation
and action by public bodies would be subject to scrutiny to ensure
that, wherever possible, unnecessary discrimination against disabled
people would be avoided. Some parts of Part Ill of the DDA do
go some way towards this objective and Clauses 4 and 8 make further
welcome progress towards it.
4.2 Unfortunately, however, in addition to the shortcomings
noted in section 3 above, there are two further unsatisfactory
features in Clause 4 (and by association, one also in Clause 8)
that mitigate against this. In my view, changes are necessary
if progress towards CORAD'S objective is not to be unduly frustrated.
4.2.1 In section 21B, subsection (4), it is stated
that: "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." I
fear that there may sometimes be confusion about whether an act
is private or public. Moreover, it may be that some private acts
of public bodies should be subject to anti-discrimination legislation.
The two examples given in the Explanatory Notes (the BBC and the
Law Society in Clause 8) do not convince me of the need to exclude
private acts.
4.2.1 .1 Accordingly, unless very good reasons are
advanced to the contrary, I would delete, from both Clause 4 and
Clause 8, the proviso that a body will not be a public authority
if the nature of the act it is carrying out is private.
4.2.2 Second and more importantly, I fear that the
wording in section 21 D, subsection (5) ("Treatment or an
outcome is justified under this subsection if the acts of the
public authority which give rise to the treatment or outcome are
a proportionate means of achieving a legitimate aim.") will
virtually nullify the intentions of Clause 4. Because disabled
people are never in the majority, the use of the word "proportionate"
will mean that virtually any action could be justified.
4.2.2.1 In order to avoid nullifying the potential
benefits of Clauses 4, subsection (5) should be deleted.
4.2.3 Third, I strongly support the DRC's assertion
that the wording of the reasonable adjustments duty should be
amended so that it is framed as an anticipatory duty owed to disabled
people. Service providers are already under such a duty in Part
3 of the DDA and no public authority should be allowed to wait
until a disabled person experiences barriers before they consider
making reasonable adjustments. The legislative framework should
require them to think in advance about the accessibility of their
functions to disabled people and to continually be reviewing and
improving the situation. It is well known that making systems
accessible from the start is far cheaper than adapting them later.
Moreover failure to anticipate the need for adjustments unfairly
places the onus for progress on individual disabled people who
may fail to gain any benefit.
4.2.4 Finally it is noted that the proposed section
21 D(3) allows less favourable treatment to be justified where,
in the reasonable opinion of the public authority, one or more
of four specified - and
somewhat controversial - conditions
apply. I agree with the DRC who question the appropriateness of
such a justification of discrimination, particularly when it
is the so-called reasonable opinion of the
perpetrator of the treatment. This subjective' standard appears
to be especially inappropriate in the carrying out of public functions:
disabled people need to have confidence that when a public authority
treats them less favourably, it is for an objectively legitimate
reason.
4.2.4.1 The "reasonable opinion" subjective
justification should be deleted.
5 Enforcement
5.1 The adequacy of the enforcement procedures has
been questioned by the DRC despite their satisfaction with being
given authority to prepare Codes of Practice for the new public
sector duty and their happiness with the new powers given them
to
enforce specific duties upon public authorities.
5.2 The DRC and others such as SCOPE and RNIB, however,
do not believe that enforcement through the county courts (in
England and Wales) and sheriff courts (in Scotland) of the new
rights of access to premises, transport, private clubs and the
new provisions on public functions will be effective. Citing research
by the DfEE, Income Data Services, and their own, they assert
that experience of enforcing rights of access to goods and services
shows that the courts do not provide an effective, readily accessible
forum for enforcing disabled people's rights.
5.3 I agree with this view and would join all those
who argue that enforcement of the new rights of access to premises,
transport, private clubs and new provisions on public functions
should be through the tribunal system rather than through county
or sheriff courts.
5.4 In addition, as an individual disabled person
is so relatively powerless when confronting any public authority,
it would be useful if, in any circumstance, the DRC were empowered
to take up any case against a public body on behalf of a disabled
individual.
6 Further powers for tribunals
6.1 The DRC noted that in unfair dismissal cases,
employment tribunals can order re-instatement or re-engagement,
whereas in discrimination cases they can only recommend this.
Although this is seldom satisfactorily arranged, I agree with
this proposal to enhance the powers of tribunals to allow them
to do this in cases of discrimination.
6.2 I also agree with the DRC's proposal that tribunals
should have the power to recommend to employers changes to their
practices, when a case brought by an individual reveals clear
shortcomings. This could help to ensure that employers avoid discrimination
in future. The DRC explain that some tribunals do make informal
recommendations to employers with this in mind, but point out
that they have no formal power to do so, nor to enforce any recommendations.
The Task Force proposed that where such a general recommendation
for future action had been made, the DRC should have a role in
enforcing it. This seems to me to be an excellent way of making
progress on this issue.
7 Additional measure associated with employment discrimination
7.1 Substantial evidence exists to support the contention
that many employers reject job applicants who disclose their disability
at the application stage and before they have the chance to demonstrate
their suitability for jobs at an interview. I therefore heartily
agree with the DRC's recommendation that, except in very limited
circumstances, the full Bill makes it unlawful to make disability-related
enquiries before a job is offered.
7.2 These limited circumstances (as set down by the
DRC) are:
7.2.1 when inviting someone for interview or to take
a selection test - employers
could ask if someone had a disability that might require reasonable
adjustments to the selection process; and
7.2.2 when interviewing, employers would be allowed
to ask job-related questions, including if someone had a disability
that might mean a reasonable adjustment would be required.
8 Definition of disability
8.1 The extension of the definition to cover more
people with HIV, cancer or multiple sclerosis, so that more disabled
people would benefit from the Act's protection is very welcome.
8.2 However, I know that a significant number of
people with mental health problems are currently not covered by
the Act but who are in need of being protected by it as disabled
people. Moreover, I am aware that people who have recovered from
mental health problems are also discriminated against and I believe
that these too should be covered by the Act.
8.3 As there are many people who are far more expert
than I am on this subject, I will leave it to others to suggest
how best this gap might be filled.
9 Coverage
9.1 There are a number of positions and bodies that
are also not covered by the Act and for whose inclusion the DRC
argue cogently. Two groups that I think are particularly important
because of their gatekeeping roles are examining bodies and standard
setting agencies. Members of both groups should all be subject
to the Act.
9.2 Others include volunteers, political office-holders,
school (parent) governors, governors of further and higher education
institutions and lay magistrates, who are neither employees nor
"statutory officeholders", as defined by the ODA.
10 Summary
10.1 Clause 3 should be expanded to allow regulations
to ban discrimination on aircraft and ferries on internal UK services.
10.2 It should be ensured that discrimination in
respect of access to town centres, car parks, roads, pavements,
footpaths, nature trails and cycle routes is covered by sections
19-21 of the DDA in conjunction with Clause 4.
10.3 Section 21 of the DDA and Clause 4 should be
amended to refer to "substantial disadvantage".
10.4 Unless very good reasons are advanced to the
contrary, the proviso that a body will not be deemed a public
authority if the nature of an act it is carrying is private should
be deleted from both Clause 4 and Clause 8.
10.5 In order to avoid nullifying the potential benefits
of Clause 4, subsection 21 D(5) ("Treatment or an outcome
is justified under this subsection if the acts of the public authority
which give rise to the treatment or outcome are a proportionate
means of achieving a legitimate aim.") should be deleted.
10.6 The wording of the reasonable adjustments duty
in Clause 4 should be amended so that it is framed as an anticipatory
duty owed to disabled people.
10.7 Clause 4, in Section 21D(3) allows less favourable
treatment to be justified where, in the reasonable opinion of
the public authority, one or more of four specified conditions
applies. This "reasonable opinion" justification of
discrimination should be deleted.
10.8 Enforcement of the new rights of access to premises,
transport, private clubs and new provisions on public functions
should be through the tribunal system rather than through county
or sheriff courts.
10.9 The DRC should be empowered in any circumstance
to take up any case against a public body on behalf of a disabled
individual.
10.10 Tribunals should be empowered to order re-instatement
or re-engagement in discrimination cases.
10.11 Tribunals should also be empowered to recommend
to employers changes to their practices when a case brought by
an individual reveals clear shortcomings. The DRC could usefully
be involved in enforcing any such recommendation.
10.12 Except in very limited circumstances, it should
be made unlawful to make disability-related enquiries before a
job is offered.
10.13 The definition of disability needs to be expanded
to cover people with mental health problems who are not currently
covered by the Act but who are in need of being protected by it
as disabled people.
10.14 Examining bodies and standard setting agencies
should be covered by the Act because of the gatekeeping roles
of these bodies.
10.15 The Act should also cover volunteers, political
office-holders, school (parent) governors, governors of further
and higher education institutions and lay magistrates, who are
neither employees nor "statutory officeholders", as
defined by the DDA.
11 Conclusions
11.1 If the Bill incorporates the changes recommended
above, the Act as amended will have made excellent progress towards
implementing the anti-discrimination measures first voiced by
CORAD.
11.2 For this to be achieved, however, great care
needs to be taken in the redrafting of Clauses 4 and 8.
Sir Peter Large CBE FRSA
28 February 2004
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