DDB 30 Delegated Powers Memorandum
DRAFT DISABILITY DISCRIMINATION
BILL
Memorandum on delegated
powers by the Department for Work and Pensions and (in relation
to clause 3) the Department for Transport
INTRODUCTION
1. This memorandum identifies provisions
for delegated legislation in the draft Disability Discrimination
Bill (published on 3 December 2003). It summarises the main provisions
of the Bill; identifies the delegated powers in the Bill and describes
the purpose and proposed use of those powers; explains why the
matters have been left to delegated legislation; and explains
the degree of Parliamentary control provided for and reasons for
the procedure selected in each case.
MAIN PROVISIONS OF THE BILL
2. The draft Disability Discrimination
Bill (which extends only to Great Britain) contains 14 clauses
and 1 Schedule. Its main provisions are as follows:
- Clause 1:
amends section 16B of the Disability Discrimination Act 1995 ("DDA")
on discriminatory advertisements (as inserted by the Disability
Discrimination Act (Amendment) Regulations 2003), so as to cover
a third party who publishes a discriminatory advertisement (for
example, a newspaper) as well as the person placing the advertisement;
- Clause 2:
amends the DDA so as to make it clear that discrimination by an
insurer in relation to group insurance provided to the employees
of a particular employer is covered by sections 19 to 21 of the
Act (which deal with the provision of goods, facilities and services
to the public);
- Clause 3:
clarifies that the current exemption from sections 19 to 21 for
transport services extends only to transport vehicles themselves,
and creates a power to enable that exemption to be lifted for
different vehicles at different times;
- Clause 4:
ensures 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;
- Clause 5:
brings within the scope of Part 3 of the DDA private clubs with
25 or more members;
- Clause 6:
extends aspects of the duty to provide reasonable adjustments
to landlords and others who manage rented premises;
- Clause 7:
confers a power to rationalise the current small dwellings exemption
in section 23 of the DDA;
- Clause 8:
requires public authorities, when exercising their functions,
to have regard to the need to eliminate unlawful discrimination
against and harassment of disabled persons, and to promote equality
of opportunity for such persons;
- Clause 9:
makes consequential changes to section 53A of the DDA, so as to
enable the Disability Rights Commission ("DRC") to issue
codes of practice in relation to the new public authority duties
introduced by clause 8;
- Clause 10:
extends section 56 of the DDA so as to provide a questionnaire
procedure not only for claims under Part 2, but also claims under
Part 3 of the Act;
- Clause 11:
extends section 64A of the DDA so as to make a chief officer of
police vicariously liable for acts of discrimination committed
by police officers in the course of their employment where these
are unlawful under Part 3 of the Act;
- Clause 12:
deems people with HIV infection, multiple sclerosis, or cancer
to be disabled for the purposes of the DDA;
- Clauses 13 and 14:
deal with minor and consequential amendments, the short title,
extent and commencement.
- The Schedule contains minor
and consequential amendments to the DDA.
3. The Explanatory Notes which accompany
the draft Bill set out in greater detail the background to, and
purpose behind, each of the above provisions.
DELEGATED POWERS
4. A table at the back of this document
lists all of the clauses containing delegated powers in the draft
Disability Discrimination Bill and the relevant parliamentary
procedure governing each power. These procedures are set out in
section 67 of the DDA, as amended by paragraph 17 of the Schedule
to the draft Bill.
CLAUSE BY CLAUSE SUMMARY
5. Clauses 1 (discriminatory
advertisements) and 2 (group insurance) contain no delegated
powers.
Clause 3: Application of sections
19-21 of the 1995 Act to transport vehicles
6. The effect of paragraph 5(3) of
the Schedule to this Bill is to remove the current exemption for
transport services from Part 3 of the DDA. Clause 3 then adds
a new section 21ZA to Part 3, which introduces a revised exemption
to apply to transport vehicles, rather than transport services.
Section 21ZA(3) contains a regulation-making power, which
will enable the Secretary of State to lift that exemption for
particular transport vehicles at different times. It is proposed
that this power will initially be used to lift the exemption in
respect of public transport vehicles, such as rail vehicles, buses
and coaches and taxis. It will also be used to lift the exemption
for transport vehicles which are used in the provision of leisure
and tourism services and to ensure that car hire vehicles and
car breakdown services are also brought within the scope of Part
3.
7. The application of Part 3 to transport
vehicles is complex, and the requirements in respect of one type
of transport vehicle do not necessarily apply to others. Furthermore,
some transport sectors, such as aviation, are currently subject
to voluntary codes, and the Part 3 provisions will only be applied
to these sectors should the codes prove to be unsuccessful. The
provision of a regulation-making power enables a balance to be
struck between applying appropriate provisions from Part 3 to
particular transport vehicles, whilst not imposing unreasonable
requirements on providers, which could not be achieved with a
provision on the face of the Bill.
8. The new section is drafted in such
a way as to enable a flexible application of the Part 3 provisions
to transport vehicles. For example, it is not the Government's
policy that the requirements in section 21(2) (physical features)
should be applied to most transport vehicles, particularly those
vehicles which are already subject to specific technical requirements
by virtue of regulations made under Part 5 of the DDA. However,
there might be a need to apply these provisions to certain types
of vehicle, for example car hire vehicles. The regulation-making
power provides sufficient flexibility to allow for such selective
application of the appropriate provisions, which could not be
achieved in primary legislation. Furthermore, because vehicle
technology is advancing so quickly, it is not possible to predict
now what vehicles might need to be covered by these provisions
in years to come, and this power will therefore allow regulations
to be made in the future to apply the appropriate provisions to
new types of vehicles.
9. The
regulation-making power in new section 21ZA(3) is subject to the
negative resolution procedure. The regulations will be a means
of implementing policy which has already been set out in consultation.
It is the intention of the Department for Transport to issue draft
regulations so that there will be an opportunity for debate on
the proposed application of the power during the passage of the
Bill. The regulations will also be subject to full consultation
before being made. Other regulation-making powers in Part 5 of
the DDA, which relate to transport vehicles, are also subject
to the negative resolution procedure.
Clause 4: Discrimination by public
authorities
10. Clause 4 inserts new sections 21B
to 21D into the DDA. New section 21B prohibits public authorities
from discriminating against disabled people in the exercise of
their functions. The broad aim behind the clause is to mirror
the provisions of section 19B of the Race Relations Act 1976 ("the
1976 Act"), as inserted by section 1 of the Race Relations
Amendment Act 2000, which prohibit public authorities from discriminating
contrary to the 1976 Act in the exercise of their functions. Clause
4 inserts six new delegated powers into the DDA.
11. New section 21B(5) gives
the Secretary of State a power to exclude, by regulations, bodies
from being treated as public authorities for the purposes of new
section 21B(1). This would allow the Secretary of State to add
to the list of bodies excluded in new section 21B(3). The aim
is to allow the Government some degree of flexibility as regards
stipulating the bodies to be covered by the prohibition in new
section 21B(1). This is thought to be necessary in view of the
wide definition of "public authority" in new section
21B(2), which mirrors the definition of "public authority"
in section 6(3) of the Human Rights Act 1998. The power could
be used to clarify that a body is not covered or to exclude a
body where a court judgment had suggested that it may be covered
(and where it was not thought appropriate, for policy reasons,
for the body in fact to be subject to the duty). Exceptionally,
the power could be used to exclude a body, or category of bodies,
where policy reasons indicated that it should not be covered by
section 21B(5).
12. The regulation-making power is
subject to the negative resolution procedure. The negative procedure
will allow any changes to be made rapidly and is considered to
provide sufficient parliamentary scrutiny in the circumstances.
13. New section 21C excludes particular
acts of public authorities from the provisions of new section
21B. New section 21C(6) gives the Secretary of State the
power to exclude additional acts by regulation. This is thought
necessary given the wide definition of "public authority"
in section 21B(2), and would be used when it was thought inappropriate
for a particular activity of a public authority to be covered
by these provisions, but that the other activities of that authority
should be covered. It is, therefore, broadly analogous to the
power in new section 21B(5).
14. The regulation-making power is
subject to the negative resolution procedure which will allow
any changes to be made rapidly and is considered to provide sufficient
parliamentary scrutiny in the circumstances.
15. New sections 21D(1) and (2) set
out the meaning of discrimination in new section 21B(1). Discrimination
within the meaning of new section 21D(2) occurs where:
- The outcome of the exercise of
a function is very much less favourable for a disabled person
for reason related to his disability;
- The public authority could have
prevented that outcome - and it would have been reasonable in
all the circumstances of the case (having regard, in particular,
to costs and resources) for it to have done so - by exercising
its function in a different way (such as by visiting the client
at home instead of requiring him to attend a Government office),
or supplementing it with another act (such as the provision of
a BSL interpreter or altering the layout of its offices); and
- There is no justification under
new section 21D(3) to (5).
16. The delegated power in new section
21D(6)(a) allows the Secretary of State to set down in regulations
circumstances in which it would always be reasonable, or indeed,
never be reasonable, for a public authority to exercise its function
in a different way, or supplement it with an additional act.
The purpose of this power is to enable the Secretary of State
to set down more detailed rules in relation to particular recurring
complaints of discrimination. The power mirrors the existing
powers in section 21(5)(a) and (b) of the DDA, which apply in
the case of service-providers. The power in section 21(5)(b)
was, for example, used to set down the rule that it would not
be reasonable for tenant service providers to make physical adjustments
to the premises they occupied where they had not obtained the
landlord's consent.
17. The matter has been left to delegated
legislation as the power allows specific, tailored provisions
to be made in relation to particular patterns of complaints that
may arise once new section 21B(1) comes into force.
18. The procedure for the power in
new section 21D(6)(a) is the negative resolution procedure. This
is considered to provide sufficient parliamentary scrutiny for
the type of power at issue. It also mirrors the procedure for
the parallel powers in the case of service providers in section
21(5)(a) and (b) of the DDA.
19. The third element of a discrimination
complaint (as set out above) is that the public authority is given
the possibility to justify its less favourable treatment of a
disabled person or the less favourable outcome for a disabled
person by reference to the conditions set out in new section 21D(4):
for example, where a risk to health and safety of the disabled
person has caused less favourable treatment. In order for a public
authority to succeed in showing its action or the outcome of its
action to be justified, it must satisfy the two limbs of new section
21D(3): first, it has to show that it held the opinion that one
of the conditions in new section 21D(4) (for example, a risk to
health and safety) is satisfied (the "subjective limb")
and; secondly, that it was reasonable in all the circumstances
of the case for it to hold that opinion (the "objective limb").
20. The delegated power in new section
21D(6)(b) allows the Secretary of State to make regulations
as regards the objective limb of justification and to set out
circumstances in which it is always, or indeed never, reasonable
for a public authority to believe that one of the conditions of
justification in new section 21D(4) has been made out. The purpose
of this power is to enable the Secretary of State to set down
more detailed rules in relation to particular recurring complaints
of discrimination. He could use the power, for example, to stipulate
that it would never be reasonable to believe that the costs of
delivering a function in a different way would be too great where
the cost was less than a specified amount. The power mirrors
the existing powers in section 20(6)(a) and (b) of the DDA, which
apply in the case of service providers.
21. The matter has been left to delegated
legislation as the power allows specific, tailored provisions
to be made in relation to defending certain types of complaint.
The need for such provisions will become apparent once new section
21B(1) comes into force.
22. The procedure for the power in
new section 21D(6)(b) is the negative resolution procedure. This
is considered to provide sufficient parliamentary scrutiny in
the circumstances and mirrors the procedure for the existing parallel
powers in the case of service providers in section 20(6)(a) and
(b) of the DDA.
23. New section 21D(7)(a) gives
the Secretary of State the power to amend or omit one of the conditions
of justification set out in new section 21D(4). The power also
allows the Secretary of State to provide that a condition of justification
set out in new section 21D(4) should not apply in certain circumstances.
The purpose of the power is to allow the Secretary of State flexibility
to modify the justifications, if it transpires that in practice
they either give too much, or too little, protection to the rights
of disabled people.
24. The matter has been left to delegated
legislation as the power is intended to deal with unforeseen consequences
arising from extending the DDA to cover discrimination occurring
in the exercise of public functions. In general, the policy intention
is to place equivalent duties on public bodies when they are exercising
functions of a public nature to those they are under when delivering
services. However, the wide variety of functions that are exercised
by the bodies covered by these new provisions, and the different
actions involved in exercising functions, rather than providing
services, has required a different drafting approach that may
not prove to behave exactly as intended.
25. The procedure for the power in
new section 21D(7)(a) is the negative resolution procedure which
is considered to provide sufficient parliamentary scrutiny in
the circumstances. The power is designed to allow the Secretary
of State to optimise consistency with Part 3 of the Act, whilst
at the same time enabling sufficient account to be taken account
of any differences which may arise in practice in relation to
public authorities.
26. New section 21D(5) contains an
additional and free-standing ground of justification for discriminatory
treatment by a public authority, or a discriminatory outcome resulting
from the exercise of its functions. In this case, the public
authority can justify the treatment or outcome if it shows it
is a proportionate means of achieving a legitimate aim. New
section 21D(7)(b) gives the Secretary of State the power to
amend or omit new section 21D(5), or provide for it not to apply
in certain circumstances, by means of regulations. The purpose
of the power is to allow the Secretary of State to adapt the justification,
or indeed remove it, if it transpires that in practice it gives
too much, or too little, protection to the rights of disabled
people.
27. Where the power in section 21D(7)(b)
is exercised to remove the justification in section 21D(5), there
is a power (see the new section 67(3A) to be inserted by paragraph
17(2) of the Schedule to the draft Bill) to make consequential
amendments to section 21D to omit the references to section 21D(3).
28. The procedure for the power in
new section 21D(7)(b) is the negative resolution procedure, in
order to allow the Secretary of State sufficient flexibility to
tailor the justifications to suit the circumstances of public
authorities. This is considered to provide sufficient parliamentary
scrutiny for the same reasons set out in relation to the power
in new section 21D(7)(a) in paragraph 25 above.
29. The delegated power in new section
21D(7)(c) allows the Secretary of State to make regulations
to add additional grounds of justification for treatment or an
outcome that would otherwise amount to discrimination against
a disabled person. The purpose of the power is to allow the Secretary
of State flexibility to deal with unforeseen consequences arising
from extending the DDA to cover discrimination occurring in the
exercise of public functions. This means that, where there are
good policy reasons to do so, a new ground could be created to
justify the exercise of a public function in a particular way.
30. The power mirrors the existing
power in relation to justifications for discrimination by service-providers
in section 20(8) DDA.
31. The matter has been left to delegated
legislation, as the power is intended to deal with unforeseen
consequences arising from extending the DDA to cover discrimination
occurring in the exercise of public functions.
32. The procedure for the power in
new section 21D(7)(c) is the negative resolution procedure. This
is considered to provide sufficient parliamentary scrutiny in
the circumstances, as it is intended to give the Secretary of
State the same flexibility as in relation to the powers set out
in new sections 21D(7)(a) and (b) (see paragraph 25 above) and
mirrors the procedure for the parallel power in the case of service
providers in section 20(8) DDA.
Clause 5: Private clubs
33. This clause inserts new sections
21E to 21H into Part 3 of the DDA and will make it unlawful for
associations with 25 or more members to discriminate against disabled
members, prospective members or associates in certain circumstances.
(The new sections are modelled on the provisions of section 25
of the Race Relations Act 1976.)
34. New section 21E(2) and (3) set
out the circumstances in which discrimination by an association
will be unlawful. Subsection (2) protects a disabled applicant
for membership from discrimination in relation to both refusal
by a club to admit him as a member and the terms on which membership
is granted. Subsection (3) prohibits discrimination: in relation
to the way in which a disabled member (as defined in new section
21H(1)(a)) or an associate (as defined in new section 21H(1)(b))
is granted access to the benefits, facilities or services provided
by the club; where he is refused access to such benefits, facilities
or services; where he is deprived of membership or his rights
as an associate; where his terms of membership or rights as an
associate are varied; or where he is subjected to any other detriment.
35. New section 21F sets out the meaning
of discrimination. Under new section 21F, unlawful discrimination
for the purposes of new section 21E is defined as less favourable
treatment of a disabled person for a disability-related reason
in circumstances in which that treatment cannot be justified.
36. Less favourable treatment will
only be capable of justification under new section 21F(2) where
the association holds the opinion that one of the conditions in
new section 21F(3) is satisfied (the "subjective" limb)
and it is reasonable for it to hold that opinion (the "objective"
limb). The conditions set out in new section 21F(3) broadly correspond
to those found in section 20(4) DDA in relation to service providers,
but have been adapted to suit the circumstances of private clubs.
37. New section 21F(5)(a) enables
the Secretary of State to make regulations providing for the circumstances
in which it would be reasonable, or not reasonable, for an association
to hold an opinion for the purposes of new section 21F(3). This
provision mirrors section 20(6) of the DDA and like that provision,
is subject to the negative resolution procedure. No regulations
have been made under section 20(6) of the Act.
38. Under new section 21F(5)(b),
the Secretary of State may, by regulations, amend or omit any
of the conditions set out in new subsection (3) or disapply them
in prescribed circumstances. The purpose of this power is to allow
the Secretary of State flexibility to deal with unforeseen consequences
arising from extending the DDA into the new area of discrimination
by private clubs against their members, potential members and
associates. New section 21F(5)(b) is to be subject to the negative
resolution procedure, which is considered to provide the appropriate
level of parliamentary scrutiny in the circumstances. The power
is designed to allow the Secretary of State to optimise consistency
with Part 3 of the Act, whilst at the same time enabling sufficient
account to be taken account of any differences which may arise
in practice in relation to private clubs.
39. Under new section 21F(5)(c),
the Secretary of State may, by regulations, add to the list of
justifications in new section 21F(3). As this is the first time
that the DDA will apply to discrimination by private clubs against
their members, potential members and associates, the above powers
are intended to provide sufficient flexibility to enable the Secretary
of State to add further justifications, should this prove necessary,
following consultation.
40. New section 21F(5)(c) mirrors section
20(8) of the DDA and like that provision, is subject to the negative
resolution procedure. This is considered to provide the appropriate
level of parliamentary scrutiny for the same reasons set out in
relation to new section 21F(5)(b) in paragraph 38 above. Regulations
have been made under section 20(8) of the Act, adding to the circumstances
set out in section 20(4) of the Act when less favourable treatment
of a disabled person by a provider of goods, facilities or services
can be justified. These Regulations serve to illustrate the need
for flexibility in devising and applying justifications for less
favourable treatment in order to achieve a balance between the
rights of both parties involved.
41. New section 21F(6) provides that
an association also discriminates against a disabled person if
it fails to comply with a duty to make adjustments imposed on
it by new section 21G and it cannot show that such a failure is
justified. New section 21G(1) and (2) will enable the Secretary
of State to make regulations prescribing the circumstances in
which associations will be under a duty to make reasonable adjustments
for disabled members, potential members and associates (which
could include the alteration of physical features or the provision
of an auxiliary aid).
42. As the Secretary of State intends
to consult before imposing such duties, the draft provisions only
set out the framework of this duty. It is not, however, expected
that the duties to be imposed by regulations made under new section
21G will go further than those which providers of goods, services
or facilities are under by reason of section 21 of the DDA. In
addition, it is intended that regulations will make provision
for the failure to make a reasonable adjustment to be justified
in circumstances corresponding to circumstances set out in new
section 21F(3).
43. It was thought appropriate to deal
with the imposition of a duty to make adjustments on private clubs
by way of delegated legislation, because it will allow for detailed
consultation prior to the imposition of the duties and allow for
a greater degree of flexibility in ensuring that the provisions
can be adapted to suit the relationship between clubs and their
members.
44. The first exercise of this
regulation-making power will be subject to the affirmative resolution
procedure (see section 67(4)(a) of the Act, as substituted by
paragraph 17(3) of the Schedule to the draft Bill). The negative
procedure will apply to subsequent exercises of this power. This
is thought to provide Parliament with an appropriate level of
scrutiny for the exercise of powers imposing duties for the first
time on private clubs in relation to potential members, members
and associates.
45. New section 21H(2) enables
the Secretary of State to make regulations extending the new duties
in section 21E(3)(a) and (b) so that they apply to disabled guests
of members invited to make use of the facilities of the club,
where this is in accordance with the rules or practices of the
association. The Secretary of State would consider using this
power if it became evident that discrimination by associations
against disabled guests presented a problem which needed to be
addressed by legislation. An example of such discrimination would
be refusal by a club to allow a member's partner entry to its
annual dinner, on the grounds that the partner is a disabled person
who uses a wheelchair.
46. This power is subject to the affirmative
resolution procedure (see section 67(4)(b) of the Act, as substituted
by paragraph 17(3) of the Schedule to the draft Bill).
Clause 6: Discrimination in relation
to letting of premises
47. Clause 6 contains a number of delegated
powers that supplement the provisions in new sections 24A to 24J
which place on a landlord or manager of premises (referred to
in the draft Bill as "a controller of premises") duties
to provide reasonable adjustments for disabled tenants or occupiers
of let premises, or for disabled persons seeking to take a letting
of premises. Sections 24A and 24E provide that it is an unlawful
act of discrimination for a controller of premises to fail, without
justification, to comply with a reasonable adjustment duty imposed
by section 24C or 24G.
48. The provisions of new sections
24A to 24J are already fairly lengthy. To have included all the
matters which it is proposed to deal with in regulations on the
face of the draft Bill would have increased the draft Bill's length
considerably. Further, the nature and extent of such provisions
may not become fully apparent until the work of fully implementing
the Bill is undertaken and the new duties are working in practice.
The Department, therefore, considers it necessary and appropriate
to take these powers so that full effect can be given to the new
provisions of the draft Bill once enacted. Details of the delegated
powers contained in clause 6 are as follows.
49. New section 24B(2) allows
for the disapplication of section 24A(1) (which makes it unlawful
for a controller of let premises to fail to comply with a reasonable
adjustments duty imposed by section 24C) where the premises are
of a prescribed description. This is a reserve power which the
Secretary of State might wish to use if there is a good case to
exclude certain types of lettings from the provisions.
50. New section 24F(2) contains
a reserve power corresponding to section 24B(2) allowing the Secretary
of State to disapply section 24E(1) (which makes it unlawful for
a controller of premises that are to let to fail to comply with
a reasonable adjustment duty imposed by section 24F) where the
premises are of a prescribed description. The new powers in new
sections 24B(2) and 24F(2) could be used, for example, where it
becomes apparent that it would be inappropriate for the new duties
to apply in respect of premises comprised in mining or agricultural
tenancies.
51. New section 24H sets out limited
circumstances in which a failure to comply with a reasonable adjustments
duty imposed by section 24C or 24G can be justified. Where the
controller of premises can show that the failure is justified
in accordance with section 24H, there is no unlawful discrimination
for the purposes of section 24A(1) or 24E(1). Subsection (1)
of section 24H provides that a failure to comply with a duty to
make reasonable adjustments (those contained in new sections 24A(2)
and 24E(2)) can only be justified if, in his opinion, one of the
conditions specified in subsection (2) is satisfied, and it is
reasonable for him to hold that opinion. Section 24H(3)
confers power on the Secretary of State to make supplemental or
additional provision with regard to when a controller of premises
can justify a failure to make a reasonable adjustment.
52. Subsection (3)(a) enables the Secretary
of State to make provision, for the purposes of that section,
as to the circumstances in which it would, and those in which
it would not, be reasonable for a person to hold the opinion that
one of the conditions specified in subsection (2) was satisfied.
The purpose of this power is to enable the Secretary of State
to set down more detailed rules in relation to complaints of discrimination.
He could use the power, for example, to stipulate that it would
never be reasonable to believe that the costs of an adjustment
would be too great where the cost was less than a specified amount.
The power mirrors the existing power in section 20(6)(a) and (b)
of the Act, which apply in the case of service providers.
53. Subsection (3)(b) allows the Secretary
of State to amend or omit a condition specified in subsection
(2) or to make provision for it not to apply in prescribed circumstances.
Although wider, it is similar to the power conferred on the Secretary
of State by section 20(7) DDA. The purpose of the new power is
to allow the Secretary of State flexibility to modify the justifications,
if it transpires that in practice they either give too much, or
too little, protection to the rights of disabled people. The matter
has been left to delegated legislation as the power is intended
to deal with unforeseen consequences arising from extending the
duty of reasonable adjustments to rented premises. An example
of a provision made under section 20(7)(b) can be found in the
Disability Discrimination (Services and Premises) Regulations
1996 (S.I. 1996/1836), regulation 8. This provides that section
20(4)(b) of the Act (treatment justified where a disabled person
is incapable of entering into an enforceable agreement or giving
informed consent) shall not apply where a disabled person is acting
through another person by virtue of, for example, a power of attorney.
The power conferred by new section 24H(3)(b) might be exercised
in a similar way.
54. Subsection (3)(c) enables the Secretary
of State to provide for circumstances, other than those already
contained in subsection (2), as to when a failure to comply with
the duty to make reasonable adjustments is justified. It may
emerge, for example, that it would be appropriate to permit justification
of such a failure by reference to circumstances apart from one
of the two currently set out in subsection (2). This power mirrors
the one conferred on the Secretary of State with regard to justifying
a failure to make reasonable adjustments by service providers
(section 20(8) DDA).
55. The three powers also mirror the
power conferred on the Secretary of State with regard to justifying
a failure to make a reasonable adjustment by public authorities
(new section 21D(7), inserted by clause 4 of the draft Bill).
56. New section 24J confers
a number of powers on the Secretary of State to make supplementary
provision by regulations for the purposes of sections 24(3A) and
(3B) and 24A to 24H. (New sections 24(3A) and (3B) are inserted
by paragraph 10 of the Schedule to the draft Bill and relate to
additional grounds upon which treatment by a person with power
to dispose of premises, or a person who manages premises, can
be justified for the purposes of section 24(2) of the Act.)
57. The powers contained within new
section 24J are considered appropriate in order to avoid the new
sections relating to the new duty on controllers of premises to
make reasonable adjustments from being too complex and detailed.
It would be impracticable to provide for every eventuality on
the face of the Bill. There are likely to be circumstances not
currently anticipated by the Department for which the use of these
powers may become necessary.
58. Many of the powers provided for
in section 24J correspond to those conferred on the Secretary
of State by section 21(5) (duty of providers of services to make
adjustments). In both sets of provisions, the Secretary of State
may prescribe (for example) what is, and what is not, to be included
within the meaning of "practice, policy or procedure",
and things which are to be treated as physical features or auxiliary
aids. For example, it might become necessary to specify that
procedures set out in a commonhold community statement are included
in the term "practice, policy or procedure"; or that
adjustments which involved making holes in a wall count as a physical
feature.
59. Section 24J contains a number of
additional powers tailored to the circumstances of sections 24A
to 24H - for example, as to circumstances in which premises are
to be treated as being let to a person, or as to who is to be
treated as being a manager of premises, or as to when it is reasonable
for a controller of premises to regard a request from a tenant
or prospective tenant as a request to take steps pursuant to new
section 24C or 24G.
60. Section 24J(1)(k) allows the Secretary
of State to prescribe circumstances in which it is never reasonable
for a person to take steps under section 24C or 24G. This could
be exercised (for example) to provide that it is never reasonable
for a landlord to have to reduce the rent or to lengthen the term
of the tenancy or (perhaps) to take steps which would cost more
than a prescribed maximum amount.
61. Section 24J(2) makes specific provision
permitting the exercise of the power in subsection (1)(a) in respect
of commonhold units. Commonhold is a new form of property ownership
introduced by Part 1 of the Commonhold and Leasehold Reform Act
2002. Although commonhold unit-holders will technically own a
freehold interest in their unit, the commonhold community statement
could still restrict the way in which a unit is used or enjoyed
by a unit-holder. It could thus operate in much the same way
as restrictive covenants in the lease of a flat, and to the particular
disadvantage of a disabled person. It is, therefore, considered
appropriate to take these powers to enable the Secretary of State,
if thought necessary, to deem that commonhold units are to be
treated as let premises for the purposes of the new provisions
inserted into the DDA by clause 6.
62. All the delegated powers provided
for in clause 6 would be exercisable by statutory instrument and
are subject to the negative procedure.
Clause 7: Power to modify or
end small dwellings exemption
63. Clause 7 confers a power on the
Secretary of State by Order to modify or repeal section 23 DDA
and new sections 24B(4) and (5) and 24F(4) and (5). These provide
for exceptions to section 22 and new sections 24A and 24E in cases
concerning small dwellings.
64. The exception for small dwellings
is described in section 23 of the Act. In order for it to apply,
four conditions must be satisfied. They are that:
- the relevant occupier resides,
and intends to continue to reside, on the premises;
- the relevant occupier shares accommodation
on the premises with persons who reside on the premises and are
not members of his household;
- the shared accommodation is not
storage accommodation or a means of access; and
- the premises are small premises.
65. "Relevant occupier" is
defined in section 23(6) as being either a person with the power
to dispose of the premises or a person whose licence or consent
is required for the disposal of the premises, or a near relative
of those people. "Near relative" is exhaustively defined
in section 23(7) as being a person's spouse, partner, parent,
child, grandparent, grandchild, or brother or sister (whether
of full or half blood or by affinity). "Partner" is
defined as being the other member of a couple consisting of a
man and a woman who are not married to each other but are living
together as husband and wife.
66. Premises can be "small premises"
for the purpose of the exemption in one of two ways.
67. The first way (section 23(4)) is
if they satisfy four conditions:
- only the relevant occupier and
members of his (or her) household reside in the accommodation
occupied by him;
- in addition to the accommodation
occupied by the relevant occupier, the premises must comprise
residential accommodation for at least one other household;
- the residential accommodation for
each other household must be let (or available for letting) on
a separate tenancy or similar agreement; and
- there must not normally be more
than two other such households.
68. The second way (section 23(5))
is:
Where there is not normally residential
accommodation on the premises for more than six persons in addition
to the relevant occupier and any members of his household.
69. The exemption is complex to understand
and explain (for example, it takes three pages to cover the exemption
- in outline - in the DRC's Code of Practice on Part 3 of the
DDA). In addition, the extent to which the exemption is relied
upon in practice is not known. In considering the operation of
the DDA, the Disability Rights Task Force looked at the exemption
and concluded that the figure of six persons in section 23(5)
might be unnecessarily high to protect the privacy of landlords
and their families and that it should be kept under review. The
Government agreed with this and said in Towards Inclusion that
it would take a reserve power to amend the figure, and would use
the power if it were shown to be necessary. The DRC, as part of
its ongoing duty to review the DDA, was asked to address the operation
of the exemption once the provisions in Part 3 were fully in force.
70. The Department is not aware of
any problems with the operation of the exemption. However, in
view of its complexity and the possibility that the DRC (or others)
may come forward with acceptable suggestions for improving (or
ending) the exemption, the opportunity has been taken in the draft
Bill to provide for more than simply a power to amend the figure
of six. The power in clause 7(1) thus provides for the small dwellings
exemption (and the corresponding provisions in new sections 24B(4)
and (5) and 24F(4) and (5)) to be simplified or repealed if a
good case for this is made out in due course.
71. The Government has no plans at
the moment to exercise this power. Given the wide nature of the
power, however, which includes the ability to revoke the exemption
altogether (rather than simply amend it), it is appropriate that
any exercise of it should be subject to the affirmative procedure.
Clause 8: Duties of public authorities
72. Clause 8 inserts a new Part 5A
(sections 49A to 49F) into the DDA. New section 49A imposes a
duty on public authorities, when carrying out their functions,
to have due regard to the need to eliminate unlawful discrimination
and harassment against disabled people and promote equality of
opportunity for disabled people. One of the general policy aims
is to achieve a duty to promote equality for disabled people,
similar to the duty to promote equality of opportunity for different
racial groups ("the race duty") introduced by sections
71 to 71E of the Race Relations Act 1976 ("the 1976 Act"),
as inserted by section 2 of the Race Relations (Amendment) Act
2000 ("the 2000 Act").
The approach adopted by new section
49B
73. New section 49B is concerned with
defining what the term "public authority" means and
new section 49B(1) sets out a generic definition which is based
on section 6(3)(b) of the Human Rights Act 1998. This approach
in defining the bodies to which the duty applies differs from
the approach adopted in relation to the race duty in section 71
of the 1976 Act. This is because section 71 of the 1976 Act imposes
a duty by reference to a list of bodies contained in Schedule
1A of the Act. In contrast, the new duty to be inserted into
the DDA by clause 8 is to operate simply by reference to the definition
of "public authority". The aim of this approach is
to ensure that a broad range of bodies with public functions should
be subject to the duty in the new section 49B(1), yet avoid the
need for a lengthy and cumbersome list that would require regular
updating.
74. New section 49B(3) gives
the Secretary of State a power to prescribe in regulations bodies
that are not to be treated as public authorities. The aim of
this power is to allow the Government some degree of flexibility
as regards stipulating the bodies to be covered by the duty in
new section 49B(1). This power allows for the DDA duty a similar
sort of flexibility as exists for the race duty: whereas a body
can be excluded from the race duty by not listing it, this regulation-making
power allows the Government to exclude a body from the DDA duty
if there are good policy reasons to do so. The power is also
considered necessary in view of the wide definition of "public
authority", which will be subject to interpretation by the
courts: it could be used to exclude a body where a court judgment
had suggested that it may be covered (and where it was not thought
appropriate for policy reasons for the body in fact to be subject
to the duty). This mirrors the power that would be conferred by
new section 21B(5) of the Act, as inserted by clause 4 of the
Bill: see paragraphs 11-12 above.
75. The matter has been left to delegated
legislation as the power exists to deal with unforeseen circumstances
that may arise once the new duties come into force.
76. The regulation-making power is
subject to the negative resolution procedure. The negative procedure
is considered to provide sufficient parliamentary scrutiny in
the circumstances.
77. New section 49C sets out exceptions
from the duty in new section 49A by reference to certain types
of acts, such as acts done in a judicial capacity or acts that
involve the making of an Act of Parliament. New section 49C(4)
gives the Secretary of State the power to prescribe via regulations
further acts to which the distinct limbs of the duty in new section
49A(1)(a),(b) or (c) may not apply. The purpose of this power
is to provide for unforeseen circumstances where there may be
good policy reasons as to why particular acts or types of acts
should be excluded from the remit of the duty (or merely one of
the limbs of the duty).
78. The matter has been left to delegated
legislation as the power exists to deal with unforeseen circumstances
that may arise once the new duties come into force.
79. The power is subject to the negative
resolution procedure. The negative procedure is considered to
provide sufficient parliamentary scrutiny in the circumstances.
80. The third delegated power in clause
8 is divided into four parts by virtue of the devolution requirements
of the Scotland Act 1998. New section 49D(1) to (4) provides
powers for the Secretary of State, in respect of all public authorities
other than certain Scottish bodies, and for the Scottish Ministers
in respect of those Scottish bodies, to impose by regulations
specific duties on those public authorities to assist them in
the performance of the (general) duty under new section 49A(1).
Such duties may involve, for example, some organisations having
to produce disability equality schemes, or to carry out certain
types of monitoring.
81. The imposition of these specific
duties has been left to delegated legislation as it is envisaged
there will be a range of duties applying to different bodies.
It would be unwieldy to set all of these out in primary legislation
and there will, in addition, need to be wide public consultation
on the nature of these duties. This also mirrors the position
for the race duty where the imposition of the specific race duties
was left to delegated legislation: section 71(2) of the 1976 Act
gives the Secretary of State an order-making power to impose specific
duties on specified public authorities to assist them in the better
performance of their general duty under section 71(1) of the 1976
Act.
82. The equivalent powers in section
71(2) of the 1976 Act were used to require certain public bodies
to monitor the effect of their employment practices on staff of
different racial groups, and of their activities on different
racial groups in the population, and to set out an equality scheme
that described how the body would act to promote race equality.
The Government is considering how the experience of these duties
should influence the development of specific duties under new
sections 49D(1)-(4) of the draft Bill.
Powers for Scottish Ministers
83. On the basis of section L2 of Schedule
5 to the Scotland Act 1998, "the encouragement (other than
by prohibition or regulation) of equal opportunities" falls
within the devolved competence of the Scottish Parliament. This
includes the imposition of duties on any office-holder in the
Scottish Administration, on any Scottish public authority with
mixed functions or no reserved functions and on any cross-border
public authority in respect of its Scottish Functions. The Scottish
Parliament would need to be asked for Sewel Consent to the provisions
of clause 8 before the Bill is passed. This is because the United
Kingdom Parliament would be legislating in the sphere of devolved
competence with respect to the new section 49A. However, as regards
the delegated powers given to the Secretary of State by new
section 49D(1) to impose specific duties to ensure better
performance of the general duty, the Scottish Ministers are given
the same delegated powers in respect of their sphere of devolved
competence. New section 49D(3) therefore gives the Scottish
Ministers the power to impose specific duties on those relevant
Scottish authorities falling within their sphere of competence
(defined in new section 49D(10)).
Powers in respect of cross-border
public authorities
84. New section 49D(4) gives
the Scottish Ministers the power to impose specific duties on
cross-border public authorities in respect of their Scottish functions.
Before such regulations can be made, the Scottish Ministers must
consult with the Secretary of State (see new section 49D(9)).
The Secretary of State has a power to impose specific duties
on cross-border public authorities in respect of their functions
that are not Scottish functions. Likewise, he is placed under
a duty to consult the Scottish Ministers before he does so (see
new section 49D(8)).
Power to make incidental, supplemental
or consequential amendments
85. The powers given by section 49D(1)
to (4) include the power to make incidental, supplemental or consequential
amendments to other legislation (see new section 67(3C) to be
inserted by paragraph 17 of the Schedule to the draft Bill).
The reason why this "Henry VIII" power has been taken
is to provide for the unforeseen circumstances where there may
be a need to amend other primary legislation to remove pre-existing
equality duties or other restrictions that conflict with, or overlap
in an unhelpful way with, duties that the regulations based on
new section 49D(1) to (4) wish to impose. This follows the precedent
in section 71(2) of the 1976 Act, which is also a "Henry
VIII" power (by virtue of section 71(6) of the same Act).
86. Where it is proposed to exercise
the power conferred by new section 49D(1) or (2) in a way which
would amend an Act of Parliament or an Act of the Scottish Parliament
("ASP"), then they are to be exercised in accordance
with the affirmative parliamentary procedure (see new section
67(4)(c) to be inserted by paragraph 17 of the Schedule to the
draft Bill). The affirmative procedure is thought appropriate
in these circumstances, as these powers would allow the Secretary
of State to amend a wide range of other primary legislation, unlike
other "Henry VIII" powers in this draft Bill which would
only give the Secretary of State the power to amend the DDA.
87. Where, however, the Secretary of
State exercises the powers in new section 49D(1) and (2) without
amendment to primary legislation, then this will be subject to
the negative resolution procedure. This procedure is thought
sufficient, given that the Government intends to consult the bodies
concerned in relation to the duties proposed and given the requirement
in new section 49D(5) to consult the DRC before making the regulations.
88. Where the Scottish Ministers exercise
their powers in new section 49D(3) and (4) and propose to amend
an Act of Parliament or an ASP, then this will be subject to the
affirmative procedure in the Scottish Parliament (see new section
67(4B) and (4C) to be inserted by paragraph 17 of the Schedule
to the draft Bill). The affirmative procedure is thought appropriate
in the circumstances where primary legislation is being amended.
89. Where the Scottish Ministers exercise
their powers in new section 49D(3) and (4) and do not propose
to amend an Act of Parliament or an ASP, then this will be subject
to the negative resolution procedure in the Scottish Parliament
(see new section 67(4D) to be inserted by paragraph 17 of the
Schedule to the Bill). This procedure is thought sufficient where
no primary legislation is being amended and given the requirement
in new section 49D(5) that the Scottish Ministers should consult
the DRC before making the regulations.
Clause 9: Codes of Practice
90. Clause 9 inserts a new subsection
(1C) into section 53A of the DDA to allow the DRC to issue codes
of practice relating to the public sector duties in new Part 5A
of the draft Bill (sections 49A and 49D). The DRC already has
the power under section 53A to issue guidance in codes of practice
on the operation of Parts 2, 3 and 4 of the DDA. This amendment
to section 53A DDA will allow the DRC to provide guidance in respect
of the new general public sector duty in new section 49A(1) and
in respect of any specific duties imposed as a result of the
regulation-making powers contained in new section 49D(1) to (4).
91. This sort of detailed guidance,
often drawn up by reference to concrete examples, is too unwieldy
to incorporate into primary legislation.
92. The procedure for issuing the code
of practice is the same as the existing procedure set out in section
53A DDA, other than that the Secretary of State is required to
consult the Scottish Ministers and the National Assembly for Wales
before approving a code submitted to him by the DRC and before
appointing a day for a new code to come into force. Section
53A(4) already provides that a code may not be issued unless and
until a draft of it has been laid by the Secretary of State before
Parliament, and a period of 40 days has elapsed without either
House resolving not to approve it.
Clause 10: Generalisation of
section 56 of the 1995 Act in relation to Part 3 claims
93. Clause 10 substitutes a new provision
for section 56 of the DDA. That section currently provides for
a framework under which persons who consider that they have been
discriminated against contrary to Part 2 of the Act, and who are
making (or considering whether to make) a complaint to an employment
tribunal, can question the respondent. Where a respondent is questioned
in accordance with this procedure, any replies are admissible
in employment tribunal proceedings under Part 2. Where a tribunal
consider that the respondent has failed, without reasonable excuse,
to respond within eight weeks of the questions being served, or
has given evasive or equivocal replies, it is entitled to draw
adverse inferences.
94. The new section 56, as substituted
by clause 10 of the Bill, would extend that framework so that
it will apply to claims brought under Part 3 of the Act (as amended
by clauses 3 to 6 of the draft Bill) as well as to complaints
under Part 2.
95. The new section reproduces four
powers conferred on the Secretary of State by the current section,
namely those permitting him to prescribe by order (under the negative
procedure)-
- the forms by which the person aggrieved
may question the respondent (see subsection (2)(a));
- the forms by which the respondent
may, if he so wishes, reply to any questions (see subsection
(2)(b));
- the period within which questions
must be duly served in order to be admissible in evidence before
the tribunal or court (see subsection (4)(a)); and
- the manner in which a question,
and any reply by the respondent, may be duly served (see subsection
(4)(b)).
96. The statutory instrument presently
in force under the corresponding provisions in the existing section
56 is the Disability Discrimination (Questions and Replies) Order
1996 (S.I. 1996/2793). It is anticipated that the Order made
under the new section 56(2) and (4) would contain broadly similar
provisions.
97. New section 56(5) is a new
provision not appearing in the existing section 56. This permits
county court or sheriff court rules to be made enabling a court
hearing a claim pursuant to section 25 (which deals with the enforcement
of Part 3 of the Act) to determine whether a question or reply
is admissible in evidence under section 56. The power would be
exercised using the negative procedure and, in doing so, regard
would be had to the use of comparable powers in section 74(4)
of the Sex Discrimination Act 1975 and section 65(4) of the Race
Relations Act 1976.
98. New section 56(7) is also
new. This permits the Secretary of State to provide by regulations
for section 56 not to have any effect, or to have effect with
certain prescribed modifications, in relation to claims of a prescribed
description made under section 21B. (Section 21B, which prohibits
discrimination against disabled persons by public authorities
in the exercise of their functions, will be inserted into Part
3 of the Act by clause 4 of the draft Bill.)
99. New section 56(6) provides for
aspects of the questionnaire procedure not to apply in respect
of a section 21B claim (discrimination by public bodies) in certain
circumstances. It is considered necessary to take the power in
section 56(7) as a reserve in case further circumstances arise
which show that it would be inappropriate for all or part of the
questionnaire procedure to apply in relation to claims against
public authorities under new section 21B. For example, the power
could be used to specify that it is always a 'reasonable excuse'
for a public authority to refuse to answer questions, without
incurring the consequences referred to in subsection (3)(b), where
providing replies to those questions might be prejudicial to national
security.
100. The power in subsection (7) would
be exercisable by statutory instrument under the negative procedure.
101. Clause 11 (police) contains
no delegated powers.
Clause 12: Meaning of disability
102. Section 1 of the DDA defines a
person as having a disability for the purposes of the Act where
he or she has a physical or mental impairment which has a substantial
and long-term adverse effect on his ability to carry out normal
day-to-day activities. This definition is supplemented by Schedule
1 to the Act, which sets out the circumstances in which a person
is to be treated as disabled where they do not meet the definition
in section 1. Paragraph 8 of Schedule 1 provides that a person
with a progressive condition (such as HIV infection, MS or cancer)
is to be treated as disabled where the impairment has an effect
on his ability to carry out normal day-to-day activities, even
where that effect is less than substantial, provided that the
effects are likely to become substantial in the future.
103. The new provisions are intended
to increase the protection of persons with HIV, MS or cancer by
deeming them to be disabled before they experience any of the
effects described in section 1 or Schedule 1. Clause 12(1) does
this by inserting a new paragraph 6A into Schedule 1 to the Act.
104. New paragraph 6A(2) and (3)
enable the Secretary of State to make regulations excluding persons
who have cancer of a prescribed description from the provisions
of sub-paragraph (1). It is intended that this power will be
exercised to exclude only those types of cancer which do not require
substantial treatment. This will ensure that only those people
with cancer which has a significant consequence on their lives
are covered. The Disability Rights Task Force saw little evidence
of discrimination against those people with cancers (such as skin
cancers) which might require minor treatment. It was thought
appropriate to deal with this issue by way of delegated legislation
rather than on the face of the Bill, in order to allow sufficient
flexibility as to the types of cancer, or effects thereof, which
might be excluded. This power is to be subject to the negative
resolution procedure, as the requirements for a higher level of
Parliamentary scrutiny are not considered applicable here.
105. An example of the use of a similar
existing power (also subject to the negative resolution procedure)
can be found in the Disability Discrimination (Meaning of Disability)
Regulations 1996 (S.I. 1996/1455). These Regulations exclude certain
impairments from the scope of the definition of disability and
include the effects of certain impairments in respect of very
young children which might otherwise be excluded from the scope
of the definition.
106. Paragraph 3 of the Schedule to
the draft Bill inserts a new subsection (A1) into section 3 of
the DDA. Section 3 as currently drafted enables the Secretary
of State to issue guidance on two aspects of the definition of
disability: whether an impairment is to be considered as having
a substantial adverse effect on a person's ability to carry out
normal day-to-day activities and whether an impairment is to be
considered as having a long-term effect.
107. New section 3(A1) would
enable the Secretary of State to issue guidance on all aspects
of the definition of disability. For the purposes of new paragraph
6A of Schedule 1, this will enable guidance to be issued, for
example, on when a person is to be considered as having HIV infection,
cancer or MS. The parliamentary procedure relating to the issuing
of guidance under section 3 (effectively the negative resolution
procedure) will continue to be governed by section 3(6)-(8) of
the Act.
108. Clause 13 (minor and consequential
amendments) contains no delegated powers.
Schedule
Paragraph 3
109. See paragraphs 106-107 above.
Paragraph 5
110. Paragraph 5 contains consequential
amendments to section 19 of the DDA. Paragraph 5(3) replaces
the existing section 19(5) with a regulation-making power to replicate
that already contained in section 19(5)(c), i.e. a power enabling
the Secretary of State to provide for section 19(1) and section
21(1), (2) and (4) (which prohibit discrimination by service providers
and require reasonable adjustments to be made by them) not to
apply in relation to services of a prescribed description. This
is the only provision of the existing section 19(5) which will
remain in force, because the exemption for transport vehicles
will be contained in a new section. This power permits the making
of regulations to prescribe services to which sections 19, 20
and 21 do not apply. The power has been redrafted to make it
consistent with the wording in new section 21ZA(3), but it is
not a new power. This power has been used once in the making of
the Disability Discrimination (Services and Premises) Regulations
1996 (S.I. 1996/1836). Regulations made under this provision will
continue, as now, to be subject to the negative resolution procedure.
Paragraph 6
111. Paragraph 6 substitutes section
20(7)(c) of the Act, under which regulations may make provision
for section 20(4)(b) (incapacity to enter into an enforceable
agreement) not to justify discrimination where another person
has been appointed to act on that person's behalf under the law
of Scotland. The substitution is made in consequence of amendments
made by the Adults with Incapacity (Scotland) Act 2000: see paragraph
106 of the Explanatory Notes to the draft Bill.
Paragraph 8
112. Paragraph 8 inserts into section
22 of the DDA (discrimination in relation to premises) a new subsection
(3A). This provides a power to make provision for the purposes
of section 22(3) as to who is, and who is not, to be treated as
a person who manages premises, and, as to who is, and who is not,
to be treated as being a person occupying premises.
113. It is anticipated, in particular,
that the power contained in new subsection (3A)(a) may be used
in consequence of the Commonhold and Leasehold Reform Act 2002,
which introduces new arrangements for owning premises (see paragraph
61 above). It may be appropriate to exercise the new power in
order to clarify that a commonhold association (i.e. the body
which manages a commonhold development) is to be treated as a
person managing premises for the purposes of section 22(3) of
the DDA. By the same token, the power in new subsection (3A)(b)
might be needed to clarify that the owner of a commonhold unit
is to be treated as a person occupying premises for the purposes
of subsection (3).
114. Both these powers would be exercisable
by statutory instrument and subject to the negative procedure.
Paragraph 10(4)
115. Paragraph 10(4) inserts a new
subsection (4A) into section 24 DDA (meaning of "discrimination"
for the purposes of section 22). This power allows the Secretary
of State to provide that the condition or ground of justification
provided for in subsection (3)(b) does not apply in prescribed
circumstances.
116. Section 24(3)(b) allows a person
disposing of premises, or a manager of premises, to justify less
favourable treatment of a disabled person who is incapable of
entering into an enforceable agreement. Without this provision,
such treatment would constitute unlawful discrimination contrary
to section 22(1) or (3). The proposed new subsection (4A) would
confer a reserve power on the Secretary of State to disapply subsection
(3B) in prescribed circumstances. This amendment would bring
section 24 into line with section 20 (meaning of "discrimination"
for purposes of section 19) which also contains a power (subsection
(7)) enabling the Secretary of State to disapply the corresponding
justification in section 20(4)(b) in certain circumstances. See
also the similar provision in new section 24H(3)(b), to be inserted
by clause 6 of the draft Bill (discussed at paragraph 53 above).
117. The proposed power to be inserted
by new section 24(4A) would - in common with the corresponding
powers in sections 20(4)(b) and 24H(3)(b) - be exercisable by
statutory instrument and subject to the negative procedure.
Department for Work and Pensions
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