DDB 33 Department for Work and Pensions
Draft Disability Discrimination Bill and
its application to Parliament: Memorandum to the Joint Committee
from the Department for Work and Pensions
1. At the meeting of the Joint Committee
on the draft Disability Discrimination Bill held on January 27th,
committee members asked officials to clarify why clauses 4 and
8 of the draft Bill provide exemptions for the functions carried
out by Parliament and for a person exercising functions in connection
with proceedings in Parliament. In particular, the committee
asked for further practical examples of activities that would
be excluded by virtue of these exemptions.
2. Section 21B of the draft Bill extends
the scope of the Disability Discrimination Act (DDA) to cover
the functions of public authorities. If no exemptions were
given for Parliament and for persons exercising functions in connection
with proceedings in Parliament, then the following functions would
fall within the scope of section 21B:
- Legislative acts (and all related activities
such as conduct of votes);
- Acts of the speakers of the Houses; and
- Acts of the House of Commons Commission,
and the Clerk of the Parliaments.
3. If
the DDA were extended to these activities, then this would undermine
the parliamentary privilege of "exclusive cognisance"
- the principle that Parliament should have sole control over
its own affairs and procedures. If there were no exemption, then
the courts would be able to assess whether actions of Parliament,
actions in the course of proceedings in Parliament, or indeed
existing procedures of Parliament contravened the DDA. The
Government's approach in the draft bill is therefore fully consistent
with normal practice in respect of such legislative requirements
- it is simply recognising the ancient and necessary privileges
of the Houses.
Legislative acts
4. The exemptions contained in the Bill
recognise the separation of powers and the right of Parliament
to be able to enact, amend or repeal legislation without challenge
in the courts. Examples of existing legislation enacted by Parliament,
which might be construed to discriminate against some categories
of disabled people, are as follows:
- Legislation in relation to listed buildings;
where Parliament has decided that it is more important that some
buildings retain historic features than that they are wheelchair
accessible.
- Benefits legislation, which enables differentiation
between different groups of disabled people.
Acts of the speakers
5. The Speaker of the House of Commons,
and the Lord Chancellor in his role as Speaker of the House of
Lords, exercise a number of public functions. For example, the
Speaker is able to order MPs, who have broken the rules of the
House to leave the Chamber, or to suspend them from the Chamber
for a number of days.
6. If the DDA were extended to functions
such as these, MPs who had been disciplined by the Speaker might
expect to be able to challenge such sanctions in courts or tribunals.
This would breach the parliamentary privilege of exclusive cognisance,
set out in paragraph 3. This same reasoning also explains why
the Government does not believe it is possible or desirable to
extend the DDA to give protection to Members of Parliament or
Peers.
Acts of the House of Commons Commission
and Clerk of the Parliaments
7. The third group of activities which
are considered to be public functions of Parliament relate largely
to the administration of the institution. Within this rubric
of administration, the functions of employment and the provision
of services to the public by Parliament are already covered by
the DDA (see s. 65). However, there is a residual category of
administrative acts that remains uncovered by the DDA. This could
include, for example, the House of Commons Commission drawing
up Parliament's financial plans. If there were no exemptions
for Parliament in the Bill, then a disabled person may be able
to challenge these plans. This would then invite the courts to
make judgements about the way Parliament allocates its financial
resources, which would again limit Parliament's ability to govern
itself.
Alternative approaches
8. This note has given further examples
of the public functions of Parliament, in order to explain why
the Government has exempted these from the provisions of the Draft
Disability Discrimination Bill.
9. Nevertheless, Parliament could still
choose to behave as if the exempted functions were within the
scope of the DDA, in the same way as it voluntarily applies the
provisions of the Prices and Incomes Act 1966, the Industrial
Relations Act 1971, the Health and Safety at Work etc. Act 1974,
the Food Safety Act 1990, and the Data Protection Acts 1984 and
1998, even though these statutes are treated as not being binding
on either House.
Department for Work and Pensions
February 2004
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