DDB 96 Department for Work and Pensions
DRAFT DISABILITY DISCRIMINATION
BILL
Memorandum on Delegated Powers by
the Department for Work and Pensions in relation to the draft
clause on the relationship between locally-electable bodies and
their members (published by the Department for Work and Pensions
on 27 February 2006 (Cm 6126))
INTRODUCTION
1. This addition to the draft Memorandum
on Delegated Powers sets out the delegated powers contained in
clause 15 of the draft Disability Discrimination Bill and should
be read in conjunction with the draft Memorandum on Delegated
Powers sent to the Committee on 21 January 2004. Reference should
also be made to the Explanatory Notes to clause 15 (Cm.6216).
SUMMARY OF CLAUSE 15 AND DELEGATED
POWERS
2. Clause 15 inserts new sections 15A,
15B and 15C into Part 2 of the Disability Discrimination Act 1995
("DDA") which would make it unlawful for the authorities
specified in new section 15A(1) (namely all local authorities
in England, Wales and Scotland and the Greater London Authority)
to discriminate against a disabled member, where the latter is
carrying-out "official business" on behalf of the authority.
"Official business" is defined in new section 15A(2).
3. New section 15B(1) sets out the
circumstances in which it would be unlawful for an authority to
discriminate against a member. New section 15B(3) excludes from
the scope of the duties: elections or appointments to an office
of the authority; appointments to a committee or sub-committee
of an authority or to an office thereof; or any appointment or
nomination to any body by the authority or a group of bodies which
includes that authority. New section 15B(2) would make it unlawful
for an authority to subject a disabled member to harassment, as
defined in section 3B of the DDA (as inserted by the Disability
Discrimination Act 1995 (Amendment) Regulations 2003 ("the
Amendment Regulations")).
4. The definition of discrimination
in section 3A of the DDA (as inserted by the Amendment Regulations)
will apply to this clause as it applies to the rest of Part 2
of the Act..Less favourable treatment for a reason related to
disability constitutes discrimination for the purposes of section
3A unless it can be justified (section 3A(1)). Less favourable
treatment (which does not amount to direct discrimination) is
capable of justification if the reason for it is both material
to the circumstances of the particular case and substantial (section
3A(3)). Direct discrimination as defined in section 3A(5) can
never be justified. New section 15B(4) enables the Secretary
of State to make regulations providing for the circumstances in
which treatment is to be taken to be justified, or not to be taken
to be justified, for the purposes of section 3A(1)(b). This provision
replicates existing section 5(6)(a) and (c) of the DDA, which
has not been reproduced in the Amendment Regulations, due to the
prohibition on sub-delegation in the enactment of implementing
regulations under section 2(2) of the European Communities Act
19722.
5. New section 15B(5) allows
the Secretary of State, when making regulations under new section
15B(4), to disapply section 3A(3) (justification test) or to apply
it with modifications. However, the provision makes it clear that
treatment of a disabled person which amounts to direct discrimination
can never be justified.
6. The purpose of this power is to
provide sufficient flexibility to modify the justification for
less favourable treatment should this prove necessary in the entirely
new context of the relationship between the authorities governed
by new section 15A(1) and their members.
7. Like section 5(6) DDA, regulations
made under new section 15B(4) and (5) will be subject to the negative
resolution procedure, as it is not thought appropriate to provide
for a higher level of parliamentary scrutiny in the circumstances.
8. New section 15C sets out the nature
of the duty on local authorities to make reasonable adjustments
for their members and is modelled on the duties imposed on employers
and others under Part 2 of the DDA, as amended by the Amendment
Regulations. New section 15C(4) provides the Secretary
of State with the power to make regulations setting out the details
of the duties provided for in that section. The above regulation-making
powers replicate those provided for in existing section 6(8) of
the DDA which have not been re-enacted in Part 2 of the DDA, as
amended, for the reasons given in paragraph 4 above.
9. The Government has sought to model
the new duties in new section 15C on those which apply in relation
to the employment field under Part 2 of the DDA. This seems to
the Government to be the most appropriate model, given the daily
influence which local authorities can exercise over the performance
of duties by their members. However, the relationship between
local authorities and their members is a new one in terms of DDA
protection and differs in some respects from the relationships
governed by Part 2. It may emerge, in due course, that some detailed
aspects of that duty need to be altered and the Government is,
therefore, seeking the power to do so, should it prove necessary.
- The regulation-making power in
new section 15C(4) is to be subject to the negative resolution
procedure, as it is not considered necessary for a higher level
of scrutiny to apply.
S.I 2003 No 1673.
2 See paragraph 1(1)(c)
of Schedule 2 to the European Communities Act 1972. It should,
however, be noted that should modifications be required to the
justifications for less favourable treatment in relation to the
other provisions of Part 2, this can be done by means of further
regulations made under section 2(2) of the 1972 Act. The same
cannot, however, be done in relation to new sections 15A, 15B
and 15C, which regulate a relationship falling outside the scope
of the Employment Directive which the Amendment Regulations implement.
|
