Joint Committee on the Draft Disability Discrimination Bill Written Evidence

DDB 110 Engage Network

Campaigning for more disabled

people in public and political life

Submission by the Engage Network to the Joint Committee on Clause 15 of the draft Disability Discrimination Bill

Introduction

1.1 The Engage Network welcomes the publication on 27 February 2004 of Clause 15 to the Draft Disability Discrimination Bill which covers the duties of local authorities towards disabled councillors . Facilitated by Scope, Engage is a Network of disabled people who either hold, or are interested in holding, public office, which campaigns for more disabled people to be involved in public and political life.

1.2 The aims of the Engage Network are to encourage more disabled people to participate in decision-making processes at all levels, to highlight the under-representation of disabled people in public life and to create a climate where the active involvement of disabled people in public life is both expected and welcomed.

1.3 Disabled people face many barriers which often exclude them from taking up political office and serving on public bodies. Typical barriers include inadequate information about the opportunities available, lack of accessible transport, poor communication services for participating in meetings, inaccessible venues and the assumption of many public bodies that disabled people are either incapable or do not want to get involved,

1.4 We strongly support the extension of disability discrimination legislation to cover local authority councillors, directly elected mayors and (from 1 October 2004) paid public office holders. We are concerned, however, that this will still leave many posts in public life outside the remit of the legislation. These include persons appointed as lay magistrates, school governors and many thousands of other public appointments. We further submit that if it is accepted that the DDA's provisions should cover political office holders at local level, there is no good reason why political representatives at national level - MPs, peers, MSPs and AMs - should not receive similar protection.

1.5 It is important that disabled people are involved in public decision-making at all levels. At 31 March 2003, only 696 out of 22,464 appointments to non-departmental public bodies (NDPBs) were held by disabled people representing just 3.1% of total posts. The 1996/97 "Disability Follow-up to the Family Resources Survey" by the Department of Work and Pensions (DWP) found that there are 8.6 million disabled adults in the UK. More recent DWP research indicates there could be as many as 11.5 million disabled people. The extension of the DDA to all public appointments would, we believe, help to improve the substantial under-representation of disabled people in public life.

1.6 In 1993, the former president of the European Parliament, Egon Klepsch, said that "the main measure of integration within the institutions of the European Union would be the degree of involvement by disabled people". This aim is still far from being achieved in the United Kingdom. Without the voice of disabled people serving without physical or financial restraint on public bodies then those bodies cannot themselves be representative.

Councillors

2.1 Local authorities currently owe duties under the DDA to their disabled employees and prospective employees but not to their elected members. The new Clause 15 will go a long way towards rectifying this anomaly.

2.2 Disabled people are under-represented among those serving as elected councillors but the degree of under-representation is considerably less marked than in other areas of public life. In 2001, 13.1% of councillors in England and Wales were disabled people. It is vital for the effective working of local democracy that disabled councillors are allowed to perform the functions for which they were elected. Examples abound of situations where disabled councillors have not been fully able to represent their electors. We are aware, for instance, of councillors with mobility impairments who have been unable to participate in full council meetings because their council chambers were inaccessible. Council committee papers and other documents are rarely produced in alternative formats such as large print or audio tape. Meetings of the full council, cabinet, scrutiny and other committees may be held in inaccessible venues without adequate communication aids such as loop induction systems. Council officers whose role is to advise elected councillors do not invariably make reasonable adjustments in serving disabled members.

2.3 The persistence of such barriers in local authorities, despite the fact that almost one in seven councillors are disabled people, confirms the necessity for legislation. It should be emphasised that this is not only a question about the rights and needs of disabled councillors. Voters elect their councillors to do a job on their behalf. Electors have every reason to expect that local authorities should allow their elected representatives to carry out their democratic functions.

2.4 We have heard it suggested that where a local authority would be required to provide a disabled councillor with an enabler or personal assistant in order for her/him to carry out official business, this might raise problems when councillors consider sensitive/confidential matters such as child abuse cases. We do not regard this as a major concern. If enablers are employed directly by the local authority, they will be subject to the same duty of confidentiality as any other council employee. If an enabler is employed directly by a disabled councillor, s/he will be under a vicarious liability to the authority to ensure that her/his employee maintains a duty of confidentiality.

2.5 We can understand why appointments of councillors to offices such as cabinet posts, council committees and outside bodies have been excluded from the provisions of Clause 15 as who should serve in such posts are essentially internal political decisions for the party groups in question. We would nevertheless hope that political party groups on local councils would seek to appoint more disabled people to leading positions within their respective local authorities.

2.6 We note under clause 15B(4) and (5) that the Secretary of State reserves the power to make regulations relating to the justification of less favourable treatment of disabled councillors. We are uncertain as to the circumstances under which it might be deemed appropriate to exercise such powers and we would welcome clarification on this issue.

Public Appointments

3.1 As indicated above, the broadly representative position concerning disabled people serving as local councillors is not reflected in other areas of public life. The Disability Discrimination Act 1995 (Amendment) Regulations 2003 come into force on 1 October 2004. These will extend the DDA's protection to office holders where "they are entitled to remuneration" and where the "post is one to which appointments are made by a Minister of the Crown, a government department, the National Assembly for Wales or any part of the Scottish Administration"

3.2 Bringing such appointments within the ambit of the legislation should help to improve upon the low percentage (3.1%) of disabled people currently appointed to NDPBs. A great many public office posts, however, are unpaid and/or not appointed by ministers, government departments or national assemblies. These include posts such as lay magistrates, school governors and a multitude of NHS appointments which will continue to fall outside the scope of the DDA.

3.3 The reasons why remuneration is attached to some public appointments and not to others are often historical and/or accidental. Non-executive board members of NHS Primary Care Trusts, for example, are paid while the Chair of the UK Film Council which distributes many millions of pounds of government and national lottery funds is not. This factor should not, in our view, comprise the criterion as to whether applicants and post holders enjoy the DDA's protection. Nor does the presence of remuneration provide any indication of the relative importance of the decision-making powers of the posts in question. Lay magistrates, for example, are not paid but have the power to sentence convicted persons to terms of imprisonment. It seems contradictory that the government has made laudable efforts to encourage more disabled people to apply for and to become lay magistrates while, at the same time, exhibiting reluctance to bring lay magistrates within the DDA's provisions.

3.4 Likewise, school governors play a vital role in the country's educational system. It is a matter for concern that the available evidence indicates only some 5% of school governors in England and Wales are disabled people. A higher level of involvement of disabled people in such positions would assist towards achieving truly inclusive education for disabled students and pupils.

3.5 The question has been raised as to whether it would always be obvious which individual or body owed a duty not to discriminate against disabled people taking up public appointments. In our view, in most cases the Secretary of State, other individual or body responsible for making the appointments should be liable. This would be in line with the situation in cases of employment and consistent with the position which will apply to remunerated public appointments from 1 October 2004. In the case of school governors, we suggest that responsibility should lie with the Local Education Authority irrespective of whether the appointment is made by the school itself, parents or nomination from external bodies.

3.6 Scope believes that the DDA's provisions should extend to all public appointments whether paid or unpaid including membership of boards of public bodies, lay magistrates, members of CPPIH bodies and other NHS appointments, school governors and governors of further and higher education institutions.

MPs and other political office holders

4.1 We applaud the government's recognition that disabled locally elected political representatives should now be brought within the DDA's remit. We believe that such protection should be extended to political office holders at national level - Members of Parliament, peers, Members of the Scottish Parliament and Members of the National Assembly for Wales.

4.2 Section 65 of the DDA already affords rights to disabled staff of both Houses of Parliament as well as to members of the public in the provision of services. S65(5) provides that nothing in "the law or practice of Parliament prevents proceedings being instituted before an industrial tribunal". In such cases, the appropriate Clerk to the House is the "Corporate Officer" against whom proceedings may be instituted.

4.3 We are aware of arguments that any further extension of the DDA's provisions to the UK Parliament might raise constitutional issues in relation to the historic separation of powers between the courts and the legislature. We do not consider such arguments to be well-founded. Most of the barriers faced by disabled MPs and peers relate to accessibility. For instance, ensuring that the chambers of both Houses, committee rooms and other facilities are fully accessible to disabled members would not, in our view, cause any constitutional problems. Nor should measures such as producing the Order Paper - where needed - in alternative formats present insuperable difficulties. It would be a relatively straightforward task to differentiate in legislation between these issues (for which the Corporate Officers might be made responsible) and matters impinging on the doctrine of parliamentary sovereignty such as Parliament's powers to make legislation and the powers of the Speaker and (for the moment) Lord Chancellor to regulate the conduct of members and business in both Houses.

4.4 It would be contradictory for the legislature to provide that local authorities must enable councillors who are disabled people to carry out the job for which they were elected while not extending the same rights to disabled MPs and peers.

4.5 Much work has been carried out in the Palace of Westminster in recent years to improve access for MPs and peers, staff and the public. The Scottish Parliament building at Holyrood has been described as one of the most physically accessible parliaments in the world while an impressive 70% of spaces in the debating chamber in the new National Assembly for Wales building in Cardiff are accessible. Such measures are most welcome. Nevertheless, their effectiveness would be considerably enhanced by bringing legislators themselves within the provisions of the DDA.

Contact:

Ruth Scott, Campaigns Manager, Scope, 6 Market Road London N7 9PW

Tel 020 7619 7245 Fax 020 7619 7380 Email ruth.scott@scope.org.uk

Paul May, Campaigns Officer, Scope, 6 Market Road London N7 9PW

Tel 020 7619 7250 Fax 020 7619 7380 Email paul.may@scope.org.uk

17 March 2004

source: Cabinet Office Public Appointments 2003 at xi