Joint Committee on the Draft Disability Discrimination Bill Minutes of Evidence



Memorandum for the Joint Scrutiny Committee on the draft Bill's compliance with the European Convention on Human Rights, by the Department for Work and Pensions and (in relation to clause 3) the Department for Transport (DDB 63)

INTRODUCTION

  1.  This memorandum is provided by the Department for Work and Pensions (with a contribution from the Department for Transport) for the purposes of pre-legislative scrutiny of the draft Disability Discrimination Bill. The two Departments take the view that the provisions of the draft Disability Discrimination Bill are compatible with the European Convention on Human Rights ("ECHR" or "Convention"). This memorandum sets out in brief the reasons for this view.

  2.  The Departments' view is that the relevant Ministers will be in a position to make a statement in accordance with section 19 of the Human Rights Act 1998 ("HRA") that the provisions of the Bill are in their view compatible with the ECHR.

  3.  The purpose of the draft Bill is to enhance the rights of disabled people. A challenge to the Bill based on incompatibility with the ECHR is considered extremely unlikely.

CLAUSE 1

  4.  Clause 1 of the Bill amends section 16B of the Disability Discrimination Act 1995 (to be inserted with effect from 1st October 2004 by the Disability Discrimination Act 1995 (Amendment) Regulations 2003, SI 2003 No 1673) so as to cover third party publishers who publish a discriminatory advertisement on behalf of another person. Defences are provided for the third party publishers in certain circumstances. Clause 1 (replicating the equivalent provisions of the Race Relations Act 1976 and the Sex Discrimination Act 1975) makes it a criminal offence for a person knowingly or recklessly to make a false or misleading statement about the lawfulness of an advertisement to a third party publisher.

  5.  The provisions in clause 1 could be an interference with the right to freedom of expression protected by Article 10 ECHR. However, it is considered that any interference is justified by reference to the need to protect the rights of disabled people and is proportionate to this end.

CLAUSE 2

  6.  Clause 2 repeals the provisions concerning group insurance schemes presently contained in section 18 in Part 2 of the Disability Discrimination Act 1995 ("DDA"). The aim of this repeal is to ensure that employers and insurance providers are each responsible for their own actions and to make it clear that a claim against a group insurance provider should be brought in the same way as against any other service provider, that is, on the basis of sections 19 to 21 DDA. Amendments are also made to provide for employment tribunals—rather than the county court or sheriff court—to continue to have jurisdiction in relation to complaints against group insurers.

  7.  There are not considered to be any issues of non-compatibility with the ECHR arising from clause 2.

CLAUSE 3

  8.  The purpose of clause 3, together with the consequential amendments in the Schedule, is to clarify that the "transport exemption" in Part 3 of the DDA applies only to transport vehicles, so removing uncertainty as to whether it applies to transport infrastructure. Clause 3 also inserts a regulation-making power to enable particular transport services to be brought within the scope of sections 19-21 of the DDA (which make it unlawful to discriminate against a disabled person in the provision of goods, facilities and services). This will enable those sections to be applied in whole or in part to different transport vehicles at different times.

  9.  There are not considered to be any issues of non-compatibility with the ECHR arising from clause 3.

CLAUSE 4

  10.  Clause 4 will insert a new section 21B into the DDA that will make it unlawful for a public authority to discriminate against disabled persons when carrying out its functions. The definition of "public authority" (employed in new section 21B(2)) is the same as that used in section 6(3)(b) of the HRA. There are various exemptions from the prohibition of discrimination in clause 4.

  11.  It is not considered that any issues of ECHR compatibility can arise as regards the public authorities on whom duties are imposed by clause 4. This is on the presumption that such authorities do not enjoy Convention rights when exercising a public function.

  12.  As regards private individuals and the new right to be protected from discrimination in respect of public functions, the only foreseeable complaints would appear to be in relation to exempted bodies (in new section 21B(3)) or exempted functions (in new section 21B). These exemptions are considered compatible with Article 6. Moreover, the exemptions are justifiable and proportionate, should a claim based on Article 14 (combined with Article 8) arise.

Clause 5

  13.  Clause 5 of the Bill inserts new sections 21E to 21H into Part 3 of the DDA, which will make it unlawful for associations with 25 or more members (where admission to membership is regulated by a constitution and is so conducted that the members do not constitute a section of the public) to discriminate against disabled members, prospective members or associates in certain circumstances.

  14.  There might be an argument that clause 5 interferes with the right to freedom of association as protected by Article 11 ECHR. However, the prospect of Article 11 being engaged in relation to this clause is considered remote and, in any event, any interference would be both justified and proportionate.

  15.  A complaint that the exclusion of smaller associations breaches Article 14 (in conjunction with Article 8) is not considered tenable. The membership threshold is designed to ensure that social activities, for example activities in private home and family life, are not affected by the provisions. The provisions, therefore, strike a fair balance between the rights of disabled people not to be discriminated against and the rights of all under Article 8 of the Convention.

CLAUSE 6

  16.  Clause 6 introduces into the DDA new provisions that make it unlawful for landlords and managers, in relation to premises they wish to let or that are let, to discriminate against a disabled tenant or prospective tenant by failing without justification to comply with a duty to make a reasonable adjustment for the disabled person. These duties do not require the making of any alteration to the physical features of the premises.

  17.  Clause 6 may be thought to raise issues of interference with a landlord's right to enjoy his possessions as protected by Article 1 of Protocol 1. If there is any interference, this is justified by reference to the legitimate aim of protecting disabled people from discrimination. The interference is proportionate as it does not apply to physical changes to premise and there are exemptions to reflect Article 8 concerns.

CLAUSE 7

  18.  Clause 7 introduces a regulation-making power for the Secretary of State to amend or repeal the small dwellings exemption in section 23 DDA. No issues of ECHR compatibility arise from the introduction of this power.

CLAUSE 8

  19.  Clause 8 introduces a new Part 5A into the DDA that will require public authorities, when exercising functions of a public nature, to have due regard to the need to eliminate unlawful discrimination and unlawful harassment and to promote equality of opportunity for disabled persons.

  20.  As in the case of clause 4, it is not considered that any issues of ECHR compatibility can arise as regards the public authorities on whom duties are imposed. This is on the presumption that such authorities do not enjoy Convention rights when exercising a public function.

  21.  As regards the rights of individuals affected by the new duties, complaints may be possible as regards the exempted bodies (in new section 49B) or exempted acts (in new section 49C). These exemptions are considered to be compatible with Article 6. Moreover, the exemptions are justifiable and proportionate, should a claim based on Article 14 (combined with Article 8) arise.

  22.  New sections 49E to 49F set up a system of enforcement for the specific duties (that may be imposed by Regulations). No issues in relation to Article 6 arise from the enforcement of the specific duties.

CLAUSE 9

  23.  Clause 9 of the Bill amends section 53 of the DDA to provide that the Disability Rights Commission may issue codes of practice giving practical guidance on the duties in new sections 49A and 49D. No issues of ECHR compatibility arise from this clause.

CLAUSE 10

  24.  Clause 10 introduces a new section to replace existing section 56 DDA. It extends the current framework for the questionnaire procedure so that it will apply to claims brought or to be brought under Part 2 and under Part 3 DDA.

  25.  The questionnaire procedure is an existing procedure that operates not only in relation to the DDA, but also in relation to the Sex Discrimination Act 1975, the Race Relations Act 1976, the Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Religion or Belief) Regulations 2003. No issues of ECHR compatibility arise from the changes to the DDA questionnaire introduced by clause 10.

CLAUSE 11

  26.  Clause 11 amends section 64A of the DDA (to be inserted into the DDA by the DDA Amendment Regulations 2003 with effect from 1st October 2004). This amendment will make chief officers of police, or the relevant police authority, vicariously liable for the acts of their officers in proceedings against the officers brought under Part 3 of the DDA and permits compensation etc. for such discrimination to be paid out of the police fund. This change increases the rights of individuals, who consider they have been discriminated against by a police officer. It is not considered that any issues of ECHR compatibility arise from this change.

CLAUSE 12

  27.  Clause 12 of the Bill extends the meaning of "disability" in the DDA by deeming as having a disability those persons with HIV, MS or cancer, who do not yet have an impairment that has a substantial and long-term adverse effect on their ability to carry out day-to-day activities (and are not likely to have one). A regulation-making power is provided to enable the Secretary of State to exclude certain classes of cancer from this new deeming provision. Clause 12 therefore increases the number of disabled people who can benefit from the rights accorded by the DDA.

  28.  The requirement in the DDA that a person meet the threshold of having a "disability" in order to benefit from protection against discrimination is considered justifiable for the purposes of the ECHR.

CLAUSES 13 AND 14

  29.  Clauses 13 and 14 cover minor and consequential amendments, the short title, interpretation, commencement and extent. There are no ECHR compatibility issues to consider.

CLAUSE 15

  30.  Clause 15 of the Bill inserts new sections 15A to 15C into Part 2 of the DDA and thereby prohibits discrimination and harassment by stipulated electable public authorities (effectively all local authorities in England, Wales and Scotland and the Greater London Authority) against their members in relation to the carrying-out of official business.

  31.  The authorities to whom the prohibition applies do not enjoy any Convention rights and no issues of ECHR compatibility arise in this regard.

  32.  As regards the members of the electable public authorities, the only foreseeable complaint is in relation to the exemption in new section 15B (3) for decisions not to elect or appoint a particular member to an office of the authority, to a committee of the authority, or to any other body to which nomination by the authority is necessary. Insofar as this exemption could engage Article 8 and Article 14, it is considered to be justifiable and proportionate.

Department for Work and Pensions

Department for Transport

February 2004



 
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