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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