Examination of Witnesses (Questions 680
- 699)
WEDNESDAY 31 MARCH 2004
MS MARIA
EAGLE MP AND
MR TONY
MCNULTY
MP
Q680 Baroness Wilkins: If you do
not take the opportunity of this Bill, does that mean that it
will not be within this part.
Mr McNulty: The national database?
I suspect that it will not be within the course of the next year—I
should not think so—and I would think it is beyond the scope
of the Traffic Management Bill anyway, although I did not pursue
that one because we wanted to look at the feasibility first. Clearly
it is a good idea; the practicalities are more difficult. We want
to explore that first. I would have to say, hand on heart, that
it would be extremely unlikely if the legislation necessary for
the national database could be pursued in legislation this side
of the General Election and, hence, the end of this Parliament.
Q681 Chairman: As you say, Minister,
the Bill is about to come to the Lords. If you wish to make any
further amendment I am sure their Lordships would be prepared
to accommodate you.
Mr McNulty: If I thought that
certainly the reciprocity point and the change of language was
remotely within the scope of the Bill in its long and short title,
then I would be there in a flash, but I am told by those that
apparently know better, i.e. lawyers and Parliamentary Counsel,
that is not to be the case. We have had to really pursue it in
the context of this Bill, where I think there is more hope for
these two elements, at least, to be dealt with.
Maria Eagle: Can I say, if it
is helpful on this, my understanding is that these changes would
be within the scope of this Bill.
Q682 Chairman: Exactly.
Maria Eagle: I would certainly
want to be as helpful as possible in making sure we could provide
a relevant vehicle, if you forgive the pun, for dealing with these
changes that have been agreed.
Q683 Chairman: I have just had a
note from somebody. They would need to change the long title apparently,
but I think that can be accommodated.
Maria Eagle: I think it has been
done before.
Lord Tebbit: Certainly in our House!
Q684 Chairman: Actually we do not
have to change the long title; we have not seen the full Bill
yet; this is only a draft Bill. When the Bill itself is published,
then, of course, you can have the long title in any form you want
it.
Mr McNulty: Will you excuse me?
Chairman: Yes. Thank you very much indeed.
There will be a transcript, of course. I am sure you will be pleased
to receive it.
Q685 Lord Swinfen: As you will no
doubt know, clause 4 of the draft Bill inserts into Part 3 of
the DDA the section which makes it unlawful for public authorities
to discriminate in the carrying out of their functions and gives
public authorities a duty to make reasonable adjustments. However,
as drafted, the duty to make reasonable adjustments to functions
under clause 4 would differ from the existing duty to make reasonable
adjustments to goods and services under Part 3 of the DDA. While
the duty to make reasonable adjustments is anticipatory under
Part 3, it does not appear to be so under the draft clause four.
Why should the duty on public authorities to make adjustments
in the carrying out of their functions under this draft clause
4 differ from the duty to make adjustments as provided as the
provider of services under Part 3 of the DDA 1995?
Maria Eagle: Can I say that the
wording of the clause is intended to replicate the Part 3 duties,
but it is different because it has to try and take account of
the differing nature of public functions as opposed to services.
So we expect the effect to be the same, but because functions
and services are different the wording is different. Let me give
you an example. People do not make use of a function in quite
the same way they make use of a service. So, for example, a disabled
person, if they were being arrested, is unlikely to think that
they are making use of a service offered by the police. Therefore
we felt it was inappropriate to use the same wording as one does
for services. If you look at the difference between functions
and services, that is a general point. So our intention is, in
fact, to replicate the Part 3 obligation but in a way that is
meaningful to the nature of functions as opposed to services.
Q686 Lord Swinfen: Why should the
duty to make adjustments be different?
Maria Eagle: We expect it to work
in the same way, and the linguistic difference is simply to take
into account the different way in which functions operate as opposed
to services. So we do not expect it to be different, we expect
the effect to be the same.
Lord Swinfen: I will have to do some
thinking about that.
Q687 Chairman: The other part of
the question is whether, in fact, you expect the public authorities
to have an anticipatory duty?
Maria Eagle: There are only two
sets of duties, reactive or anticipatory, and only two sets of
triggers, the impossible or unreasonably difficult or the substantial
disadvantage. I know that the Committee will probably want to
talk to me a little bit about triggers at some point—
Q688 Chairman: We will.
Maria Eagle: —during the
afternoon, but the way in which the Act currently works, and we
do not intend to make changes to this, is generally with longstanding
relationships like employment to have a reactive duty but mirrored
by the same kind of triggering in all cases. So if it is a reactive
duty, we expect the lower trigger of substantial disadvantage.
If it is an anticipatory duty, then, generally speaking, we expect
the higher trigger, and that is just to balance off the obligations
as against the trigger. This is really trying to do the same thing
in respect of the new areas of coverage, but we have had to use
different wordings in some instances in order that they mean something
in respect of the new areas of coverage. We are not trying to
introduce a whole range of new triggers; we are trying to replicate
what is already there because we think that is relatively well
understood and that it works quite well.
Q689 Chairman: Some witnesses did
feel there was a grey area between a function and a service?
Maria Eagle: Yes.
Q690 Chairman: I think this is where
the confusion will arise?
Maria Eagle: There are some grey
areas—there is no doubt about it. For example, is the maintenance
on of a highway a function or a service? I think that that case
is one general grey area. I think there are some things that are
clearly functions. For example, law enforcement is clearly a function
rather than a service, and the example that I used before would
indicate that. Things like granting licenses. Case law indicates
that they are not services as such. So I think that some things
that public sector authorities do are clearly functions, others
are clearly services, but there are some grey areas. So I am not
able to say absolutely that there is a clear dividing line because
there are some grey areas. I think that is true.
Q691 Lord Swinfen: I thought it was
the function of the local authority to provide services?
Maria Eagle: We could probably
discuss that for a very long time. If I can try and make it perhaps
slightly clearer what I mean by "service" really. That
is providing something that whatever the authority does clearly
is a service to the individual. A function is more something that
only the public sector can do. For example, only the DVLA can
provide, issue, driving licences. You cannot have somebody else
issuing driving licences. Only Customs and Excise can collect
VAT. That is not a service in the same way as, say, a local authority
providing a care home would be; others provide care homes. That
is more clearly a service. But I do accept that there are grey
areas. I think that our intention is to recognise that there are
gaps in the present law, because public authorities do do some
things, and I would say that they were functions in the main which
go beyond service provision or employment and which currently
fall into a gap in the law; and it is that gap that we seek to
close. I do not argue for a minute that it is easily done, or
that it is clear where the distinctions are, but I think overall
the idea is to make sure that everything that a public authority
does is covered. I think if you think of it that way, that is
what we are trying to get at really.
Q692 Lord Tebbit: The problem is
that it is not clear whether there is a need for a public body
to have an anticipatory duty to provide a reasonable adjustment
for a function?
Maria Eagle: We take functions
generally in a Part 3 kind of way, the services provision kind
of way. Functions are similar to services, in the sense that you
are looking at perhaps a transitory relationship, as it were.
Somebody comes along, they want their driving licence. They apply
for it. It gets sent to them and off they go with their driving
licence. It is a bit the more like the provision of a service
than, say, an employment relationship. Generally speaking, the
way the legislation works where you have got a transitory thing
like a service is to have an anticipatory duty but with a higher
trigger to balance the higher level of duty that you have got.
That is really the way it works. It is a kind of balance to be
fair to the provider. So, yes, you have to anticipate the kind
of adjustment you may have to make to accommodate a disabled person
in providing your function or your service, but, because you have
to guess in advance what you might have to cope with in order
to enable disabled people to access your services, then the trigger
is at the higher level of "impossible" or "unreasonably
difficult". That is the way it works. If you have a more
long-standing relationship, like an employment relationship, which
is not so transitory, what you might expect then is for the disabled
person to tell you what it is that they need, but in compensation
for you not having the anticipatory duty, the trigger at which
you have to meet that duty is lower, and that is a substantial
disadvantage. We think that works quite well; and, whilst I accept
that there are some grey areas between functions and services,
the general approach is to try and see functions as a Part 3 kind
of thing, because we think generally that is more what they are
like, rather than a Part 2 kind of thing, if that helps.
Q693 Miss Begg: It has just occurred
to me: I wonder if the police have to have an anticipatory duty
to make sure that they have got a vehicle available in case someone
in a wheelchair gets lifted for being drunk and disorderly so
that they can arrest them and take them back to the police station?
Maria Eagle: I think I might have
to have a think about that one. I am sure we could all come up
with—and I am sure my officials did do when we were trying
to draft instructions to counsel on this—some combination
of high and low and reactive and anticipatory that is appropriate
and is not daft but that enables us to fit all the functions of
public authorities into coverage of the law is by no means easy;
and there are grey areas, but, generally speaking, most things
fit fairly clearly either into a Part 3 kind of thing or a Part
2 kind of approach, we think. Certainly the idea of the substance
of the relationship—is it longstanding, is it like employment,
is it something that is going on day after day, or is it somebody
popping into a stop to buy some tea bags? They might never go
back to the same shop again—that is a much more transitory
relationship and I think that that deserves some recognition in
respect of the duties and obligations that those who are providing
those services have to meet.
Q694 Lord Tebbit: Where a local authority
provides, for example, a theatre, that is clearly one type of
relationship, where it provides a library service, that would
be another, would it not, in that the person using the theatre
comes and goes occasionally rather than into the library. It is
between these sorts of the areas that you are saying it is grey?
Maria Eagle: Yes.
Q695 Lord Tebbit: But that although
it is grey, it is covered. It is only a question of the level
of the trigger which is in doubt, is it not?
Maria Eagle: Yes, it is covered.
People will be best to assume that anything that a public authority
does in its public capacity is covered. That is what we are trying
to do, and you are right that in terms of the trigger we may then
have different views about what the trigger ought to be and whether
there should be an anticipatory duty or a reactive duty and we
could, and I am sure we will, have some discussions about that,
but certainly we want all functions of public authorities to be
covered. Why should somebody be discriminated against because
the public authority is issuing licenses rather than providing
a service. That is where the gap is that we are trying to fill.
Q696 Miss Begg: My question is actually
on the "reasonable opinion" test. We have taken evidence
from people who have been critical of it, first that the test
is too subjective, that someone who holds a prejudicial or stereotypical
view very generally—perhaps that could be classed as being
"reasonably held". Also the criticism in particular,
is this "reasonable opinion" test wrongly applied to
a public authority because, surely the public authority should
have the responsibility say good practice, so should not hold
an opinion that someone from my perspective would think was a
wrong opinion but could be quite reasonable in their opinion.
What is your view of those criticisms?
Maria Eagle: Can I set out what
I think you mean by the "reasonable opinion" test so
I am clear we are talking about the right thing? This is in the
goods and services provisions where a service provider can justify
less favourable treatment or a failure to make a reasonable adjustment
using a two-part test: first, that they must be of the opinion
that one of a small group of justifications set out in the legislation
is met, and, secondly, that that opinion must be reasonable in
all the circumstances of the case. That is the sort of justification
defence in Part 3. That is what we are referring to?
Q697 Miss Begg: Yes.
Maria Eagle: First of all, I do
not think it is entirely subjective, the Part 3 justification
defence. I believe that the first part of the test is subjective,
i.e. whether or not one of a short list of conditions that is
set out is met, but, secondly, the question of whether it is reasonable
to hold that opinion is an objective test, it is not a subjective
test. So it has an element of objectivity and an element of subjectivity.
We were referring earlier to airline pilots. There is an example
that might illustrate what I mean here. Airline pilots have an
obligation to ensure the health and safety of their passengers,
and that is one of their obligations in their job to do that.
There was a case recently in my own constituency at Liverpool
Airport where an airline pilot asked some deaf people on board
to leave the aeroplane, in his view because he felt there was
a health safety issue there. He subjectively took a decision under
this justification. He might have made a justification defence
if anybody had dragged him in front of a court, because he might
have said, "In my view there was a health and safety issue
which I have an obligation to meet and, in my view, I thought
that having all these deaf people on board the plane raised an
issue. So I treated them less favourably by asking them to leave
the aeroplane." On that basis the court would have had to
decide objectively whether that opinion was reasonable, whether
it was reasonable for him to hold that opinion. In my view that
is not a subjective test, that second limb, that what the court
has to decide is objective, and surely it is right to be objective
in this respect: because we cannot expect—I do not think
a reasonable court would do so—it cannot be right to go
and second-guess that pilot with the benefit of hindsight. He
genuinely thought there was an issue and was carrying out his
own obligations in respect of health and safety. We may talk about
his awareness about deafness and whether or not it was sensible
or right for him to believe that having 11 deaf people on a plane
caused any kind of problem at all, but it was subjectively his
opinion that it did and he might have pleaded a defensive justification.
So I do not accept that it is entirely subjective. I think there
is an objective limb of the test. I do think, by the way, that
the courts will and ought to provide stricter standards on a large
public body than they do on a small shopkeeper or an airline pilot
making a snap decision in a situation that they suddenly find
themselves in like that—I suspect that would happen anyway—and
we would expect the public sector to be exemplars; we want to
lead the way. I am not saying we will always manage to do it,
but we should aspire, as the public sector, to lead the way in
these regards and to expect better standards of our services than
perhaps you might find in a small corner shop or from an airline
pilot who has not had disability awareness training and does not
understand deafness but who was doing the best he thought he could
do carry out his job. I hope that helps.
Q698 Miss Begg: If these cases manage
to get as far as the courts, would you expect the courts to take
the view that the public authority should have known better and
therefore be harsher in their judgment on that public authority?
Maria Eagle: I suspect that the
courts generally would think it reasonable to expect more of a
big public sector organisation than a small corner shop.
Q699 Miss Begg: Judicial acts are
excluded from the duty placed on public authorities not to discriminate
against disabled people. What is the reason for that?
Maria Eagle: We cannot start interfering
in the way in which courts and judges make their decisions any
more than it would be right for us to interfere in the way Parliament
regulates and deals with itself. I cannot put myself in the place
of a judge and tell him what to do. We hope that they will have
lots of training about the right way of dealing with a disability
and will seek to lead the way in terms of doing it properly. We
are placing these additional duties on the public sector to make
sure that we do lead the way from the public sector point of view,
but we cannot interfere with judicial proceedings.
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