Examination of Witnesses (Questions 720
- 739)
WEDNESDAY 31 MARCH 2004
MS MARIA
EAGLE MP AND
MR TONY
MCNULTY
MP
Q720 Chairman: If we could move on
now to the duty to promote good relations. I have tried to get
my mind round the reasoning that we have been given by the bill
team and others as to why there was not this duty in the draft
Bill whereas it is in the Race Relations Act and the Northern
Ireland Act. Perhaps you could explain why the draft Bill does
not include a duty to have due regard to the need to have good
relations between disabled persons and other persons.
Maria Eagle: I do not think it
is at all obvious that there are not good relations between disabled
people and other people. I am perfectly happy to be persuaded
if there is some evidence. This particular legislation only applies
to disabled people, it does not apply to non-disabled people.
Good relations is a two-way street; I have got to get on with
you, you have got to get on with me.
Q721 Chairman: We do not need an
Act of Parliament to secure that, do we?
Maria Eagle: I hope not. I hope
to be able to manage it without an Act of Parliament. I do not
believe in legislating for the sake of it. I think there is an
issue here about the rest of the legislation not applying to non-disabled
people. The law as it currently is requires a different treatment
in order to work, not equal treatment. We would not want somebody
who was not disabled to challenge the blue badge scheme on the
grounds that giving disabled people the advantage of being able
to park where they cannot works against good relations between
disabled people and non-disabled people. There are particular
issues about the way the legislation works that make it different
to other strands of equality legislation and I do not think we
should put it in because it is in other strands of legislation.
We need to think about what it means, whether it is needed and
whether it is sensible and how it would work, that is why it is
not there.
Q722 Chairman: If relations are good
why did we have to pass legislation regarding hate crimes against
disabled people?
Maria Eagle: That amendment to
the Criminal Justice Bill indicates that society in its criminal
law will see that kind of hatred against particular people as
an aggravating consideration when looking at criminal offences.
I do not think that that means that there is widespread distrust
and a lack of good relations between disabled people and non-disabled
people, I just think that is an indication of what society thinks
about hate crime based on the stereotypes.
Q723 Chairman: There is a practical
problem in this which I think certainly had not occurred to us
until we had evidence yesterday from the Northern Ireland Equality
Commission on the way in which the Northern Ireland Act has worked
in the promotion of good relations. They have been promised their
own Disability Bill some time in the autumn. They said they thought
it would be odd if they had the duty to promote good relations
in the Northern Ireland Act, which they have now, and they did
not have it in their Disability and Discrimination Bill in Northern
Ireland. If that proves to be the case in Northern Ireland, it
would be equally odd to have that in the Northern Ireland Disability
Bill and not in our Bill. I think the Department might have to
think it through. I am not sure whether this angle has actually
occurred to them.
Maria Eagle: If somebody can explain
to me why this is necessary and what good it would do and how
it would work then I am perfectly willing to listen to it. I think
there are differences in this legislation and other equality legislation
which makes this less relevant in respect of disability, but obviously
I am willing to be persuaded.
Lord Tebbit: I do not think there are
too many cases with Sinn Fein organising the blowing up of wheelchairs.
Chairman: I think we should move on to
local authorities.
Q724 Lord Rix: A number of witnesses
have been unclear, to say the least, about which office holders
are included under clause 15 and have advocated that clause 15
should be extended to all statutory elected or appointed office
holders. Can you explain why the Government decided not to include
all statutory appointed office holders under clause 15?
Maria Eagle: Because a lot of
them will be covered under Part 2 when the Disability Discrimination
Act 1995 (Amendment) Regulations come in on 1 October. They will
cover people who are employees or quasi employees, that is those
who are remunerated or directed as to how to perform their functions,
and also other posts and office holders who are appointed or recommended
for appointment or approved by appointment by a minister of the
Crown, by a government department, by the National Assembly for
Wales or the Scottish administration. These types of office holders
will all be covered under the amendment regulations that are coming
in in October in respect of employment and anti-discrimination
employment. Clause 15 is about those who are not covered and that
is largely councillors.
Q725 Lord Rix: Could you explain
why, if it is going to cover local councillors, it does not cover
appointments to an office or to a committee of an authority because
apparently it does not?
Maria Eagle: The aim is not to
interfere in the political judgment of the leader of whichever
group on the council we are talking about as to who he should
appoint to which job, but to cover the ability of the elected
councillor to do their job as a councillor rather than to cover
who should be appointed to which committee chairmanship, which
is a matter for political judgment by whoever the leader of the
council is or the leader of the group.
Q726 Tom Levitt: I think the point
that Lord Rix was trying to get at is that there are council committees,
such as the standards committees that exist now in local government
which have non-councillors sitting on them. Would those people
be covered?
Maria Eagle: I do not want to
mislead the Committee. If they are employees of the council they
would be covered in any event. Do you mean they are lay people
who are not elected?
Q727 Tom Levitt: They are people
who are not elected but we would not want to see them excluded
from consideration because of disabilities.
Maria Eagle: No, we would not.
Can I check that and get back to the Committee? The intention
is not to exclude anybody. The intention is to include as broad
a range of people as possible.
Q728 Chairman: What about school
governors? They are excluded, I think.
Maria Eagle: Yes. I know that
colleagues in DfES believe that governing bodies, LEAs and state
schools, when they hold elections for governors and when they
are appointing governors, are carrying out a public function and
therefore they will be under a duty not to discriminate once the
Bill is passed, if it is, because of those provisions and that
should be sufficient protection. They would also be likely to
be covered by the draft Bill's public functions provisions.
Q729 Lord Rix: Would the same apply
to magistrates?
Maria Eagle: I doubt it because
of the judicial functions that they carry out. I cannot interfere
with the judiciary.
Q730 Chairman: That is on the appointment
of the school governors, but once appointed are they covered?
I think we might need some correspondence on this one.
Maria Eagle: We might need correspondence
on that one.
Q731 Mr Berry: On the question of
appointments to an office of authority, I would be the first to
say that the leader of the authority should have the power to
appoint whoever he or she wishes to whichever post, of course.
If there was evidence that there had been clear discrimination
on grounds of disability and no other reason and you could prove
the rigorous test that always has to be gone through, why on earth
should it not be unlawful to prevent a council leader from discriminating
against a councillor who happens to be disabled or a magistrate?
Maria Eagle: You have to be practical.
I do not think it is always as easy as you are suggesting to prove
what the grounds of the non-appointment are.
Q732 Mr Berry: I am suggesting the
opposite, that it is so very difficult to be able to prove it.
It was quite clear, the leader said, "I'm not appointing
you to this post because you are a disabled person". As I
understand it, under the draft Bill that is perfectly acceptable
and I do not believe it should be.
Q733 Mr Williams: On the appointment
of magistrates, that is not a judicial process and the advice
given to the people who do appoint magistrates is they should
work for balance in terms of political affiliation, in terms of
gender, in terms of employment and age and all those criteria.
Why should not the appointment of magistrates be included in this?
Maria Eagle: Let me come back
to the Committee about the appointment of magistrates because
I might have been wrong about that. On the point that Roger is
making, I understand what you are saying. I suspect that once
we get coverage of larger private clubs, which will include political
parties, the point that he has made might then be met. There is
an issue about political appointments within the council and who
has the obligation. The clause is about making sure that councillors
can do their job as elected councillors and the obligations are
going to be upon the council. In internal group issues there is
an additional problem and difficulty in practical terms. I accept
that the scenario he has put forward would seem to be clearly
a discrimination one on the grounds of disability, but we do have
to take into account the practical considerations of how we are
going to enforce this legislation when it is passed.
Mr Berry: All I would ask is if you would
think about that one again. I hear what you say and I know a little
about the practical difficulties of operating inside party groups,
but if it is beyond doubt, if it is as clear as anything and it
is admitted and upfront—
Q734 Chairman: We have got the point.
It would be extremely helpful to have a note on it.
Maria Eagle: Let me have a think
about that one.
Q735 Lord Rix: Do you anticipate
reasonable adjustments should be made for a disabled councillor
to attend outside meetings or a surgery or whatever it may be?
Maria Eagle: Yes, certainly for
things like surgeries and the things that he or she would do as
part of carrying out their duties as a councillor. I think where
there is a difficulty is knocking on doors and trying to get re-elected
in party political colours, there are issues there that we have
to think through properly, about what should and should not be
covered and who should have the obligation to cover them. We do
have to get this right and there will be some constraints. A councillor
doing his Saturday morning surgeries because he is the local councillor,
yes, I think that should be covered.
Chairman: Let us move on now to definition.
Q736 Tom Levitt: The DRC has pointed
out to us that the EC Employment Framework requires Member States
to have laws, regulations or provisions prohibiting discrimination
"on grounds of" disability. UK regulations in respect
of discrimination and sexual orientation also talk about "on
grounds of sexual orientation (or religion or belief)" and
the harassment legislation talks about "on grounds of sexual
orientation (or religion or belief)". Why has not the same
approach been taken on grounds of disability, and could you explain
why the DDA should not provide wider protection for people who
are discriminated against either because they have been perceived
to be disabled or they are associated with a disabled person?
Maria Eagle: It is quite a difficult
issue this and the DRC may have said to you that we have a bit
of a disagreement with them about the extent of coverage required
by the Directive because they have put those points to us. We
believe that we have transposed the Directive correctly and we
do not believe that it requires coverage of those who are associated
with disabled people or who are perceived to be disabled. We believe
that what we have put into our Amendment Regulations correctly
transposes the Directive. Coming back to the point I made right
at the beginning in my opening statement, at a time when we are
still placing the obligations required by the legislation on a
million small employers from this October, for example, we do
not think it is helpful or sensible to extend the definition in
a way that makes it more uncertain and one that may include millions
more people within it who are not disabled. We think that leads
to a lack of clarity and it leads to more difficulty in getting
proper implementation of the legislation we have got.
Q737 Tom Levitt: The Federation of
Small Businesses told us that they would not expect to see someone
who had duties as a carer being discriminated against in employment
terms and therefore, as I recall, they did not have any problem
in seeing carers in those situations protected from anti-discrimination
laws.
Maria Eagle: I am glad to hear
it, but they can do that without us changing the definition in
the law. The points that I am making are that we believe we have
correctly transposed the Directive and the general point I made
at the beginning stands, we do not want to see massive changes
that introduce uncertainty into who is covered and who is not
at a time when we are implementing the legislation and the coverage
of it and the obligation that it imposes on people being spread
to a much broader range of organisations or businesses in our
society.
Q738 Tom Levitt: How does the definition
of disability that has been chosen for this Bill compare to that
used in other countries? Are we in line with what other countries
implementing the Directive have done or is the DRC's interpretation
found elsewhere in other countries?
Maria Eagle: A mixture. Some other
countries do include perception and association in their definitions
and others do not. Some European countries do and some do not.
If you look at the bare facts of what definitions say around the
world you see a range. Ours is not particularly out-of-line. It
is certainly true that some include association and perception.
I would say that it is not always easy just by looking at the
definition to work out how the law works in practice in other
countries. For example, the American Disabilities Act has a very
wide definition of who is included as a disabled person, but case
law recently in the USA has been narrowing it to such a degree
that it is probably more restrictive than ours in practice, although
you would not gather that from looking at the definition. It is
possible for us to get some ideas by looking at definitions about
who is supposed to be covered by the law in this respect in other
countries, but we cannot always tell how the theory of the definition
translates in practice in the courts. We are not markedly out-of-line,
although I would except that our definition on the face of it
is more restrictive than some.
Q739 Chairman: I think it is a practical
point that you make, Minister, which is with the Bill coming in
and all the changes etcetera you do not want to add confusion
and so forth. It might be worth exploring whether in the drafting
of the Bill you can take in a power by regulation to add other
categories if you wish to do so and whether that would need primary
legislation or could be done by regulation. It is an area where
in the future you might want to do this if you do not want to
do it yet because of the changes that you are making, whether
in fact if you added other people who are associated with a disabled
person that could be done by regulation rather than a new Act.
Maria Eagle: Yes, indeed that
is something that we could look at. There already are some powers
in the original legislation to extend coverage.
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