Joint Committee on the Draft Disability Discrimination Bill

Joint Committee on the Draft Disability Discrimination Bill First Report

DRAFT DISABILITY DISCRIMINATION BILL

CHAPTER 1: Introduction

1. The Draft Disability Discrimination Bill is intended to fit within the framework of existing disability discrimination legislation, the cornerstone of which is the Disability Discrimination Act 1995 (DDA). The DDA prohibits discrimination against disabled people in a range of different situations including employment, education, and the provision of goods and services. The nature of protection varies according to the situation, but in broad terms the Act provides that disabled people should not be treated less favourably than non-disabled people; and that in certain circumstances reasonable adjustments must be made for disabled people.

2. In Part 1 of the DDA, a disabled person is defined for the purposes of the Act as someone who has - or had - a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. This general definition is circumscribed by detailed provisions set out in Schedule 1.

3. Part 2 covers employment. It provides that employers must not treat a disabled person less favourably than a non-disabled person for a reason related to a disability; and that they must make reasonable adjustments to their practices, or to physical features of premises, if a person with a disability would otherwise be put at a "substantial disadvantage" in comparison with someone who did not have that disability. Employers only need to comply with the duty to make reasonable adjustments if they have a disabled employee: the duty is therefore reactive. At present, employers are entitled to justify a refusal to make reasonable adjustments if their reason is material to the circumstances of the case and substantial. In October 2004 an existing exemption for small employers (those with fewer than 15 staff) will be abolished; police officers, fire-fighters, prison officers, barristers and partners in partnerships will be brought within the scope of Part 2 (leaving only the armed forces exempt); and discrimination in relation to occupational pension schemes will be made unlawful.[1] Employment tribunals have jurisdiction to determine complaints made under Part 2.

4. Part 3 imposes duties on people or organisations providing goods, facilities and services to the public, or selling, letting or managing premises. It provides that such people must not treat disabled people less favourably than other people for a reason related to a disability. It also provides that service providers,[2] but not landlords, must make reasonable adjustments when failing to do so would make it "impossible or unreasonably difficult" for disabled people to use the service. The duties on service providers are being phased in:

Since December 1996 it has been unlawful for service providers to treat disabled people less favourably for a reason relating to their disability.
Since October 1999 service providers have had to make reasonable adjustments for disabled people to help them make use of the service.
From 1 October 2004 service providers will have to take reasonable steps to remove, alter or provide a means of avoiding a physical feature which makes it impossible or unreasonably difficult for disabled people to use the service.

5. In contrast to Part 2, the duty to make reasonable adjustments under Part 3 is anticipatory: the service provider must consider in advance what reasonable adjustments should be made to allow disabled people to make use of the service. For example, from October 2004 the owner of a shop might need to provide a ramp to facilitate wheelchair access. A reactive duty is owed only to a particular disabled person, while an anticipatory duty is owed to disabled people in general. Civil cases brought under Part 3 are heard in a county court (England and Wales) or a sheriff court (Scotland).

6. Part 4, which has been significantly amended by the Special Educational Needs and Disability Act 2001 (SENDA), covers education. As amended, the legislation aims to ensure that wherever possible disabled people have the same opportunities as non-disabled people in their access to education. It provides that educational bodies may not treat disabled students less favourably than non-disabled students because of their disability, and that they must take steps to ensure that disabled people are not put at a "substantial disadvantage". The duty to take such steps is anticipatory. By amending the Education Act 1996 the SENDA also strengthened the rights of children with special educational needs. Where cases brought in relation to Part 4 concern schools they are heard in the special educational needs and disability tribunal; other cases are heard in county and sheriff courts.

7. Part 5 concerns transport. (Transport is excluded from the "services" covered under Part 3.) Unlike Parts 2 to 4, it does not impose any general duties to make reasonable adjustments. Instead it permits the Secretary of State to make regulations setting standards for taxis, buses, coaches and trains so that they are accessible to disabled passengers. By the Rail Vehicle Accessibility Regulations 1998 (RVAR) the Government required all new passenger rail vehicles built after 1 January 1999 to be accessible for disabled people.[3] A more complex set of deadlines for new buses and coaches was set down by the Public Service Vehicle Accessibility Regulations 2000.[4] All buses, both old and new, must comply with the accessibility requirements by 2017; and all coaches by 2020. Since 31 March 2001 taxi drivers have been required to accept assistance dogs and to carry them free of charge.[5] A similar duty on operators and drivers of private hire vehicles came into effect on 31 March 2004.[6] In October 2003 the Government announced proposals "to set standards for wheelchair access and a range of other features to help disabled people use taxis",[7] with regulations to be introduced between 2010 and 2020.

8. The key features of the DDA, as amended by subsequent legislation, are set out in Table 1.

TABLE 1

Key features of the Disability Discrimination Act 1995 (as amended)

	Scope	Trigger for making reasonable adjustments	Is duty anticipatory or reactive?	Enforcement
Part 2	Employment	Substantial disadvantage	Reactive	Employment tribunal
Part 3	Goods, facilities and services Disposal of premises	Impossible or unreasonably difficult	Anticipatory	County / sheriff court
Part 4	Education	Substantial disadvantage	Anticipatory	Either county / sheriff court or special educational needs and disability tribunal
Part 5	Transport	Not applicable: this Part permits the making of Regulations setting accessibility etc. standards for vehicles

History of consultation

9. In coming to power in 1997 the Labour Government promised "comprehensive, enforceable civil rights for disabled people against discrimination in society or at work, developed in partnership with all interested parties".[8] To this end in December 1997 the Government established the Disability Rights Task Force (DRTF). The DRTF was chaired by Margaret Hodge MP, then Minister for Disabled People, and its members included representatives of disabled people's organisations, business and trade unions.

10. The DRTF's initial report in 1998 led to the passing of the Disability Rights Commission Act 1999 and the creation in 2000 of the Disability Rights Commission (DRC). The DRC is an independent statutory body whose role is to eliminate discrimination against disabled people and to promote equality of opportunity. Its activities include the provision of an advice and information service for disabled people, employers, service providers and others; and supporting legal cases in order to test the law on disability discrimination. The DRC is also responsible for publishing codes of practice on the practical application of the DDA.[9]

11. The final report of the DRTF, From Exclusion to Inclusion, was published in December 1999. In it the DRTF made 156 recommendations covering the definition of disability, education, employment, access to goods, services and premises, travel, the environment and housing, and participation in public life.

12. The Government immediately announced their intention to implement the recommendations relating to education, leading in 2001 to the passing of the SENDA (see paragraph 6). The Government's response to the DRTF's remaining proposals was published in Towards Inclusion in March 2001. The Government accepted many of the proposals, and set out their plans for implementing them.

The draft bill

13. The Draft Disability Discrimination Bill, which was published on 3 December 2003, includes the Government's proposals for taking forward those DRTF recommendations with which they agree and which require primary legislation.[10] Other proposals have been agreed to but do not require primary legislation. It should be noted that, while much of the draft bill is concerned with DRTF recommendations, it also contains other provisions which do not stem from the DRTF's report (for example, clause 5 relating to private clubs). Box 1 summarises the effect of each clause of the draft bill.

BOX 1

Summary of clauses of the Draft Disability Discrimination Bill

Clause 1 of the draft bill will make publishers liable for publishing discriminatory job advertisements.

Clause 2 will simplify coverage by the DDA of group insurance.

Clause 3 makes provision in relation to the coverage of transport services under Part 3 of the DDA (goods, facilities and services).

Clause 4 will, with certain exceptions, bring within the scope of Part 3 those "functions" of public authorities which are not already covered.

Clause 5 will bring within the scope of Part 3 private clubs with 25 or more members.

Clause 6 will extend certain aspects of the Part 3 duty to make reasonable adjustments to landlords and others who manage rented premises.

Clause 7 will give the Secretary of State the power to rationalise the existing exemption from the DDA for small dwellings.

Clause 8 will give public authorities a new duty to have regard to the need to eliminate discrimination of and harassment against disabled people, and to promote equality of opportunity, and clause 9 will give the DRC the power to issue codes of practice in relation to this duty.

Clause 10 extends to Part 3 a useful aspect of the claims procedure under Part 2: the use of a questionnaire procedure for prospective or actual complainants.

Clause 11 will make a chief officer of police vicariously liable for acts of discrimination committed by police officers in the course of their employment where these are unlawful under Part 3.

Clause 12 will provide that all people with HIV infection, multiple sclerosis or cancer will be deemed disabled for the purposes of the DDA.

Clauses 13 and 14 deal with minor amendments and the short title, commencement and territorial extent of the bill.

The Committee's inquiry

14. The Committee was established by motions of the House of Commons on 15 January 2004 and the House of Lords on 21 January 2004. A full list of Committee members is printed inside the front cover of the report. We were instructed to agree our report by the end of April and so we held our first meeting on 21 January, just a few hours after we were formally appointed. We elected Lord Carter as Chairman, and agreed to issue a general call for written evidence, with a deadline for responses of Friday 27 February (printed in Appendix 3). In practice, the Committee continued to receive and consider responses for many weeks after this date. In total over 140 written submissions were made to our inquiry, the majority of which are printed in the separate volume of evidence. We are grateful to everyone who took the time to give us the benefit of their views.

15. The Committee was also assisted by a timely report by the House of Commons Transport Committee on the transport aspects of the draft bill, and by written evidence provided by the House of Lords Delegated Powers and Regulatory Reform Committee and the Joint Committee on Human Rights.[11]

16. Oral evidence was heard in nine public meetings in February and March. In total we took evidence from 39 people, culminating on 31 March with Maria Eagle MP, Minister for Disabled People at the Department for Work and Pensions (DWP), and Tony McNulty MP, Parliamentary Under Secretary of State at the Department for Transport (DfT).[12] Again, we are grateful to everyone who gave evidence to us in person.

17. We were greatly assisted in our work by two excellent Specialist Advisers, Dr Jenny Morris and Barbara Cohen, to whom we record our gratitude.

Overview

18. It is disappointing that, once again, a Parliamentary scrutiny committee has been forced to examine an incomplete draft bill. One clause (clause 15, which outlaws discrimination against local councillors) was not published until February, giving the Committee little time to examine it. Another important set of provisions relating to transport - in particular, a proposed power to set a date by which all rail vehicles must be accessible to disabled people - was not available to the Committee at all. We have done our best to divine and assess the Government's intentions on the rail end date, but the lack of key clauses has hampered our work. The Joint Committee on the Draft Gambling Bill also recently noted that the failure to provide complete draft bills reduces the effectiveness of pre-legislative scrutiny.[13] We strongly endorse the recommendation of that Committee that the Government should make the full text of draft bills available to pre-legislative scrutiny committees in good time before the committees are asked to report.

19. The Committee notes that the easy read version of the draft bill was not available until several weeks after the publication of the standard format draft bill. The Committee was concerned at this delay, and its effect on the ability of people with learning disabilities to give evidence to us.[14] For the future, we suggest that Government publications which particularly affect disabled people should be made available in appropriate alternative formats at the same time as the standard format document is published.

20. The draft bill was supported in principle, if not necessarily in detail, by a very large number of witnesses.[15] The DRC warmly welcomed the draft bill and said that it would "greatly enhance the life chances of disabled people, promoting independence, safe mobility and employability." Some witnesses argued, however, that the approach embodied by the DDA and the draft bill was fatally flawed and that the existing legislation should be repealed and replaced by a disabled people's rights and freedoms bill.[16] Other witnesses thought that, while the DDA was seriously defective, the draft bill could nonetheless bring worthwhile benefits.[17]

21. The Committee considers it crucial that the proposed extensions to anti-discrimination legislation represented by the draft bill are, along with our own recommendations, implemented promptly. We believe our recommendations can easily be incorporated into the bill. We therefore recommend that the full bill should be introduced into Parliament as soon as possible in the current session.

22. This would mean that Parliamentary scrutiny of the bill could begin shortly before or after the summer recess. If it were carried over into the next session, it should be assured of receiving Royal Assent before the next general election. After Royal Assent, the new provisions should be implemented as quickly as possible.

23. We have received and considered a great deal of evidence from a wide range of sources, including groups representing disabled people, organisations and individuals who will be affected by the proposals, trade unions and others, and our recommendations are based on this evidence. A strong case was made that there have been unintended consequences arising from the way the original legislation was framed. Some of our recommendations address these issues and we consider that they could easily and promptly be incorporated into the full bill.

24. We also received evidence of a lack of consistency between some of the Government's stated intentions and the draft bill. In some cases, the draft bill is inconsistent with the existing DDA. Many of our recommendations seek to address these inconsistencies and, we believe, will prevent further unintended consequences in the implementation of the legislation.

25. We also conclude that, where it is appropriate, the bill should be consistent with other similar anti-discrimination legislation, in particular that applying to sex and race. This will give clarity to individuals and organisations who will be affected by the bill, and enable them to build on their work under other anti-discrimination legislation and to carry out their responsibilities with confidence and consistency.

26. Finally in this regard, last year the Government published a draft Mental Incapacity Bill, and later this year they intend to publish a draft Mental Health Bill. We recommend that the Government review the provisions of these three bills to ensure that they are consistent with each other.

27. The Committee was grateful to receive from the Government an informal "illustrative version" of how the DDA would look if it were amended by the draft bill, incorporating changes already made to the DDA by various regulations. Without it the Committee's work would have been difficult, and when the bill becomes law users of the DDA are likely to experience similar problems. We recommend that, once the bill is enacted, the Government consolidate all the anti-disability discrimination legislation into a single Act. The Minister for Disabled People indicated her support for this idea in her evidence to us on 31 March.[18]

28. The Committee was scrutinising what is in some respects a skeleton bill. Over 25 separate provisions authorise the Secretary of State to make regulations on nearly every aspect of the draft bill, ranging from transport to housing to the new duties on public authorities. Only four of the fifteen clauses available to us do not contain any delegated powers. We received useful memoranda from the Government on these delegated powers, and extremely helpful evidence from the House of Lords Delegated Powers and Regulatory Reform Committee.[19] We comment on specific delegated powers in the appropriate chapters. In this general overview we recommend that where a draft bill contains significant delegated powers, the Government should as a matter of routine provide the appropriate Parliamentary committee with a memorandum explaining the purpose and effect of those powers (as was provided for us). We also welcome the Delegated Powers Committee's willingness to give preliminary scrutiny to draft bills.

Title of the bill

29. Before we turn to the provisions of the draft bill, we first consider the short title. We understand that the title of a bill or Act has no legislative effect, but it can send a powerful message, and it should properly reflect the intention behind the measure. As the purpose of the bill is to combat discrimination against disabled people, we recommend that the Government consider changing the short title to the Disability Anti-Discrimination Bill.

Structure of the report

30. We do not report on the draft bill in clause order. We look first in chapter 2 at clause 12 and the key question of the definition of "disability" in the DDA; in other words, who should be protected from discrimination. In chapters 3 to 8 we examine the other key areas addressed by the draft bill: transport, the new duties on public authorities, protection of local councillors and other office holders, private clubs and housing. In chapter 9 we assess the remaining clauses. In chapters 10 to 12 we examine the key proposals made by witnesses for extending the scope of the draft bill: volunteers, employment tribunals, and examining bodies and standard setting agencies. In chapters 13 and 14 we examine two issues which apply across several of the subjects covered by the draft bill: triggers and financial implications. Chapter 15 lists our conclusions and recommendations.

31. We include as appendices to our report:

List of Members, together with declarations of interests

List of witnesses

Our call for written evidence

Schedule listing witnesses' comments on the draft bill, with Government responses

List of acronyms

Formal Minutes

1 By the Disability Discrimination Act 1995 (Amendment) Regulations 2003 (SI 2003/1673), referred to in this report as the "DDA Amendment Regulations 2003" and the Disability Discrimination Act 1995 (Pensions) Regulations 2003 (SI 2003/2770), referred to as the "DDA Pensions Regulations 2003". Back