Joint Committee on the Draft Disability Discrimination Bill

Joint Committee on the Draft Disability Discrimination Bill First Report

CHAPTER 5: DUTY ON PUBLIC AUTHORITIES (CLAUSE 8)

203. The DDA makes it unlawful for public authorities to discriminate against disabled people by treating them less favourably in employment, the provision of their services and in certain aspects of education. There is currently no positive duty on public authorities to promote equality of opportunity.

Draft bill changes

204. Clause 8 will place a new positive statutory duty upon public authorities in carrying out their functions to have due regard to:

the need to eliminate discrimination against disabled persons;

the need to eliminate unlawful harassment of disabled persons; and

the need to promote equality of opportunity between disabled persons and other persons by improving opportunities for disabled persons.

205. It would place a positive and proactive duty on organisations that come within the definition of a public authority to put disability equality in the mainstream of their activities. The clause is similar to section 71 of the RRA, which imposes a duty on public authorities to promote racial equality. Clause 9 provides that the DRC may issue codes of practice relating to the new duties.

206. Public authorities are broadly defined, in line with the definition of public authority in the Human Rights Act 1998 (HRA), as including "any person certain of whose functions are functions of a public nature". A number of organisations and procedures are specifically excluded from this duty, including both Houses of Parliament and the Scottish Parliament, the security services, acts of Parliament or Scottish Parliament, judicial acts and orders in Council, and recruitment to the navy, military or air forces. Regulations may exempt additional authorities and other acts of public authorities from this duty or any part of it.

207. The Secretary of State will be able to impose specific duties on public authorities within England and Wales by regulation (the Scottish Ministers will have equivalent powers for Scotland), in consultation with the DRC. The DRC will have the power to enforce any such specific duties through a compliance notice, which can be issued if it considers that a public authority is failing to comply with any specific duty to be laid out under future regulations. This could ultimately be enforced by the county or sheriff court.

Definition of public authorities

208. The definition of a public authority is similar in clauses 4 and 8, but the evidence received by the Committee indicates that there are only concerns about its adequacy in relation to the proactive duties imposed under clause 8.

209. The broad approach to defining a public authority taken by clause 8 was welcomed by the DRC for sending the message that "disability equality is the business of all public authorities, not just ones on the particular list".[239] However, a number of submissions raised concerns that the definition is insufficiently clear.

210. The Joint Committee on Human Rights highlighted that the definition of a public authority in the HRA, upon which the definition in the draft bill is based, has been applied by the courts in an inconsistent and restrictive manner.[240] This has left those providing important public services, from the State and private sectors, uncertain about their responsibilities under the Act.[241] Jean Corston MP, Chair of the Committee, suggested that it was likely that the application of the HRA case law would confine the duty to promote equality of opportunity to "obvious" public authorities and to some private organisations performing public functions which had close organisational links to a government body. However, organisations to which services had been contracted out, such as housing associations, would not always or consistently be bound by the positive duty.[242]

211. Other witnesses expressed uncertainty about the status of hybrid organisations, such as voluntary sector service providers funded by statutory services, registered social landlords, local strategic partnerships and regeneration projects like the New Deal for Communities.[243]

212. The RRA and the Northern Ireland Act 1998 (NIA) both give public authorities an equivalent proactive duty to promote equality of opportunity. Under the RRA, those public authorities subject to this duty are defined by way of a list in Schedule 1A (inserted by the Race Relations (Amendment) Act 2000 (RR(A)A) ). The Secretary of State is given powers to amend the schedule by order and can extend the application of the duty to any person he or she considers exercises functions of a public nature. Under the NIA, public authorities subject to the duty are defined by reference to other legislation or are designated by order made by the Secretary of State.

213. In oral evidence, both organisations advocated the use of this closed-list definition. The ECNI suggested that in their experience, "to have a list that targets those bodies that are most likely to have an impact in terms of equality is going to be more effective rather than a blanket overall approach".[244] The CRE stated a preference for "clarity and a closed list"[245] and suggested in written evidence that it helps to avoid legal challenges and the need to test the matter in court.[246] However, they agreed that "there are difficulties in getting the amendment [to add or remove authorities from the list] as quickly as you would want".[247] The Committee also heard from the LGA that a definitive list of public authorities would be difficult to keep up to date with the constant pace of change.[248] The LGA added, however, that organisations need to know whether the Act applies to them and what they need to do.[249]

214. Some witnesses advocated an approach that combined a general definition and a list. Sense recommended that the draft bill should refer to a list of public authorities, as well as defining a public authority, so that "public bodies who are not on the list but who match the description could be included under the new duties".[250] The TUC suggested that, alongside the broad definition of public functions, there should also be a statement that "it must be read as including all bodies already listed as being covered under the RR(A) Act 2000".[251]

215. The CRE told the Committee that they had recently published a procurement guide in which they advise public authorities to ensure though the contract process that their contractors have regard to the duty and fulfil those obligation on their behalf.[252]

216. The Minister for Disabled People told the Committee in oral evidence that she did not accept that the definition would create uncertainty because public authorities should assume they were covered unless they were on the short list of those exempted.[253] With regard to hybrid public authorities she said that she "hope[s] it will be clear that, in respect of their public functions or the functions that they are carrying out that are seen as public functions, they would be covered".[254]

217. The main issue seems to be whether it is clear which authorities, in respect of which of their functions, would be covered by the definition of public authority in clause 8. The Joint Committee on Human Rights' report suggests that, while pure public authorities may be clear about their obligations, hybrid organisations may not. It may not therefore be possible for bodies to make a clear assumption that they are covered by clause 8 and to know what action they are required to take. The Law Society urged consistency in the legal definition of a public authority across discrimination law and recommended that the schedule to the RRA would provide a suitable starting point for the definition of a public authority in clause 8. In their view it is necessary not only for public authorities but also for the public, in particular disabled people, to know with certainty which authorities are subject to the statutory duties.[255]

218. Creating a closed list would make the draft bill's duty on public authorities consistent with other discrimination legislation, including the RRA and NIA. By adopting the same list as in the RRA, the public authorities involved would be able to develop a coherent and consistent approach to promoting equality on grounds of race and disability. While some witnesses commented that a closed list may require regular up-dating, which was not always quickly achieved, the Committee did not receive specific evidence of problems caused by this.

219. Many witnesses referred to the fact that functions of public authorities are increasingly being carried out by private and voluntary sector organisations. They raised concerns that in carrying out such functions these organisations should not be exempt from a duty to promote equality. As is the case under the RRA, the Committee would expect that, however public authorities are defined, an authority that is subject to the clause 8 duty would remain liable regardless of whether they carried out all of their functions themselves or arranged for others to do so on their behalf. In order to meet its duty under clause 8, an authority would therefore need to impose comparable obligations on their contractors through the contracting process. If a closed list approach were adopted, the bill, or regulations made under it, could require all listed public authorities to impose obligations comparable to their duties under clause 8 on any private or voluntary body carrying out any functions on their behalf. This would formally recognise the importance of extending the obligation to promote equality of opportunity for disabled people to the wider range of organisations that are engaged in carrying out public functions.

220. After careful consideration of the evidence, the Committee recommends that the current definition of a public authority be replaced by a list of authorities to which the duty applies, as is the case in the RRA and NIA. For consistency, the bill could adopt the list in Schedule 1A of the RRA. As in the RRA, the bill should provide a power for the list to be amended by order; this should include a power to extend the definition to include any person carrying out functions of a public nature. It is the Committee's view that this approach should enable the duty to take effect with maximum certainty from the outset as to which bodies must comply.

221. The Committee further recommends that the DRC and the Government should keep under review the application of the duty to listed authorities in order to assess whether amendment is required. In particular the Committee recommends that such reviews should have regard to whether the list should be amended to extend the duty to other bodies defined on the basis of their public functions. With regard to the benefits of consistency across all discrimination legislation, we suggest that any major review of the application of the duty to a closed list of public authorities should include relevant experience under the comparable provisions of the RRA.

222. Additionally, the Committee recommends that the bill must make clear that a public authority is responsible for compliance with the duties under clause 8, regardless of whether its functions are contracted out to a private or voluntary body.

Promotion of equality of opportunity

223. The draft bill sets a pre-condition before public authorities are required "to promote equality of opportunity between disabled persons and other persons by improving opportunities for disabled persons": they may only act where they are satisfied that "opportunities for disabled persons are not as good as those for other persons".[256]

224. This differs from the equivalent provisions in the RRA and NIA, which do not make the duty subject to a pre-condition that there must be some disadvantage before public authorities are required to act. The Welsh LGA has described the wording of the duty as "confusing in terminology and negative in focus in comparison to the race equality duty".[257]

225. Both the ECNI and CRE told the Committee that they did not consider that the statement "where opportunities for disabled persons are not as good as those for other persons" should be left in the bill. The CRE suggested that "the public authority should not have to show that there is some disadvantage before they have a duty to act".[258] The ECNI agreed that "you cannot wait until the discrimination has actually happened, you have to be proactive".[259] They argued that the duty to be proactive was one of the strongest aspects of the NIA duty on public authorities.[260]

226. The Minister for Disabled People said that the duty to promote equality of opportunity was different to that in the RRA and NIA because the DDA did not deal with equality in the same way as other equality legislation: in contrast to race and sex discrimination legislation, disabled people required different treatment in order to achieve equality.[261] She did indicate that she was willing to look again at whether the requirement that opportunities for disabled people are not as good should first be satisfied, rather than provide for a straight duty to promote equality of opportunity.[262]

227. The Committee acknowledges that equality of opportunity for disabled people may involve different treatment, rather than identical treatment. However, the duty is intended to be a positive and proactive one. As such, we are not convinced that any criteria should have to be met before public authorities are required to promote equality of opportunity. A reluctant authority could claim that the pre-condition did not seem to be met in order to avoid its responsibilities. The RRA's equivalent duty states simply that public authorities must carry out their functions with due regard to the need to "promote equality of opportunity and good relations, between persons of different racial groups".[263]

228. We recommend that the duty on public authorities should require that public authorities must carry out their functions with due regard to the need to promote equality of opportunity between disabled persons and other persons by improving opportunities for disabled persons, and should not include the pre-condition "where opportunities for disabled persons are not as good as those for other persons".

Promotion of good relations

229. The duty to promote equality of opportunity is similar to that given under section 71 of the RRA. It does not, however, include an equivalent duty to "promote good relations". The Committee has heard from a number of organisations that the bill would benefit from the inclusion of such a duty.

230. The DCC and DRC identified four main strands of activity which have been undertaken with a view to promoting good race relations and which they consider would also be useful in respect of disability. These include building community cohesion, addressing harassment and violence outside the workplace, promoting general understanding and awareness in the community and improving civic participation, combating social exclusion and deprivation.[264]

231. The Minister for Disabled People said that one of the reasons why the draft bill did not contain a duty on public authorities to promote good relations was because "I do not think it is at all obvious that there are not good relations between disabled people and other people".[265] But the Committee has heard a great deal of evidence that disabled people do face widespread harassment and bullying in their communities.

232. The DCC told the Committee that a more positive duty is required to address the "fairly endemic violence and discrimination that takes place against disabled people within their communities".[266] The DRC Attitudes and Awareness Survey indicated that hate crime affected one in five disabled people and research by Mencap found that nine out of ten people with learning disabilities faced some form of violence or abuse. The DCC told the Committee that the casework service of the Royal National Institute for Deaf and Hard of Hearing People (RNID) dealt with many examples of harassment, including those where deaf and hard of hearing people had been sent abusive text messages on their mobile phones because they were unable to hear verbal abuse.[267]

233. Turning Point reported that two thirds of people with a learning disability say they have been bullied more than once a month, many of them by their own neighbours.[268] Fifty percent of respondents to the Mayor of London's survey of disabled Londoners said that they had experienced abuse or bullying.[269]

234. The Welsh LGA suggested that a duty to promote good relations would "encourage a more proactive approach to compliance with the … duty … to eliminate harassment".[270] The DRC echoed this view, by suggesting that the duty to promote equality and good relations would encourage the "police to be proactive in their policing".[271] It acknowledged that some police forces had developed effective strategies for dealing with harassment of people with learning disabilities, but proposed that "what we need is a mechanism for ensuring that this is rolled out across other police forces".[272] The Mayor of London argued that a duty to promote good relations would "provide a driver for the effective engagement of disabled people and disabled people's organisations in community cohesion strategies" and ensure recognition of distinct communities, such as the deaf community.[273]

235. The Royal National Institute for the Blind (RNIB) and Turning Point suggested that by excluding a duty to promote good relations in the DDA, the Government could inappropriately signal to public authorities that the issues tackled in relation to race have no relevance for disabled people.[274] The CRE suggested that, in their experience, the duty to promote good relations was the "natural complement to the duty to promote equality of opportunity". They considered that some of the issues involved in race relations similarly applied to disabled people, including social cohesion, segregation and acceptance.[275]

236. Given this evidence, the Committee welcomes the Minister's commitment that she "is perfectly happy to be persuaded if there is some evidence".[276]

237. The Minister also raised the objection that the duty is not appropriate because the DDA works in different ways to other strands of equality legislation, as it requires different treatment, not equal treatment, in order to overcome discrimination. She suggested that "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".[277] The DCC stated on this subject: "there is an unwarranted worry that there might a case for saying that the local authority in some way, by doing all this promotional activity, is disadvantaging non-disabled people".[278]

238. The Government argued that the bill would, as drafted, be following precedents on this issue set by other United Kingdom legislation. Under the NIA the duty to promote good relations applies only in respect of racial origin, religious and political belief and does not extend over the remaining six equality grounds, including disability. The positive equality duty imposed by section 404 of the Greater London Authority Act 1999 covers six equality grounds, including disability, but imposes a duty to promote good relations only in respect of race, religious belief and sexual orientation.[279] However, the ECNI told the Committee that they have considered the duty of good relations so beneficial that they have recommended its extension to all nine grounds under section 75, including disability.[280] They also noted that they would be extremely disappointed if the Northern Ireland disability bill being brought forward this autumn did not contain a duty to promote good relations.[281] By extension, they agreed that it would be strange if the duty to promote good relations was contained in the disability discrimination bill for Northern Ireland but not the disability discrimination bill for the rest of the United Kingdom.[282]

239. The LGA stated that local authorities would in any case consider good relations between disabled people and others as part of their community cohesion agenda, and proposed that all duties to promote good relations should be better aligned.[283] The ECNI noted the importance of specifying promoting good relations as a separate duty: "there is no doubt that equality of opportunity underpins good relations, but I do think good relations is that bit of the equality of opportunity which encourages people to embrace diversity and difference".[284]

240. The LGA was unable to provide an indication of the potential additional costs of this particular strand of the duty to promote equality. This was in part because it is dependent on which activities are considered to constitute the promotion of good relations - interpretation can range from holding a festival to what message the council gives out - but also because it is a task carried out alongside the authority's other duties under the other equality acts.[285] Given the general duties on public authorities under the existing DDA and the proposals in the draft bill, the Committee considers that the addition of a duty to promote good relations will not make a significant difference financially, and will be of practical benefit to public authorities in carrying out their proactive equality duties under the DDA and other equality legislation.

241. In light of the evidence received, we recommend that the bill include a duty on public authorities to have due regard to the need to promote good relations between disabled and non-disabled people.

Advocacy

242. A number of witnesses highlighted the importance of independent advocacy for enabling disabled people, particularly people with learning disabilities and mental illnesses, to access services and secure their rights.[286] The NCIL recommended that a duty be placed on public authorities to provide advocacy support to disabled people.[287] The Scottish Independent Advocacy Alliance agreed, and drew attention to the Mental Health (Care and Treatment) (Scotland) Act 2003, which provides that in Scotland "every person with a mental disorder shall have a right of access to independent advocacy" and places Scottish local authorities and health boards under a duty to provide such services.[288] Advocacy Across London argued that the strategic development and funding of advocacy should specifically be included in the new clause 8 duty to promote equality of opportunity.[289]

243. In November 2003 the Joint Committee on the Draft Mental Incapacity Bill concluded that:

"Independent advocacy services play an essential role in assisting people with capacity problems to make and communicate decisions; helping them to enforce their rights and guard against unwarranted intrusion into their lives; providing a focus on the views and wishes of an incapacitated person in the determination of their best interests; providing additional safeguards against abuse and exploitation; and assisting in the resolution of disputes."[290]

244. This Committee agrees with that assessment. We recommend that, following consultation, the DRC code of practice to be made on the new clause 8 duty should emphasize the importance of independent advocacy services, and provide guidance on the circumstances in which public authorities will be expected to ensure that such services are available for disabled people.

245. The Committee notes the importance of advocacy services for those with learning disabilities and mental health problems, and hopes that the forthcoming Draft Mental Health Bill for England and Wales will include similar provision to that found in the parallel Scottish legislation, the Mental Health (Care and Treatment) (Scotland) Act 2003.

Monitoring and enforcement

246. New section 49E will give the DRC responsibility to monitor compliance. The DRC will have the power to serve a compliance notice on a public authority if it is not meeting any specific duties imposed under the proposed regulation-making power. The notice could require the authority to comply with the duty concerned and keep the DRC informed of its action, or supply information to verify that the duty is being met. Compliance notices could ultimately be enforced through the county or sheriff court.

247. More generally, the DRC indicated that public authorities would have to set themselves targets, and that in terms of monitoring the DRC would work with authorities to decide how to measure improvements in disability equality.[291] Overall, the DRC estimated that they would require an additional £1 million to take the duties in the bill forward in 2004/5, including drafting new codes of practice prior to implementation of the bill's duties.[292]

248. The draft bill, like the RRA, only allows for a compliance notice to be served on public authorities who are failing to comply with a specific duty. These specific duties will be provided for in regulations, and may include, for instance, a duty on public authorities to produce a disability equality scheme. As under the equivalent provisions in the RRA, the draft bill does not propose to give the DRC the power to issue compliance notices to public authorities who are failing to comply with the general duty under proposed section 49A(1). The CRE told the Committee that they are unable to enforce the RRA general duty very easily through the mechanism of judicial review available to them.[293] They also noted that in their experience it was difficult to monitor 44,000 public authorities to ensure their compliance with the equality duty.

249. The ECNI suggested that a strength of the public sector duty would be the powers of complaint and investigation. The ECNI currently utilise two forms of complaint mechanisms: complaints by an individual if they do not believe a public authority is living up to its equality scheme, which can be taken to the ECNI Investigations Committee, and class actions where the ECNI could decide to undertake an investigation if they did not believe an authority was fulfilling its duty.[294] The ECNI also noted that they had "named and shamed" certain public authorities which they considered had not fulfilled their duties under section 75 of the NIA.[295]

250. The Minister for Disabled People noted that the point of the duty to promote was to spur public authorities into thinking about how they undertake their activities. Therefore, the focus might be less on rights of action before courts, and more on trying to work together to eliminate problems.[296]

251. The Committee acknowledges the Minister's view about the purpose of the duty to promote equality of opportunity. Nevertheless, it remains a duty in the terms of the bill and as such, must have an effective means of enforcement. The CRE has found the judicial review mechanism to be an unsatisfactory way of enforcing the similar general duty under the RRA. The draft bill enables the DRC to issue compliance notices to enforce any specific duties (to be outlined later by regulations) but not the general duty itself (proposed section 49A(1)). The purpose of the specific duties is "ensuring the better performance by that authority of its duty under section 49A(1)". But the DRC will only be able to enforce a component of that duty, not the overall duty itself.

252. The Committee does not, of course, envisage that the DRC should actively monitor all public authorities for compliance with the general duty, but if a complaint brings to the attention of the DRC a serious failure to comply with the general duty, it seems appropriate for the DRC to have an effective mechanism for ensuring compliance.

253. The Committee therefore recommends that the DRC should have the power to issue a compliance notice if a public authority fails to comply with the general duty under section 49A(1).

239 Q 28 (Ms Gooding) Back

240 Joint Committee on Human Rights, The Meaning of Public Authority under the Human Rights Act (7th Report, Session 2003-04, HL 39/HC 382), see paras 28-30 for Poplar Housing and Regeneration Community Association v Donoghue [2001] EWCA Civ 595; paras 31-33 for Callin and Others v Leonard Cheshire Foundation [2002] EWCA Civ 595; paras 36-38 for R v Hampshire Farmers' Market ex parte Beer [2003] EWCA Civ 1056 Back

241 Joint Committee on Human Rights, The Meaning of Public Authority under the Human Rights Act (7th Report, Session 2003-04, HL 39/HC 382), p4 and para 49, p19 Back

242 Joint Committee on Human Rights, Ev 441, paras 9-11 Back

243 Rethink, Ev 204, paras 3-4; Shelter, Ev 294, paras 19-20; see also QQ 238 & 239 (Ms Willoughby) Back

244 Q 617 (Dame Joan Harbison) Back

245 Q 628 (Mr Robinson) Back

246 CRE, Ev 216, para 3 Back

247 Q 628 (Mr Robinson) Back

248 Q 238 (Ms Willoughby). See also Q 28 (Ms Gooding) Back

249 Q 238 (Ms Willoughby) Back

250 Sense, Ev 342, para 6.1 Back