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.
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.
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.
They also noted that in their experience it was difficult to monitor
44,000 public authorities to ensure their compliance with the
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.
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.
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.
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