Joint Committee on the Draft Disability Discrimination Bill

Joint Committee on the Draft Disability Discrimination Bill First Report

CHAPTER 6: LOCAL COUNCILLORS AND OTHER OFFICE AND POST-HOLDERS (CLAUSE 15)

254. The DDA Amendment Regulations 2003 will, from October 2004, extend protection for a range of disabled office- and post-holders. This includes any post or office that is paid and directly managed and any post- or office-holder who is appointed, or recommended for appointment, by a Minister, government department, the National Assembly for Wales or any part of the Scottish Administration.[297] A number of post- or office-holders are excluded from these provisions, including councillors, members of the Greater London Authority, MPs, peers and officers in the Scottish Executive or National Assembly for Wales.

Draft bill changes

255. Clause 15 was published in February 2004, three months after the publication of the rest of the draft bill. It will make it unlawful for locally elected authorities to discriminate against councillors in the carrying out of their official business. The new sections will be inserted into Part 2 DDA, which covers employment. As under Part 2, the duty to make reasonable adjustments is reactive and would apply only in relation to a specific disabled person. Section 15A(1) lists the authorities to be covered by the new provisions, including all local authorities in England, Wales and Scotland and the Greater London Authority.

256. Clause 15 responds to the recommendation of the DRTF that "local councils should be placed under a duty not to discriminate against disabled councillors, including a duty to make reasonable adjustments".[298] Although the DRTF acknowledged that MPs and Assembly members fall within the same category as local councillors, they concluded that "the internal procedures of the Assemblies or Parliaments should be used to secure reasonable adjustments".[299]

Extension to all statutory elected or appointed office and post-holders

257. A number of submissions have advocated that coverage similar to that conferred by clause 15 should be extended to all statutory elected or appointed office-holders.[300] Office- and post-holders recommended for inclusion have included MPs, peers, school governors, lay magistrates and some NHS appointments.

258. Some of those recommended in written evidence for inclusion in clause 15 will in fact already be covered under existing DDA provisions from October 2004. Lay magistrates, for instance, are already covered because their appointment is made either by the Crown or the Chancellor of the Duchy of Lancaster. The Minister has told the Committee that clause 4, which covers discrimination by public authorities in the exercise of their functions, would apply to the appointment and on-going relationship of lay members of local authority standards committees and school governors in state schools.[301]

259. Engage Network suggested that the extension of the DDA to all public appointments would help to improve the substantial under-representation of disabled people in public life.[302] In March 2003, only 3.1 percent of appointments to non-departmental public bodies were held by disabled people.[303] The BCODP argued that protecting all office-holders from discrimination would facilitate the full participation of disabled people in public life.[304]

260. At present, the office- and post-holders who are protected from discrimination by the DDA seem to be covered in a rather ad-hoc way. Some are covered by existing provisions in the DDA, others by clause 15, and yet others by clause 4. Some do not seem to be covered at all.

261. The Government stated in written evidence that they considered coverage of office- and post- holders under the DDA to be "sufficient and consistent with that available under all the anti-discrimination strands".[305] In oral evidence the Minister for Disabled People told the Committee that "the intention is not to exclude anybody. The intention is to include as broad a range of people as possible".[306]

262. The Committee agrees with the Government's intention that no-one should be excluded. We therefore recommend that the Government re-examine clause 15 and all existing disability anti-discrimination legislation with the intention of ensuring that no statutory elected and appointed office- and post-holders are excluded from coverage.

Exclusion for appointment to an office or committee

263. Some activities are specifically excluded from protection from discrimination under clause 15. Under new section 15B(3), councillors will not be protected from discrimination if they are discriminated against in election or appointment to an office of the authority, appointment to a committee or sub-committee, or appointment or nomination to a body exercising any power of the authority.

264. The Committee agrees that it would be inappropriate to include elections within the scope of clause 15, but it was suggested by Sir Peter Large that it was wrong for protection to be ruled out in the matter of appointments, an area "where its occurrence is most likely to cause upset".[307] The Minister for Disabled People told the Committee that the aim was not to interfere with the political judgement of the leaders of political and other groups on local councils as to whom they wished to appoint to particular posts.[308]

265. The Committee can see that such leaders should generally be able to appoint whoever they wish. However, the Committee is concerned that new section 15B(3) will leave unprotected disabled councillors who face clear and direct discrimination, for example where they are told that they are not being appointed to a post because they are disabled. The Minister agreed that this would clearly seem to be a case of discrimination on the grounds of disability.[309] She suggested that protection from direct discrimination in the appointment of disabled councillors may be covered, "once we get coverage of larger private clubs [under clause 5], which will include political parties".[310]

266. The Committee recommends that the Government review the effect of clause 15 combined with clause 5, and ensure that the full bill as introduced to Parliament protects disabled councillors from direct discrimination in appointments to posts of the kind described in new section 15B(3).

Duty to make reasonable adjustments

267. Witnesses expressed concern that the duty to make adjustments for councillors does not clearly extend to the provision of auxiliary aids and services, as it does under Parts 2 and 3 DDA. Under clause 15, local authorities must make reasonable adjustments to a physical feature or "practice, policy or procedure" which places a disabled person at a substantial disadvantage compared with a non-disabled person. This follows the wording of Part 3. By contrast, the reasonable adjustment duty in Part 2 gives employers a duty to adjust a physical feature or "provision, criterion or practice" if a disabled person is at a substantial disadvantage (section 4A(1)). And although Part 3 goes on to make separate provision for auxiliary aids and services, clause 15 does not.

268. The Discrimination Law Association has suggested that importing Part 3 wording into Part 2 provisions is likely to cause considerable confusion.[311] The RNIB argued that the duty to adjust auxiliary aids is vital to securing the access needs of disabled councillors, who may require information in Braille, large print or via a British Sign Language interpreter or palantypist. It proposed that new section 15C be amended to make adequate provision for auxiliary aids and services.[312]

269. The Committee considers that there should be consistency within Part 2 DDA, and recommends that the wording of new section 15C follow the duty placed on employers to make reasonable adjustments in section 4A(1).

270. The Committee also recommends that a separate provision is inserted into new section 15C, creating a duty to provide auxiliary aids and services.

Breadth of coverage

271. The LGA was concerned that the legislation may not adequately cover the breadth of situations councillors face while undertaking their duties. Currently, clause 15 provides that reasonable adjustments should be made in connection with the "carrying out of official business".[313] However, the Committee heard that there is "a grey area about what is official and what is not".[314] For example, although the Mayor of Islington, who is disabled and uses a wheelchair, receives transport to council meetings she does not necessarily get transport to external organisations on which she represents the council. The Committee heard that some disabled councillors faced problems holding advice surgeries because they could not find accessible buildings, and while some councils consider arrangements for advice surgeries part of supporting the councillor, others do not.[315]

272. The Minister told the Committee that they would certainly expect reasonable adjustments to be made for surgeries and activities that a person would undertake as part of carrying out their duties as a councillor. She suggested that there would be difficulties surrounding political activities such as knocking on doors for the purpose of seeking reelection. However, "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".[316]

273. The Committee recommends that guidance should identify the activities undertaken by councillors for which reasonable adjustments should, if necessary, be provided.

Circumstances in which discriminatory treatment is taken to be justified

274. Concerns have been raised about new section 15B(4), which will enable regulations to specify the circumstances in which discriminatory treatment can be justified. The DRC, Discrimination Law Association, RNIB and RNID have all raised concerns that the content of these regulations should not further lower what is already considered a "very low threshold" for justification of discrimination under Part 2 DDA.[317] In Part 2 DDA, discriminatory treatment can be justified, except in the case of direct discrimination, if the reason for it is "material to the circumstances of the particular case" and "substantial".[318]

275. The Committee recommends that the regulations provided for under proposed section 15B(4) do not lower the threshold for justification of discriminatory treatment in section 3A(3) DDA ("material and substantial").

297 Part 2, section 4C(3) DDA Back

298 From Exclusion to Inclusion, Disability Rights Task Force, recommendation 5.18 Back

299 From Exclusion to Inclusion, Disability Rights Task Force, para 34 Back

300 DRC, Ev 1, para 10.6.1; Law Society, Ev 174, part 10 Back

301 Ev 276, paras 21-2 Back

302 Ev 437, para 1.5 Back

303 Public Appointments 2003, Cabinet Office, xi Back

304 Ev 135, para 9 Back

305 Appendix 4, clause 15 Back

306 Q 727 Back

307 Ev 447, para 1.1 Back

308 Q 725 Back