Joint Committee on the Draft Disability Discrimination Bill

Joint Committee on the Draft Disability Discrimination Bill First Report

CHAPTER 7: PRIVATE CLUBS AND MEMBERSHIP ASSOCIATIONS (CLAUSE 5)

276. It is unlawful for a provider of services to discriminate against a disabled person under Part 3 of the DDA. This includes associations that are open to the public, for instance snooker or bingo halls, but not private clubs where membership is regulated by a constitution. At present, private clubs are not prevented from discriminating against their own members, although it is unlawful for them to discriminate against disabled employees (under Part 2 DDA) or customers who are members of the public (under Part 3 DDA).

Draft bill changes

277. The intention of clause 5 is to ensure that any club or association, operating either open or selective membership, is covered by the provisions of Part 3. In particular, disabled people would have equal rights to membership and equal access to the club's facilities.

278. In the new sections 21E to 21H inserted by clause 5, private clubs are defined as any association of persons with 25 or more members, which is not a trade association and where admission is regulated by a constitution. This could include social clubs, working men's clubs, sports clubs that operate membership selection and political parties. The draft bill provides a regulation-making power which could be used to extend the provisions of clause 5 to guests of private club members.

279. The Committee received only a small amount of written evidence from organisations which might be affected by clause 5, but on 10 March took evidence in person from representatives of the Working Men's Club and Institute Union (WMCIU), the Association of London Clubs (ALC) and the Fitness Industry Association (FIA).[319] The majority of the FIA's member gyms were considered to be open to the public and so were already covered, and they had no concerns of principle about the small number of other member establishments being brought within the DDA.[320] The WMCIU and the ALC both doubted the need for legislation. The WMCIU suggested that improvements in access for disabled people were "evolving quite well and I do not think there is any need for it to be statutory".[321] The ALC told the Committee that "London clubs have always welcomed disabled people into what they [members] describe as ... their second home, and I am sure most people would agree that there is absolutely no need for legislation in your own home".[322]

"Adversely affects": trigger for adjustment

280. New section 21G(1) contains a regulation-making power enabling the Secretary of State to place a duty on private clubs to adjust a policy or physical feature "which adversely affects disabled persons".[323] In common with many other organisations, the DCC interpreted this wording as an additional trigger and noted that the term "adversely affects" was significantly more generous than the existing Part 3 DDA trigger of "impossible or unreasonably difficult".[324] However, in the Explanatory Notes to the bill the Government stated that they did not expect that the duties to be imposed by regulations would go further than those elsewhere in Part 3.[325]

281. Contrary to the interpretation of our witnesses, the Minister told the Committee that the term "adversely affects" is not a trigger.[326] Instead, it was used to "ensure that the power given to Ministers … is wide enough to enable an appropriate duty to make adjustments to be formulated".[327] She suggested that "the duties in respect of private clubs are akin to Part 3 [and] we would therefore be looking at a high trigger and an anticipatory duty". The Minister for Disabled People explained that the Government had not put a trigger on the face of the bill because they wanted to ensure "that stakeholders who will be affected by these provisions are consulted in advance about what they think the trigger should be and whether or not our initial thinking is right", and that they intend to "consult pretty immediately on these provisions once this process is over".[328]

282. The Committee is disappointed that the consultation with key stakeholders was not undertaken in time for substantive proposals to be included in the draft bill. We agree with Turning Point that, although clause 5 seems to be welcome, "because the detail is left to regulations it is not clear what impact this will actually have".[329] Although we would not wish the draft bill to have been delayed, we do consider that primary legislation should contain a clear policy intention.

283. The wording of the regulation-making power to make reasonable adjustments has been the cause of considerable and understandable confusion amongst witnesses. It should be made clear when the full bill is introduced that the power does not in itself represent a trigger, and that the Government currently intend the trigger for reasonable adjustments for private clubs to mirror that in Part 3 DDA.

284. The current wording in new section 21G(1) suggests that the Government are seeking the power to impose on private clubs duties which go much further than any other duties applying to service providers under Part 3. The fact that the Government do not intend to make such stringent regulations reinforces the impression that the Government are seeking to take an inappropriately wide power. We recommend that the drafting of new section 21G(1) should be changed so that the power taken is not wider than the Government intend to use. At the very least, the power taken should not authorise the Government to impose any trigger which is lower than an existing trigger in the DDA.

Discrimination against disabled guests

285. The draft bill contains another regulation-making power to extend the provisions of clause 5 to guests of private club members. The DRC thought that it would be better to include guests from the outset, particularly as "no clear rationale is given for delay".[330] Greater London Action on Disability agreed that the Government were "missing the chance to include guests from the outset".[331]

286. The WMCIU was sceptical about including guests because they were sceptical of the need for legislation at all. However, it advanced no argument for guests to be treated differently from members.[332] The ALC considered that the proposal would need "a lot of consultation and consideration at a later stage when you see what the reactions to the present suggestions are".[333] However, it also noted that "you would expect a member and a guest to be treated in exactly the same way as if you were in a second home".[334]

287. The Minister said that this would be another issue for consultation, as they did not know if guests would generate any issues which were different from those arising for members.[335]

288. The Explanatory Notes to the bill state that the Secretary of State would consider using the power "if it became evident that discrimination by associations against disabled guests presented a problem which needed to be addressed by legislation".[336] However, the Government do not outline how the situation will be monitored or when it will be evaluated. Monitoring by the Government may prove difficult, as there is no certain information about how many private clubs there are.[337]

289. The Government argue that clause 5 would allow disabled people wider access to facilities and advantages, give them more choice and send a message that discriminatory treatment is not acceptable.[338] Under the existing proposals, it seems that guests are one of the few groups to be excluded from protection from discrimination in private clubs: employees, members of the public and club members are either already protected or are proposed to be.

290. Including guests from the outset would only mean that they were protected against direct discrimination. We can see no need for consultation on this issue. Any requirements for clubs to make reasonable adjustments will follow later and, if necessary, can take into account any differences between members and guests which may be highlighted by the Government's forthcoming consultation. Even after any duties to make reasonable adjustments are introduced, they will of course be balanced by the test of "reasonableness" enshrined in the DDA.

291. It seems anomalous to provide legal protection for everyone involved in private clubs except guests. We recommend that guests of members of private clubs should be included under the provisions of clause 5 immediately, rather than reliance being placed on regulations which may or may not be made in the future.

Physical adjustments to listed and other buildings

292. The ALC advised that private clubs had faced a number of problems where they had attempted to introduce measures to assist people but were not permitted to do so by heritage and planning authorities. It argued that these "hoops and barriers" should be removed before legislation comes into force, so that the burden of reconciling conflicting legislation did not fall on individual clubs.[339] Examples of the problems faced in improving access for disabled people included a club being refused permission to put in a lift or to install ramps from the front door to the street.[340]

293. In oral evidence the Minister for Disabled People was clear that the DDA could not require anything to be done that would contravene another piece of legislation.[341] A written answer in 1999, in response to a Parliamentary question about the position of listed buildings under Part 3 DDA, stated that under Planning Policy Guidance Note PPG 15 disabled people should have dignified easy access to and within historic buildings and that it should normally be possible to plan access without compromising a building's special interest. However, where a service provider had to get statutory consent to a particular alteration and the consent was not given, the DDA would not have been contravened. In these circumstances, a service provider would need to take "whatever other steps under the Act were reasonable to provide the service".[342]

294. The Committee notes that in future all public authorities, including English Heritage, will come under both the duty in clause 4 not to discriminate in the exercise of their functions, and the duty under clause 8 to promote equality of opportunity for disabled people. This should ensure that all heritage and planning authorities respond sympathetically and helpfully to requests for alterations under the DDA.

Training for staff in private clubs

295. Evidence to the Committee suggested that in the private club sector there may be "a lack of experience and understanding" in the attitudes of staff and members towards disabled people and that "support and training may need to be provided".[343] Simon Cramp argued that "clubs, in particular, are a place where changing people's attitudes to disabled people is as important as changing the law".[344] Turning Point highlighted that by creating accessible clubs they may actually become places where "people's attitudes towards disabled people may be challenged".[345]

296. In the draft RIA, the Government acknowledged that a club may have a range of ways of improving access other than altering a physical feature. Examples given of possible costs include additional facilities and administrative costs (to enable participation in annual general meetings or voting). No mention is made of training for staff. (See also chapter 14.)

297. The Committee agrees that effective training of staff is likely to be a factor in the successful implementation of the new duties for private clubs. We recommend that the Government estimate the potential cost of this in the full RIA.

319 Written evidence was received from Sport England and Selected National Governing Bodies of Sport, Ev 361; and the British Paralympic Association, Ev 283 Back

320 Q 365 (Ms Deane) Back

321 Q 366 (Mr Smyth) Back

322 Q 366 (Mr Doble) Back

323 Proposed section 21G(1)(a) Back

324 Ev 76, paras 2.2 - 2.5 Back

325 Explanatory Notes, para 52 Back

326 Q 778 Back

327 Appendix 4, clause 5 Back

328 QQ 778-9 Back

329 Ev 328, para 15 Back

330 Ev 1, para 5.3 Back