Memorandum from the Clerk of the House
of Commons and the Clerk of the Parliaments (DDB 100)
INTRODUCTION
1. The Disability Discrimination Act 1995
applies to the acts of both Houses of Parliament "as it applies
to an act done by a private person" (section 65). Principally
it affects both Houses in their capacity as employers (Part II
of the Act) and in relation to public access (sections 19 to 21).
It does not affect the conduct of parliamentary proceedings, the
two Houses' rules and standing orders, nor the facilities and
services offered to Members.
2. The draft Disability Discrimination Bill
is intended to extend the scope of the 1995 Act. Two provisions
potentially relate to Parliament. Clause 4 inserts sections 21B
to 21D into the 1995 Act. Section 21B would make it "unlawful
for a public authority to discriminate against a disabled person
in carrying out its function". Sections 21C and 21D make
provision supplementary to this section.
3. Clause 8 inserts sections 49A to 49F
into the 1995 Act. Section 49A would require every public authority,
in carrying out its functions, to have due regard to:
"— the need to eliminate discrimination
that is unlawful under this Act;
— the need to eliminate harassment
that is unlawful under this Act; and
— the need where opportunities
for disabled person are not as good as those for other persons,
to promote equality of opportunity between disabled persons and
other persons by improving opportunities for disabled persons."
Sections 49B to 49F make provision supplementary
to this section.
4. The draft Bill specifically excludes
both Houses of Parliament, and "a person exercising functions
in connection with proceedings in Parliament", from the definition
of "public authority" used in sections 21B and 49A.
OUR VIEW
5. Although we were not consulted by the
department about the provisions of the draft bill, we agree that
clauses 4 and 8 should not be applied to the two Houses. The application
of these clauses to the two Houses would be likely to have far-reaching
and unintended consequences and would be wrong in principle.
6. If the two clauses were applied to Parliament,
court proceedings might be instituted which would require the
courts to examine the rules, proceedings and procedures of the
two Houses in order to assess allegations of discrimination against
disabled persons, or to examine the extent to which Parliament
had complied with its duties under section 49A in the course of
its proceedings. This would be quite different from the employment
issues already applied to the two Houses by the 1995 Act. If the
courts were to entertain cases of that nature there would be a
constitutional revolution—interference by the judiciary
in the core business of Parliament.
7. Moreover, we note that the draft Bill
excludes judicial acts from its scope of application. The constitutional
considerations justifying the exclusion of judicial acts and of
the two Houses from the scope of this legislation are similar
and there is a strong case for parity of treatment. It would not
seem sensible for the decisions of courts and tribunals to be
exempted from being questioned under the provisions of clauses
4 and 8 while Parliament, the ultimate legislative authority,
was potentially subject to such questioning.
8. If section 21B were applied directly
to the two Houses there would be potential for considerable disruption
to parliamentary proceedings if, for example, a sign interpreter
was for some reason unavailable when a deaf person wished to follow
proceedings in the public gallery of a chamber or committee room.
This might cause particular problems for committees meeting at
short notice or taking evidence away from Westminster.
9. We recognise, however, that the two Houses
should take reasonable and proportionate steps to enable disabled
Members, witnesses and others to take part in their proceedings
without suffering discrimination. In our view, the two Houses
can achieve this, as effectively as if the legislation were in
terms applied to them, by applying section 21B by analogy.
10. Application of clause 8 to the two Houses
would serve no useful purpose and produce unfortunate results.
For example, the obligation to have due regard to the need to
promote equality of opportunity between disabled persons and other
persons could be held to place Parliament under a duty to enact
further legislation aimed at eliminating disability discrimination
and increasing equality of opportunity, thus purporting to constrain
the legislative discretion of future Parliaments.
11. There would also be practical difficulties
with enforcing compliance with sections 21B and 49A if they were
applied to the two Houses. Action on employment or public access
matters can currently be taken under the 1995 Act against the
Corporate Officers of both Houses. It is less clear against whom
action should be taken in relation to decisions about the conduct
of parliamentary proceedings under section 21B or the nature of
Parliament's public functions under section 49A.
CONCLUSION
12. We consider that clauses 4 and 8 of
the draft bill should not be applied to Parliament. The application
of these clauses to Parliament would be likely to have far-reaching
and unintended consequences and would be wrong in principle. Nevertheless,
we consider that aspects of the clauses could be applied to Parliament
by analogy to improve the provision of facilities and services
to disabled Members and to other disabled participants in parliamentary
proceedings. The 1995 Act, as amended by the draft bill, would
thus apply to acts of the two Houses in so far as it applies to
acts done by private persons, but would not apply in relation
to the public functions of Parliament.
Roger Sands
Clerk of the House of Commons
Paul Hayter
Clerk of the Parliaments
March 2004
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