Memorandum from Sir Peter Large CBE (DDB
91)
1. INTRODUCTION
1.1 In 1977, Lord Morris, then serving as
Minister for Disabled People in the House of Commons, asked me
to chair the Silver Jubilee Access Committee which he established
to campaign for improved access for disabled people during the
Silver Jubilee celebrations. Its report, "Can Disabled People
Go Where You Go?", published in 1979, noted Worrying instances
of discrimination against disabled people and recommended further
investigations.
1.2 Accordingly, Lord Morris asked me to
chair a successor committee, the Committee on Restrictions Against
Disabled People (CORAD) "to consider the architectural and
social barriers which may result in discrimination against disabled
people and prevent them from making full use of facilities available
to the general public; and to make recommendations."
1.3 CORAD reported in February 1982. It
recommended anti-discrimination legislation covering employment,
education, the provision of goods, facilities and services, insurance,
transport, property rights, occupational pension schemes, membership
of associations and clubs, and civic duties and functions. CORAD
also recommended a regulatory body or Commission with powers to
investigate, conciliate and if necessary take legal action on
individual complaints.
1.4 It is therefore satisfying to note that
many of CORAD's recommendations are featured in the Disability
Discrimination Act 1995 (DDA), the DDA 1995 (Amendment) Regulations
2003, the DDA 1995 (Pensions) Regulations 2003, the Disability
Rights Commission (DRC) Act 1999 and the Special Educational Needs
and Disability Act 2001. When coupled with this draft Disability
Discrimination Bill all these measures go a long way towards implementing
CORAD's recommendations and in one or two areas, even goes beyond
them.
1.5 Many disabled people will therefore
join me in warmly welcoming the current draft Disability Discrimination
Bill.
1.6 However, as might be expected, some
issues appear me to remain to be tackled or are inadequately covered.
These issues are examined in the following paragraphs. A summary
of these issues is given in section 10 below.
2. CLAUSE 3—ACCESSIBLE
TRANSPORT
2.1 Clause 3 is welcome in ensuring that
the blanket exclusion, from Part III of the DDA, of providers
of any service so far as it consists of the use of any means of
transport, applies only to the provision or non-provision or suitability
or unsuitability of the transport vehicles themselves.
2.2 Clause 3 is also welcome in enabling
various types of vehicle to be brought under the full provisions
of Part III of the DDA at various times in various degrees.
2.3 However, end dates of January 2012 and
2025, when, respectively, all taxis and all rail vehicles are
to be accessible, leave a very great deal to be desired considering
that anti-discrimination legislation was first broached by CORAD
in 1982 and that the DDA was brought in in 1995.
2.4 Unfortunately, Clause 3 will have no
effect on various unnecessary acts of discrimination on aircraft
and ferries even when the services are confined to the UK. I believe
these various acts could be made illegal on internal, UK services
alone without adversely affecting our services' international
competitiveness. The Bill should include the power to effect this
through regulations.
3. CLAUSE 4—ACCESS
TO THE
OUTDOOR ENVIRONMENT
3.1 Pedestrianisation schemes that do not
take account of the limited mobility range of disabled people
from a car, bus or train, seriously limit where disabled people
can go. This limitation is steadily growing. Unfortunately, car-free
housing estates now threaten to limit where some disabled people
can live and further limitations threaten with the possibility
of congestion charging that, without the exemptions of London's
scheme, could seriously disadvantaging disabled people who depend
on cars to travel beyond the confines of their homes. Disabled
people are also currently sometimes barred access to nature trails
and cycle routes.
3.2 It has never been clear whether any
of these issues, or anything else to do with highways, pavements
or footpaths, are covered by virtue of sections 19-21 of the DDA.
If they are not, it is absolutely essential to ensure that all
are covered by Clause 4 of the draft Bill. Assurances that they
are would be welcome.
3.3 However, even if they are fully covered
by Clause 4, because some issues associated with some of them
can also be covered by sections 19-21 of the DDA, it would be
appropriate to ensure that the threshold requiring reasonable
adjustments should be the same in all cases. The Notes to the
Bill assert that the threshold "very much less favourable"
to a disabled person is intended to be comparable with that in
section 21(1) in the DDA: "impossible or unreasonably difficult"
for a disabled person to make use of a service. If that is so,
one could ask why the wording in the two cases is not identical.
3.4 The DRC make the same observation but
go further by drawing attention to the Special Educational Needs
and Disability Act 2001 and the employment sections of the DDA
where the wording used is "substantial disadvantage".
As lawyers are likely to give markedly different interpretations
to different wording, I would strongly support the DRC's proposal
to amend section 21 of the DDA and Clause 4 to refer to "substantial
disadvantage".
4. FURTHER CHANGES
TO CLAUSE
4
4.1 On CORAD it was our hope that new legislation
and action by public bodies would be subject to scrutiny to ensure
that, wherever possible, unnecessary discrimination against disabled
people would be avoided. Some parts of Part III of the DDA do
go some way towards this objective and Clauses 4 and 8 make further
welcome progress towards it.
4.2 Unfortunately, however, in addition
to the shortcomings noted in section 3 above, there are two further
unsatisfactory features in Clause 4 (and by association, one also
in Clause 8) that mitigate against this. In my view, changes are
necessary if progress Page 2 of 6 towards CORAD'S objective is
not to be unduly frustrated.
4.2.1 In section 21B, subsection (4), it
is stated that: "In relation to a particular act, a person
is not a public authority by virtue only of subsection (2)(a)
if the nature of the act is private." I fear that there may
sometimes be confusion about whether an act is private or public.
Moreover, it may be that some private acts of public bodies should
be subject to anti-discrimination legislation. The two examples
given in the Explanatory Notes (the BBC and the Law Society in
Clause 8) do not convince me of the need to exclude private acts.
4.2.1.1 Accordingly, unless very good reasons
are advanced to the contrary, I would delete, from both Clause
4 and Clause 8, the proviso that a body will not be a public authority
if the nature of the act it is carrying out is private.
4.2.2 Second and more importantly, I fear
that the wording in section 21 D, subsection (5) ("Treatment
or an outcome is justified under this subsection if the acts of
the public authority which give rise to the treatment or outcome
are a proportionate means of achieving a legitimate aim.")
will virtually nullify the intentions of Clause 4. Because disabled
people are never in the majority, the use of the word "proportionate"
will mean that virtually any action could be justified.
4.2.2.1 In order to avoid nullifying the
potential benefits of Clauses 4, subsection (5) should be deleted.
4.2.3 Third, I strongly support the DRC's
assertion that the wording of the reasonable adjustments duty
should be amended so that it is framed as an anticipatory duty
owed to disabled people. Service providers are already under such
a duty in Part 3 of the DDA and no public authority should be
allowed to wait until a disabled person experiences barriers before
they consider making reasonable adjustments. The legislative framework
should require them to think in advance about the accessibility
of their functions to disabled people and to continually be reviewing
and improving the situation. It is well known that making systems
accessible from the start is far cheaper than adapting them later.
Moreover failure to anticipate the need for adjustments unfairly
places the onus for progress on individual disabled people who
may fail to gain any benefit.
4.2.4 Finally it is noted that the proposed
section 21D (3) allows less favourable treatment to be justified
where, in the reasonable opinion of the public authority, one
or more of four specified—and somewhat controversial—conditions
apply. I agree with the DRC who question the appropriateness of
such a justification of discrimination, particularly when it is
the so-called reasonable opinion of the perpetrator of the treatment.
This "subjective" standard appears to be especially
inappropriate in the carrying out of public functions: disabled
people need to have confidence that when a public authority treats
them less favourably, it is for an objectively legitimate reason.
4.2.4.1 The "reasonable opinion"
subjective justification should be deleted.
5. ENFORCEMENT
5.1 The adequacy of the enforcement procedures
has been questioned by the DRC despite their satisfaction with
being given authority to prepare Codes of Practice for the new
public sector duty and their happiness with the new powers given
them to enforce specific duties upon public authorities.
5.2 The DRC and others such as SCOPE and
RNIB, however, do not believe that enforcement through the county
courts (in England and Wales) and sheriff courts (in Scotland)
of the new rights of access to premises, transport, private clubs
and the new provisions on public functions will be effective.
Citing research by the DfEE, Income Data Services, and their own,
they assert that experience of enforcing rights of access to goods
and services shows that the courts do not provide an effective,
readily accessible forum for enforcing disabled people's rights.
5.3 I agree with this view and would join
all those who argue that enforcement of the new rights of access
to premises, transport, private clubs and new provisions on public
functions should be through the tribunal system rather than through
county or sheriff courts.
5.4 In addition, as an individual disabled
person is so relatively powerless when confronting any public
authority, it would be useful if, in any circumstance, the DRC
were empowered to take up any case against a public body on behalf
of a disabled individual.
6. FURTHER POWERS
FOR TRIBUNALS
6.1 The DRC noted that in unfair dismissal
cases, employment tribunals can order re-instatement or re-engagement,
whereas in discrimination cases they can only recommend this.
Although this is seldom satisfactorily arranged, I agree with
this proposal to enhance the powers of tribunals to allow them
to do this in cases of discrimination.
6.2 I also agree with the DRC's proposal
that tribunals should have the power to recommend to employers
changes to their practices, when a case brought by an individual
reveals clear shortcomings. This could help to ensure that employers
avoid discrimination in future. The DRC explain that some tribunals
do make informal recommendations to employers with this in mind,
but point out that they have no formal power to do so, nor to
enforce any recommendations. The Task Force proposed that where
such a general recommendation for future action had been made,
the DRC should have a role in enforcing it. This seems to me to
be an excellent way of making progress on this issue.
7. ADDITIONAL
MEASURE ASSOCIATED
WITH EMPLOYMENT
DISCRIMINATION
7.1 Substantial evidence exists to support
the contention that many employers reject job applicants who disclose
their disability at the application stage and before they have
the chance to demonstrate their suitability for jobs at an interview.
I therefore heartily agree with the DRC's recommendation that,
except in very limited circumstances, the full Bill makes it unlawful
to make disability-related enquiries before a job is offered.
7.2 These limited circumstances (as set
down by the DRC) are:
— when inviting someone for interview
or to take a selection test—employers could ask if someone
had a disability that might require reasonable adjustments to
the selection process; and
— when interviewing, employers would
be allowed to ask job-related questions, including if someone
had a disability that might mean a reasonable adjustment would
be required.
8. DEFINITION
OF DISABILITY
8.1 The extension of the definition to cover
more people with HIV, cancer or multiple sclerosis, so that more
disabled people would benefit from the Act's protection is very
welcome.
8.2 However, I know that a significant number
of people with mental health problems are currently not covered
by the Act but who are in need of being protected by it as disabled
people. Moreover, I am aware that people who have recovered from
mental health problems are also discriminated against and I believe
that these too should be covered by the Act.
8.3 As there are many people who are far
more expert than I am on this subject, I will leave it to others
to suggest how best this gap might be filled.
9. COVERAGE
9.1 There are a number of positions and
bodies that are also not covered by the Act and for whose inclusion
the DRC argue cogently. Two groups that I think are particularly
important because of their gatekeeping roles are examining bodies
and standard setting agencies. Members of both groups should all
be subject to the Act.
9.2 Others include volunteers, political
office-holders, school (parent) governors, governors of further
and higher education institutions and lay magistrates, who are
neither employees nor "statutory officeholders", as
defined by the ODA.
10. SUMMARY
10.1 Clause 3 should be expanded to allow
regulations to ban discrimination on aircraft and ferries on internal
UK services.
10.2 It should be ensured that discrimination
in respect of access to town centres, car parks, roads, pavements,
footpaths, nature trails and cycle routes is covered by sections
19-21 of the DDA in conjunction with Clause 4.
10.3 Section 21 of the DDA and Clause 4
should be amended to refer to "substantial disadvantage".
10.4 Unless very good reasons are advanced
to the contrary, the proviso that a body will not be deemed a
public authority if the nature of an act it is carrying is private
should be deleted from both Clause 4 and Clause 8.
10.5 In order to avoid nullifying the potential
benefits of Clause 4, subsection 21 D(5) ("Treatment or an
outcome is justified under this subsection if the acts of the
public authority which give rise to the treatment or outcome are
a proportionate means of achieving a legitimate aim.") should
be deleted.
10.6 The wording of the reasonable adjustments
duty in Clause 4 should be amended so that it is framed as an
anticipatory duty owed to disabled people.
10.7 Clause 4, in Section 21D(3) allows
less favourable treatment to be justified where, in the reasonable
opinion of the public authority, one or more of four specified
conditions applies. This "reasonable opinion" justification
of discrimination should be deleted.
10.8 Enforcement of the new rights of access
to premises, transport, private clubs and new provisions on public
functions should be through the tribunal system rather than through
county or sheriff courts.
10.9 The DRC should be empowered in any
circumstance to take up any case against a public body on behalf
of a disabled individual.
10.10 Tribunals should be empowered to order
re-instatement or re-engagement in discrimination cases.
10.11 Tribunals should also be empowered
to recommend to employers changes to their practices when a case
brought by an individual reveals clear shortcomings. The DRC could
usefully be involved in enforcing any such recommendation.
10.12 Except in very limited circumstances,
it should be made unlawful to make disability-related enquiries
before a job is offered.
10.13 The definition of disability needs
to be expanded to cover people with mental health problems who
are not currently covered by the Act but who are in need of being
protected by it as disabled people.
10.14 Examining bodies and standard setting
agencies should be covered by the Act because of the gatekeeping
roles of these bodies.
10.15 The Act should also cover volunteers,
political office-holders, school (parent) governors, governors
of further and higher education institutions and lay magistrates,
who are neither employees nor "statutory officeholders",
as defined by the DDA.
11. CONCLUSIONS
11.1 If the Bill incorporates the changes
recommended above, the Act as amended will have made excellent
progress towards implementing the anti-discrimination measures
first voiced by CORAD.
11.2 For this to be achieved, however, great
care needs to be taken in the redrafting of Clauses 4 and 8.
February 2004
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