Memorandum from the Engage Network (DDB
110)
INTRODUCTION
1.1 The Engage Network welcomes the publication
on 27 February 2004 of Clause 15 to the Draft Disability Discrimination
Bill which covers the duties of local authorities towards disabled
councillors. Facilitated by Scope, Engage is a Network of disabled
people who either hold, or are interested in holding, public office,
which campaigns for more disabled people to be involved in public
and political life.
1.2 The aims of the Engage Network are to
encourage more disabled people to participate in decision-making
processes at all levels, to highlight the under-representation
of disabled people in public life and to create a climate where
the active involvement of disabled people in public life is both
expected and welcomed.
1.3 Disabled people face many barriers which
often exclude them from taking up political office and serving
on public bodies. Typical barriers include inadequate information
about the opportunities available, lack of accessible transport,
poor communication services for participating in meetings, inaccessible
venues and the assumption of many public bodies that disabled
people are either incapable or do not want to get involved.
1.4 We strongly support the extension of
disability discrimination legislation to cover local authority
councillors, directly elected mayors and (from 1 October 2004)
paid public office holders. We are concerned, however, that this
will still leave many posts in public life outside the remit of
the legislation. These include persons appointed as lay magistrates,
school governors and many thousands of other public appointments.
We further submit that if it is accepted that the DDA's provisions
should cover political office holders at local level, there is
no good reason why political representatives at national level—MPs,
peers, MSPs and AMs—should not receive similar protection.
1.5 It is important that disabled people
are involved in public decision-making at all levels. At 31 March
2003, only 696 out of 22,464 appointments to non-departmental
public bodies (NDPBs) were held by disabled people[61]
representing just 3.1% of total posts. The 1996-97 "Disability
Follow-up to the Family Resources Survey" by the Department
of Work and Pensions (DWP) found that there are 8.6 million disabled
adults in the UK. More recent DWP research indicates there could
be as many as 11.5 million disabled people. The extension of the
DDA to all public appointments would, we believe, help to improve
the substantial under-representation of disabled people in public
life.
1.6 In 1993, the former president of the
European Parliament, Egon Klepsch, said that "the main measure
of integration within the institutions of the European Union would
be the degree of involvement by disabled people". This aim
is still far from being achieved in the United Kingdom. Without
the voice of disabled people serving without physical or financial
restraint on public bodies then those bodies cannot themselves
be representative.
COUNCILLORS
2.1 Local authorities currently owe duties
under the DDA to their disabled employees and prospective employees
but not to their elected members. The new Clause 15 will go a
long way towards rectifying this anomaly.
2.2 Disabled people are under-represented
among those serving as elected councillors but the degree of under-representation
is considerably less marked than in other areas of public life.
In 2001, 13.1% of councillors in England and Wales were disabled
people. [62]
It is vital for the effective working of local democracy that
disabled councillors are allowed to perform the functions for
which they were elected. Examples abound of situations where disabled
councillors have not been fully able to represent their electors.
We are aware, for instance, of councillors with mobility impairments
who have been unable to participate in full council meetings because
their council chambers were inaccessible. Council committee papers
and other documents are rarely produced in alternative formats
such as large print or audio tape. Meetings of the full council,
cabinet, scrutiny and other committees may be held in inaccessible
venues without adequate communication aids such as loop induction
systems. Council officers whose role is to advise elected councillors
do not invariably make reasonable adjustments in serving disabled
members.
2.3 The persistence of such barriers in
local authorities, despite the fact that almost one in seven councillors
are disabled people, confirms the necessity for legislation. It
should be emphasised that this is not only a question about the
rights and needs of disabled councillors. Voters elect their councillors
to do a job on their behalf. Electors have every reason to expect
that local authorities should allow their elected representatives
to carry out their democratic functions.
2.4 We have heard it suggested that where
a local authority would be required to provide a disabled councillor
with an enabler or personal assistant in order for her/him to
carry out official business, this might raise problems when councillors
consider sensitive/confidential matters such as child abuse cases.
We do not regard this as a major concern. If enablers are employed
directly by the local authority, they will be subject to the same
duty of confidentiality as any other council employee. If an enabler
is employed directly by a disabled councillor, she/he will be
under a vicarious liability to the authority to ensure that her/his
employee maintains a duty of confidentiality.
2.5 We can understand why appointments
of councillors to offices such as cabinet posts, council committees
and outside bodies have been excluded from the provisions of Clause
15 as who should serve in such posts are essentially internal
political decisions for the party groups in question. We would
nevertheless hope that political party groups on local councils
would seek to appoint more disabled people to leading positions
within their respective local authorities.
2.6 We note under clause 15B(4) and (5)
that the Secretary of State reserves the power to make regulations
relating to the justification of less favourable treatment of
disabled councillors. We are uncertain as to the circumstances
under which it might be deemed appropriate to exercise such powers
and we would welcome clarification on this issue.
PUBLIC APPOINTMENTS
3.1 As indicated above, the broadly representative
position concerning disabled people serving as local councillors
is not reflected in other areas of public life. The Disability
Discrimination Act 1995 (Amendment) Regulations 2003[63]
come into force on 1 October 2004. These will extend the DDA's
protection to office holders where "they are entitled to
remuneration"[64]
and where the "post is one to which appointments are made
by a Minister of the Crown, a government department, the National
Assembly for Wales or any part of the Scottish Administration"[65]
3.2 Bringing such appointments within the
ambit of the legislation should help to improve upon the low percentage
(3.1%) of disabled people currently appointed to NDPBs. A great
many public office posts, however, are unpaid and/or not appointed
by ministers, government departments or national assemblies. These
include posts such as lay magistrates, school governors and a
multitude of NHS appointments which will continue to fall outside
the scope of the DDA.
3.3 The reasons why remuneration is attached
to some public appointments and not to others are often historical
and/or accidental. Non-executive board members of NHS Primary
Care Trusts, for example, are paid while the Chair of the UK Film
Council which distributes many millions of pounds of government
and national lottery funds is not. This factor should not, in
our view, comprise the criterion as to whether applicants and
post holders enjoy the DDA's protection. Nor does the presence
of remuneration provide any indication of the relative importance
of the decision-making powers of the posts in question. Lay magistrates,
for example, are not paid but have the power to sentence convicted
persons to terms of imprisonment. It seems contradictory that
the government has made laudable efforts to encourage more disabled
people to apply for and to become lay magistrates while, at the
same time, exhibiting reluctance to bring lay magistrates within
the DDA's provisions.
3.4 Likewise, school governors play a vital
role in the country's educational system. It is a matter for concern
that the available evidence indicates only some 5% of school governors
in England and Wales are disabled people. [66]
A higher level of involvement of disabled people in such positions
would assist towards achieving truly inclusive education for disabled
students and pupils.
3.5 The question has been raised as to whether
it would always be obvious which individual or body owed a duty
not to discriminate against disabled people taking up public appointments.
In our view, in most cases the Secretary of State, other individual
or body responsible for making the appointments should be liable.
This would be in line with the situation in cases of employment
and consistent with the position which will apply to remunerated
public appointments from 1 October 2004. In the case of school
governors, we suggest that responsibility should lie with the
Local Education Authority irrespective of whether the appointment
is made by the school itself, parents or nomination from external
bodies.
3.6 Scope believes that the DDA's provisions
should extend to all public appointments whether paid or unpaid
including membership of boards of public bodies, lay magistrates,
members of CPPIH bodies and other NHS appointments, school governors
and governors of further and higher education institutions.
MPS AND
OTHER POLITICAL
OFFICE HOLDERS
4.1 We applaud the government's recognition
that disabled locally elected political representatives should
now be brought within the DDA's remit. We believe that such protection
should be extended to political office holders at national level—Members
of Parliament, peers, Members of the Scottish Parliament and Members
of the National Assembly for Wales.
4.2 Section 65 of the DDA already affords
rights to disabled staff of both Houses of Parliament as well
as to members of the public in the provision of services. S 65(5)
provides that nothing in "the law or practice of Parliament
prevents proceedings being instituted before an industrial tribunal".
In such cases, the appropriate Clerk to the House is the "Corporate
Officer" against whom proceedings may be instituted.
4.3 We are aware of arguments that any further
extension of the DDA's provisions to the UK Parliament might raise
constitutional issues in relation to the historic separation of
powers between the courts and the legislature. We do not consider
such arguments to be well-founded. Most of the barriers faced
by disabled MPs and peers relate to accessibility. For instance,
ensuring that the chambers of both Houses, committee rooms and
other facilities are fully accessible to disabled members would
not, in our view, cause any constitutional problems. Nor should
measures such as producing the Order Paper—where needed—in
alternative formats present insuperable difficulties. It would
be a relatively straightforward task to differentiate in legislation
between these issues (for which the Corporate Officers might be
made responsible) and matters impinging on the doctrine of parliamentary
sovereignty such as Parliament's powers to make legislation and
the powers of the Speaker and (for the moment) Lord Chancellor
to regulate the conduct of members and business in both Houses.
4.4 It would be contradictory for the legislature
to provide that local authorities must enable councillors who
are disabled people to carry out the job for which they were elected
while not extending the same rights to disabled MPs and peers.
4.5 Much work has been carried out in the
Palace of Westminster in recent years to improve access for MPs
and peers, staff and the public. The Scottish Parliament building
at Holyrood has been described as one of the most physically accessible
parliaments in the world while an impressive 70% of spaces in
the debating chamber in the new National Assembly for Wales building
in Cardiff are accessible. Such measures are most welcome. Nevertheless,
their effectiveness would be considerably enhanced by bringing
legislators themselves within the provisions of the DDA.
17 March 2004
61 Source: Cabinet Office Public Appointments 2003
at xi. Back
62
Source: Office of the Deputy Prime Minister Equality and Diversity
in Local Government in England: A Literature Review May 2003. Back
63
SI 1673. Back
64
s 4C(3)(a). Back
65
s 4C(3)(b). Back
66
Angela Ellis Barriers to Participation for Under-Represented
Groups in School Governance Institute for Volunteering Research. Back
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