Memorandum from the Discrimination Law
Association (DDB 119)
NEW CLAUSE
15: RELATIONSHIPS BETWEEN
LOCALLY ELECTABLE
AUTHORITIES AND
THEIR MEMBERS
Introduction
1. The Discrimination Law Association ("DLA")
is a membership organisation established to promote good community
relations by the advancement of education in the field of anti-discrimination
law and practice. It achieves this by, among other things, the
promotion and dissemination of advice and information; the development
and co-ordination of contacts with discrimination law practitioners
and similar people and organisations in the UK and internationally.
The DLA is concerned with achieving an understanding of the needs
of victims of discrimination amongst lawyers, law makers and others
and of the necessity for a complainant-centred approach to anti-discrimination
law and practice. With this in mind the DLA seeks to secure improvements
in discrimination law and practice in the United Kingdom, Europe
and at an international level.
2. The DLA is a national association with
a wide and diverse membership. The membership is growing and currently
consists of over 400 members. Membership is open to any lawyer,
legal or advice worker or other person substantially engaged or
interested in discrimination law and any organisation, firm, company
or other body engaged or interested in discrimination law. The
membership comprises, in the main, persons concerned with discrimination
law from a complainant perspective.
3. We are a company limited by guarantee.
4. The Discrimination Law Association welcomes
the publication of new clause 15 of the draft Bill aimed at extending
anti-discrimination provisions to councillors and members of the
GLA.
5. We note the provision at clause 15B(4)
for regulations to be laid as to the circumstances in which treatment
is to be taken to be justified for the purposes of s 3A (1)(b).
We would re-iterate our concern, as outlined in our main submission
to the pre-legislation scrutiny committee, at the large amount
of the bill which is left to regulations, and this adds to that
concern.
6. In addition, we have, as expressed in
our response to the Disability Discrimination Act Amendment Regulations
2003, considerable concerns about the "material and substantial"
test of justification contained in this section of the employment
provisions, which is, as held by courts determining disability
discrimination employment claims, a very low threshold[72].
We trust that the regulations will not be used to lower this already
low threshold even further.
7. With regard to the duty to make reasonable
adjustments: we have concerns regarding the wording which has
been adopted in relation to this.
8. We had assumed that the reasonable adjustment
provisions would broadly follow those of the employment provisions,
to ensure that all aspects of adjustments would be covered. Indeed
this is clearly the broad approach, as these provisions would
sit within Part 2 of the Act, and be subject to the definition
of discrimination contained in the revised s 3. The wording of
this provision, however, applies the duty to make adjustments
to physical features and in relation to a "practice, policy
or procedure". This is the wording of s 21 (1) of the DDA
ie from the Part 3 duties. This duty so far as it is interpreted
in relation to Part 3 applies for example to "no dogs"
policies, or fire evacuation policies. Separate provision is made
in Part 3 for "auxiliary aids and services", which would
include such things as sign language interpretation and information
in alternative formats. In view of this, we believe that it is
likely that it would be argued that the duty in relation to councillors
is less extensive than either the duty in Part 3 or the equivalent
duty in relation to employment. This could mean that there would
be no requirement to provide interpreters, or to provide information
in alternative formats—key issues for disabled councillors.
In addition, importing such Part 3 wording into Part 2 is likely
to lead to considerable confusion. We would urge the committee
to recommend that this wording be amended to ensure that these
areas are covered by the adjustment duty.
March 2004
72 See Disability Equality: Making it Happen,
pp 31-35; Jones v Post Office [2001] IRLR384; Surrey
Police v Marshall [2002] IRLR843. Back
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