APPENDIX 2: EQUALITY BILL - PARTS 1 TO
5: GOVERNMENT RESPONSE
Memorandum by Vera Baird, Solicitor General
1. The Delegated Powers
and Regulatory Reform Committee reported on the Equality Bill,
among others, in its Second Report of session 2009-10 (paragraphs
33-44). This considered Parts 1 to 5 of the Bill.
2. The Committee's comments and recommendations
on particular powers are set out below, together with the Government's
response.
Clause 2 - Amending Public Sector Duty Authorities
3. The Committee noted that clause 2(1)
(which enables a Minister of the Crown to amend section 1 so as
to add or remove public authorities or add or remove restrictions,
with similar powers for Scottish Ministers and Welsh Ministers
in relation to authorities exercising devolved functions) is a
Henry VIII power and was not persuaded that the negative procedure
provided in the Bill is appropriate. The Committee recommended
that the affirmative procedure should apply to regulations under
clause 2.
4. The Government will carefully consider
the Committee's recommendation.
Clause 29 and Schedule 3
5. The Committee noted that paragraph 32
of Schedule 3 enables a Minister of the Crown by order subject
to affirmative procedure to amend Schedule 3 to add, vary or omit
exceptions to clause 29; and that the excepted "constitutional
matters" in paragraphs 1 to 3 of Schedule 3 cover fundamental
issues such as the functions of Parliament; the preparation, making
or approval of legislation; and functions of the courts; paragraph
4 makes exceptions relating to the armed forces; and paragraph
5 the security services. The Committee commented that the exceptions
provided for in paragraphs 1 to 3 have a particular constitutional
significance and should be diminished only by Parliament. The
Committee recommended that a limitation be imposed on the power
in paragraph 32 of Schedule 3 whereby it may not be used to omit
or reduce in scope any of the exceptions in paragraphs 1 to 3
of Schedule 3. It also recommended that the House may also wish
to consider whether similar considerations apply to the armed
forces and the security services.
6. The Government will carefully consider
the Committee's recommendation in relation to the exceptions in
paragraphs 1 to 3 of Schedule 3.
7. In relation to the armed forces and security
services, the Government considers it important to retain the
power to amend these exceptions through secondary legislation
using an affirmative procedure. This is because circumstances
may arise which requires us to have the flexibility to amend the
scope of these exceptions quickly, given the nature of these organisations.
This need was recognised in previous legislation which currently
gives Ministers the power to amend these exceptions by affirmative
procedure. For example, on the 26th of May 2009 the Ministry
of Defence announced they were carrying out a review of women
serving in the armed forces. If that review recommends any changes
we may in consequence need to amend the armed forces exception.
Clause 37 - Housing, Scotland
8. The Committee noted the broad power conferred
by the clause on Scottish Ministers to "by regulations provide
that a disabled person is entitled to make relevant adjustments
to common parts in relation to premises in Scotland". The
Committee recommended that the House may wish to invite the Government
to justify in more detail the delegation to Scottish Ministers
of this substantial power.
9. A Department for Work and Pensions note
is attached with a detailed justification.
Clause 78 - Gender Pay Gap
10. The Committee considered that the power provided
in this clause is not inappropriate in view of the affirmative
procedure provided.
Clause 200 - Regulations, etc
11. The Committee noted that there seems to be
an omission in respect of the powers in clauses 59 and 82 and
that a minor amendment appears necessary.
12. The Government agrees and will bring forward
an amendment in due course.
Vera Baird
January 2010
JUSTIFICATION REGARDING CLAUSE 37 POWER FOR SCOTTISH
MINISTERS
Response to the Report of the Delegated Powers
and Regulatory Reform Committee's comments on Clause 37 - Housing,
Scotland
Comments
Clause 37 - Housing, Scotland
42. This is a broad power conferred on the Scottish
Ministers to "by regulations provide that a disabled person
is entitled to make relevant adjustments to common parts in relation
to premises in Scotland". "Common parts" and "relevant
adjustments" are defined in subsection (5). Under section
202(3), the regulations are subject to affirmative procedure at
the Scottish Parliament, even though at the moment the subject-matter
of the Disability Discrimination Act 1995 is a reserved matter
under the Scotland Act 1998. Paragraph 57 of the memorandum sheds
little light on this, though paragraph 155 of the Explanatory
Notes is slightly more informative. The House may wish to invite
the Government to justify in more detail the delegation to Scottish
Ministers of this substantial power.
Response
1. The Equality Bill provides a new right
for disabled people to request, and have made, disability-related
alterations to common parts of residential premises in England
and Wales. This provision, which was consulted on in the Green
Paper, arose from a recommendation of the Review Group on Common
Parts. In recognition of the different housing and property legislation
in Scotland, the Review Group recommended that separate legislation
should be made by the Scottish Executive to provide a similar
right in Scotland. In preparation of the Bill (and following consultation
with the Scottish Executive), therefore, it was considered that
as the Bill presented a suitable legislative opportunity via which
similar provision could be made for Scotland, that opportunity
should be taken.
2. Clause 37 is the counterpart provision
to Schedule 4, paragraphs 5 - 7 (and related provisions are clauses
20 and 36 and Schedule 21). The principal elements (in relation
to common parts in England and Wales) are that the process is
for the benefit of disabled persons who use premises as their
main residence, a responsible person (either the commonhold association
or person by whom the premises are let) is notified of a request
for an adjustment, is required to identify and consult affected
persons, shall decide whether the adjustment is reasonable, if
so, enter into an agreement on the detail of the adjustment and
be subject to requirement that consent to the adjustment should
survive future disposals by the responsible person of his/her
interest. Sch 21 allows for recourse to a court.
The Scotland Act 1998
3. It is not considered that the Scottish
Parliament could make equivalent provision for Scotland with the
same coverage as that achieved for England and Wales. Under
the Scotland Act (Schedule 5, L2) "equal opportunities"
is a reserved matter. "Equal opportunities" includes
but is not restricted to the subject matter of certain enactments
including the Disability Discrimination Act 1995 (the 1995 Act).
"Equal opportunities" is defined as meaning the prevention,
elimination or regulation of discrimination between persons on
various grounds including disability.
4. Legislative competence of the Scottish
Parliament is defined in s29 of the Scotland Act. By s29(2)(b),
a provision is outwith legislative competence if it relates to
reserved matters. Under s 29(3) of the Scotland Act, whether
a provision of an Act of the Scottish Parliament relates to a
reserved matter is to be determined by reference to its purpose,
having regard (among other things) to its effect in all the circumstances.
Having regard to these definitions, it is considered that the
purpose underpinning the policy for disability -related adjustments
to common parts (i.e. to facilitate access by certain disabled
persons to their home) is an equal opportunities one within the
meaning of the Scotland Act.
5. In the context of landlord and tenant
law, the Scottish Parliament has legislated for disability related
adjustments to an extent. Section 52 of the Housing (Scotland)
Act 2006 (2006 Act) provides for landlords of certain tenancies
not to unreasonably refuse consent to an adjustment - including
those in relation to common parts - and in doing so shall have
regard to any Code of Practice issued by the Commission for Equality
and Human Rights. Similar provision is made in the Housing (S)
Act 2001 (s28). It is assumed the Scottish Parliament considered
these provisions to be for the non - reserved purpose of landlord
and tenant law.
6. In Scotland, ownership of common parts
is determined by the title deeds. Typically common parts will
be owned in common by the persons who own the individual premises
within a larger block. Typically adjustment to those common parts
will require consent of all common owners. Provision in the 2001
and 2006 Acts impose duties on the landlords of disabled tenants
in relation to adjustments, but not on the other common owners
(whose consent will typically be necessary under the title deeds
in order for such adjustments to be lawful).
7. Therefore those Acts do not currently
provide a complete process for disability related adjustments
to common parts. There is scope for doubt as to the extent of
the Scottish Parliament's legislative competence to make provision
with comparable coverage to that in the Bill for England and Wales.
The 2001 and 2006 Acts relate only to disabled persons who are
tenants. No legislation has been made by the Scottish Parliament
in relation to adjustments where the disabled person him/herself
is one of the common owners or otherwise occupies the premises
which utilise the common parts. Given the depth of interaction
between the reserved purpose and devolved areas of law , in order
to ensure complete provision is made so as to avoid disadvantage
to disabled persons in Scotland, it is considered necessary to
do so via the Bill
8. Whilst equal opportunities is a reserved
matter, the policy in relation to common parts requires to fit
into and operate within devolved areas of law in addition to landlord
and tenant law - such as property law (including registration/recording
of burdens on land) , contract and civil justice.
Power to amend Scottish law in respect of common
parts
9. Consideration was given to whether the
English and Welsh model could be adequately adapted to fit Scottish
property and housing law. It is not thought it can be. The principal
reasons are - (1) in Scotland, common parts will typically be
in multiple ownership and (2) the disabled person will typically
be one of those common owners or be the tenant of a landlord who
is one of those common owners. Practical considerations specific
to Scotland arise - i.e. identifying which of multiple common
owners is to be the "responsible person", what should
happen if that person objected to acting in that capacity or was
unable to do so or could not be located. Where the disabled person
is one of the common owners, that interest is significantly different
from that of a comparable disabled person in England and Wales.
10. Additionally, the English and Welsh process
enables the "agreement" to survive subsequent disposals
by the "responsible person". In Scotland, an equivalent
effect requires to be achieved via recording/registering the interest
in the Sasine or Land Register. Distinct provision is also necessary
in relation to recourse to the sheriff, in the event of unreasonable
refusals of consent or delay, given the distinct legal system
in Scotland.
11. A regulation making power was considered
necessary due to the complexity and technical nature of provision
which would be required in light of the factors referred to above
and the need for flexibility. Given the range of law in which
the proposed power has to operate and that those areas are within
the legislative competence of the Scottish Parliament, it was
considered appropriate for practical reasons to confer the power
on the Scottish Ministers.
12. The Scotland Act envisages that there will
be circumstances where it is appropriate to transfer functions
which are conferred on a Minister of the Crown to Scottish Ministers.
This can be done by Order in Council under s63 of the Scotland
Act and result in functions being exercisable wholly by Scottish
Ministers in place of the Minister, concurrently with the Minister
or by the Minister subject to agreement or consultation with Scottish
Ministers. Many s63 Orders have been made including in relation
to equal opportunities. It would have been possible to confer
the power on a Minister of the Crown and subsequently transfer
it to Scottish Ministers via s63. However it was considered for
reasons of transparency preferable to confer the power by primary
legislation on the body which is considered for practical reasons
best placed to exercise it. And there are no legal restrictions
on the competence of Westminster to legislate to do so.
13. As the power is proposed to be exercisable
by Scottish Ministers, it is constitutionally appropriate for
its exercise to be subject to scrutiny of the Scottish Parliament.
As the Committee is aware under Standing Orders of the Scottish
Parliament, this power will also be scrutinised by the Subordinate
Legislation Committee of that Parliament. Additionally, as the
power would alter executive competence of the Scottish Ministers,
it triggers the Legislative Consent Memorandum procedure in the
Scottish Parliament . Scottish Ministers have agreed to adjust
the LCM which is currently in train before that Parliament to
include this power.
14. The purpose of Clause 37 is to allow Scottish
Ministers, following consultation with Minister of Crown, to complete
implementation of the Review Group's recommendation in Scotland.
The power has been developed in consultation with the Scottish
Executive. The regulation making power is limited in scope to
apply (a) only to common parts and (b) where those common parts
are not solely owned by the owner of the premises in which the
disabled person resides (i.e. where there are 3rd party common
owners whose consent to an adjustment would be required). The
various limbs of the power are necessary to ensure that the process
for Scotland will contain the same main elements as are provided
for in the English and Welsh process.
15. We are happy to provide the Committee with
any further information they may require in relation to the reasons
underpinning the need for this power.
Department for Work and Pensions
January 2010
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