1.Our inquiry started last year, half a century after the enactment of the first Race Relations Act, 40 years after the Sex Discrimination Act was passed, 20 years after the first Disability Discrimination Act, and 10 years after the second. It was also five years since the enactment of the Equality Act 2010 which brought together all this major reforming legislation into one statute. But the Equality Act was not simply a consolidating Act; it expanded the anti-discrimination law applying to race, sex and disability, and applied the same principles to age, gender reassignment, marriage and civil partnership, religion or belief, sexual orientation, and pregnancy and maternity–the nine “protected characteristics” covered by the Act. It is thus a major piece of legislation designed to protect and promote the interests of some of the most vulnerable members of society. Whether or not it is adequately doing so is the question we have been considering in the course of our inquiry.
2.It was the House of Lords Constitution Committee which recommended in 2004 that Government departments should carry out post-legislative scrutiny of all significant primary legislation, other than Finance Acts, within three years of its entry into force. The Government’s conclusion was that scrutiny was not appropriate for all legislation, and that there should be a selective approach. Government departments should submit a post-legislative scrutiny memorandum to the appropriate Commons committee, and it would be for that committee to decide whether or not to conduct a scrutiny.
3.The Equality Act received the Royal Assent on 8 April 2010. Most of the main provisions were brought into force by 1 October 2010; those on the Public Sector Equality Duty (PSED) came into force on 5 April 2011. Post-legislative scrutiny of this Act is plainly not just desirable, but essential. At the end of March 2015, in anticipation of the setting up of this Committee, officials of the Government Equalities Office were requested to prepare a Memorandum on the Equality Act 2010. They did so, and it was presented to Parliament in July 2015 by the Secretary of State for Education, who is also Minister for Women and Equalities and, as such, responsible for the Government Equalities Office.
4.The Memorandum covers the whole Act which, as we have said, is very wide-ranging. Thorough post-legislative scrutiny of the whole Act would have been a greater task than one committee could sensibly tackle in a single session. The suggestion made to the Liaison Committee was that a committee should be set up to conduct post-legislative scrutiny of the disability provisions of the Act. The Liaison Committee accepted this, and on 3 March 2015 recommended “the appointment of an ad hoc post-legislative scrutiny committee to consider the impact on people with disabilities of the Equality Act 2010.” The House adopted this proposal, and on 11 June 2015 appointed this Committee with those terms of reference.
5.The task of a post-legislative scrutiny committee is not confined to the Act which is the subject of the scrutiny. Such a committee invariably also considers related legislation (both primary and secondary), the implementation of the legislation, and matters which in its opinion should perhaps be the subject of the legislation, but are not.
6.The Liaison Committee said: “An ad hoc committee could consider:
As will be clear from this report, we have seen it as our task to consider all these matters, and many more.
7.The whole of the Equality Act applies to England and Wales, and all the disability provisions except section 190 (improvements to let dwelling houses) apply to Scotland. However, much of the Act relates to matters which are the responsibility of the devolved administrations. Where our recommendations to the Government deal with such matters, we hope that the Scottish and Welsh ministers will bear them in mind and, where they see fit, make appropriate changes to their laws and practices.
8.The Act does not extend to Northern Ireland, where the Disability Discrimination Act 1995 is still in force, though considerably amended. We hope nevertheless that Northern Ireland Ministers will find our recommendations useful.
9.We issued a Call for Evidence on 25 June 2015, and two weeks later we issued it in EasyRead format. We then received representations from the British Deaf Association, a charity representing people with hearing disabilities, that they should have the opportunity to receive the Call for Evidence in British Sign Language (BSL), and to give evidence in BSL, notwithstanding that this was a call for written evidence. The point at issue was the status of BSL as a language, something we discuss at paragraphs 171–181. We agreed to issue the Call for Evidence in BSL, and to accept evidence in BSL provided that it was accompanied by an audio transcription or subtitles. In the event we received no such evidence.
10.We received and accepted as evidence 144 responses to the Call for Evidence. We heard oral evidence from 53 witnesses, and from some of them we received supplementary written evidence. Some who had already sent us written evidence would have liked to expand on their views in oral evidence; we were sorry that the constraints of time did not always allow this. The witnesses are listed in Appendix 2. To all of them we are most grateful. Their evidence was invaluable, and forms the basis of our work.
11.A number of members of this Committee have personal experience of the difficulties which disabled people face when they attempt to go about their normal day-to-day activities. We were determined to hear from as wide a range as possible of persons with different disabilities, and took evidence from witnesses with physical disabilities, mental health problems, learning difficulties and visual impairments. To obtain the views of deaf people, on 27 October 2015 we took evidence from officials of the British Deaf Association in BSL. In 2014 the House of Commons Select Committee on Work and Pensions had taken evidence using BSL, to enable their witnesses to understand what was said by members of the Committee, but this was the first occasion on which a Lords committee had done so. Additionally, it was the first occasion on which a committee of either House had received evidence from witnesses through BSL interpreters. The arrangements had to allow the members of the Committee and the witnesses, and additionally members of the public in the Committee room and those following the proceedings on the webcast, to see and, where possible, to hear both those who were speaking and those who were signing. The transcript which constitutes the formal record of the evidence is thus a transcript of what was said by Committee members and by the signers interpreting the BSL of the witnesses. The House of Lords has since endorsed this as a procedure for committees to receive evidence.
12.On 15 September 2015 six members of the Committee visited the offices of Real, an organisation in Tower Hamlets run by and for disabled people. This again enabled the Committee to speak directly with a wide range of disabled people. We were most impressed by what we heard and saw. A note of the visit is at Appendix 4.
13.As is usual in Select Committee reports, our main conclusions and all our recommendations are listed in the final chapter. We have also thought it useful to list separately in Appendix 5 those recommendations whose implementation will need primary or secondary legislation.
14.Throughout the course of our inquiry we have been fortunate to have had the assistance of Catherine Casserley as our specialist adviser. She is a barrister whose particular expertise is in the field of disability discrimination. We are most grateful to her for her contribution to our work.
15.In the course of our lengthy evidence taking we have repeatedly been struck by five major issues. We place these at the forefront of our report, and elaborate on them in subsequent chapters.
16.First, in planning services and buildings, despite the fact that for twenty years the law has required anticipatory reasonable adjustment, the needs of disabled people still tend to be an afterthought. It is time to reverse this. We are all living longer, and medical advances are keeping us alive where in earlier years it would have failed to do so, but not necessarily in good health. We should from the outset plan for the inevitability of disability in everyone as they get older, as well as for those who suffer accidents and for all those other disabled people who are the subject of our inquiry.
17.Our second theme, closely related to the first, is the need to be proactive, rather than reactive or process driven. Many of those involved—Government departments, local authorities, the NHS, schools, courts, businesses, all of us—wait for problems to arise before, at best, attempting to remedy them. We should be planning so that disabled people can as far as possible avoid facing the problems in the first place.
18.Thirdly, there is the issue of communication. So many of the problems of disabled people are exacerbated by a failure to make them aware of their rights in a manner that is clear and is adapted to their needs. But communication is a two-way process. If all those responding to the needs of disabled people engaged with them, listened to them, and took account of their views, all would benefit.
19.Rights which are unenforceable are not worth having. The law and the courts must adapt so that rights can be made effective as easily, quickly and cheaply as possible.
20.Lastly, it is the Government that bears ultimate responsibility for disabled people, and it must be structured to discharge that responsibility. Currently it is not.
21.This report will be debated after the Government has given us its response to the conclusions we have reached and to the recommendations we have made. Successive governments have undertaken to do so within two months of the publication of the report. In the past, governments have often taken three months or more to respond to reports. This time last year, when a general election intervened, this was perhaps understandable. We do not see that this year any delay could be justified.
22.Sessional committees, whose appointment continues from one session to the next, can follow up their reports with subsequent reports analysing the Government’s response, and can summon ministers to give evidence to explain their actions or inaction. Committees like ours, set up for a particular purpose, cease to exist on publication of their report, and in the past have been able to rely only on debates and questions in the House to follow up their reports. However in the last year the Liaison Committee has agreed to follow up the recommendations of ad hoc committees.
23.Additionally, in the particular case of our Committee we are fortunate that the House of Commons set up at the beginning of this session a Select Committee on Women and Equalities. Equal treatment of disabled people is therefore also one of their interests. At the start of our inquiry our Chairman, Baroness Deech, met their Chair, Rt Hon Maria Miller MP. They agreed that, to avoid the work of the two Committees overlapping, the Commons Committee would not embark on disability-related inquiries until after we had reported, but that once our Committee had reported and the Government had had an opportunity to respond, they would pick up our work of promoting the interests of disabled people. We very much welcome this development, and we trust that the Commons Committee will press for the implementation of the recommendations we make.
1 The Race Relations Act 1965 had already been repealed and replaced by the Race Relations Act 1976.
2 In this report, references to “the Equality Act”, or “the Act”, are to the Equality Act 2010. Some of our witnesses referred to it as “EA”. References to the Equality Act 2006 give the full short title.
3 Constitution Committee, (14th Report, Session 2003–04, HL Paper 173-I)
4 See Chapter 8
5 Government Equalities Office, Memorandum to the Women and Equalities Select Committee on the Post-Legislative Assessment of the Equality Act 2010, Cm 9101, July 2015, [accessed 2 March 2016]
6 By Baroness Thomas of Winchester, a member of this Committee.
7 Liaison Committee, (2nd Report, Session 2014–15, HL Paper 127, para 39)
8 The membership of the Committee is set out in Appendix 1
9 Principally by the the Disability Discrimination (Northern Ireland) Order 2006 ()
10 See Appendix 3
11 In the case of some of these, before publication on the Committee’s website we redacted details of individuals to prevent them from being identified. We also received 21 submissions which we did not accept as evidence because they were not relevant to the subject of the inquiry or did not advance its work.
12 Procedure Committee, (1st Report, Session 2015–16, HL Paper 62, paras 7–8). The report was agreed by the House on 16 December 2015.
13 As such, she has acted as Counsel in a number of the cases to which we refer in this report. Her interests are listed in Appendix 1.