Chapter 2: The Background to the Equality Act 2010
Statistics and demographic changes: the scale of the problem
24.Before we consider the provisions of the Equality Act, we need to be clear about the scale of the challenge which society faces, and with which the Act attempts to deal. The table and bar chart below, published by the Office for Disability Issues (ODI) in May 2014, shows that in the 10 years before 2011/12 there were fluctuations in the estimates of the numbers of disabled people in Great Britain, but that the trend is upwards. In the last year for which figures are available there were 11.6 million disabled people in Great Britain, 18.5% of the population, of whom 5.7 million were adults of working age,14 5.1 million were over state pension age15 and 0.8 million were children. 5.4 million were male and 6.3 million female.16
Table 1: Number of disabled people in Great Britain (millions)
Year |
Adults of Working Age |
Adults of State Pension Age |
All Adults |
Children |
All Ages |
|
2002/03 |
5.0 |
4.7 |
9.7 |
0.7 |
10.4 |
|
2003/04 |
4.9 |
4.6 |
9.5 |
0.7 |
10.1 |
|
2004/05 |
4.8 |
4.6 |
9.5 |
0.7 |
10.1 |
|
2005/06 |
5.2 |
4.9 |
10.1 |
0.7 |
10.8 |
|
2006/07 |
4.9 |
4.9 |
9.8 |
0.7 |
10.4 |
|
2007/08 |
4.8 |
5.0 |
9.8 |
0.8 |
10.6 |
|
2008/09 |
5.0 |
5.1 |
10.1 |
0.7 |
10.9 |
|
2009/10 |
5.1 |
5.1 |
10.2 |
0.8 |
11.0 |
|
2010/11 |
5.3 |
5.2 |
10.4 |
0.8 |
11.2 |
|
2011/12 |
5.7 |
5.1 |
10.8 |
0.8 |
11.6 |
Figure 1: Number of disabled people in Great Britain (millions)
Source: Office for Disability Issues, Disability prevalence estimates 2002/03 to 2011/12, January 2014: https://www.gov.uk/government/statistics/disability-prevalence-estimates-200203-to-201112-apr-to-mar [accessed 17 March 2016]
25.Wales and Scotland have a higher proportion of disabled people than England, and the divergences are striking. Below are separate charts showing for men and for women the disability-free life expectancy (DFLE) at birth in the United Kingdom and its constituent countries in 2005–07 and 2008–10. They reflect of course the differences in the overall life expectancy, but it will be seen that, for men, in the three years between the surveys DFLE has increased for every country except Scotland. In Wales it has increased by 3.5 years; in Scotland it has actually decreased by 2.5 years.17
Figure 2: Male disability-free life expectancy at birth, 2005–07 and
2008–10
Figure 3: Female disability-free life expectancy at birth, 2005–07 and 2008–10
Source: Office for National Statistics, Health Expectancies at Birth and at Age 65 in the United Kingdom, 2008–2010, August 2012, p 16: http://webarchive.nationalarchives.gov.uk/20160105160709/http://www.ons.gov.uk/ons/dcp171778_277684.pdf [accessed 17 March 2016]
26.Figures recently released by the Office for National Statistics (ONS) show that the trend is changing. Life expectancy continues to increase, but in England for both men and women there has been a marked decrease in disability-free life expectancy from 2009–11 to 2012–14. For men it has gone down from 63.9 to 63.3 years, for women from 64.4 to 63.2 years, lower even than for men. As the charts below show, this trend applies in every part of England, but the divergences between regions are striking. In 2009–11, at birth men in South-East England could expect 5.7 years longer disability-free than men in the North-East; by 2012–14 the difference was still 4.7 years.
Figure 4: Disability-free life expectancy at birth for men in England by region, 2009–11 and 2012–14
Figure 5: Disability-free life expectancy at birth for women in England by region, 2009–11 and 2012–14
Source: Office for National Statistics, ‘Disability-Free Life Expectancy (DFLE) and Life Expectancy (LE) at birth by Region, England’: http://www.ons.gov.uk/peoplepopulationandcommunity/healthandsocialcare/healthandlifeexpectancies/datasets/disabilityfreelifeexpectancydfleandlifeexpectancyleatbirthbyregionengland [accessed 17 March 2016]
27.We reproduce charts showing trends in long-term limiting disabilities over the years 2001 to 2011. The proportion increases steeply by age, as the first chart shows, and as one would expect. The second chart shows that, when combined with decreasing numbers in each age group, it is actually the 50–64 age group which shows the greatest number with a long-term limiting disability.
Figure 6: Proportion in age groups reporting a long-term limiting illness or disability in 2001 and 2011
Source: Joseph Rowntree Foundation, ‘Rate of long-term limiting illness or disability by age over time’: http://www.jrf.org.uk/data/rate-long-term-limiting-illness-or-disability-age-over-time [accessed 17 March 2016]
Figure 7: Numbers in age groups reporting a long-term limiting illness or disability in 2001 and 2011
Source: Joseph Rowntree Foundation, ‘Long-term limiting illness or disability numbers by age over time’: http://www.jrf.org.uk/data/long-term-limiting-illness-or-disability-numbers-age-over-time [accessed 17 March 2016]
28.In November 2014 the ONS published the following table which shows LE and DFLE at age 65. From this it appears that, in the space of nine years, the time men aged 65 could expect to spend disability-free had increased by 3.3% or 1.7 years, but the increase in LE meant that the time they could expect to live with a disability had nevertheless grown by 0.4 years. For women, the proportion of their life spent disability-free had actually decreased, and they could expect to live almost a year longer with a disability.
Table 2: Life expectancy and disability-free life expectancy at age 65
Life expectancy (years) |
DFLE |
Proportion of life spent disability-free (%) |
Years spent with a disability |
||
|
Women |
2000–02 |
19.0 |
10.2 |
53.8 |
8.8 |
|
|
2009–11 |
20.7 |
11.0 |
53.2 |
9.7 |
|
|
Increase |
1.6 |
0.8 |
-0.6 |
0.9 |
|
Men |
2000–02 |
15.9 |
8.8 |
55.2 |
7.1 |
|
|
2009–11 |
18.0 |
10.5 |
58.5 |
7.5 |
|
|
Increase |
2.1 |
1.7 |
3.3 |
0.4 |
Source: Office for National Statistics, ‘Changes in Disability-Free Life Expectancy (DFLE)’: http://www.ons.gov.uk/peoplepopulationandcommunity/healthandsocialcare/healthandlifeexpectancies/datasets/changesindisabilityfreelifeexpectancydfle [accessed 17 March 2016]
29.The chart below gives a graphical illustration of this increase in the years spent with a disability.
Figure 8: Life expectancy and disability-free life expectancy at age 65, 2000–2011
Source: Office for National Statistics, ‘Health Expectancies in the United Kingdom, Great Britain, England,
Wales, Scotland & Northern Ireland’: http://www.ons.gov.uk/peoplepopulationandcommunity/
healthandsocialcare/healthandlifeexpectancies/datasets/healthexpectanciesintheunitedkingdom
greatbritainenglandwalesscotlandnorthernireland [accessed 17 March 2016]
30.There will inevitably be sampling and other errors in the collation of all these figures, and all tables with expectation of life involve assumptions, and show a wider degree of uncertainty the further one looks into the future. But three things are incontrovertible. First, as life expectancy grows, so does the time for which we can expect to be disabled. Second, women can expect to be disabled longer than men. And third, there are regional variations which are very marked and are only slowly decreasing.
Development of the substantive law
31.The Disability Discrimination Act 199518 was not the first United Kingdom statute to attempt to counteract the discrimination suffered by disabled people,19 but it was the first statute to make it unlawful for employers and suppliers of goods and services to discriminate against disabled people. In the White Paper introducing the Bill, the then Minister for Disabled People, William Hague MP,20 described the proposals as representing “a historic advance for disabled people”.21 He was not exaggerating. In its own field, the Act represented as big a step forward as the Race Relations Act 1965 and the Sex Discrimination Act 1975 did in those fields.
32.As Mr Hague said during the second reading of the Bill, “it is utterly wrong that disabled people are restricted or excluded from some aspects of life. We all must come to terms with including people with a disability in our work, travel, study and leisure—all the more so because our ageing population will bring with it an increasing number of people with some kind of disability.”
33.The DDA introduced for the first time the concept of “reasonable adjustment”. The provisions on employment provided a new right broadly on the lines of the then current anti-discrimination provisions for race and gender or sex, but with the additional requirement for employers to make reasonable adjustments to remove barriers in the workplace that would otherwise disadvantage disabled people. The right applied when disabled people applied for work or took up employment, and when people became disabled during their working lives. It did not however apply to firms employing fewer than 20 people.
34.Service providers were also required to make reasonable adjustments. The duty came into force in stages. From 1999 they were required for the first time to change policies, practices and procedures that made it impossible or unreasonably difficult for disabled people to make use of goods and services, and they were also required to take reasonable steps to provide auxiliary aids and services, such as information in alternative formats, or BSL interpreters. In 2004, they were required to take reasonable steps to remove physical barriers to help disabled people gain access to goods, facilities and services. Moreover, in the case of services the duty to make reasonable adjustments was and is anticipatory; it is owed, not to individuals, but to disabled people generally, so that the service provider must consider in advance what reasonable adjustments should be made to allow disabled people to make use of the service.
35.The Special Educational Needs and Disability Act 2001 strengthened the right of children with special educational needs (SEN) to be educated in mainstream schools, and broadened the jurisdiction of the Special Educational Needs Tribunal to include appeals against disability discrimination in education (with the corresponding change to the title of the tribunal).
36.In 2004 the Disability Discrimination Act 1995 (Amendment) Regulations 200322 came into force. In relation to employment, these Regulations gave effect to the disability discrimination provisions of the EU Equal Treatment Directive.23 Changes in the legislation, and a large and growing body of case law, have made the concept of reasonable adjustment increasingly complex, and in Chapter 5 we consider how it could be made more effective.
37.The next major expansion of the legislation came with the Disability Discrimination Act 2005, which extended the concept of reasonable adjustment to housing and made it unlawful for public authorities to discriminate against disabled people, including by requiring public authorities to make reasonable adjustments. The most significant change introduced by the Act was the creation of the public sector equality duty (PSED), imposing on public authorities a positive duty, in carrying out their functions, to have due regard to the needs of disabled people. In Chapter 8 we consider the PSED as it currently is, and what should be done to improve it.
Oversight of the law
38.The National Disability Council, which the DDA set up, was essentially an advisory body, and it was left to the Disability Rights Commission Act 1999 to establish a body with powers in relation to disabled people as wide as those of the Commission for Racial Equality or the Equal Opportunities Commission in their respective fields. But the existence of the Disability Rights Commission was short. The Equality Act 2006 dissolved all three of these Commissions and set up a single Commission for Equality and Human Rights (invariably called the Equality and Human Rights Commission, or EHRC) to take their place, and to oversee the fight against discrimination, not just on the grounds of race, sex and disability, but also on the grounds of sexual orientation, religion or belief, and age.
39.In the following chapter we consider in more detail the powers and duties of the EHRC, and how effectively it has discharged its duties.
The Equality Act 2010
40.The position in 2006 was that a single body was in charge of “encouraging and supporting the development of a society in which (a) people’s ability to achieve their potential is not limited by prejudice or discrimination, (b) there is respect for and protection of each individual’s human rights, (c) there is respect for the dignity and worth of each individual, (d) each individual has an equal opportunity to participate in society, and (e) there is mutual respect between groups based on understanding and valuing of diversity and on shared respect for equality and human rights.”24 However the substantive law governing these matters was set out in four different statutes25 which, while they had similar purposes, were expressed in very different ways. It was therefore inevitable that there would be moves to consolidate, simplify and amplify these statutes.
41.As far back as 2000, the Independent Review of the Enforcement of UK Anti-Discrimination Legislation (the “Hepple Report”) had recommended the enactment of comprehensive equality legislation to increase levels of protection across the different equality grounds, and to ensure greater clarity and consistency in anti-discrimination law. In 2003, Lord Lester of Herne Hill QC introduced in the House of Lords an Equality Bill which made provision for single, comprehensive and unified equality legislation. The Bill was passed in this House but failed to find time for a second reading in the House of Commons.
42.In 2004, during the consultation on the establishment of the Equality and Human Rights Commission, some support was expressed for the introduction of a single Equality Bill to provide a coherent legislative framework for the new Commission’s work. As a result in February 2005, before the Bill for the Equality Act 2006 had even been introduced, the Government established the Discrimination Law Review to consider “the opportunities for creating a clearer and more streamlined equality legislation framework which produces better outcomes for those who experience disadvantage … while reflecting better regulation principles”, and in its 2005 general election manifesto the Labour party undertook to introduce a Single Equality Bill during the course of that Parliament. The Government published a consultation paper in June 2007,26 and the following year the Government published its response to the consultation paper and a White paper with its policy decisions.27
43.On 24 April 2009 the Government introduced its Equality Bill, bringing together the relevant domestic law:
- the Equal Pay Act 1970;
- the Sex Discrimination Act 1975;
- the Race Relations Act 1976;
- the Disability Discrimination Act 1995;
- the Employment Equality (Religion or Belief) Regulations 2003;
- the Employment Equality (Sexual Orientation) Regulations 2003;
- the Disability Discrimination Act 2005;28
- the Employment Equality (Age) Regulations 2006;
- the Equality Act 2006, Part 2;
- the Equality Act (Sexual Orientation) Regulations 2007.
44.The disability provisions of the draft Bill had already been considered by the Commons Work and Pensions Committee,29 and the Bill as a whole was considered by the Joint Committee on Human Rights whose report30 was however published only on 12 November 2009, the day on which the Bill fell with the Prorogation of Parliament. The Bill was carried over in the new session 2009–10, and received the Royal Assent on 8 April 2010, at the Dissolution of that Parliament. Most of the main provisions of the Act came into force on 1 October 2010.
Disability: the poor relation?
45.Section 4 of the Act lists the nine “protected characteristics” to which it applies: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. All the developments in the first decade of this century were based on the premise that bringing the law on all these together must inevitably benefit them all. And, to a great extent, that does seem to have been the case. But it ignores a crucial distinction between disability and the other protected characteristics. For the other protected characteristics, with the possible exception of pregnancy and maternity, equality of opportunity is largely achieved by equality of treatment. For disabled people, equality of opportunity, to the extent that it is achievable, often requires different treatment.
46.In written evidence the Trades Union Congress (TUC) suggested that “employers and sometimes members of the judiciary seem to struggle with the concept of treating disabled people more favourably to achieve equality in practice.”31 The Disability Law Service said:32 “Many employers do not understand that they can, and should, treat disabled people more favourably than others when making adjustments under the [Equality Act]. Many of our callers tell us that their employer has specifically told them that they cannot show any ‘favouritism’ to them, when altering working arrangements.” IPSEA (Independent Parental Special Educational Advice) said: “One of the problems with consolidating the protected characteristics is it gives the impression that disability, as a protected characteristic, is to be promoted by way of equal treatment, as happens with the other characteristics protected under the Act. … It is often surprising to people that disability is the only characteristic in respect of which equal treatment could potentially discriminate; something of which we believe there is a poor awareness amongst some education professionals.”33
47.It is this distinction between disability and the other protected characteristics which has led a number of our witnesses to question whether merging the DDA with the other protected characteristics in a single Equality Act has perhaps put disabled people at a disadvantage. The first question in our Call for Evidence asked: “Has the Equality Act 2010 achieved the aim of strengthening and harmonising disability discrimination law? What has been the effect of disability now being one of nine protected characteristics?” The Government and the EHRC thought the merger of the statutes was a positive development, but a substantially larger number of witnesses thought the merger had weakened protection for disabled people. The Discrimination Law Association felt that it was now easier for advisers to explain claims based on more than one protected characteristic because they only needed one piece of legislation, but continued: “A downside is the concern that there has been a loss of focus of resources on the protected characteristic of disability, because of its inclusion as one of nine protected characteristics in the Act. There are concerns that the unified approach can lead to disability discrimination, with its particular legal prohibitions and duties, being treated as being just like any other discrimination when it is not.”34
48.Others of the many witnesses with similar views included the Bar Council, who wrote: “Embedding disability with the other eight protected characteristics has served to mask the differences between disability and those other characteristics … For the modest advantages of consolidation and uniformity, as may be inevitable given the greater variety of rights in play, the new regime has complicated the challenge of combating disability-focused discrimination, rendering ever more critical the need for access to those enhanced rights.”35 The Disabled Persons Transport Advisory Committee described the Equality Act as “a backward step” saying the focus on disability had been lost.36 Inclusion Scotland, a national network of disabled people, disabled people’s organisations, and social partners who share their aims, said: “If the purpose of the Equality Act 2010 was to harmonise discrimination law and make it easier to use by disabled people (and other protected groups) then it has significantly failed in its intended aim.” The National Association of Deafened People thought the Act “had the effect of diluting the strength of the Disability Discrimination Act”,37 and Doug Paulley, a wheelchair user who also gave us oral evidence, believed the Act had “diluted the efficacy of disability discrimination legislation”.38 The Newcastle Society for Blind People felt disability was now subsumed, especially to race and gender.39 Gwynneth Pedler went so far as to say that “At every turn it is obvious that the Equality Act worsened our quality of life, freedom of choice, independence and security.”40
49.Our conclusion is that the Equality Act 2010 has led to a loss of focus on disability discrimination and a sense of a loss of rights among disabled people, who find it harder to identify with the Equality Act. The very name—equality—implies an equality of treatment which is insufficient to afford real equality for disabled people, and may even militate against it. But in our view the move towards consolidation and merger is now too deeply embedded in the law, in the supervisory bodies and in the culture for separation of the disability provisions into a separate statute to be a realistic option.
50.We believe that combining disability with the other protected characteristics in one Act did not in practice benefit disabled people, but that separating statutory treatment of disability from the other protected characteristics would be impractical. We prefer to concentrate on improvements to the Act which will give greater prominence to disability and will increase the protection of disabled people.
The medical and social models of disability
51.A disability was once thought of, and indeed is often still treated, as the problem which a person may suffer from and which they attempt, as far as possible, to overcome. This is the medical model of disability. But for many years disabled people have argued that disability is the result of the way a person with an impairment is treated by society; a person is disabled, not by their condition, but by the way society reacts to that condition and fails to accommodate to it. This is the social model which, the Law Society of Scotland said, means “that someone is disabled because the norm for society is non-disabled people and so services and facilities are set up to operate for them and not disabled people … if the social model was applied then the law would start from the premise that it is the norms of society that cause disadvantage”.41
52.One consequence is the perceived difference between a ‘disabled person’ and a ‘person with a disability’. In our Call for Evidence we used both expressions. This brought strong criticism from a number of witnesses. The Manchester Disabled Peoples Access Group wrote: “Please note that in the question, the social model of disability does not support the use of the term ‘people with disabilities’ as disabled people may or may not have impairments, but do not have disabilities, as they are disabled by the barriers in society.”42
53.There is considerable inconsistency between our witnesses on this issue. A number of them (e.g. the Public Interest Research Unit) 43 hold up the United Nations Convention on the Rights of Persons with Disabilities (the UNCRPD, which we consider later in this chapter) as the prime example of the social model; and yet ‘persons with disabilities’ appears not just in its text but in its title. The TUC wrote: “The UNCRPD was explicitly founded in the social model of disability whereas the DDA 1995 (and its successor versions) culminating in the EA 2010 were all drafted based on the traditional medical model of disability.”44 This view that the DDA which, like all United Kingdom statutes, uses the expression ‘disabled people’, was drafted on the medical model was flatly contradicted in oral evidence by Lucy Scott-Moncrieff, for the Law Society, who told us how the DDA “introduced very powerfully the concept of the social construct of disability and how disability is actually a function of how society is organised rather than the impairment or difference of an individual person. Therefore, as it was part of the way that society was organised, society could do something about it. That is what the DDA was all about and it was absolutely brilliant.”45
54.The question of terminology seems to cause particular problems in the United Kingdom. The expression ‘persons with disabilities’ is used, not just in the UNCRPD, but in the (US) Americans with Disabilities Act, and in all relevant EU documents, including legislation. Yet in this country disabled people see this, not as a question of semantics, but as an important and sensitive issue. To us, what matters most is that society should recognise that all people are entitled to be treated with equal consideration, and that society should where possible adapt to their needs rather than be designed solely for the needs of the majority.
Different disabilities
55.Writing about ‘disabled people’ should not obscure the fact that there are many different types of disabilities. In addition to all the written evidence we received, we took oral evidence from those with mobility impairments, blind and visually impaired people, deaf people and those who are hard of hearing, and people with learning difficulties, and also from organisations representing them.
56.There is in our view a danger that people with mental health issues may not get the full attention they deserve, and we were particularly glad to receive written evidence from the Mental Health Foundation and from Mind, and also oral evidence from the Chief Executive of Mind.46 We are also conscious that large numbers of people have less obvious impairments, or hidden disabilities. Action on M.E. told us that “M.E. is an invisible illness, which impacts on how it is understood by others, especially in the context of equality and discrimination.”47
57.The British Psychological Society Working Group on Neurodiversity in Employment gave us their views on the effectiveness of the Equality Act for adults with neurodiversity “namely: dyslexia; dyspraxia; ADHD; autistic spectrum condition; dyscalculia … neurodiverse conditions, which fall under the umbrella of ‘hidden disability’, are distinct in their nature from other disabling conditions”.48 Autistic UK explained that
“all autistic people are neurologically different to non-autistic people … There are other and larger groups of people who are also neurologically different to the majority of the population; those people with neurodevelopmental conditions such as dyslexia, dyspraxia, Tourette’s syndrome, Attention Deficit (Hyperactivity) Disorder and other such conditions”.49
They argued that not all autistic people are disabled, and they would have liked to see a tenth protected characteristic, so that autistic people could receive the protection of the Act without having to show that they are disabled.
Definition of disability
58.Section 6(1) of the Act, which defines “disability”, is simple enough: “A person (P) has a disability if (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.” But this is only the beginning. This subsection has to be read together with the rest of section 6; with the provisions of Schedule 1; with statutory Guidance issued by the Minister; with Regulations made by the Minister; and with a substantial and increasing body of case-law interpreting all of these. The only issue arising from the law which we believe requires our consideration is that Regulation 4(1) of the Equality Act 2010 (Disability) Regulations 2010 provides that “a tendency to physical or sexual abuse” is not to be treated as an impairment for the purposes of the definition of disability. We consider this in Chapter 11.
Provisions not in force
59.Nearly six years after the Equality Act 2010 was enacted a number of its provisions are still not in force. Some of these do not deal with disability, and we say no more about them.50 But a number are very pertinent to our inquiry.
Part 1: Socio-Economic Inequalities
60.Part 1 of the Act imposes on Ministers and public authorities a duty to have “due regard”, when making strategic decisions, to the need to reduce inequalities which result from socio-economic disadvantages. This Part has no precursor in the earlier legislation, and has not been brought into force. It certainly has an impact on disability, but also on all the other protected characteristics. In fact it goes wider still, dealing as it does with inequalities which are not necessarily connected to any of the protected characteristics. It is therefore beyond our remit.
Section 14: Combined discrimination: dual characteristics
61.Many disabled people have other protected characteristics, and discrimination may be based on two or more such characteristics. Section 14 provides for this, or would do if it had been brought into force. This is particularly important for litigation, and we deal with it in Chapter 9.
Section 36(1)(d): Reasonable adjustments for common parts of premises
62.This important provision has not been brought into force. We deal with it in Chapter 5.
Part 12, Chapter 1: Transport of disabled persons by taxi
63.Most of the provisions of sections 160 to 173 of the Act are in force only in part. The most important of them, section 165 which deals with the transport by taxi of passengers in wheelchairs, is not for practical purposes in force at all. We consider these provisions in Chapter 7.
The Equalities Red Tape Challenge
64.Developments since 2010 have not been encouraging. The Coalition Government’s Red Tape Challenge looked at many thousands of regulations under different headings, and amended or revoked 3,095 of them.51 The Equalities Red Tape Challenge placed equalities legislation under the spotlight for a three week period in May 2011. The Government’s Memorandum on the Act explains this.
|
Individuals and organisations were encouraged to submit their views on the Equality Act 2010 via crowd-sourcing through the Government’s Red Tape Challenge website and through email submissions. Views were also invited on the Equality Act 2006 … Following this period, Ministers considered the comments received and looked at different options for removing, improving or simply maintaining elements of the legislation before finalising a package of measures. |
65.It was the Red Tape Challenge which resulted in the delay in the commencement of the provisions on reasonable adjustments to common parts and on dual discrimination; the repeal of the provisions on the statutory questionnaire; the repeal of the power of tribunals to make wider recommendations; and the abolition of the EHRC’s conciliation powers.52
66.The Government’s conclusions were announced by the Home Secretary by way of a Written Ministerial Statement in May 2012, when she said: “The equalities red tape challenge package balances the need to provide important legal protection from discrimination with identifying which measures in the Equality Act 2010 are placing unnecessary or disproportionate burdens on business.” 53 As we have occasion to say in a number of places in this report, the Government should have given the same consideration to measures placing an unnecessary or disproportionate burden on disabled people.
The UN Convention on the Rights of Persons with Disabilities
67.This Convention (the UNCPRD) was negotiated between 2002 and 2006. It builds on the Universal Declaration of Human Rights (1948), and follows a series of Conventions dealing with other forms of discrimination.54 It was opened for signature on 30 March 2007 when it was signed by 82 States, including the United Kingdom.
68.Like the other UN Conventions tackling discrimination, the UNCRPD imposes a number of important obligations on the States Parties. Some are simply repetitions of earlier human rights treaties, like the right to life,55 or to liberty and security of the person,56 or to freedom from torture,57 or the obligation to recognise that all persons are equal before the law.58 But there follow provisions more specific to persons with disabilities. Article 4, though framed in terms of a general obligation on States Parties to adopt legislation and administrative measures to ensure the human rights of persons with disabilities, has a number of specific examples, including taking measures to eliminate discrimination on the basis of disability, and involving persons with disabilities in the formulation of legislation. This is supplemented by detailed provisions requiring States Parties to take appropriate measures to ensure for persons with disabilities, so far as possible, equal access to transport, communications, justice, independent living, mobility, education, health, work and employment, and equal participation in political and public life and in culture, recreation, leisure and sport.
69.A State which (like the United States) signs but does not ratify the Convention assumes no positive obligations. However the ratification of the Convention by the United Kingdom on 8 June 2009 meant that, from its entry into force a month later, the Government undertook to be bound by the Convention obligations, and would continue to be so.
70.Article 34 of the Convention set up a Committee on the Rights of Persons with Disabilities, and Article 35 requires States Parties within two years of its entry into force to submit to that Committee “a comprehensive report on measures taken to give effect to its obligations under the present Convention and on the progress made in that regard”. Accordingly in May 2011 the Government submitted to that Committee its initial report on the implementation of the Convention in the United Kingdom. That report examines the Convention article by article, explaining in each case how the Government believes that it complies with its obligations under the Convention.
71.At the same time the Government set out its view of the legal position in its response to the report of the Joint Committee on Human Rights (JCHR) on the Right to Independent Living:
“The Government recognises that the Convention is a legally binding instrument, and has made it clear that it is committed to its implementation. The evidence given to the Committee was intended to make the distinction that international treaties are generally not incorporated into UK domestic law. The Convention imposes legal obligations on the UK Government. The UK fulfils these obligations through existing domestic legislation, such as the Equality Act 2010, and through policy and programmes that impact upon the lives of disabled people. In this way, the rights contained in the Convention have practical effect.” 59
72.Some witnesses have suggested to us that there are individual provisions of the Convention which the Government has failed to implement. The British Deaf Association60 in its written evidence61 maintained that the Government’s treatment of British Sign Language (BSL) was in breach of its Convention obligations, and specifically Article 21 (facilitating, recognising and promoting sign languages), Article 24 (facilitating the learning of sign language and the employing of teachers qualified in sign language), and Article 30 (recognition and support of specific cultural and linguistic identity, including sign languages and deaf culture). The BDA did not accept the Government response to the UN Disability Committee to which we refer in paragraph 70 above.
73.Article 4(3) of the Convention requires States Parties, in developing and implementing legislation and policies, to “closely consult with and actively involve persons with disabilities … through their representative organizations.” Autistic UK maintains that this provision “has been ignored as there has been no close consultation nor active involvement of autistic people “through their representative organizations”, with no Disabled Peoples Organisations being involved in the Department of Health’s Autism Programme Board.”62
74.Reclaiming our Futures Alliance argues that the Equality Act does not fully support, in particular, Article 19 on the right to independent living, and the right of disabled people to “full inclusion and participation in the community”.63 Article 29 deals with the right of disabled persons to participate fully in political and public life, and Disability Rights UK and Disability Politics UK both argue that this should be implemented by allowing MPs to job share.64 Finally, Unity Law believe that the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) on disabled claimants may put the Government in breach of Articles 5 and 12 (equal recognition before the law), and Article 13 (access to justice).65
75.We accept that these are all areas where the actions, or inaction, of the Government may lay it open to criticism and, as will appear in subsequent chapters where we address some of these issues in detail, we believe many of those criticisms are justified. But it by no means follows that the Government is in breach of its Convention obligations. The Convention sets out “broad and basic principles”66 which impose minimum obligations, and States Parties are given a wide degree of discretion in deciding what constitutes “close” consultation, or “effective and appropriate” action, or “appropriate” measures.
76.The EHRC, with the Scottish and Northern Irish Commissions, is the Independent Mechanism (UKIM) appointed under Article 33(2) to monitor implementation of the Convention in the United Kingdom. In anticipation of the next examination of United Kingdom compliance with the Convention by the UN Disability Committee, which is expected later this year, in December 2014 UKIM published a report Monitoring the Implementation of the UN Convention on the Rights of Persons with Disabilities. This follows the format of the Government’s 2011 Initial Report, looking at implementation Article by Article and suggesting questions which the UN Disability Committee might put to the Government on progress so far, and on what might be done to enhance this. By way of example, in relation to Article 19 they suggest that the UN Committee ask the Government “to explain what measures have been taken, and what impact they have had, to ensure that the reduction in central government funding to local authorities and health and social care trusts in each nation67 does not have a negative impact on the realisation of Article 19.” But nowhere in its report does UKIM suggest that there is any provision which is not adequately implemented in accordance with the requirements of the Convention.
Incorporation of the Convention into UK law
77.A few witnesses went further, and thought the Convention should be incorporated into UK law. Kate Whittaker, a solicitor and trustee on the Management Board of Disability Sheffield Centre for Independent Living, said: “If there is one recommendation that I think is most important and relevant for the Select Committee to consider, it is to incorporate the [Convention] into domestic law … it is a particular travesty that the opportunity was missed to expressly incorporate [Article 19, right to independent living] in English law via the Care Act, but the whole Convention needs to be incorporated. This is because of extensive evidence that the UK is failing to progressively realise these rights and in fact severe retrogression is happening which the existing law is powerless to prevent.”68
78.The Law Society wrote: “Incorporation of the Convention would give an important signal about government commitment to equalities legislation, as one of its obligations on government is to take sufficient steps, including legislative steps, to realise the rights enshrined in the Convention.”69 In oral evidence Lucy Scott-Moncrieff, speaking for the Law Society, made the same point,70 but asked Douglas Johnson, giving oral evidence at the same time on behalf of the Law Centres Network, to speak to this. He said: “At the moment we are in the situation where the United Kingdom Government have ratified the United Nations Convention. It is incorporated in some sort of way that I do not fully understand by virtue of our international treaty obligations. It would be much easier for judges on the front line who have to deal with it to know, “Yes, this is in force now by virtue of this Act”.”71
79.We think this demonstrates some confusion. The Convention has been ratified. It is therefore binding. It is not currently incorporated in UK law. Nor is, for example, the UN Convention on the Rights of the Child. United Kingdom courts can refer to such Conventions as an aid to interpreting United Kingdom law, but if they do so, they need to heed the note of caution sounded by Laws LJ specifically in relation to the UNCRPD: “… great care needs to be taken in deploying provisions which set out broad and basic principles as determinative tools for the interpretation of a concrete measure.”72
80.Incorporation of the Convention is a step of a wholly different order from implementation, and would result in every provision of the Convention becoming a provision of English law,73 justiciable and enforceable in the courts of this country. A recommendation by the Committee that the Convention should be incorporated into United Kingdom law would certainly, as the Law Society said, “give an important signal about government commitment to equalities legislation”. But the Government, in its evidence to the inquiry by the Joint Committee on Human Rights into the UN Convention on the Rights of the Child (UNCRC), has argued that incorporation is unnecessary.74
81.There is an alternative. The UNCRC, which the United Kingdom signed on 19 April 1990 and ratified on 16 December 1991, has also not been incorporated into UK law. However on 6 December 2010, in a Written Ministerial Statement in connection with the publication of the Independent Review of the Children’s Commissioner, the then Children’s Minister, Sarah Teather MP, gave the following commitment on behalf of the Government:
“I can therefore make a clear commitment that the Government will give due consideration to the UNCRC articles when making new policy and legislation. In doing so, we will always consider the UN Committee on the Rights of the Child’s recommendations but recognise that, like other state signatories, the UK Government and the UN committee may at times disagree on what compliance with certain articles entails.”75
82.Towards the end of 2014 the JCHR decided to assess the progress made by the Government since it gave this commitment in December 2010. In its report, the JCHR noted that “The Government has said in the past that it will not incorporate the Convention into UK law because it believes that “the UNCRC contains a mixture of rights and aspirations that are often imprecisely defined [ … ] [which is] why the ‘must have regard to’ formulation is a better approach”. The JCHR said that “ideally” they would like to see the UNCRC incorporated into UK law, but concluded that if a dedicated focus on children’s rights were manifest in legislation and policy across the board, “much of the debate about incorporation versus non-incorporation would become an irrelevance”.76
83.No equivalent commitment has been given by the Government in relation to the UNCRPD. We believe that if such a commitment were given, this would be a recognition by the Government of its obligation “to take sufficient steps, including legislative steps, to realise the rights enshrined in the Convention.”77 We agree with the JCHR that this would also render the debate about incorporation an irrelevance.
84.We call on the Government to make a commitment that it will give due consideration to the provisions of the UN Convention on the Rights of Persons with Disabilities when formulating new policy and legislation which may have an impact on disabled people.
85.We hope the Government will give this commitment in its response to our report. We point out that this response will take the form of a Command paper laid before Parliament, and that it will therefore have the status of a commitment made to both Houses of Parliament.
The Protocol to the UNCRPD
86.The United Kingdom has also signed and ratified the Optional Protocol to the Convention. This enables the UN Disability Committee to consider communications from individuals or groups of individuals who claim to be victims of a violation by a State Party of the provisions of the Convention, and have exhausted their means of redress through the courts. The UN Disability Committee can also consider “reliable information indicating grave or systematic violations by a State Party of rights set forth in the Convention”, and can then inquire into the implementation of the Convention by that State. There have been individual complaints against the UK, and in August 2014 the UK became the first country to face an inquiry by the UN Disability Committee into charges of “grave or systematic violations” of the Convention. Such inquiries are confidential. On 12 October 2015 members of the Committee met the representatives of the UN Committee and were given a broad outline of their procedure, but not details of the violations which had been alleged or of their inquiry. The UN Committee has yet to report.
European Union Law: the draft Directive on Accessibility
87.In his written evidence to us, Lord Low of Dalston said:
“There is powerful evidence of the serious impact of barriers to everyday living faced by disabled people as a consequence of the inaccessibility of vital products such as digital television, radio and ‘white goods’ because they are not often designed with the needs of disabled people in mind. Clearly, the voluntary approach supported by standards has not worked. What is needed is legislation requiring a consistent approach to promoting inclusive design by manufacturers across the EU. This is a single market issue that cannot be addressed through national legislation, and therefore has to be tackled at EU level.”78
88.There is EU legislation on the horizon. In November 2010 the EU Commission proposed a European Disability Strategy 2010–2020.79 In the accompanying Action Plan 2010–2015,80 under the specific objective of preventing, identifying and eliminating obstacles and barriers to accessibility, the Commission committed itself to preparing draft legislation setting out a general accessibility framework in relation to products and services. On 2 December 2015 the Commission published its proposal for a draft Directive on the accessibility requirements for products and services.81
89.The aim of the Directive is to ensure that products and services are accessible to persons with disabilities and those with functional impairments which may be temporary or permanent and which may be age related. The Directive will require Member States to ensure that manufacturers, importers and distributors modify products and services to ensure that disabled people are able to access products and services on an equal basis. The duty applies to the production of new products and services only. The Directive requires products to be accessible by providing an alternative to speech for communication, flexible magnification and contrast adjustment or allowing the user to control the volume. For services, the related websites should be accessible and contain information about the accessibility features of the services. Websites should be designed to allow users to access the information on the website, to operate them and to understand their content and structure.
90.The main implications for the UK are likely to be for manufacturers, as the Directive addresses the accessibility of manufactured goods i.e. products for the first time (outside the area of broadcasting). But there are also implications for service providers such as banks, as they will be required to install services such as accessible cash point machines.
91.The extent of the proposed new duty to make reasonable adjustments is defined by the nature of the product or service.82 So, for example, in relation to air, bus, rail and waterborne passenger transport services, providing information about the way that the service operates must be accessible (which means ensuring that information is available by more than one sensory channel); associated websites must be useable for people with disabilities and functional limitations; and if the service is supported by “smart ticketing”, mobile device-based services or self-service terminals (e.g. ticketing machines), then these must also be accessible.
92.The draft Directive followed consultation by the Commission in 2012–13, but in its Explanatory Memorandum the Government states that it intends to carry out its own consultation. It adds: “We understand that the Dutch Presidency [of the Council of the EU in the first half of 2016] will deal with this as a priority but they have not yet set out specific plans for doing so.” There will however be no consequences for disabled people for many years. It is unlikely that the draft Directive will be adopted before 2017, and it may well have undergone substantial changes by then. Directives are not directly applicable law. Member States then have two years in which to adopt their implementing legislation,83 and a further four years elapse before it comes into force. But when that distant day dawns, the Directive should have a positive impact on disabled people.
14 Men aged 16–64 and women aged 16–59.
15 65 for men and 60 for women.
16 Totals are rounded to nearest 0.1m and may not add up.
17 The health data collected by the Office for National Statistics (ONS) to calculate DFLE was gathered by asking people: “Do you have any long-standing illness, disability or infirmity – by long-standing illness, I mean anything that has troubled you over a period of time or that is likely to affect you over a period of time?” (Yes/No) If the answer was ‘Yes’ then the respondent was asked: “Does this illness or disability (do any of these illnesses or disabilities) limit your activities in any way?” (Yes/No) If the respondent answered ‘Yes’ to both questions they were classified as having a limiting persistent illness or disability. If the respondent answered ‘No’, they were classified as being free from (limiting illness or) disability.
18 In this report we refer to this Act as the DDA, as do many of our witnesses. When we refer to the Disability Discrimination Act 2005, we give the full short title.
19 See for example the Disabled Persons (Employment) Act 1944 and the Chronically Sick and Disabled Persons Act 1970. The latter Act was introduced by a Private Member, Alf Morris MP, who in 1974 was appointed the United Kingdom’s first Minister for Disabled People. In 1997 he became Lord Morris of Manchester. He died in 2012.
20 Now Lord Hague of Richmond.
21 Department of Social Security, Ending discrimination against disabled people, Cm 2729, January 1995, Foreword https://www.gov.uk/government/publications/ending-discrimination-against-disabled-people [accessed 2 March 2016]
22 The Disability Discrimination Act 1995 (Amendment) Regulations 2003 (SI 2003/1673)
23 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, OJ No L 303, 2 December 2000.
25 The Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995, together with a number of amending statutes, some provisions of other statutes, and a large amount of subordinate legislation.
26 Department for Communities and Local Government, A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain, A Consultation Paper (June 2007) : http://webarchive.nationalarchives.gov.uk/
20120919132719/www.communities.gov.uk/documents/corporate/pdf/325332.pdf [accessed 2 March 2016]
27 Government Equalities Office Framework for a fairer future - the Equality Bill, Cm 7431, June 2008: https://www.gov.uk/government/publications/framework-for-a-fairer-future-the-equality-bill-june-2008 [accessed 2 March 2016] and Government Equalities Office The Equality Bill: Government response to the consultation, Cm 7454, July 2008: https://www.gov.uk/government/publications/the-equality-bill-government-response-to-the-consultation [accessed 2 March 2016]
28 Which however operated entirely by amendment of the Disability Discrimination Act 1995.
29 Work and Pensions Committee, The Equality Bill: how disability equality fits within a single Equality Act, (Third Report, session 2008–09, HC 158–I)
30 Joint Committee on Human Rights, Legislative Scrutiny: Equality Bill, (Twenty sixth Report, Session 2008–09, HL 169, HC 736)
40 Written evidence from Gwynneth Pedler (EQD0078). Ms Pedler was previously Chair of Oxford City Access Forum, Chair of Oxfordshire Transport and Access group (OXTRAG) which also sent us written evidence (EQD0038), and Deputy Chair of Oxfordshire Unlimited, a Disabled People’s Organisation (DPO). She subsequently gave us oral evidence (QQ 79–90).
42 Written evidence from Manchester Disabled People’s Access Group (EQD0092). See also the written evidence from Arfon Access Group (EQD0142).
46 Written evidence from the Mental Health Foundation (EQD0030) and Mind (EQD0147); QQ 52–59 (Paul Farmer)
50 Though we cannot help wondering why Part 15, dealing with Family Property, has not been brought into force, so that a husband still has the common law duty to maintain his wife.
51 Figures taken from the Red Tape Challenge website: http://webarchive.nationalarchives.gov.uk/20150522175321/http://www.redtapechallenge.cabinetoffice.gov.uk/themehome/rtc-themes-2/ (accessed 9 March 2016)
52 We deal with each of these in subsequent chapters.
53 HC Deb, 15 May 2012, col 29WS
54 For example the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
55 UN Convention on the Rights of Persons with Disabilities Article 10
56 Ibid. Article 14
57 Ibid. Article 15
59 Joint Committee on Human Rights, Implementation of the Right of Disabled People to Independent Living: Government Response to the Committee’s Twenty–third Report of Session 2010–12 (Second Report, Session 2012–13, HL Paper 23, HC 429)
60 In the summary of its evidence, the BDA stated: “The BDA continues to press for legislative change and action by the government, especially to ratify and implement its obligations under the UNCRPD by giving legal status to BSL.” (EQD0101) The Government has of course ratified the Convention; we treat this as dealing solely with implementation.
61 David Buxton, the BDA Director of Campaign and Communications, also mentioned this in oral evidence (Q 66). The same argument was put forward in written evidence by the Deaf Ex-mainstreamers Group (EQD0150). The Alliance for Inclusive Education also argued for better implementation of Article 24 (EQD0110).
66 The words of Laws LJ, describing the UNCRPD, in Hainsworth v MOD [2014] EWCA Civ 763
67 i.e. England, Wales, Scotland and Northern Ireland.
72 Hainsworth v MOD [2014] EWCA Civ 763 at [32], cited by Andrews J in R(Aspinall, Pepper and others, formerly including Bracking) v Secretary of State for Work and Pensions, Equality and Human Rights Commission intervening, [2014[ EWHC 4134 at [34] (Bracking (No 2).
73 Also of course part of the law of Wales, Scotland and Northern Ireland.
74 See the evidence cited by the Joint Committee on Human Rights, The UK’s compliance with the UN Convention on the Rights of the Child (Eighth Report, Session 2014–15, HL Paper 144, HC 1016), paras 32 and 33. See also para 82 below, and the views of the Government cited in para 71 above.
75 HC Deb, 6 December 2010, col 7WS
76 Joint Committee on Human Rights, The UK’s compliance with the UN Convention on the Rights of the Child, (Eighth Report, Session 2014–15, HL Paper 144, HC 1016, paras 32–34). Sarah Teather MP, who as Minister gave the commitment on behalf of the Government, was by then no longer a Minister, but was a member of the JCHR during the inquiry which led to that report.
79 European Disability Strategy 2010–2020: A Renewed Commitment to a Barrier-Free Europe COM(2010) 636, together with an Action Plan 2010–2015, SEC(2010) 1324
80 Initial plan to implement the European Disability Strategy 2010–2020 List of Actions 2010–2015, SEC(2010) 1324
81 Proposal for a Directive of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States as regards the accessibility requirements for products and services, COM(2015) 615. Confusingly, the proposal refers to the Directive as the “European Accessibility Act”. “Act” is a word used in the EU Treaties, and as a generic description of EU legislation, but is not a word used to describe any form of EU legislation.
82 Annex 1
83 In the United Kingdom, probably Regulations made under section 2(2) of the European Communities Act 1972.