Select Committee on Delegated Powers and Deregulation Third Report



ANNEX 3

DISABILITY RIGHTS COMMISSION BILL [HL]

Memorandum by the Department for Education and Employment

INTRODUCTION

1  The Clerk to the House of Lords Delegated Powers and Deregulation Committee has requested a memorandum from the Department for Education and Employment in respect of the Disability Rights Commission Bill, first read on 3 December 1998.

OUTLINE AND SCOPE OF THE BILL

2  The Bill has 15 clauses and 5 Schedules. Its provisions fall into two broad areas:

    provisions relating to the establishment of the Disability Rights Commission (DRC), its constitution and related matters (see clause 1 and Schedules 1 and 2); and

    provisions relating to the functions of the DRC (see clauses 2 to 10 and Schedule 3).

PROPOSALS FOR SUBORDINATE LEGISLATION

3  The Bill contains a number of provisions which would give the Secretary of State new powers to make regulations and orders. A commentary on these provisions appears in paragraph 7 and onwards of this memorandum.

4  In considering the type of Parliamentary scrutiny which would be appropriate for each regulation or order making power conferred by the Bill, the Department has sought to follow established practice. The Department's understanding is that subordinate legislation is acceptable where it has the purpose of:

    avoiding too much technical and administrative detail on the face of the legislation, and keeping Bills shorter than they would otherwise be;

    ensuring flexibility in responding to changing circumstances, and a measure of ability to make changes quickly in the light of experience without the need for primary legislation;

    allowing detailed administrative arrangements to be set up and kept up to date within the basic structures and principles set out in the primary legislation, subject to Parliament=s right to challenge any inappropriate use of powers; and

    allowing flexible timing to get legislation right, to consult, and to change it when circumstances change.

5  The Bill provides for any regulations or orders made by the Secretary of State under this Bill to be made by statutory instrument.

6  All statutory instruments made under this Bill are subject to the negative resolution procedure, except:

    orders made under subsection (6)(a) of section 53A of the DDA (inserted by clause 8) appointing the day on which a code of practice issued by the DRC shall come into effect which are not subject to Parliamentary procedure; and

    orders made under clause 15 bringing into force provisions of the Bill, which, in accordance with usual practice, are not subject to Parliamentary procedure.

CLAUSE BY CLAUSE ANALYSIS OF DELEGATED POWERS

Clause 4: Non-discrimination notices

7  Clause 4 allows the DRC to serve upon a person whose activities it has investigated a notice stating that the DRC has found the person to have committed, or to be committing, an act of discrimination made unlawful by any of the provisions of Part II (employment) or Part III (access to goods, facilities, services and premises) of the Disability Discrimination Act 1995 (DDA) and to require the person not to commit, or to cease committing, any such unlawful acts.

8  Subsection (3) allows the Secretary of State to make regulations extending the range of requirements which a non-discrimination notice can impose on the recipient. It is expected that the regulations when made will enable the DRC to specify what existing policies or procedures need to be changed to ensure that further acts of discrimination do not occur and, linked to this, to require the person upon whom the notice is served to produce a plan setting out the action he will take to that end.

9  The Equal Opportunities Commission (EOC) and the Commission for Racial Equality (CRE) already exercise powers to serve non-discrimination notices in the field of sex discrimination and race discrimination. Each has recently conducted a review of the legislation under which they are established. Their recommendations include a proposal to extend the scope of non-discrimination notices in their respective fields. The EOC has only recently submitted its recommendations to the Government and the Home Office is currently consulting on the proposals put forward by the CRE. This makes it difficult to come to any definitive decisions now. The power in the Bill will allow a degree of flexibility so as to ensure that a consistent approach is taken for each equality commission where this is appropriate. Regulations will also allow for the detail of the administrative arrangements to be specified and modified, if necessary, in the light of experience. The use of regulations by negative resolution is thought appropriate.

10  Subsection (6) gives the Secretary of State the power to extend the range of unlawful action which can result in a non-discrimination notice being served beyond that covered by Part II and Part III of the DDA. Among the acts which might be considered for inclusion in regulations are acts affecting disabled persons which breach section 6 of the Human Rights Act 1998.

11  The relevant provisions of the Human Rights Act are not expected to be brought into force before 2000. Moreover including such acts involves complex questions of law and practice. Extensive consultation will be required and the existence of the power will allow a wider, or narrower, range of acts to be prescribed in the light of experience.

Clause 5: Agreements in lieu of enforcement action

12  Clause 5 allows the DRC to enter into a legally binding written agreement with a person when it has reason to believe that he may have committed, or may be committing, an act of discrimination made unlawful by any of the provisions of Part II or Part III of the DDA and it has decided to carry out a formal investigation. When a statutory agreement is reached, the DRC agrees not to take any further steps towards issuing a non-discrimination notice and the person whose actions were under investigation agrees to abide by the requirements set out in the statutory agreement, those requirements being such as may otherwise be included in a non-discrimination notice.

13  Subsection 5(6) provides that failure to abide by the terms agreed allows the DRC to apply to the court for an order enjoining compliance.

14  Subsection 5(4) allows the Secretary of State to make regulations extending the range of matters which can be included in a statutory agreement beyond the limit which applies to the matters which can be specified in a non-discrimination notice. Breach of any such terms is not enforceable by application to the court but the parties are entitled to agree that a breach has the result of terminating the agreement so that the DRC resumes its formal investigation.

15  This is another matter on which the EOC and the CRE have made recommendations as to the extension of their powers. The use of regulations will enable a consistent approach to be taken where appropriate. The use of regulations will also allow for such extensions as may be introduced to be tested in practice and modified if necessary. The use of regulations by negative resolution is thought appropriate.

16  Subsection (10) gives the Secretary of State the power to extend the range of unlawful action which can result in a statutory agreement being reached beyond that covered by Part II and Part III of the DDA. Among the acts which might be considered for inclusion in regulations are acts affecting disabled persons which breach section 6 of the Human Rights Act 1998.

17  The same points as are made in paragraph 11 apply.

Clause 6: Assistance in relation to disputes

18  Clause 6 allows the DRC to grant assistance to individuals in the pursuit of claims about unlawful discrimination under Parts II and III of the DDA.

19  Subsection (1)(b) gives the Secretary of State the power to extend the range of proceedings for which the Commission can provide assistance. Among the proceedings which might be considered for inclusion in regulations are proceedings in which a disabled person alleges a breach of section 6 of the Human Rights Act 1998.

20  The same points as are made in paragraph 11 apply.

Clause 7: Recovery of expenses of providing assistance

21  When a person who has been assisted by the DRC becomes entitled to have relevant costs repaid to him by another party, for example under a court order or as part of a settlement, the Bill entitles the DRC to recover its expenses out of the amount paid. Subsection (5) allows the Secretary of State to make regulations governing the taxation or assessment of the expenses that are recoverable in any particular case.

22  The use of regulations will allow an appropriate procedure to be prescribed whether the entitlement to have relevant costs repaid arises in connection with proceedings before a tribunal or court or in the course of reaching a settlement.

Clause 8: Codes of practice

23  Clause 8 (which inserts a new section 53A into the DDA) enables the DRC to issue codes containing practical guidance for the purpose of eliminating discrimination against disabled people, promoting the equalisation of opportunities for disabled persons and encouraging good practice.

24  Subsection (6)(a) of the new section 53A provides that a code will come into effect on a day appointed by order by the Secretary of State. Such orders will not be subject to Parliamentary procedure. The draft code will have been subject to approval by the Secretary of State and a procedure equivalent to the negative resolution procedure in both Houses of Parliament. The exclusion of s.53A(6)(a) orders from the negative resolution procedure is in line with the DDA which has the same effect in relation to codes issued by the Secretary of State.

25  Subsection (6)(c) of the new section 53A allows the Secretary of State to revoke a code by order, where it is not revised and reissued, at the request of the DRC. Such orders will be subject to the negative resolution procedure under s.67 of the DDA.

Clause 10: Procedure for amending s.7(1) of the DDA

26  Section 7 of the DDA exempts employers who employ fewer than 20 employees from the provisions of Part II of that Act. However subsection (2) contains a power to amend the provision so as to reduce the number of employees below 20 and subsections (3) to (10) contain provisions as to how a review is to be conducted before the power is used.

27  Clause 10 replaces the provisions for the review with a requirement that the Secretary of State consult the DRC, and others, before exercising the power in s.7(2).

28  The power in s.7(2) requires negative procedure and that is unaffected by the amendment made. However an additional requirement is placed upon the Secretary of State requiring him to publish a summary of the views expressed to him in the course of consultation before he lays an order before Parliament.

Clause 14: Short title, commencement and extent

29  Subsection (2) allows the Secretary of State to bring the provisions of the Bill into force by commencement orders. In accordance with usual practice, such orders will not be subject to Parliamentary procedure.

SCHEDULE 3: FORMAL INVESTIGATIONS AND NON-DISCRIMINATION NOTICES

30  Schedule 3 contains provisions which supplement clause 3 (formal investigations) and clause 4 (non-discrimination notices).

31  Paragraph 3(9) of schedule 3 gives the Secretary of State the power to extend the range of unlawful action which can result in a formal investigation being instigated beyond that covered by Part II and Part III of the DDA. Among the acts which might be considered for inclusion in regulations are acts affecting disabled persons which breach section 6 of the Human Rights Act 1998.

32  The same points as are made in paragraph 11 apply.

33  Paragraph 18 of schedule 3 allows the Secretary of State to make regulations to supplement the provisions of schedule 3 as they apply to formal investigations and non-discrimination notices. The regulations may be used for example, to specify time limits in respect of the various stages through which the formal investigation process and the preparation of a non-discrimination notice pass.

34  The existence of the power to make regulations will allow any statutory time limits which may be introduced to be tested in practice and modified, if necessary, in the light of experience. Further imposition of statutory time limits is also another matter which the EOC recommends in relation to the procedure for formal investigations and non-discrimination notices in its field. Again, the use of regulations in this case will allow a consistent approach to be taken for each equality commission where this may be appropriate. The use of regulations by negative resolution is thought appropriate.

Department for Education and Employment
December 1998


 
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