The Disability Rights Commission
An outline of the structure, functions and powers of the new Commission.
"Through advice, conciliation and legal enforcement we shall use the force of argument and, where necessary, the force of law. We will be an authoritative point of contact for individuals seeking support. We will be able to guide employers and service providers to meet their legal obligations and implement best practice, so ending discrimination - inadvertent or otherwise."
(Bert Massie, chairman of the Disability Rights Commission)
In IRLB 609 we outlined the substantive provisions of the Disability Rights Commission Bill ("the Bill"). Since then, it has been amended and completed its passage through Parliament, receiving Royal Assent on 27July 1999, and going on the statute book as the Disability Rights Commission Act 1999 ("the Act"). The Act runs to 16 sections and five Schedules and its primary function is to establish and define the powers of the Disability Rights Commission ("the DRC"). Launched on 25 April 2000, the DRC is a central part of the Government's commitment to developing comprehensive and enforceable civil rights for disabled people in Great Britain. As such, it will aim to eliminate discrimination against disabled people and in turn secure them equal opportunities.
As a corollary to the creation of the DRC, s.1(4) of the Act abolishes of the National Disability Council ("the NDC"), which was established under the Disability Discrimination Act 1995 ("the DDA"). The DRC's powers are far greater than those of the NDC, which was never able to initiate litigation nor support individuals, and it is therefore more akin to the other two commissions in the discrimination area - the Commission for Racial Equality ("the CRE") and the Equal Opportunities Commission ("the EOC").
DRC's membership
Section 1 of the Act otherwise establishes the DRC and introduces Schedule 1, which sets out provisions regarding the DRC's status and membership. This specifies that the DRC shall consist of not less than 10 and not more than 15 commissioners. Commissioners' appointments will be for a period of two to five years but he or she may be reappointed, thus allowing flexibility.
A majority of the commissioners must either have, or have had, a disability, although the Act specifies that this need not apply with respect to the first three appointments. In an amendment to the Bill, the Act require that the chairman or deputy chairman should also be a disabled person or a person who has had a disability. The definition of a disabled person is that stated in the DDA: a person who has a physical or mental impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. Margaret Hodge, Minister for Disabled People, stated1 that those who have had a disability must have had a condition which had lasted for at least 12 months, as per Schedule 2 of the DDA.
Bert Massie, previously director of the Royal Association for Disability and Rehabilitation, himself a wheelchair-user, has been appointed as the chairman, with John Hougham, chairman of ACAS, as deputy chairman. Of the 15 commissioners appointed, 10 are disabled. The appointment of Evelyn Rank-Petruzzietto, a woman with learning difficulties, has attracted the most attention, as the appointment is perceived by disability rights campaigners as a historic breakthrough (see below for a full list of commissioners). As regards general staff, it is anticipated that the DRC will employ 150 people. At present, it has appointed 65 staff, one-third of whom are disabled. It is envisaged that the remaining members of staff will be recruited over the next 12 months.
The remainder of Schedule 1 sets out provisions relating to powers of delegation, finance and annual reports. In particular, para. 17 of Schedule 1, an amendment to the Bill, requires the DRC to maintain a list of organisations it has consulted for the purpose of any of its functions, though this does not include contacts with particular individuals. The list will be made available to the public in whatever way the DRC considers appropriate and a charge may be imposed. According to Bob Niven, chief executive of the DRC, a main priority for the DRC's first year is the creation of a network of approved expert disability organisations and advisers capable of helping companies and individuals. The implication from this is that the DRC will be as much a facilitator of good practice as a promoter of it.
Location
The DRC is a single structure for Great Britain, with offices based in Manchester, London, Edinburgh and Cardiff (see below for full address details). Quite how it will operate on a local level remains open, especially as the Disability Rights Task Force2 recommended that regional offices were not necessarily the best way forward and that accessibility could be achieved in other ways. During debate on the Bill, Margaret Hodge3 suggested that the appropriate use of changes in information communications might prove fruitful. This would appear to be one of the routes the DRC has chosen, as a fundamental part of its working programme for the coming year is the establishment of a comprehensive information and advice service through a helpline and web site (see below). In its first year of operation, the DRC will have a budget of £12 million.
General duties
Section 2 of the Act lists the DRC's general duties as:
Although encouraging good practice is perceived as central to the DRC's role, it was included in the Bill as a power not a duty. During the process of debate, Baroness Blackstone, Minister of State for Education and Employment4 , expressed her concern about making it a duty in case it exposed the DRC to judicial review for not encouraging good practice where, in the judgment of the Commission, another course of action was appropriate. The qualification of the duty as it appears in the Act by the inclusion of the words "as it considers appropriate" seeks to minimise this risk.
Advising the Government
Section 2(2) provides that the DRC may give advice to the Government on any aspect of the law or proposed changes to the law connected with the elimination of discrimination. It also has the power to make proposals or give advice as to the practical application of any law, to any public authority or government agency. The specific mention of the latter is an amendment to the Bill, ensuring that bodies such as the Health and Safety Executive are covered.
In addition, s.2(3) provides that the DRC has a duty to make proposals or give advice to the Government on any matter specified in a request from a government minister as to any aspect of law or proposed change to law. This, in effect, enables advice to be sought from or given on any or all of: amendments to the DDA; the implementation of any relevant Directive issued by the European Union; the implementation of the Human Rights Act 1998 ("the HRA"); or any legislation where the needs of disabled people may be relevant. During debate, the question whether or not the DRC should have a specific duty to keep the HRA, in particular, under review was raised on a number of occasions. Generally, it was felt this would be inappropriate. Margaret Hodge5, for example, took the view that such a provision would restrict the DRC's flexibility in determining its own priorities and would distract it from its other primary functions.
Charges
Under s.2(4) of the Act, the DRC has a discretion to charge for the facilities or services that it makes available, such as giving advice to an organisation to change its physical layout in order to ensure proper access. However, Margaret Hodge6 anticipated that the Commission was not expected to charge for general advice. This would make sense, as one of the most important aspects of the DRC's function will be to forge good relations with businesses in order to give advice to employers and service providers, so that they may meet their legal obligations and work towards best practice - hence the allocation of four commissioners whose interest is specific to business.
Formal investigations
By virtue of s.3 of the Act, the DRC has power to conduct formal investigations of its own volition, and is required to exercise this power if asked to do so by the Secretary of State. In practice, an investigation may be general, to find out what's happening in a particular section of society or kind of activity. Alternatively, it may be a named-party investigation into the activities of one or more named individuals or organisations. According to Baroness Blackstone7, conducting a formal investigation gives the Commission "the idea of a policing role" and may well be quicker than going through the courts. The Disability Rights Commission (Time Limits) Regulations 2000 (SI No.879 - "the Time Limit Regulations"), which came into effect on 25 April 2000, provide a statutory time limit of 18 months (known as "the reporting period") for the completion of investigations. The Secretary of State may, however, permit extensions. Failure to publish the investigation report before the expiry of the reporting period, or any extension period(s), will mean the investigation will come to an end.
Part 1 of Schedule 3 to the Act specifies the circumstances in which an investigation may be undertaken, stating that it may be to establish whether:
The DRC is precluded from taking any steps as regards an investigation until terms of reference for it have been drawn up, and notice has been served upon the individuals concerned. This also marks the commencement of the reporting period. Where the investigation concerns a group of people, the Act permits notice to be given in a way that the Commission feels is appropriate in order to bring it to the attention of those people likely to be affected. Furthermore, the Commission is not permitted to make any findings without affording the individual or organisation concerned an opportunity to make representations. If it refuses to receive oral representations, it must give reasons for doing so.
The extensive nature of the DRC's powers under Part 1, Schedule 3, is reflected in para. 4, which allows the DRC to serve notice on any person requiring him or her to give information orally or in writing, or to produce any documents that might relate to any matter under investigation. To do this, however, the DRC must first obtain authority from the Secretary of State. If a person fails to comply with the notice or where the DRC believes that he or she intends not to comply, an application may be made to the county court judge or sheriff.
When the investigation has been completed, the DRC must publish a report of its findings. In this, it may make recommendations for changes to an organisation's policies or procedures. Material regarding an individual's private or business affairs should be excluded but only if, in the DRC's opinion, publication of it might prejudicially affect that individual and its exclusion is consistent with its duties.
Non-discrimination notices
Section 4 of the Act gives the DRC the power to issue a non-discrimination notice in circumstances where a person is committing or has committed an act of unlawful discrimination. During the course of the Bill's passage through both Houses of Parliament, it was pointed out that although the CRE and the EOC have the power to issue a non-discrimination notice, they can not prescribe changes in practice, despite the fact that both bodies had asked for this power. With a view to addressing this shortcoming in the case of the DRC, Margaret Hodge8 introduced amendments to the Bill, stating that she believed them to "strike the appropriate balance between giving an organisation ownership of its plans, and strengthening the Commission's powers".
As a result, the DRC has the power, within a non-discrimination notice, to identify the policies, practices and procedures and other arrangements that the DRC believes have led, or have contributed, to unlawful acts being committed (see ss.4(2)-(4) of the Act). It may also recommend changes that need to be made: for example, it could require that an organisation propose an adequate action plan (see below ) that would address the unlawful act.
Part II of Schedule 3 to the Act gives a person a right of appeal against any requirement imposed by a non-discrimination notice to an employment tribunal or to the county court. It also states that notice must be given prior to the issuing of a non-discrimination notice and that the DRC must take account of any representations made as a result. If the DRC refuses to receive oral representations, it must give reasons for its objection.
An amendment to the Bill requires the DRC to maintain a register of non-discrimination notices (see Part II of Schedule 3, para. 13), the thinking being that organisations will have an incentive not to appear on it. In the event of non-compliance with a non-discrimination notice that has become final, the DRC has the power to apply to the court for an enforcement order under para.12 of Schedule 3.
Action plans
If a non-discrimination notice requires an action plan to be produced, Part III of Schedule 3 of the Act sets out detailed procedures for agreeing such a plan. With respect to this, there is nothing in the Act to prevent an organisation from approaching the DRC for initial advice regarding the development of a plan and submitting it for comment. In the event that the DRC considers the plan to be inadequate, it may give recommendations as to how it might be altered and invite a revised plan. After this, if it remains dissatisfied, it may apply to the courts to issue an order requiring the person or organisation to serve an adequate plan.
The Act prescribes that an action plan shall become final at the end of the "prescribed period". When final, it becomes legally binding and its implementation is enforceable by the DRC through the courts. Its implementation can, in fact, be monitored by the DRC for up to five years. The Time Limit Regulations stipulate that the "prescribed period" for the plan to become final is 12 weeks, beginning with the day on which the proposed plan is served on the DRC. If notice is served to issue a revised plan, however, then the prescribed period is eight weeks, beginning with the day the revised plan is served on the Commission. In the event that a revised action is not served on the DRC, then the action plan previously served on it will become final, and the prescribed period is four weeks beginning with the expiry of the period specified for serving a revised plan.
Agreements in lieu of enforcement action
Where the DRC has reason to believe that a person may have committed, or may be committing, an unlawful act, it has the power to enter a legally binding written agreement with that person not to take any relevant enforcement action in relation to the unlawful act in question (see s.5 of the Act). In return, the named person will undertake not to commit any further unlawful acts and to take any remedial action that is specified in the agreement such as the alteration of practices and policies. The undertakings given in respect to this are binding and enforceable through the courts. The agreement may include supplementary matters such as the circumstances in which either party may terminate the agreement.
Persistent discrimination
In relation to persistent discrimination, s.6 of the Act gives the DRC power to seek an injunction against a person who it believes, without that injunction, would commit further unlawful acts. Circumstances where this might occur are laid out in full in s.6, for example where a non-discrimination notice or finding by a court or tribunal has become final. The power is a wide-ranging one, as an injunction need not be confined to the acts which were the subject of the original non-discrimination notice or court or tribunal hearing. It was described by Margaret Hodge9 as a "powerful lever to ensure that organisations comply with non-discrimination notices".
Assistance in relation to proceedings
Like the EOC and CRE, the DRC has the power to give assistance to individuals in relation to actual or potential legal proceedings brought (in its case) under Part II (employment) and Part III (access to goods, facilities, services and premises) of the DDA 1995 (see s.7 of the Act). Under s.8, if an assisted person becomes entitled to have relevant costs repaid to him or her by another party, the DRC is entitled to recover its expenses out of the amount repaid, although, according to Margaret Hodge10, this will not extend to recouping costs from compensation payments.
As with the CRE and EOC, the DRC will not have the power to initiate proceedings in its own name, although it may initiate applications for judicial review, or approach a disabled person and ask to assist with his or her case if there are wider issues at stake. Whether or not the DRC will be permitted to back legal proceedings where the applicant is a pressure group is a matter for the Lord Chancellor, who is considering the matter of representative action as part of civil justice reform. The outcome to this may prove to be of great significance, as practices that discriminate usually affect groups of people rather than just individuals.
DRC's dual function
Despite the extensive nature of the DRC's powers of enforcement, the media campaign that accompanied its launch placed much emphasis on the DRC as a conciliatory body, designed to promote awareness and highlight best practice. This dual role, arguably involving a balancing act, is neatly summarised by James Strachan, DRC commissioner for communications: "You do not change human behaviour, especially prejudice, simply by wielding a big legal stick. Enforcement must go hand in hand with advice and information. On the one hand the DRC must come down hard on those who persistently break the law, but on the other hand it must ensure that it is giving advice, support and working positively with organisations and individuals. By achieving this delicate balance, the DRC will significantly increase people's understanding of disability and in turn help stamp out prejudice and discrimination."
Codes of Practice
One of the chief ways in which work cultures may be altered and people educated is through the introduction of Codes of Practice. Section 9 of the Act inserts a new s.53A in the DDA 1995 to replace ss.51 to 54 of that Act. As a result, the Secretary of State will no longer have the power to issue or revise Codes of Practice containing practical guidance in the field of employment pertaining to disabled people. Instead, the DRC will be able to issue such Codes, although it must put them out for consultation and cannot issue them until they have been approved by the Secretary of State.
On 8 May, the DRC was due to launch consultation on a Code of Practice relating to further rights under Part III of the DDA due to come into force in 2004. Preparation of statutory Codes on disability in education will also be commenced.
Conciliation
Section 10 of the Act provides that the DRC should have regard to the desirability of ensuring that conciliation services are available to all those who want them for disputes arising under Part III of the DDA. On 19 April 2000, Bert Massie stated that during its first year, the DRC will be seeking to establish a new conciliation service on the access provisions of the DDA which he hoped would parallel the service already provided by ACAS in respect of the employment provisions in part II.
Small businesses
At the end of 1998, the employer threshold under the DDA was reduced from 20 to 15 in an effort to bring more small businesses within the framework of the disability discrimination legislation. Although this brought 70,000 disabled employees into coverage of the DDA, the final report of the Disability Rights Task Force11 recommended that all disabled employees should have civil rights in relation to employment, irrespective of the size of the business and that the threshold should be lowered from 15 to two, the lowest allowed in one step. Section 11 of the Act thus leaves open the possibility of lowering the small-firms threshold, and provides that the Secretary of State shall consult with the DRC with respect to this issue. According to the DRC's chief executive, Bob Niven, consideration of this threshold is likely to be a key priority during the DRC's first year.
References
1 18.5.99 House of Commons Standing Committee F("SC(F)"), Official Report, col. 20.
2 Task force report: "Promoting disabled people's rights", July 1998.
3 18.5.99, SC(F), Official Report col. 28.
4 23.3.99, Hansard (HL), Third Reading, col. 1240.
5 20.5.99, SC(F) Official Report, col. 73.
6 30.6.99, Hansard (HC), as amended in Standing Committee, col. 379.
7 11.3.99, Hansard (HL), Report received, col. 317.
8 20.5.99, SC(F) Official Report, col. 40.
9 20.5.99, SC(F) Official Report, col. 62.
10 30.6.99, Hansard (HC) as amended in Standing Committee, col. 379.
11 13.12.99, Final report of Disability Rights Task Force.
Main points to note
Chairman: Bert Massie. Formerly director of the Royal Association for Disability and Rehabilitation, he is appointed from January 2000 to 31 March 2004.
Commissioner with special knowledge of Wales: Dr Kevin Fitzpatrick.
Commissioner with special knowledge of Scotland: Elaine Noad.
Commissioners with a business interest: John Hougham, Jenny White, Kay Allen and Peter Humphrey.
Commissioner with trades union interest: Richard Excell.
Commissioners with disability interest: Jane Campbell, Philippa Russell, James Strachan, Michael Devenney, Colin Low, Sagir Alam and Evelyn Rank-Petruzzietto.
Working programme and contacts
DRC's long-term strategy
According to Bert Massie, strategic goals include:
Proposed working programme for the first year
Useful addresses and numbers
DRC offices:
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Second Floor, Arndale House |
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The Arndale Centre |
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Manchester M4 3AQ |
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222 Gray's Inn Road |
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London WC1X 8HL |
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First Floor, Riverside House |
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Gorgie Road |
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Edinburgh EH11 3AF |
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Regus House (until July 2000) |
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Falcon Drive |
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Cardiff Bay |
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Cardiff CF10 4RU |
DRC helpline
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Telephone: 08457 622 633 |
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Textphone: 08457 622644 |
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Fax: 08457 622611 |
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e-mail: enquiry@drc-gb.org |
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web site: www.drc-gb.org |
