Disability Discrimination Bill [HL] Public Services Ombudsman (Wales) Bill [HL] Succession to the Crown Bill [HL]

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1 HOUSE OF LORDS Delegated Powers and Regulatory Reform Committee 4th Report of Session Disability Discrimination Bill [HL] Public Services Ombudsman (Wales) Bill [HL] Education Bill [HL] Succession to the Crown Bill [HL] Ordered to be printed 15 December and published 16 December 2004 London : The Stationery Office Limited price HL Paper 19

2 The Select Committee on Delegated Powers and Regulatory Reform The Delegated Powers and Regulatory Reform Committee is appointed by the House of Lords in each session with the orders of reference to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate level of parliamentary scrutiny; to report on documents and draft orders laid before Parliament under the Regulatory Reform Act 2001; and to perform, in respect of such documents and orders and subordinate provisions orders laid under that Act, the functions performed in respect of other instruments by the Joint Committee on Statutory Instruments. Current Membership The Members of the Delegated Powers and Regulatory Reform Select Committee are: Lord Brooke of Sutton Mandeville Baroness Carnegy of Lour Lord Dahrendorf (Chairman) Lord Desai Lord Garden Lord Harrison Baroness Scott of Needham Market Lord Shaw of Northstead Lord Temple-Morris Publications The Committee s reports are published by The Stationery Office by Order of the House. All publications of the Committee are on the internet at General Information General information about the House of Lords and its Committees, including guidance to witnesses, details of current inquiries and forthcoming meetings is on the internet at Contacts for the Delegated Powers and Regulatory Reform Committee If you have any queries regarding the Committee and its work, please contact the Clerk to the Delegated Powers and Regulatory Reform Committee, Delegated Legislation Office, House of Lords, London, SW1A 0PW. The telephone number is /3233. The fax number is The Committee s address is dprr@parliament.uk Historical Note In February 1992, the Select Committee on the Work of the House, under the chairmanship of Lord Jellicoe, noted that in recent years there has been considerable disquiet over the problem of wide and sometimes ill-defined order-making powers which give Ministers unlimited discretion (Session , HL Paper 35 I, para 133). The Jellicoe Committee recommended the establishment of a delegated powers scrutiny committee in the House of Lords which would, it suggested, be well suited to the revising function of the House. As a result, the Select Committee on the Scrutiny of Delegated Powers was appointed in the following session, initially as an experiment for a limited period. It was established as a sessional committee from the beginning of Session Also in Session , following the passage of the Deregulation and Contracting Out Act 1994, the Committee was given the additional role of scrutinising deregulation proposals under that Act. As a result, the name of the committee was changed to the Select Committee on Delegated Powers and Deregulation. In April 2001, the Regulatory Reform Act 2001 was passed which expanded the application of the deregulation order-making power under the 1994 Act, and the Committee was took on the scrutiny of regulatory reform proposals under the Act. With the passage of the 2001 Act, the committee s name was further amended to its present form, the Select Committee on Delegated Powers and Regulatory Reform.

3 Fourth Report DISABILITY DISCRIMINATION BILL [HL] Introduction 1. This bill makes significant amendments to the Disability Discrimination Act 1995 ( the 1995 Act ). The background is explained in paragraphs 4 to 9 of the Explanatory Notes which accompany the bill. 2. The Committee considered this bill in draft form as part of pre-legislative scrutiny. 1 The bill as introduced is twice as long as the draft bill and some of the provisions have no equivalent in the draft bill. The Delegated Powers 3. This bill contains a large number of delegated powers. These are explained in the memorandum for the Committee from the Departments for Work and Pensions, Transport and Education and Skills ( the Departments ). The memorandum is printed at Annex 1 to this Report. 4. We wish to draw to the attention of the House the powers in clauses 6(3) and 15 (new section 31AE). Clause 6(3) 5. Section 47 of the 1995 Act (as widened by clause 6(2)) enables the Secretary of State to make orders exempting regulated rail vehicles, or their use, from provisions or regulations about accessibility for disabled people. Currently, orders under section 47 are statutory instruments subject to negative procedure. This means not just that there is an element of Parliamentary control, but that the publicity arrangements for statutory instruments apply. 6. Clause 6(3) provides that these orders shall no longer be statutory instruments and shall no longer be subject to Parliamentary procedure. Paragraph 65 of the memorandum gives two reasons for the change. 7. The first reason is consistency with the procedure for authorisations for public service vehicles under section 43 of the 1995 Act. But, in our view, consistency is not achieved. Orders under section 43 which apply to classes of vehicles (rather than individual vehicles or the vehicles of a particular person) are statutory instruments subject to negative procedure. Orders under section 47 (as amended by the bill) may cover vehicles of a particular description (not just particular vehicles or vehicles of a particular person) or use in specified circumstances of any regulated vehicle or regulated vehicle of a specified description. The bill proposes, however, that all orders under section 47 should cease to be statutory instruments subject to negative procedure. The second reason given is that the current procedure is considered a burden, expensive both in cost and time. But no details are 1 See Report from the Joint Committee on the Draft Disability Discrimination Bill, HL Paper 82-I, HC 352- I, Session , published on 27 May 2004.

4 2 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE given as to how much quicker, and how much cheaper the new system is likely to be. 8. We note that the Joint Committee on the draft bill was interested in the subject of exemption (paragraphs 158 to 167 of their Report). 2 Also, the House of Lords Merits of Statutory Instruments Committee has recently drawn the special attention of the House to three exemption orders on the ground that they may imperfectly achieve their policy objective. 3 We have received a letter from the Chairman of the Merits Committee, Lord Hunt of Kings Heath, setting out that Committee s concerns about such orders, which is printed at the end of Annex 1 to this Report. 9. In the light of this current interest, we recommend that exemption orders under section 47 of the 1995 Act should continue to be statutory instruments subject to the negative resolution procedure. Clause 15 (new section 31AE) 10. New section 31AE is explained at paragraphs 132 to 135 of the memorandum. It concerns enforcement matters which, for discrimination under the 1995 Act in other contexts, are contained in the Act itself. The Departments explain that, in respect of new section 31AE, this approach is not possible because there are unresolved issues concerning the most appropriate enforcement mechanism (paragraph 132 of the memorandum). Among the matters left to regulations is the prescribing of remedies (new section 31AE(5)(d)). In our view, it is unsatisfactory for the bill to give no indication of the remedies that will be afforded to a successful applicant. We recommend therefore that, unless the bill is amended to include such provision, the affirmative procedure should apply to any regulations making provision as to remedies, not just the first ones as currently provided for in the bill. Conclusion 11. We draw to the attention of the House the recommendations in paragraphs 9 and 10 above. There is nothing else in this bill on which the Committee wishes to report to the House. 2 See note 1 above. 3 18th Report, Session , HL Paper 163. See also correspondence published in the Merits Committee s 13th Report, Session , HL Paper 127.

5 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 3 PUBLIC SERVICES OMBUDSMAN (WALES) BILL [HL] Introduction 12. This bill establishes a Public Services Ombudsman for Wales, replacing the three separate ombudsman offices for Welsh Administration, Health Service and Social Housing. The Delegated Powers 13. There are delegated legislative powers at clauses 10(2), 24(8), 27(2), 39, 40(1) (definition of tribunal ), 40(3), 41(1) and 42, a number of which are Henry VIII powers. The delegated powers are explained in a memorandum by the Wales Office, printed at Annex 2 to this Report. They are all conferred on the National Assembly for Wales ( the Assembly ), and Assembly procedures apply. Assembly procedures are helpfully described at paragraphs 16 to 22 of the memorandum. 14. We have concluded that each delegation of power by the bill is appropriate. However, we draw the attention of the House to one point in respect of the power in clause 42. Clause Clause 42 contains a Henry VIII power to make consequential, incidental or supplementary provision. We wish to record that were this a power conferred on the Secretary of State (for England), the Committee would have recommended that it should be subject to affirmative procedure when used to amend an Act. The issue does not, of course, arise here because all delegations are subject to Assembly procedures. Conclusion 16. There is nothing in the delegated powers in this bill to which the Committee wishes to draw the attention of the House.

6 4 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE EDUCATION BILL [HL] Introduction 17. This is a substantial bill consisting of five Parts. It deals, in particular, with school etc. inspections; school organisation; training of school staff, etc.; funding, etc. of maintained schools; and supply of information relating to education. 18. As is to be expected in a bill of this length, there is a considerable number of delegated powers. These are explained in a memorandum for the Committee from the Department for Education and Skills, printed at Annex 3 to this Report. A high proportion of the powers are merely re-enactments with modifications of existing powers or are new powers which are closely modelled on existing powers (e.g provision relating to the frequency of inspections). All powers conferred on the Secretary of State, except the commencement power and one affirmative power, 4 are subject to negative procedure. All powers conferred on the National Assembly for Wales ( the Assembly ) are subject to the Assembly procedures. 19. In all instances, we take the view that the delegations in the bill are appropriate and subject to an appropriate level of parliamentary scrutiny. Conclusion 20. There is nothing in the delegated powers in this bill to which the Committee wishes to draw the attention of the House. SUCCESSION TO THE CROWN BILL [HL] 21. This bill contains no delegated powers. 4 Clause 120 enables the Secretary of State to make supplementary, incidental or consequential provision. The exercise of the power is made subject to affirmative procedure where Acts are amended. The power is also exercisable by the Assembly.

7 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 5 ANNEX 1: DISABILITY DISCRIMINATION BILL [HL] Memorandum by the Department for Work and Pensions, the Department for Transport and the Department for Education and Skills Introduction 1. This memorandum identifies provisions for delegated legislation in the Disability Discrimination Bill (published on 26 November 2004). It summarises the main provisions of the Bill; identifies the delegated powers in the Bill and describes the purpose and proposed use of those powers; explains why the matters have been left to delegated legislation; and explains the degree of Parliamentary control provided for and reasons for the procedure selected in each case. Main provisions of the bill 2. The Disability Discrimination Bill (which extends only to Great Britain) contains 19 clauses and 2 Schedules. Its main provisions are as follows: Clause 1: extends the Disability Discrimination Act 1995 ( DDA ) so as to cover discrimination by local authorities and the Greater London Authority ( GLA ) against their members; Clause 2: ensures that, with some exceptions, functions of public authorities not already covered by the DDA are brought within its scope, so that it would be unlawful for a public authority, without justification, to discriminate against a disabled person when exercising its functions; Clause 3: requires public authorities, when exercising their functions, to have regard to the need to eliminate unlawful discrimination against, and harassment of, disabled persons, and to promote equality of opportunity between disabled persons and other persons; Clause 4: amends section 64A of the DDA so as to clarify who the correct defendant is in the case of a claim of discrimination being made against a police officer under Part 3 of the DDA and authorises payment of compensation from the police fund in relation to such a claim; Clause 5: provides that the current exemption from sections 19 to 21 of the DDA for transport services extends only to transport vehicles themselves, and creates a power to enable that exemption to be lifted for different vehicles at different times; Clause 6: amends the definition of rail vehicle to enable rail vehicle accessibility regulations to be applied to all rail vehicles at a date to be specified in regulations, and to be applied to the refurbishment of vehicles. It also amends and extends the scope of the power to exempt rail vehicles from the requirements of rail vehicle accessibility regulations and simplifies the exemption process; Clause 7: introduces new provisions requiring rail vehicle accessibility compliance certificates to be obtained for prescribed rail vehicles; Clause 8: replaces the existing criminal offence for use of a rail vehicle which does not conform with rail vehicle accessibility regulations with a civil enforcement system, and sets out the procedure for imposing civil penalties, including a right of appeal to a court; Clause 9: amends the Chronically Sick and Disabled Persons Act 1970 so as to provide for the recognition in England and Wales of disabled persons parking badges issued outside Great Britain; Clause 10: amends section 16B of the DDA on discriminatory advertisements (as inserted by the Disability Discrimination Act (Amendment) Regulations ( Amendment Regulations )), so as to cover a third party who publishes a discriminatory advertisement (for example, a newspaper) as well as the person placing the advertisement; 1 S.I.2003/1673.

8 6 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE Clause 11: amends the DDA in respect of group insurance arrangements; Clause 12: brings within the scope of Part 3 of the DDA private clubs with 25 or more members; Clause 13: imposes a duty to provide reasonable adjustments on landlords and others who manage rented premises; Clause 14: confers a power to modify or end the current small dwellings exemption in section 23 and new sections 24B and 24H of the DDA; Clause 15: makes it unlawful for general qualifications bodies to discriminate against disabled persons in relation to the award of prescribed qualifications; Clause 16: extends section 56 of the DDA so as to provide for a questions and replies procedure not only for claims under Part 2, but also claims under Part 3 of the Act; Clause 17: deals with the definition of disability by: amending the definition in respect of people with mental illnesses; deeming people with HIV infection, multiple sclerosis, or cancer to be disabled for the purposes of the DDA; and extending the scope of the regulation-making power enabling persons to be deemed to be disabled; Clauses 18 and 19: deal with minor and consequential amendments, repeals, the short title, extent and commencement; Schedules 1 and 2 provide for minor and consequential amendments, and repeals, to the DDA and other enactments. 3. The Explanatory Notes which accompany the Bill set out in greater detail the background to, and purpose behind, each of the above provisions. Delegated Powers 4. A table at the back of this document lists all of the provisions containing delegated powers in the Disability Discrimination Bill and the relevant parliamentary procedure governing each power. Unless otherwise stated, these procedures are set out in section 67 of the DDA, as amended by paragraph 32 of Schedule 1 to the Bill. All of the delegated powers described in this memorandum are, unless otherwise stated, exercisable by the Secretary of State. Clause by Clause Summary Clause 1: Councillors and members of the GLA 5. Clause 1 inserts new sections 15A, 15B and 15C into Part 2 of the DDA. These provisions make it unlawful for the locally-electable authorities listed in new section 15A(1) to discriminate against a disabled member where the latter is carrying out the official business of the authority (as defined in new section 15A(2)). 6. New section 15B(1) sets out the circumstances in which it is unlawful for an authority to discriminate against a member. Discrimination is defined in section 3A of the DDA (as inserted by the Amendment Regulations). New section 15B(3) excludes elections and appointments of various descriptions from the scope of new section 15B(1). New section 15B(2) makes it unlawful for an authority to subject a disabled member to harassment in the carrying-out of official business. The definition of harassment in section 3B of the DDA (as inserted by the Amendment Regulations) applies. 7. New section 15B(4) and (5) enable the Secretary of State to make regulations relating to the justification for less favourable treatment in section 3A. New section 15B(4) permits regulations to be made prescribing the circumstances in which treatment is to be taken to be justified or not to be justified for the purposes of section 3A(1)(b). 8. New section 15B(5) allows regulations made under subsection (4) to modify or disapply the justification for less favourable treatment set out in section 3A(3). However, this power cannot be used to justify less favourable treatment which amounts to direct discrimination, as defined in section 3A(5). New section 15B(6) imposes a limitation on justifications that may be provided for in regulations, which is similar in effect to section 3A(6). 9. The purpose of these powers is to provide sufficient flexibility to modify the justification for less favourable treatment should this prove necessary in the entirely new context of the relationship between locally-electable authorities and their members. Regulations made under these powers are subject to the negative resolution procedure, as a higher level of parliamentary scrutiny is not thought to be necessary in the circumstances.

9 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE New section 15C(4) enables the Secretary of State to make regulations elaborating on the duty to make adjustments and replicates what was formerly in section 6(8) of the DDA Any regulations made under new section 15C(4) will be subject to the negative resolution procedure (as was the case in relation to section 6(8)). Clause 2: Discrimination by public authorities 12. Clause 2 inserts new sections 21B to 21E into the DDA. New section 21B prohibits public authorities from discriminating against disabled people in the exercise of their functions. The broad aim behind the clause is to mirror the provisions of section 19B of the Race Relations Act 1976 ( the 1976 Act ), as inserted by section 1 of the Race Relations Amendment Act 2000, which prohibit public authorities from discriminating contrary to the 1976 Act in the exercise of their functions. Clause 2 inserts a number of new delegated powers into the DDA. 13. New section 21B(5) gives the Secretary of State a power to exclude, by regulations, bodies from being treated as public authorities for the purposes of new sections 21B, 21D and 21E.. The aim is to allow the Government some degree of flexibility as regards stipulating the bodies to be subject to the new provisions. This is thought to be necessary in view of the wide definition of public authority in new section 21B(2), which mirrors the definition of public authority in section 6(3) of the Human Rights Act The power could be used to clarify that a body is not to be treated as a public authority or to exclude a body which a court judgment had suggested was a public authority (and where it was not thought appropriate, for policy reasons, for the body in fact to be subject to the duty). 14. New section 21C excludes particular acts of public authorities from the provisions of new section 21B. New section 21C(5) gives the Secretary of State the power to exclude additional acts by regulation. This is thought necessary given the wide definition of public authority in section 21B(2), and would be used when it was thought inappropriate for a particular activity of a public authority to be covered by these provisions, but that the other activities of that authority should be covered. It is, therefore, complementary to the power in new section 21B(5). 15. New sections 21D(1) and (2) set out the meaning of discrimination in new section 21B(1). Discrimination within the meaning of new section 21D(2) occurs where: If for reason related to his disability, a public authority treats a disabled person less favourably than others to whom that reason does not or would not apply; A public authority fails to comply with a duty imposed on it by section 21E; and There is no justification under new section 21D(3) to (5). 16. Section 21D(4) sets out a range of grounds by reference to which a public authority may justify its less favourable treatment of a disabled person or its failure to comply with the section 21E duty by reference to the conditions set out in new section 21D(4): for example, where a risk to health and safety of the disabled person has caused less favourable treatment. In order for a public authority to succeed in showing its action to be justified by reference to one of the grounds listed in section 21D(4), it must satisfy the two limbs of new section 21D(3): first, it has to show that it held the opinion that one of the conditions in new section 21D(4) (for example, a risk to health and safety) is satisfied (the subjective limb ) and; secondly, that it was reasonable in all the circumstances of the case for it to hold that opinion (the objective limb ). 17. The delegated power in new section 21D(6) allows the Secretary of State to make regulations as regards the objective limb of justification and to set out circumstances in which it is always, or indeed never, reasonable for a public authority to believe that one of the conditions of justification in new section 21D(4) has been made out. The purpose of this power is to enable the Secretary of State to set down more detailed rules in relation to particular types of discrimination claim. He could use the power, for example, to stipulate that it would always be reasonable for a public authority to hold the opinion for the purposes of subsection (4)(a) that treating a disabled person less favourably was justified where a designated health and safety expert had certified that the treatment was necessary so as not to endanger the health and safety of any person. The power 2 These powers have not been reproduced in Part 2 of the DDA, as amended by the DDA Regulations, due to the prohibition on sub-delegation in the enactment of implementing regulations under section 2(2) of the European Communities Act 1972: see paragraph 1(1)(c) of Schedule 2 to that Act. It should, however, be noted that should modifications be required to the duty to make reasonable adjustments in relation to the other provisions of Part 2, this can be done by means of further regulations made under section 2(2) of the 1972 Act. The same cannot, however, be done in relation to new sections 15A, 15B and 15C, which regulate a relationship falling outside the scope of the Employment Directive (2000/78/EC) which the Amendment Regulations implement.

10 8 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE mirrors the existing powers in section 20(6)(a) and (b) of the DDA, which apply in the case of service providers. 18. The matter has been left to delegated legislation as the power allows specific, tailored provisions to be made in relation to defending certain types of complaint. The need for such provisions may become apparent once new section 21B(1) comes into force. 19. New section 21D(7)(a) gives the Secretary of State the power to amend or omit one of the conditions of justification set out in new section 21D(4). The power also allows the Secretary of State to provide that a condition of justification set out in new section 21D(4) should not apply in certain circumstances. The purpose of the power is to allow the Secretary of State flexibility to modify the justifications or their application, if it transpires that in practice they either give too much, or too little, protection to the rights of disabled people. 20. The matter has been left to delegated legislation as the power is intended to deal with unforeseen consequences arising from extending the DDA to cover discrimination occurring in the exercise of public functions. In general, the policy intention is to place equivalent duties on public bodies when they are exercising functions of a public nature to those they are under when delivering services. However, the wide variety of functions that are exercised by the bodies covered by these new provisions, and the different actions involved in exercising functions, rather than providing services, has required a different drafting approach that may not prove to behave exactly as intended. 21. New section 21D(7)(a) is subject to the negative resolution procedure which is considered to provide sufficient parliamentary scrutiny in the circumstances. The power does not allow for the creation of additional justifications for less favourable treatment, but simply enables the existing justifications to be tailored to fit the context of discrimination by public authorities should it prove necessary to do so. For this reason, the negative resolution procedure is considered to provide an adequate level of parliamentary scrutiny for any use of this power. 22. New section 21D(5) contains an additional and free-standing ground of justification for discrimination by a public authority in the exercise of its functions. In this case, the public authority can justify the treatment or outcome if it shows it is a proportionate means of achieving a legitimate aim. New section 21D(7)(b) gives the Secretary of State the power to amend or omit new section 21D(5), or provide for it not to apply in certain circumstances, by means of regulations. The purpose of the power is to allow the Secretary of State to adapt the justification, or indeed remove it, if it transpires that in practice it gives too much, or too little, protection to the rights of disabled people. 23. Where the power in section 21D(7)(b) is exercised to remove the justification in section 21D(5), there is a power (see the new section 67(3A) as inserted by paragraph 32 of Schedule 1 to the Bill) to make consequential amendments to section 21D to omit the references to section 21D(5). 24. The delegated power in new section 21D(7)(c) allows the Secretary of State to make regulations to add additional grounds of justification for discrimination against a disabled person. The purpose of the power is to allow the Secretary of State flexibility to deal with unforeseen consequences arising from extending the DDA to cover discrimination occurring in the exercise of public functions. This means that, where there are good policy reasons for doing so, a new ground could be created to justify the exercise of a public function in a particular way. 25. The power mirrors the existing power in relation to justifications for discrimination by service providers in section 20(8) DDA and that in relation to premises in section 24(5). 26. The matter has been left to delegated legislation, as the power is intended to deal with unforeseen consequences arising from extending the DDA to cover discrimination occurring in the exercise of public functions. 27. New section 21E deals, in broad terms, with the duty on public authorities to make reasonable adjustments. An unjustified failure to comply with the section 21E duty is discrimination within the terms of section 21D. The duty to make reasonable adjustments includes a public authority making adjustments to its practices, policies and procedures and, in relation to physical features of premises, taking steps to remove or alter that feature, providing a reasonable means of avoiding the feature, or adopting a reasonable alternative method of carrying out the function. 28. The delegated power in new section 21E(5)(a) allows the Secretary of State to prescribe matters which are to be taken into account in determining whether any provision of a kind mentioned in new section 21E(4)(c) and (d) is reasonable. The purpose of the power is to enable the Secretary of State to list particular considerations that the public authority (or court) should bear in mind when considering what it is reasonable to do to avoid a physical feature or what would be a reasonable alternative method of carrying out the function. There is already in the

11 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 9 employment provisions of the DDA a non-exhaustive list of factors (for a court or employer) to take into account when considering whether it is reasonable to make an adjustment in relation to the employment of a disabled person (see section 18B(1) DDA, as inserted by the Amendment Regulations). The power in new section 21E(5)(a) would permit the Secretary of State to create a list of factors for public authorities to consider as regards the reasonableness of complying with the duties in sections 21E(4)(c) and (d). The power mirrors the existing power in section 21(3)(a) of the DDA, which applies in the case of service providers. 29. The matter has been left to delegated legislation, as the power is intended to deal with unforeseen consequences arising from extending the DDA to cover discrimination occurring in the exercise of public functions. 30. The delegated power in new section 21E(5)(b) allows the Secretary of State to prescribe categories of public authorities to whom the duty to make adjustments to physical features in section 21E(4) does not apply. The purpose of the power is to allow the Secretary of State to exempt certain public authorities from this duty. The power mirrors the existing power in section 21(3)(b) of the DDA, which applies in the case of service providers. 31. The matter has been left to delegated legislation, as the power is intended to deal with unforeseen consequences arising from extending the DDA to cover discrimination occurring in the exercise of public functions. 32. The delegated power in new section 21E(8)(a) allows the Secretary of State to set down in regulations circumstances in which it is reasonable, or indeed, is not reasonable, for a public authority to make adjustments to the way it exercises its functions as required by sections 21E(2), (4) and (7). The purpose of this power is to enable the Secretary of State to set down more detailed rules in relation to particular recurring complaints of discrimination. The power mirrors the existing powers in section 21(5)(a) and (b) of the DDA, which apply in the case of service providers. The power in section 21(5)(b) was, for example, used to set down the rule that it would not be reasonable for tenant service providers to make physical adjustments to the premises they occupied where they had not obtained the landlord s consent The matter has been left to delegated legislation as the power allows specific, tailored provisions to be made in relation to particular patterns of complaints that may arise once new section 21B(1) comes into force. 34. The delegated power in new section 21E(8)(b) allows the Secretary of State to set down in regulations particular steps (looked at in isolation from the particular circumstances) that it would always be reasonable, or indeed, never be reasonable, for a public authority to have to take to make adjustments to the way it exercises its functions as required by sections 21E(2), (4) and (7). The purpose of the power is to allow the Secretary of State to stipulate that, for example, it is never reasonable for a public authority to take steps that cost more than a certain amount. Provision of that sort would be broadly analogous to that which may be made under the regulation-making power in respect of service providers contained in section 21(7) of the DDA. 35. The delegated powers in new sections 21E(8)(c), (d) and (e) allow the Secretary of State to stipulate what sort of things are to be treated, or not to be treated, as a practice, policy or procedure, as physical features or as auxiliary aids and services for the purposes of the duties to make reasonable adjustments in sections 21E(2), (4) and (7). These powers mirror the powers in sections 21(5)(c) to (h) of the DDA in relation to the provisions concerning providers of services. The power in section 21(5)(e) of the DDA in relation to physical features was, for example, exercised, to set out the sorts of matters that were to be treated as physical features. 4 The purpose of this power is to give the Secretary of State flexibility to set down more detailed rules as to the types of circumstances where the duty to make reasonable adjustments in respect of functions will apply. 36. All of the delegated powers provided for in clause 2 are subject to the negative resolution procedure, as this is considered to provide sufficient parliamentary scrutiny in the circumstances (see, in particular, the commentary on new section 21D(7)(a) above). Clause 3: Duties of public authorities 37. Clause 3 inserts a new Part 5A (new sections 49A to 49F) into the DDA. New section 49A imposes a duty on public authorities, when carrying out their functions, to have due regard to the need to eliminate unlawful discrimination against, and harassment of, disabled people and promote 3 See regulation 2 of the Disability Discrimination (Providers of Services) (Adjustment of Premises) Regulations 2001, S.I. 2001/ Disability Discrimination (Service and Premises) Regulations 1999, SI 1999/1191, regulation 3.

12 10 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE equality of opportunity for disabled people. One of the general policy aims is to achieve a duty to promote equality for disabled people similar to the duty to promote equality of opportunity for different racial groups ( the race duty ) introduced by sections 71 to 71E of the Race Relations Act 1976 ( the 1976 Act ), as inserted by section 2 of the Race Relations (Amendment) Act 2000 ( the 2000 Act ). The approach adopted by new section 49B 38. New section 49B is concerned with defining the term public authority and new section 49B(1) sets out a generic definition which is based on section 6(3)(b) of the Human Rights Act This approach in defining the bodies to which the duty applies differs from the approach adopted in relation to the race duty in section 71 of the 1976 Act. This is because section 71 of the 1976 Act imposes a duty by reference to a list of bodies contained in Schedule 1A of the Act. In contrast, the new duty to be inserted into the DDA by clause 3 is to operate simply by reference to the definition of public authority. The aim of this approach is to ensure that a broad range of bodies with public functions should be subject to the duty in new section 49B(1), yet avoid the need for a lengthy and cumbersome list that would require regular updating. 39. New section 49B(3) gives the Secretary of State a power to prescribe in regulations bodies that are not to be treated as public authorities. The aim of this power is to allow the Government some degree of flexibility as regards stipulating the bodies to be covered by the duty in new section 49B(1). The power is considered necessary in view of the wide definition of public authority, which will be subject to interpretation by the courts: it could be used to exclude a body where a court judgment had suggested that it may be covered (and where it was not thought appropriate for policy reasons for the body in fact to be subject to the duty). This mirrors the power that would be conferred by new section 21B(5) of the Act, as inserted by clause 2 of the Bill: see commentary above. 40. The matter has been left to delegated legislation as the power exists to deal with unforeseen circumstances that may arise once the new duties come into force. 41. The regulation-making power is subject to the negative resolution procedure which is considered to provide sufficient parliamentary scrutiny in the circumstances. 42. New section 49C sets out exceptions to the duty in new section 49A by reference to certain types of acts, such as acts done in a judicial capacity or acts that involve the making of an Act of Parliament. New section 49C(4) gives the Secretary of State the power to prescribe via regulations further acts to which the distinct limbs of the duty in new section 49A(1)(a),(b),(c) or (d) may not apply. The purpose of this power is to provide for unforeseen circumstances where there may be good policy reasons as to why particular acts or types of acts should be excluded from the remit of the duty (or merely one of the limbs of the duty). 43. The matter has been left to delegated legislation as the power exists to deal with unforeseen circumstances that may arise once the new duties come into force. 44. The power is subject to the negative resolution procedure which is considered to provide sufficient parliamentary scrutiny in the circumstances. 45. The third delegated power in clause 3 is divided into four parts by virtue of the devolution requirements of the Scotland Act New section 49D(1) to (4) provides powers for the Secretary of State in respect of all public authorities other than certain Scottish bodies, and for the Scottish Ministers in respect of those Scottish bodies, to impose by regulations specific duties on those public authorities to assist them in the performance of the (general) duty under new section 49A(1). Such duties may involve, for example, some organisations having to produce disability equality schemes, or to carry out certain types of monitoring. 46. The imposition of these specific duties has been left to delegated legislation as it is envisaged there will be a range of duties applying to different bodies. It would be unwieldy to set all of these out in primary legislation and there will, in addition, need to be wide public consultation on the nature of these duties. This also mirrors the position for the race duty where the imposition of the specific race duties was left to delegated legislation: section 71(2) of the 1976 Act gives the Secretary of State an order-making power to impose specific duties on specified public authorities to assist them in the better performance of their general duty under section 71(1) of the 1976 Act The equivalent powers in section 71(2) of the 1976 Act were used to require certain public bodies to monitor the effect of their employment practices on staff of different racial groups, and of their activities on different racial groups in the population, and to set out an equality scheme that described how the body would act to promote race equality. The Government has considered how 5 The Race Relations Act 1976 (Statutory Duties) Order 2001 (S.I. 2001/3458) was made on the basis of this power.

13 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 11 these duties have operated and is consulting on its proposals for equivalent disability duties under new sections 49D(1)-(4) of the Bill. 6 Powers for Scottish Ministers 48. On the basis of section L2 of Schedule 5 to the Scotland Act 1998, imposing duties on any office-holder in the Scottish Administrations or on any cross-border public authority to make arrangements with a view to securing that its Scottish functions are carried out. falls within the devolved competence of the Scottish Parliament. The Scottish Parliament would need to be asked for Sewel Consent to the provisions of clause 3 before the Bill is passed. This is because the United Kingdom Parliament would be legislating in the sphere of devolved competence with respect to new section 49A. However, as regards the delegated powers given to the Secretary of State by new section 49D(1) to impose specific duties to ensure better performance of the general duty, the Scottish Ministers are given the same delegated powers in respect of their sphere of devolved competence. New section 49D(3), therefore, gives the Scottish Ministers the power to impose specific duties on those relevant Scottish authorities falling within their sphere of competence (as defined in new section 49D(10)). Powers in respect of cross-border public authorities 49. New section 49D(4) gives the Scottish Ministers the power to impose specific duties on crossborder public authorities in respect of their Scottish functions. Before such regulations can be made, the Scottish Ministers must consult with the Secretary of State (see new section 49D(9)). The Secretary of State has a power to impose specific duties on cross-border public authorities in respect of their functions that are not Scottish functions. Likewise, he is placed under a duty to consult the Scottish Ministers before he does so (see new section 49D(8)). Power to make incidental, supplemental or consequential amendments 50. The powers given by section 49D(1) to (4) include the power to make incidental, supplemental or consequential amendments to other legislation (see new section 67(3C) as inserted by paragraph 32 of Schedule 1 to the Bill). The reason why this Henry VIII power has been taken is to provide for the unforeseen circumstances where there may be a need to amend other primary legislation to remove pre-existing equality duties or other restrictions that conflict with, or overlap in an unhelpful way with, duties that the regulations based on new section 49D(1) to (4) wish to impose. This follows the precedent in section 71(2) of the 1976 Act, which is also a Henry VIII power (by virtue of section 71(6) of the same Act). 51. Where it is proposed to exercise the powers conferred by new section 49D(1) or (2) in a way which would amend an Act of Parliament or an Act of the Scottish Parliament ( ASP ), then they are to be exercised in accordance with the affirmative parliamentary procedure (see new sections 67(4)(e) and 67(4A) as inserted by paragraph 32 of Schedule 1 to the Bill). The affirmative procedure is thought appropriate in these circumstances, as these powers would allow the Secretary of State to amend a wide range of other primary legislation, unlike other Henry VIII powers in this Bill which would only give the Secretary of State the power to amend the DDA. 52. Where, however, the Secretary of State exercises the powers in new section 49D(1) and (2) without amendment to primary legislation, then this will be subject to the negative resolution procedure. This procedure is thought sufficient, given that the Government intends to consult the bodies concerned in relation to the duties proposed and given the requirement in new section 49D(5) to consult the Disability Rights Commission (DRC) before making the regulations. 53. Where the Scottish Ministers exercise their powers in new section 49D(3) and (4) and propose to amend an Act of Parliament or an ASP, then this will be subject to the affirmative procedure in the Scottish Parliament (see new section 67(4B) and (4C) as inserted by paragraph 32 of Schedule 1 to the Bill). The affirmative procedure is thought appropriate in the circumstances where primary legislation is being amended. 54. Where the Scottish Ministers exercise their powers in new section 49D(3) and (4) and do not propose to amend an Act of Parliament or an ASP, then this will be subject to the negative resolution procedure in the Scottish Parliament (see new section 67(4D) as inserted by paragraph 32 of Schedule 1 to the Bill). This procedure is thought sufficient where no primary legislation is being amended and given the requirement in new section 49D(5) that the Scottish Ministers should consult the DRC before making the regulations. 55. Clause 4 (police) contains no delegated powers. 6 Delivering Equality for Disabled People (Cm6255), published on 23 July 2004.

14 12 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE Clause 5: Application of sections of the 1995 Act to transport vehicles 56. The effect of paragraph 12(3) of Schedule 1 to the Bill is to remove the current exemption for transport services from Part 3 of the DDA. Clause 5 then adds a new section 21ZA to Part 3, which introduces a revised exemption to apply to transport vehicles, rather than transport services. Section 21ZA(3) contains a regulation-making power, which will enable the Secretary of State to lift that exemption for particular transport vehicles at different times. It is proposed that this power will initially be used to lift the exemption in respect of public transport vehicles, such as rail vehicles, buses and coaches, and taxis. It will also be used to lift the exemption for transport vehicles which are used in the provision of leisure and tourism services and to ensure that hire vehicles and car breakdown services are also brought within the scope of Part The application of Part 3 to transport vehicles is complex, and the requirements in respect of one type of transport vehicle do not necessarily apply to others. Furthermore, some transport sectors, such as aviation and shipping, are currently subject to voluntary codes, and the Part 3 provisions will only be applied to these sectors should the codes prove to be unsuccessful. The provision of a regulation-making power enables a balance to be struck between applying appropriate provisions of Part 3 to particular transport vehicles, whilst not imposing unreasonable requirements on providers, which could not be achieved with a provision on the face of the Bill. 58. The new section is drafted in such a way as to enable a flexible application of the Part 3 provisions to transport vehicles. For example, it is not the Government s policy that the requirements in section 21(2) (physical features) should be applied to most transport vehicles, particularly those vehicles which are already subject to specific technical requirements by virtue of regulations made under Part 5 of the DDA. However, it might be necessary to apply these provisions to certain types of vehicle, for example, hire vehicles. The regulation-making power provides sufficient flexibility to allow for such selective application of the appropriate provisions, which could not be achieved in primary legislation. Furthermore, because vehicle technology is advancing so quickly, it is not possible to predict now what vehicles might need to be covered by these provisions in years to come, and this power will, therefore, allow regulations to be made in the future to apply the appropriate provisions to new types of vehicles. 59. The regulation-making power in new section 21ZA(3) is subject to the negative resolution procedure. The regulations will be a means of implementing policy which has already been set out in consultation and a consultation document, accompanied by the draft regulations which would be made with this power, was published on 29 November This will provide an opportunity for debate on the proposed application of the power during the Bill s passage through Parliament. Other regulation-making powers in Part 5 of the DDA, which relate to transport vehicles, are also subject to the negative resolution procedure. Clause 6: Rail vehicles: application of accessibility regulations 60. Subsection (1) amends the definition of rail vehicle in section 46(6) of the DDA. The effect is to bring all rail vehicles within the scope of rail vehicle accessibility regulations, which are made under section 46(1), rather than just those vehicles first brought into use after 31st December The policy is that the rail vehicle accessibility regulations will be amended so as to apply the provisions to all rail vehicles at a specified date in the future. It is also the policy intention to require rail vehicles which are refurbished to comply with specified provisions in rail vehicle accessibility regulations, depending on the extent of the refurbishment, using the power to make different provisions in such regulations under the existing section 46(5). 61. Subsection (1) does not introduce a new regulation making power, but the effect is to modify the scope of the existing power in section 46(1). The Department for Transport intends to publish draft regulations for consultation during the passage of the Bill so that Parliament, when considering these provisions, can see what the practical effect of these amendments might be. As now, the rail vehicle accessibility regulations will be subject to the negative resolution procedure. 62. Subsection (2) amends section 47(1) to clarify the scope and extent of orders which can be made by the Secretary of State to exempt vehicles of a specified description, or which are used in specified circumstances, from provisions in rail vehicle accessibility regulations. New section 47(1) clarifies that such orders can authorise vehicles to be used for carriage even though they do not meet all the technical specifications of the accessibility regulations with which they are required to comply, or if they are used in a way which is not compliant with those regulations. The subsection also inserts a new section 47(1A) which provides that such exemption orders may, in addition to applying to specified vehicles or vehicles of a specified description, also apply to vehicles of a specified description used in specified circumstances. The purpose of this is so that, once the rail vehicle accessibility regulations apply to all rail vehicles, there will be scope for the Secretary of