EQUALITY (DISABILITY, ETC.) BILL

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EXPLANATORY AND FINANCIAL MEMORANDUM

INTRODUCTION

1. This Explanatory and Financial Memorandum relates to the Equality (Disability, etc.) Bill. It has been prepared by the Office of the First Minister and deputy First Minister in order to assist the reader in understanding the Bill and to help inform debate on it. It does not form part of the Bill and has not been endorsed by the Assembly.

2. The Memorandum needs to be read in conjunction with the Bill. It does not, and is not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause or Schedule does not seem to require any explanation or comment, none is given.

BACKGROUND AND POLICY OBJECTIVES

Disability Discrimination Act - new rights for disabled people

3. The Disability Discrimination Act 1995 (DDA 1995) provides limited, but nevertheless significant, rights for disabled people in Northern Ireland and Great Britain in the areas of employment and access to goods, facilities, services and premises. In Northern Ireland the rights for disabled people are enforceable through Industrial Tribunals and County Courts.

4. The DDA 1995 established the National Disability Council and the Northern Ireland Disability Council to advise the Government and Northern Ireland Departments on measures to reduce and eliminate discrimination against disabled people and on the operation of the legislation. The services of the Advisory, Conciliation and Arbitration Service (ACAS) and the Labour Relations Agency (LRA) in Northern Ireland are available to help with the settlement of disputes under the employment provisions of the DDA 1995. The DDA 1995 also provides for separate arrangements to be made for the provision of advice and assistance, with a view to promoting the settlement of disputes under the access to goods, facilities, services and premises provisions. These are provided in Northern Ireland and Great Britain by the Disability Access Rights Advice Service (DARAS).

Disability Rights Commission (GB)/Equality Commission for Northern Ireland (ECNI)

5. One of the major criticisms of the DDA 1995 was that it failed to establish a Commission which could help individual disabled people secure their rights and provide a central source of information and advice to employers and service providers. Evidence shows that discrimination against disabled people continues to be a problem in our society and, prior to devolution, the Government maintained that a Disability Rights Commission was essential if the rights of disabled people are truly to be recognised and business and the public and voluntary sectors are to have the consistent and central support they need to act in accordance with, and fulfil the spirit of, the legislation. In Great Britain the Disability Rights Commission will replace the National Disability Council in April 2000.

6. The Northern Ireland Act 1998 provided for the functions previously carried out by the Northern Ireland Disability Council together with the Fair Employment Commission for Northern Ireland, the Equal Opportunities Commission for Northern Ireland and the Commission for Racial Equality for Northern Ireland to be exercised by the Equality Commission for Northern Ireland (ECNI) from 1 October 1999.

7. In relation to disability discrimination matters, as is the case with other equality areas, the ECNI can provide advice to Northern Ireland Departments and has functions in connection with the preparation of Codes of Practice. However unlike its functions in other equality areas the ECNI cannot, in relation to disability discrimination matters, initiate litigation nor support individuals seeking to enforce rights nor does it have powers of investigation. The Bill replaces the functions carried out by the ECNI in relation to disability discrimination matters with expanded functions akin to those it already has in other equality areas

Purpose of the Bill and summary of its main provisions

8. The Bill will ensure that disabled people in Northern Ireland have, through the ECNI, rights broadly similar to those that will be available to disabled people in Great Britain through the Disability Rights Commission. The Bill therefore expands the duties and powers of the ECNI in relation to disability discrimination matters. It makes provision for the ECNI to:

• work towards the elimination of discrimination against disabled people;

• promote the equalisation of opportunities for disabled people;

• take steps to encourage good practice in the treatment of disabled people;

• keep the Disability Discrimination Act 1995 (DDA 1995) under review;

• assist disabled people by offering information, advice and support in taking cases forward;

• provide information and advice to employers and service providers;

• undertake formal investigations;

• prepare statutory codes of practice providing practical guidance on how to comply with the law; and

• arrange independent conciliation between service providers and disabled people in the area of access to goods and services.

9. Part II of the Bill makes miscellaneous minor amendments in relation to the legislation concerning the functions and procedures of the ECNI.

CONSULTATION

10. In July 1998, prior to devolution, the Government issued a consultation paper throughout Great Britain and Northern Ireland on the role and functions of a Disability Rights Commission (Cm 3977 "Promoting disabled people's rights - Creating a Disability Rights Commission fit for the 21^st Century"). The paper stated that arrangements for Northern Ireland would be considered in light of consultation on the "Partnership for Equality" White Paper. It also stated that the role and functions of the body responsible for enforcing disability rights in Northern Ireland should be similar in many ways to those of the Disability Rights Commission in Great Britain. Analysis of the responses to the White Paper indicates widespread support across all regions, including Northern Ireland, for a Commission to enforce disability rights. A copy of a detailed summary report on the consultation exercise is available on request from the Equality Unit, Office of the First Minister and deputy First Minister, Castle Buildings, Stormont, Belfast, BT4 3PP.

OPTIONS CONSIDERED

11. The process leading to the drawing up of the Bill involved detailed consideration of many relevant issues surrounding discrimination. Account was also taken of the models offered by and the experience gained by the Equal Opportunities Commission and the Commission for Racial Equality as well as the Fair Employment Commission in Northern Ireland. Models offered by other countries, such as the United States of America and Australia, were also studied but the Government, prior to devolution, considered that the UK commissions provided the best models on which to base the development of the Disability Rights Commission. The process leading up to the drawing up of the Bill involved the consideration of many varied options and proposals but ultimately the Government, prior to devolution, decided that it did not wish the Disability Rights Commission to work in an adversTahoma or oppressive way. It did not believe there should be any tension between the interests of disabled people and the interests of employers or of providers of goods and services; rather the contrary. It decided that the role of the Commission and the relevant Northern Ireland enforcement body should be as much in educating and promoting good practice as in enforcement.

OVERVIEW

12. The Bill has 20 clauses and 2 Schedules. Apart from some miscellaneous amendments the Bill's provisions concern the functions of the ECNI with regard to disability discrimination matters.

13. In the DDA 1995, "disabled person" means a person who has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. This definition applies in the Bill; although many provisions extend to cover those who have had a disability.

COMMENTARY ON CLAUSES

Clause 1: General functions of Equality Commission

Subsection (1) sets out the general duties of the ECNI with regard to disability discrimination matters. Later in the Bill the ECNI is given a number of specific functions, but its general duties and powers with regard to disability discrimination matters, set out in subsection (1) and subsection (2), will enable the ECNI to undertake a wide range of activities, for example, to run conferences, seminars and workshops; to provide advice and assistance on making reasonable adjustments; and to devise guidance specifically for employers and service providers in particular sectors.

Subsection (2)(a) provides that the ECNI can give advice to any government department in Northern Ireland on any aspect of the law or proposed changes to the law for any purpose connected with the elimination of disability discrimination and the performance of its other functions under Part I of the Bill. In this context, subsection (3) requires the ECNI to make proposals or give advice when asked to do so by a government department. Subsections (2) and (3) would enable advice to be sought from or given by the ECNI upon amendments to the DDA 1995, implementation of any relevant Directive issued by the European Union and of the Human Rights Act 1998, or upon legislation on such subjects as housing where the needs of disabled people might be relevant.

Subsection (2)(b) provides that the ECNI can give advice to any public authority in Northern Ireland on the practical application of any law for any purpose connected with the performance of the ECNI's functions under Part I of the Bill.

Subsection (2)(c) provides that the ECNI can carry out research and provide information and advice, again for any purpose connected with the performance of its functions under Part I of the Bill. It also enables the ECNI to support other people to undertake these activities.

Subsection (4) provides that the ECNI can charge a fee for any facilities or services it makes available for the purposes of its functions under Part I of the Bill, such as attendance at a conference which it has arranged.

Subsection (5) provides (in keeping with the DDA 1995) for the ECNI's work to embrace both disabled people and people who have had a disability. It also defines the types of discrimination which the ECNI must work to eliminate as those set out in Parts II and III of the DDA 1995 which cover discrimination in the areas of:

• employment;

• the provision of goods, facilities and services; and

• the management and disposal (selling, letting etc.) of premises.

Clause 2: Formal investigations

This clause gives the ECNI the power to conduct formal investigations in relation to disability discrimination matters and requires it to do so if asked by the Office of the First Minister and deputy First Minister.

• A general investigation may be undertaken to find out what is happening in a particular sector of society or in relation to a particular kind of activity.

• A named party investigation may confine the investigation to the activities of one or more named persons (individuals or organisations). This is the form of investigation which must be used if the ECNI wants to investigate a case where it has reason to believe that a person has committed or is committing an unlawful act (see paragraph 3 of Schedule 1). For the purposes of a named party investigation, an unlawful act means discrimination which is made unlawful by Part II (employment) or Part III (access to goods, services, facilities and premises) of the DDA 1995 or any other unlawful act which may be prescribed by the Office of the First Minister and deputy First Minister in regulations.

• A formal investigation may also be undertaken to monitor whether a person is complying with any requirements in a non-discrimination notice or in an action plan (see clause 3), or with any undertakings in a statutory agreement (see clause 4).

Subsection (4) enables the ECNI, with the approval of the Office of the First Minister and deputy First Minister, to appoint additional Commissioners for the purposes of a formal investigation.

Subsection (5) enables the ECNI to nominate one or more Commissioners, with or without one or more additional Commissioners, to conduct a formal investigation on its behalf and to delegate any of its functions in relation to the investigation to the persons nominated. It is for the ECNI to decide on the extent of the delegation. This might include setting the terms of reference and making decisions about progressing at each of the statutory steps in the investigation process dealt with in clauses 3 and 4 and Parts I, II and III of Schedule 1.

Part I of Schedule 1 sets out the detailed procedure to be followed in conducting a formal investigation. The key stages are:

• for every formal investigation, the ECNI or the Office of the First Minister and deputy First Minister must draw up terms of reference. In the case of an investigation requested by the Office of the First Minister and deputy First Minister, the Office of the First Minister and deputy First Minister will draw up terms of reference after consulting the ECNI. In all other cases, the terms of reference will be drawn up by the ECNI itself (paragraphs 2(1) and 2(2));

• the ECNI must publish or give notice of the holding of an investigation. Where the ECNI has reason to believe that a person may have committed, or may be committing, an unlawful act, it is required to inform the person in advance of its intention to investigate the matter and to offer him the opportunity to make representations (paragraph 3(4));

• the ECNI may serve a notice on any person requiring him to give information orally or in writing or to produce documents. If the investigation is into unlawful discrimination by a named person and it is that person who has failed to comply with the notice, the ECNI may serve the notice on its own initiative. If the information or documents required are in the hands of others the ECNI must first obtain authorisation from the Office of the First Minister and deputy First Minister. Where a person fails to comply with a notice requiring information or documents, or where the ECNI has reasonable cause to believe that he intends not to comply with it, an application may be made to a county court for an order requiring compliance (paragraphs 4 and 5); and

• the ECNI must prepare and publish a report of its findings in any formal investigation. When it is able to do so consistent with its duties and the object of the report, the ECNI must exclude any prejudicial material about an individual's private or business affairs (paragraph 7).

Clause 3: Non-discrimination notices

When the ECNI becomes satisfied in the course of a formal investigation that a person is committing, or has committed, an act of unlawful discrimination, this clause gives it the power to issue a non-discrimination notice giving details of the unlawful act and requiring the person to cease committing that act and not to act in the same way in the future.

Such notices may be issued in respect of any act made unlawful by Part II (employment) or Part III (access to goods, services, facilities and premises) of the DDA 1995. Subsection (5) contains a power for the Office of the First Minister and deputy First Minister to extend the scope of the provision by making regulations prescribing that it is to apply to any other unlawful act.

Subsection (2) gives the ECNI the power to recommend changes which it considers the person needs to make to address the unlawful act. Such recommendations would not be binding.

Part II of Schedule 1 sets out detailed arrangements connected with issuing a non-discrimination notice. In particular:

• paragraph 8 requires the ECNI to give the person concerned notice that it is considering issuing a non-discrimination notice and to take account of any representations made as a result before a non-discrimination notice is issued;

• paragraph 10 enables the person concerned to appeal against any requirement imposed by a non-discrimination notice, after it has been issued, to an industrial tribunal or to a county court;

• paragraph 12 enables the ECNI to apply to the court for an order to enforce compliance with a non-discrimination notice if the notice has become final (see paragraph 11) and the recipient of the notice fails to comply with it or the ECNI has reasonable cause to believe that he intends not to comply with it; and

• paragraph 13 requires the ECNI to maintain a register of non-discrimination notices which have become final and to make it publicly available. It also requires the ECNI to put a permanent note on the public register when the requirement in a non-discrimination notice to produce an adequate action plan has been met.

Subsection (3) gives the ECNI the power to require a person to produce an adequate action plan which would address the unlawful act. An action plan is legally binding once final and its implementation is enforceable by the ECNI through the courts.

Part III of Schedule 1 sets out detailed procedures for agreeing an action plan. The time limits which apply to the stages will be set by the Office of the First Minister and deputy First Minister by regulations. The key aspects of the process are:

• paragraph 16 allows the ECNI to comment on a draft action plan prepared by the person concerned and to provide further recommendations to him if it considers the action plan to be inadequate to address any unlawful acts identified in a non-discrimination notice. If the ECNI remains dissatisfied with the adequacy of the action plan, paragraph 17(1) allows it to make an application to the county court to determine the adequacy of the action plan and it allows the court to issue an order requiring the person to revise his proposals and serve an adequate action plan on the ECNI;

• paragraphs 15 and 17(2) give the ECNI the power to apply to a county court for an order if a person who is required to produce an action plan either fails to do so at all, or if he fails to produce an adequate action plan. Paragraph 23 relates to the enforcement of these court orders. It enables the ECNI to apply to the courts for repeated fines in the case of a person who persistently fails to comply with an order issued under paragraphs 15 and 17(2);

• paragraph 20 allows the ECNI to monitor the implementation of an action plan for up to five years after it has become final. If during that time the ECNI considers that the person has failed to carry out any action that is specified in his action plan, it may apply to a county court for an order requiring compliance; and

• paragraph 21 allows the ECNI to obtain information so that it can verify whether the person has taken the action specified in the action plan.

Paragraph 26 of Schedule 1 gives the Office of the First Minister and deputy First Minister the power to make regulations supplementing Part I (formal investigations) or Part II (non-discrimination notices) of Schedule 1, or amending Part III (action plans) of Schedule 1. This may include, for example, regulations specifying any time limits to apply to the various stages through which both the investigation process and the issue of a non-discrimination notice pass.

Clause 4: Agreements in lieu of enforcement action

This clause gives the ECNI the power to enter into a legally binding written agreement with a person if it has reason to believe that he may have committed, or may be committing, an unlawful act. The unlawful acts covered in this clause are the same as those described in clause 3 in relation to non-discrimination notices and, in common with clause 3, clause 4 contains a power for the Office of the First Minister and deputy First Minister to extend the scope of the provision by making regulations prescribing other unlawful acts.

Subsection (2) provides that when a statutory agreement is entered into the ECNI will agree not to take any relevant enforcement action in relation to the unlawful act in question. In return, the named person will undertake not to commit any further unlawful acts of the same kind and will take any action that is specified in the agreement. These undertakings are binding and enforceable through the courts (for enforcement by the ECNI, see subsection (8) and paragraph 23 of Schedule 1). Under subsection (4) "relevant enforcement action" means beginning or continuing a formal investigation or taking further steps towards issuing a non-discrimination notice.

Subsection (6) provides for an agreement to include supplementary matters, such as action that may be taken in the event of a breakdown of the agreement or the circumstances in which either party may terminate the agreement. It also allows the parties to consent to vary or revoke the agreement.

Subsection (7) allows the Office of the First Minister and deputy First Minister to make regulations authorising provisions to be included in an agreement but such provisions are not to be enforceable by an order under subsection (8). Those provisions might relate to agreeing to take action which would be considered to be good practice.

Clause 5: Persistent discrimination

This clause gives the ECNI the power to seek an injunction against a person, if it believes that without that injunction, the person would commit further unlawful acts. This would apply to a person against whom a non-discrimination notice had become final or who had had a court or tribunal judgement against him under section 8 or section 25 of the DDA 1995. The injunction could cover further unlawful acts and would not be confined to the acts which had been the subject of the original non-discrimination notice or court or tribunal hearing.

Subsection (4) allows the Office of the First Minister and deputy First Minister through regulations, to extend beyond section 8 and section 25 of the DDA 1995, the range of unlawful action for which the ECNI can apply for an injunction to prevent persistent discrimination.

Clause 6: Assistance in relation to proceedings

This clause gives the ECNI the power to give assistance to individuals in relation to actual or potential legal proceedings. Subsection (1)(a) allows the ECNI to give assistance in respect of all proceedings brought under Part II (employment) and Part III (access to goods, facilities, services and premises) of the DDA 1995. Such disputes can include cases where a non-disabled person alleges he has been victimised for a reason set out in section 55 of that Act. The DDA 1995 makes it unlawful for a person to be victimised for:

• bringing, or giving evidence or information in connection with, proceedings under the Act;

• doing anything else under the Act; or

• alleging that someone has contravened the Act.

Subsection (1)(b) gives the Office of the First Minister and deputy First Minister a power to extend by regulations the list of proceedings in relation to which the ECNI can provide assistance under this clause.

Subsection (2) sets out criteria for the ECNI to take into account when deciding whether to give assistance to an applicant in relation to proceedings.

Subsection (3) deals with the range of assistance the ECNI may provide.

Subsection (5) enables the ECNI to delegate to its employees any of its functions under this clause.

Clause 7: Recovery of expenses of providing assistance

When a person who has been assisted by the ECNI becomes entitled to have relevant costs repaid to him by another party, for example under a court order or as part of a settlement, this clause entitles the ECNI to recover its expenses out of the amount repaid.

Clause 8: Codes of practice

At present Northern Ireland Departments and the ECNI share the task of preparing and issuing codes of practice under the DDA 1995. This clause inserts a new section 54A in the DDA 1995 to replace sections 51 to 54 of that Act. The result is that the ECNI will be able to replace codes issued under the old section 51 or 53 with its own codes.

Section 54A(1) and (6) enable the ECNI to issue and revise codes of practice in the fields of employment and access to goods, facilities, services and premises and section 54A(2) requires the ECNI to do so when asked by the Office of the First Minister and deputy First Minister. The codes of practice can give practical guidance upon the provisions contained in Part II and Part III of the DDA 1995. Section 54A(8) requires a court or tribunal to take into account any provision of a code which appears to it to be relevant to the question in hand but makes it clear that failure to observe any provision of a code does not of itself make a person liable to any proceedings.

Section 54A(3) requires the ECNI to publish for consultation proposals for any code of practice. Where the ECNI is revising part of an existing code, it need not consult about parts which are not being revised (section 54A(7)).

Section 54A(4) prevents the ECNI from issuing a code of practice unless it has been approved first by the Office of the First Minister and deputy First Minister and then laid before the Assembly.

Clause 9: Conciliation of disputes under Part III of 1995 Act

This clause amends section 28 of the DDA 1995. The Office of the First Minister and deputy First Minister will no longer have the power to make arrangements for the provision of advice and assistance to promote the settlement of disputes arising under Part III of the DDA 1995. That power will be replaced by the ECNI's power to make arrangements for the provision of conciliation services in this area.

The clause provides that the ECNI should have regard to the desirability of securing (so far as reasonably practicable) that conciliation services are available to all those who want them for disputes arising under Part III of the DDA 1995. The clause does not make conciliation mandatory or rule out other alternative dispute resolution methods. Nor does it prevent an individual taking steps in proceedings at the same time as or before conciliation.

The ECNI may make arrangements for the provision of conciliation services with an individual conciliator or with a body which will secure that others fulfil that function. It will not be able to provide these services itself through its members or employees (subsection (3)).

The ECNI will be required to ensure that any arrangements made include safeguards to prevent the disclosure to members or employees of the ECNI of information which is communicated to a person providing conciliation services, except by consent or for the purpose of monitoring the arrangements (subsection (4)). Any information communicated during the consultation process will not be admissible in evidence in any proceedings without the consent of the person who communicated it. Subsections (3) and (4) will help to maintain the independence of the conciliation service from the ECNI's function of assisting parties.

Clause 12 (Consequential Amendments) amends paragraph 6(2) of Schedule 3 of the DDA 1995. The result is that, as has been the case with conciliation arranged by the Office of the First Minister and deputy First Minister, the period within which proceedings can be taken (normally 6 months) will be extended by 2 months where an individual considering taking proceedings under Part III of the DDA 1995 consults an organisation appointed under the new section 28 of the DDA 1995.

The Labour Relations Agency (LRA) will continue to provide a conciliation service in the field of employment.

Clause 10: Procedure for amending section 7(1) of the 1995 Act

This clause amends subsections (3) to (10) of section 7 of the DDA 1995 (exemption for small businesses). Section 7(2) of that Act enables the Office of the First Minister and deputy First Minister by order to amend the threshold exempting small businesses from Part II of the Act (the current threshold is 15). The effect of the amendment is that the requirement for the Office of the First Minister and deputy First Minister to conduct a review before making an order to amend the threshold will be replaced by a requirement for the Office of the First Minister and deputy First Minister to consult the ECNI and, as at present, employer and disability organisations. Before any changes are made, the Office of the First Minister and deputy First Minister will be required to publish a summary of the views expressed to it in consultations.

Clause 11: Regulations

This clause provides for any regulations made under the Bill to be subject to negative resolution procedure.

Clauses 16, 17 and 18: Miscellaneous Amendments

These clauses make miscellaneous minor amendments in relation to the functions and procedures of the ECNI.

Clause 16 amends Schedule 8 to the Northern Ireland Act 1998 (c.47) to provide for the terms and conditions of appointment of additional Commissioners appointed to carry out formal investigations under Clause 2(4) of this draft Order, Article 57(2) of the Sex Discrimination (Northern Ireland) Order 1976 (NI 15) or Article 46(2) of the Race Relations (Northern Ireland) Order 1997 (NI 6).

Clause 17 amends Schedule 8 to the Northern Ireland Act 1998 to enable Annual Reports of the ECNI to be made on a financial year rather than a calendar year basis. Thus the ECNI's Annual Report is produced in line with its Accounts.

Clause 18 amends the Fair Employment and Treatment (Northern Ireland) Order 1998 (NI 21) to enable the ECNI to continue the investigation of any complaint made to the Fair Employment Agency for Northern Ireland under section 24 of the Fair Employment (Northern Ireland) Act 1976 (c.25) which has not been disposed of.

Clause 19: Commencement

This clause provides for Part I of the Bill to be brought into operation by one or more commencement orders on the date or dates specified by the Office of the First Minister and deputy First Minister. Part II of the Bill becomes operative on the date the Bill receives Royal Assent.

FINANCIAL EFFECTS OF THE BILL

14. The budget for the ECNI to enforce disability rights is estimated at £1m in 2000/2001. The figure is provisional and may be adjusted within Departments' overall Comprehensive Spending Review settlement. The final figure will be confirmed in the course of 2000.

15. Staff of the ECNI are not civil servants and are paid by the ECNI whose expenses are payable out of public funds by the Office of the First Minister and deputy First Minister.

EFFECTS ON EQUAL OPPORTUNITY

16. The Bill will not unlawfully, unfairly, or unjustifiably discriminate, directly or indirectly, against specified sections of the community. On the contrary, the Bill is designed to improve civil rights for disabled people by eliminating discrimination against disabled people and promoting the equalisation of opportunities for disabled people.

SUMMARY OF THE REGULATORY APPRAISAL

17. The Bill imposes no compliance costs on business.

LEGISLATIVE COMPETENCE

18. The First Minister and deputy First Minister have made the following statement under section 9 of the Northern Ireland Act 1998:

"In our view the Equality (Disability, etc.) Bill would be within the legislative competence of the Northern Ireland Assembly."