Meeting of the All Party Parliamentary Group on Disability Single Equality Green Paper: 16 July 2007 Lord Ashley opened the meeting. He said that the Group will be looking at Brown’s legislative agenda in order to see where we can have a positive influence with regards to the disability agenda. The proposed bills include a Single Equality Bill, a Health and Social Care Bill and a Housing and Regeneration Bill. Parliamentary Members Attending Lord Ashley, Lord Rix, Lord Morris, Mark Hunter MP, Baroness Wilkins, Baroness Darcy de Knayth, Anne Begg MP, Baroness Howe, Baroness Masham Speakers: Angela Mason, Director of Women and Equalities at the Department for Communities and Local Government (DCLG). Sir Bert Massie, Chair of the Disability Rights Commission Lord Ashley introduced the speakers. Angela started by saying that this is a green paper, and so the process of consultation is very important. They hope to go forward with consensus following the consultation responses received. She said that the definition of public duties has been the most contentious point so far and she will address this issue later on in her presentation. The idea of the single equality bill emerged when equality legislation was much more uneven than it is now. Even since work on the green paper started new measures have been introduced e.g. measures for protection in relation to good, facilities and services for disability and sexual orientation. Things are changing rapidly. However, equality law is complex with 9 different pieces of primary legislation and over 100 statutory instruments – at the moment only discrimination lawyers can understand it! There is, prima facie, a good case for simplifying the law which is one objective of the green paper. The new Commission for Equality and Human Rights will also make it easier and more effective: just one commission to administer and support one law. The Green Paper has 3 objectives: 1. Simplification 2. Making law more effective 3. Modernising the law A lot of research has been done to see how other countries deal with issues of equality and human rights. They also looked to see whether the model of legislation in the UK’s disability discrimination law, which is different from the model for other aspects of discrimination, could be used as a general model. The green paper argues that it is right to retain as distinctive to disability the features of the disability discrimination law: asymmetrical and based on reasonable adjustment to specific needs. The Green Paper retains this unique and valuable part of the disability discrimination law but does not make that model applicable across the board – which could weaken the effectiveness of the disability legislation. Simplification There are specific measures to retain the different model for disability discrimination. The paper contains plans to simplify the definition, simplify the objective justification test and have a common threshold triggering the duty to make reasonable adjustment. There are also proposals to enable disabled tenants to call for landlords to make appropriate alterations to common parts. More effective law Balancing measures: The paper looks at the case to extend voluntary positive action measures. Discrimination law, with the exception of disability legislation, is weak on the need for positive action. Not everyone is starting in the same place so to have a framework of discrimination law solely based on equal treatment doesn’t deal with the disadvantage that a number of groups in society experience. Angela pointed to the progress that has been achieved through using all women shortlists. Angela said she hoped that one result of the discussion about the green paper and legislation was that more attention is given in policy to public action to pull people up who are experiencing disadvantage. Procurement The Green Paper explores the possibility for governmental public bodies to use procurement powers to lever equality – thereby getting better equality outcomes in the private sector. £125 billion is spent in public procurement per year which would have considerable impact. Is there a case to buy equality rather than legislate for it?! Angela said there will be debate over whether we need further legislation to make sure the procurement functions of public bodies are actually covered by the public duties. The green paper says procurement is already covered, but welcomes thoughts on this. Angela asked in what sort of contracts equality considerations arise? She thought it was difficult to think of a public contract where it doesn’t arise. The green paper sets out that new guidance is needed, from the new CEHR, as it is apparent from both public authorities and private companies bidding that at the moment no-one knows the rules. Public Duties The green paper looks at a number of issues arising from public duties which currently exist for race, disability and gender and will, in future, include sexual orientation, faith and belief and age. There is agreement that the public duties are really important and are a unique way of driving forward equality considerations. No other country has something quite similar. The intention of the discussion in the green paper was how to make them more effective. Angela set out two views. All 3 existing duties were constructed essentially as a mainstreaming measure. A public body must look at all its functions and have due regard to the need to promote equality of opportunity and eliminate discrimination. The general duty, supported by a number of specific duties, varies slightly between the 3 duties. In drafting the Green Paper, in discussions there was a strong sense that the way in which the duties were constructed could lead to a situation where there was compliance with the process rather using the functions to achieve real substantive outcomes for particular groups. The green paper proposes bringing together the current duties, with duties for the other equality strands, together into a single public sector equality duty. A purpose clause is suggested requiring public bodies to have equality objectives that reach their objective of promoting equality and eliminating discrimination. The green paper also considers how to support more effective performance of a single public sector equality duty based on four key principles: consultation and involvement – or civic participation; use of evidence; transparency; and capability. The disability duty and the requirement of involvement of disability groups in determining equality schemes has been very successful. The purpose of the green paper is to find the most effective means of legislation, and what combination might be most useful. It is important to get this right in order to go forward. Another big area the green paper covers is age discrimination. Currently age is the one ground that isn’t protected in relation to the provision of goods, facilities and services – but there’s a lot of evidence that there is discrimination in the provision of public services – especially health and social care – and discrimination in the private sector – particularly with insurance for holidays and travel and motor insurance. Although the government doesn’t think the case has been made for introducing new legislation in relation to age, it seeks people’s views and evidence of how legislation could be made effective without getting rid of age-specific provisions which we all like, and need. Angela referred to the handout for further points about the green paper. Bert informed the group that this would be his last time to speak to the group before the Disability Rights Commission (DRC) ends in September. He likened the green paper to the summer we are now having: there are a few rays of sunshine but mostly it is black clouds, rain and gloom. There are some positives within the paper e.g. the provision in the paper that a disabled person who has a private landlord can, at their own expense, install a stair lift, for example. However, on the more substantial issues, the paper fails. Bert said that we are looking for a paper which equalises upwards; which takes the whole agenda for all the strands without picking out bitty points for each strand, which improved methods of enforcing anti-discrimination legislation. He asked why the paper doesn’t move Part 3 cases (Disability Discrimination Act: access to goods and services) from county courts to tribunals which are easier and cheaper for everyone. This suggestion was dismissed in the paper without consideration. The green paper could have addressed the fact that it is lawful for the shipping industry to be able to discriminate against disabled people, even for journeys within the UK. Neither does the green paper address aviation discrimination. The coming European directive will be helpful but only for those with mobility impairments – it does not address discrimination across impairment groups. Bert said that the green paper could have also protected people who are perceived as being disabled. Bert said that the green paper represents a wasted opportunity. If it goes through as a bill in this format it will be another 10 years before we get another attempt to address these problems. Currently the law is reactive. To bring a discrimination case forward you have to be discriminated against. The Disability Equality Duty (DED) addresses this. The public sector are huge players – there are 42,000 organisations that come under the DED. It is better to get them to change their policies, not just against discrimination but to promote equal opportunities. The Disability Discrimination Act 2005 does this. It appears that the analysis of the public sector duty in the green paper is based entirely on the race equality duty. The disability sector has a wholly different experience. The DED requires public authorities to involve disabled people – that alone is changing attitudes and policy. Schools, authorities etc have to ask disabled people what they should be doing. Instead of building on this the green paper sets equality objectives. What does that mean? Public bodies can set their own objectives, and only have to take proportionate action to achieve them. The green paper takes power away from the individual to take cases against organisations for not following the law. Only the CEHR can bring cases. This is an enormous task to put on the CEHR, and Bert reflected that it was unlikely it would be top on their agenda. Narrowing enforcement is dangerous. Bert said that it took a long time to build the architecture of the DED and this green paper comes along like a bulldozer to knock it down. He said it was the most damaging green paper he had read for a long time, and this is the paper that should be used to show the government s concerned about equal rights and equal opportunities. Bert said that the degradation of the DED is not just a disability issue – the Commission for Racial Equality and the Equal Opportunities Commission are in agreement. Bert said that although we want a single equality bill, if this is the best the government has to offer than it may be better to have nothing. He said that unless the bill is dramatically different to the green paper he hoped the disability lobby would oppose it strongly. Questions Lord Rix said that changing from holding public bodies to account against their equality scheme to holding them to account against their principles seems a retrograde step. Lord Rix asked whether the green paper will take account of the objections raised, in order to avoid the battle to improve it. Angela responded that the purpose of the consultation is to hear views on the green paper, and arrive at a consensus on how to make the public duties more effective. She agreed that Bert has made many good points, although he has not recognised some of the advantages of the proposals in the green paper. Angela said that they do not want to fight over the duties, but to make them the most effective they can be. Bert said he couldn’t find any good bits on the public duty in the paper - it is just a damaging policy that is proposed. Lord Rix also pointed out that the consultation period is very short, and was concerned that not everybody would be able to form proper responses. Baroness Wilkins asked Bert, as a transitional commissioner, what his vision of a good public sector duty would be that took in the other strands. Bert said the DED goes a long way, and can be expanded to cover the other strands. He said that in public life, people are mainly elected or appointed to roles. In some cases they do not consult until there is another election. The DED required them to consult the people who would be affected by a policy before it was set in stone or implemented This is a whole new form of democracy. Bert said this same idea could be taken across all the strands. The equality scheme could be largely generic, but with strand specific sections e.g. regarding access for those with impairments. Bert said the DED has been around for less than one year, but already within government departments there is evidence that they value the duty, rather than regard it as another bit of bureaucracy. Bert gave examples of individuals within the DCLG and DTI who have said that the specific nature of the scheme helps to concentrate the mind, and the duty helps to mainstream disability within the departments. The duties, if applied properly, make people think from the beginning about the impact of policy on disabled people. They have to provide and publish schemes, and are held accountable for them. The green paper would result in little real enforcement, particularly considering proportional implementation. Angela said that the function of the existing duties is rooted in what is already. Through the green paper they were trying to reach for something further – public bodies would have to have a positive action plan in relation to the different equality groups going forward. She said this has merit. The green paper outline of the public duty is not incompatible with involvement. She said she also saw the value of impact assessments. Baroness Darcy de Knayth pointed out that it sounded as if the two ideas were not mutually exclusive. Bert agreed that the current duty could be kept, and enhanced by looking further ahead. He said rather than destroy the current duty, we could build on it – but this is not what the green paper does. Adrian Whyatt [Development Adult Neuro-Diversity Association, and RADAR trustee] asked why the green paper does not really deal with multiple disadvantage, which it is critical must be addressed. He pointed out gross over-representation of some disabled people in the criminal justice system such as those with dyslexia and dyspraxia. He said that the DRC has already highlighted that the Pakistani community is one most affected by disability. Adrian said that positive discrimination is needed, not just positive action to address these issues. Bert agreed that neuro-diversity is one of a number of issues that must be looked at. He said that the advantage of the DED is that to draft equality schemes public authorities needed to bring in a wide range of disabled people. It’s no longer a case of just talking to wheelchair users. He said it is important to keep the duty so that public bodies have no choice but to involve disabled people. Marie Pye [Public Sector Duty, DRC and an East London Councillor] raised concern with the evidence on which the green paper is based – as it appeared to be solely on the race duty which was designed years ago. The disability duty picked out the best parts of the race duty and went further. She highlighted the DRC report “Up to the Mark” looking at how the duty and schemes have transformed some departments. She said that 18 months ago equality wasn’t on the agenda but due to the DED and the gender equality scheme, it is now. She said that the DED looks 3 years ahead, requiring a forward looking action plan. This has libraries, social care services, waste management departments etc all working on schemes and getting involved in disability. Just setting equality objectives, as suggested in the green paper, would remove public sector staff from the process, and revert disability back to a specialist interest case. In her experience as a local councillor she raised again the point regarding the timing of the consultation. Her council went into recess 10 days ago which continues until after the consultation closes, so they will not be able to respond. Angela said that she will take the points about timing raised in the group back to the department. Mark Hunter MP why the department had not taken the 12 week standard period for consultation, and taken the recess during the summer period into account. Angela said it was always difficult to estimate how much time is needed for a consultation, but this consultation period is 12 weeks. She has already attended a large number of meetings on the green paper and already has a good idea on the main points where further action is required. She raised the issue of procurement as another area which also needs further attention. Angela said there are hints that this will also be the subject of draft legislation which will be another opportunity to consider it, but the department is hoping to deal with the initial points raised during this consultation period. Tara Flood [Alliance for Inclusive Education] said that the green paper almost entirely excludes education = yet those people who are most marginalised in community, particularly disabled people, are often excluded from a flexible education system. The DED has increased schools’ awareness that they need to promote equality, but the DRC evaluation of the DED didn’t include schools and it is known that very few schools actually produced a scheme. Tara warned that if schools are already not producing schemes then if the duty is reduced to principles it’s very unlikely schools will pay attention to that – preventing many young people from getting a chance to access education. Angela said she would take that point back to the department. Bert said that of the 42,000 bodies subject to the DED, 24,000 are schools. It is important that the CEHR follows up on assessing how schools are fulfilling the public duty. Nick Bason [Employers Forum on Disability] asked what was thought of the proposed light touch self-assessment for the private sector, and whether that will be a good enough driver for action. He said the EFD members were crying out for drivers for action, particularly on part 3 cases. Bert said he was afraid a light touch would in reality be a soft touch. Currently the penalties to a company or organisation that discriminates on part 3 - access to goods and services – are very light. It comes down to a token payment to a disabled person for hurt to their feelings and compensation is between £1000-£3000. There is anecdotal evidence to suggest that some private sector bodies might find it easier, or cheaper, to carry on discriminating than make changes. Bert called for powers to be given to courts to make it more expensive to discriminate than not. He said that those who take the duties seriously look around at those who don’t follow it, and wonder why they have paid out to follow it. Bert said that most legal cases on Part 3 grounds go through with DRC support. He said if we could move these cases from the county courts to tribunals it would give people greater access to enforce laws and their rights. He said this was something the green paper could have contained. Lord Ashley asked Nick Bason whether the EFD took action against those who contravened Part 3 of the DDA. Nick responded that EFD have no power over employers who are not members of EFD, but they do work with their members to help them put in place best practice on disability, and this includes sharing good case studies. Baroness Howe said that it appeared that the promotion of equality of opportunity, which was the background to the sex discrimination act, was being watered down as all the equalities came within one organisation and the philosophy of the few regulators appeared to behind the whole single equality bill. Disability has made real progress in the last few decades, and this green paper appears to be stepping backwards. Anne Begg MP said that we waited a long time to get this green paper – after considerable delay. Since then, a new minister has been appointed. She said a further argument to extend the consultation period would be to allow Barbara Follett to get her head around the issues. Her background is with gender, but she will need to catch up regarding the other strands. Anne said that she had attended a number of events looking at this green paper recently. At one recently, specifically looking at age, there was the discussion around whether goods and services should be covered for age. This is 10 years back from the stage where we are with disability, but because of the new strands coming in there will be tensions between those who’ve made great strides, and those who are catching up. Now is the opportunity to make sure they do catch up. Anne asked what input Anne McGuire had to the green paper, which came out of the DCLG. She also expressed concern that the DCLG essentially carries an English agenda, so how will this impact on devolved departments? Angela said that there was input from all departments, particularly the DWP and Anne McGuire, the DfES and Health. There was also discussion with both devolved administrations, and they will comment fully in due course. Angela responded to Baroness Howe by saying the Government will of course continue the positive work done by the discrimination acts and they are now talking about the best means of doing that. She has taken constructive criticism from this meeting. Bert concluded by saying that we don’t need this green paper, we want an ambition and determination to rid this country of discrimination. Legislation can’t do everything but it is the platform on which so much can be built. We need a green paper we can build on. Lord Ashley thanked both speakers and closed the meeting.
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