LDDA Briefing on the Enterprise and Regulatory Reform Bill 2012

The LDDA (Liberal Democrat Disability Association) is an association of Liberal Democrats, who either have personal experience of disability, look after someone who is disabled, or who are interested in disability. We work to raise awareness and understanding of disability, both through the Liberal Democrats, and also the rest of society. The Enterprise and Regulatory Reform Bill is currently in committee stage in the House of Lords and there are several aspects of it which could potentially affect disabled people. Therefore LDDA have prepared this briefing paper regarding their concerns about the bill following informal consultation with their members. Potential areas of concern are clauses of the bill to:

Remove the ECHR (Commission for Equality and Human Rights) general duty, Remove the ECHR duty to promote good relations, Remove the ECHR duty to work to eliminate prejudice and hate towards groups including disabled people, Remove the ECHR duty to work towards enabling disabled people to participate in society, Remove the ECHR duty to promote or encourage the favourable treatment of disabled people Remove the ECHR duty to assist with the monitoring crime against groups including disabled people Remove the ECHR duty to assist with the prevention or reduction of crime affecting certain groups including disabled people
Remove provisions to protect people from third party harassment

Remove the formal procedure which enables applicants to ask questions of an alleged discriminator (the questionnaire procedure).

Clause 56(1)(a) This clause in the bill would repeal section 3 of the Equality Act 2006 which currently obliges the EHRCs obligation to act with a view to encouraging and supporting the development of a society in which:

people's ability to achieve their potential is not limited by prejudice or discrimination, there is respect for and protection of each individual's human rights, there is respect for the dignity and worth of each individual,

each individual has an equal opportunity to participate in society, and there is mutual respect between groups based on understanding and valuing of diversity and on shared respect for equality and human rights.

These objectives were extensively discussed with NGOs, business and others and were agreed by all parties during Parliamentary discussion of the 2006 Act. Section 3 gives the EHRC a clear purpose to guide it in deciding its priorities and makes clear that the job of the EHRC is to change culture, not just to enforce rules.

Clause 56(1)(b) This clause would remove the ECHR duties regarding specified groups which include disabled people. Duties which would be repealed are the duties to:

promote understanding of the importance of good relations between and towards members of different groups work towards the elimination of prejudice against, hatred of and hostility towards members of groups work towards enabling members of groups to participate in society

These duties particularly important in relation to prejudice against disabled people and highly stigmatised groups like people with mental health problems. There are also important issues that need to be tackled in these areas and no other statutory body has a remit to tackle them. Removing section 10 also entails removing the duty in 10(5) to 'promote or encourage the favourable treatment of disabled persons'. In order to create a genuinely level playing field it is sometimes necessary to treat disabled people more favourably than non-disabled people by, for example, providing parking facilities for disabled people but not for others who can readily use public transport. Additionally, section 19 of the Equality Act would also be repealed by this clause. Section 19 includes duties for the ECHR to assist with the monitoring and prevention of crime which affects members of specified groups - which includes disabled people. With 66% of disabled people reporting having experienced aggression, hostility or name calling1, the need for adequate monitoring and prevention of crime against disabled people would still appear to be necessary. Given continuing levels of prejudice and discrimination against disabled people, this clause of the bill could potentially be a key area of concern for LDDA members.

Clause 57 - Third Party Harassment Clause 57 of the bill would remove the section of the Equality Act which makes employers legally responsible if an employee is harassed by a third party where the employer has failed to take reasonably practicable steps to prevent it.

This is another potential area of concern given that the implications of the clause 57 would effectively absolve employers of any responsibility for taking steps to reduce or eliminate harassment in the workplace. Given that a 2008 survey by the ECHR indicated that disabled employees were more likely than able-bodied employees to be harassed, bullied or victims of violence in the workplace, this clause of the bill could potentially have a significant impact on the well-being of disabled people in the workplace. Additionally, when the Government consulted specifically on third party harassment 71% of responses opposed repeal.

Clause 58 - Abolition of the Questionnaire Procedure Clause 58 of the bill would remove provisions for the questionnaire procedure. This procedure was introduced in 1975 to assist the making and, if possible, early resolution of potential discrimination claims under the Sex Discrimination Act 1975 and has been incorporated into all later anti-discrimination legislation. Under the questionnaire procedure, a person who thinks that they may have been unlawfully discriminated against, harassed or victimised, is able to obtain information from the person they think has acted unlawfully against them via the submission of a questions which the applicant thinks may be useful in giving an overall picture of a situation where discrimination may have occurred. Judges and tribunal members see it as a useful way of finding out whether there are real issues that divide the parties to litigation and if so what they are. It therefore helps to:

prevent unnecessary proceedings or enable their early resolution, or clarify the issues in contention.

Additionally, in a specific government consultation on questionnaires, 83% of the respondents oppose the abolition of the questionnaire procedure with the President and Regional Employment Judges of the Employment Tribunals opposing them, saying that this would be a retrograde step. As such, it is possible that clause 58 would make the process of victims of discrimination going to Employment Tribunals more complicated, lengthy and costly. Therefore this is another area of the bill which LDDA members might potentially be concerned about.

Conclusion There are several aspects of the Enterprise and Regulatory Reform Bill which could potentially be of significant concern to disabled people. Therefore LDDA members are requested read this briefing paper and subsequently to submit their views on this bill as a prelude to the issuing of a formal statement of the LDDA on the bill.