Draft Deregulation Bill

Submission to the

Joint Committee on the Draft Deregulation Bill

September 2013

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About the Equal Rights Trust

The Equal Rights Trust (ERT) is an independent international human rights

organisation whose purpose is to combat discrimination and promote equality as a

fundamental human right and a basic principle of social justice. ERT focuses on the

complex relationship between different types of discrimination, developing strategies

for translating the principles of equality into practice.

Contact

Dr. Dimitrina Petrova

Executive Director

Tel: +44 (0)20 7610 2786

E-mail: dimitrina.petrova@equalrightstrust.org

The Equal Rights Trust

314 – 320 Gray’s Inn Road

London

WC1X 8DP

United Kingdom

www.equalrightstrust.org

info@equalrightstrust.org

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Draft Deregulation Bill: Submission of The Equal Rights Trust to the Joint Committee on

the Draft Deregulation Bill

Table of Contents

Introduction ..................................................................................................................................................... 4

Clause 2: Removal of Employment Tribunals’ Power to Make Wider Recommendations ... 5

Background .................................................................................................................................................................... 5

Analysis ............................................................................................................................................................................ 6

Clause 44: Repeal of Duty to Prepare Sustainable Community Strategy .................................... 8

Background .................................................................................................................................................................... 8

Analysis ............................................................................................................................................................................ 9

Schedule 8, Part 6: Rail Vehicle Accessibility Regulations: Exemption Orders ..................... 12

Background ................................................................................................................................................................. 12

Analysis ......................................................................................................................................................................... 13

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Introduction

1. The Equal Rights Trust (ERT) is an independent international organisation whose

purpose is to combat discrimination and promote equality as a fundamental human right

and a basic principle of social justice. ERT is the only international human rights

organisation which focuses exclusively on the rights to equality and non-discrimination as

such. Established as an advocacy organisation, resource centre, and think tank, ERT

focuses on the complex relationship between different types of discrimination, developing

strategies for translating the principles of equality into practice. In working to accomplish

this mission, from time to time we submit legal opinions to governments and parliaments

concerning the implementation and enforcement of these rights. In the United Kingdom,

ERT has recently provided evidence to parliamentary committees in relation to the

Enterprise and Regulatory Reform Bill 2013 and the Marriage (Same Sex Couples) Bill

2013.

2. This submission analyses the Draft Deregulation Bill (the Draft Bill), published in July

2013, for its compliance with the rights to equality and non-discrimination under

international human rights law, protected in the United Kingdom, in the most part,

through the Human Rights Act 1998 and the Equality Act 2010. For the Committee’s

purposes, this submission can therefore be said to respond to question 7(a) of the

Committee’s Call for Written Evidence, “How does the provision in the draft Bill affect: (i)

protections afforded to individuals under (...) equalities legislation?”.

3. ERT’s analysis of the Draft Bill concludes that it impacts upon the rights to equality and

non-discrimination in three ways related to:

(a) The remedies available where these rights are breached (Clause 2);

(b) The elimination of socio-economic inequalities (Clause 44); and

(c) The accessibility of transport for persons with disabilities (Part 6 of Schedule 8).

4. In analysing the Draft Bill, ERT has applied the standards contained in the Declaration of

Principles on Equality.1 The Declaration of Principles on Equality was drafted and signed

by 128 human rights and equality experts from over 40 different nations. It reflects a

moral and professional consensus on the right to equality. The 27 principles of the

Declaration take their starting point from the United Nations Declaration on Human

Rights providing that “all human beings are born free and equal in dignity and rights”.2

The principles are based on concepts and jurisprudence developed in international,

regional and national contexts and are intended to assist the efforts of legislators, the

judiciary, civil society organisations and anyone else involved in combating

discrimination and promoting equality. The Declaration has been described as “the

current international understanding of principles on equality”3 and has been endorsed by

the Parliamentary Assembly of the Council of Europe, which has recommended that

1 Declaration of Principles on Equality, The Equal Rights Trust, London, 2008. 2 Article 1 of the Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc A/810 at 71 (1948). 3 Naz Foundation v. Government of NCT of Delhi and Others 160 Delhi Law Times 277 (2009), Para 93.

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member states take it into account when developing their national legislation and

policies.4

Clause 2: Removal of Employment Tribunals’ Power to Make Wider Recommendations

Background

5. Section 124 of the Equality Act 2010 (the 2010 Act) sets out the remedies that an

employment tribunal may provide if it finds that there has been a contravention of Part 5

of the 2010 Act (which governs work, including employment, occupational pension

schemes and equality of terms) or of sections 108 (relationships that have ended), 111

(instructing, causing or inducing contraventions) or 112 (aiding contraventions) of the

2010 Act. Section 124 came into force on 1 October 2010.5

6. Subsection 124(2) provides for three remedies that an employment tribunal may provide.

These are:

(a) a declaration as to the rights of the complainant and the respondent in relation

to the matters to which the proceedings relate;

(b) an order that the respondent pay compensation to the complainant; and

(c) an appropriate recommendation.

7. Subsection 124(3) defines an “appropriate recommendation” as

(...) a recommendation that within a specified period the respondent

takes specified steps for the purpose of obviating or reducing the

adverse effect of any matter to which the proceedings relate (a) on the

complainant; (b) on any other person.

8. Section 124(7) provides that where the respondent fails to comply with a

recommendation relating to the complainant, without reasonable excuse, this can lead the

tribunal to either increase the amount of compensation that must be paid to the

complainant, or, if no such compensation order was originally made, to make one. Failure

to comply with a recommendation relating to other persons (known as a “wider

recommendation”) does not, however, carry any sanction.

9. Clause 2 of the Draft Bill would insert the words “on the complainant” after the words

“adverse effect” in section 124(3), and delete paragraphs (a) and (b). The consequence

would be that employment tribunals would no longer be able to make recommendations

that the respondent take steps in relation to persons other than the complainant. Clause 2

4 Parliamentary Assembly of the Council of Europe, Recommendation: The Declaration of Principles on Equality and activities of the Council of Europe, REC 1986 (2011), 25 November 2011.

5 The Equality Act 2010 (Commencement No. 4, Savings, Consequential, Transitional, Transitory and Incidental Provisions and Revocation) Order 2010, S.I. 2010/2317, Article 2(9)(f).

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implements the outcome of the Government Equalities Office consultation on this issue, in

which it concluded that the power to make “wider recommendations” does not appear to

“serve a practical purpose or to be an appropriate or effective legal remedy for

employment tribunals” and that there was no evidence that “the pre-existing remedies

available to a court or tribunal for discrimination cases are insufficient”.6

Analysis

10. There is now well-established international human rights law and best practice on the

remedies and sanctions that states should ensure are available to those whose rights to

equality and non-discrimination have been violated. According to these principles, it is not

sufficient merely for an individual victim of discrimination to be compensated: states are

also under an obligation to eliminate discriminatory practices and ensure non-repetition

of the discrimination. Principle 22 of the Declaration of Principles on Equality states:

Sanctions for breach of the right to equality must be effective,

proportionate and dissuasive. Sanctions must provide for appropriate

remedies for those whose right to equality has been breached

including reparations for material and non-material damages;

sanctions may also require the elimination of discriminatory practices

and the implementation of structural, institutional, organisational, or

policy change that is necessary for the realisation of the right to

equality. [Emphasis added]

11. This principle draws inspiration from a range of sources of international law. For

example, Articles 2(3)(a) and (c) of the International Covenant on Civil and Political

Rights requires States to ensure that those whose rights are violated should “have an

effective remedy” and that the competent authorities shall enforce such remedies when

granted.7 In its General Comment No. 31, the Human Rights Committee stated that:

16. Article 2, paragraph 3, requires that States Parties make

reparation to individuals whose Covenant rights have been violated.

(...) The Committee notes that, where appropriate, reparation can

involve restitution, rehabilitation and measures of satisfaction, such as

6 Government Equalities Office, Equality Act 2010: employment tribunals’ power to make wider recommendations in discrimination cases and obtaining information procedure: Government response to the consultation, October 2012, available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/136235/consultation-response.pdf. 7 The rights to equality and non-discrimination in the International Covenant on Civil and Political Rights are contained in Articles 2(1) (“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”) and 26 (“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”)

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public apologies, public memorials, guarantees of non-repetition and

changes in relevant laws and practices, as well as bringing to justice

the perpetrators of human rights violations.

17. In general, the purposes of the Covenant would be defeated without

an obligation integral to article 2 to take measures to prevent a

recurrence of a violation of the Covenant. Accordingly, it has been a

frequent practice of the Committee in cases under the Optional

Protocol to include in its Views the need for measures, beyond a victim-

specific remedy, to be taken to avoid recurrence of the type of violation

in question. Such measures may require changes in the State Party’s

laws or practices.8 [Emphasis added]

12. The Committee on Economic, Social and Cultural Rights, in interpreting Article 2(1) of the

International Covenant on Economic, Social and Cultural Rights, has stated:

These institutions should also be empowered to provide effective

remedies, such as (...) guarantees of non-repetition (...) and State

parties should ensure that these measures are effectively

implemented.9 [Emphasis added]

13. Similarly, the Committee on the Elimination of Discrimination against Women has stated

that Article 2(b) of the Convention on the Elimination of All Forms of Discrimination

against Women10:

(...) requires that States parties provide reparation to women whose

rights under the Convention have been violated. Such remedies should

include different forms of reparation, such as (...) guarantees of non-

repetition; changes in relevant laws and practice (...)11

14. The reasoning behind the power to make wider recommendations was articulately set out

by Lord Lester of Herne Hill during the Committee Stage of the Equality Bill, as it then

was:

8 Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed

on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13, 2004, Paras 16 and 17.

9 Committee on Economic, Social and Cultural Rights, General Comment No. 20: Non-discrimination in

economic, social and cultural rights, UN Doc. E/C.12/GC/20, 2009, Para 40.

10 Article 2(b) reads: “States Parties condemn discrimination against women in all its forms, agree to

pursue by all appropriate means and without delay a policy of eliminating discrimination against women

and, to this end, undertake (...) To adopt appropriate legislative and other measures, including sanctions

where appropriate, prohibiting all discrimination against women”.

11 Committee on the Elimination of Discrimination Against Women, General Recommendation No. 28: On

the core obligations of States parties under article 2 of the Convention on the Elimination of All Forms of

Discrimination against Women, UN Doc. CEDAW/C/2010/47/GC.2, 2010, Para 32.

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One of the problems about the existing order of things is that

individual proceedings deal only with individual problems and yet

often they relate to systemic problems which require systemic

solutions. It is very important that the tribunal which has heard all the

evidence is able to make recommendations on a wider basis.12

15. The effect of Clause 2 would be to limit employment tribunals’ freedom, such that they

would only be able to provide remedies which are victim-specific and not remedies which

would address the structural, institutional, organisational, or policy change that is

necessary to avoid others in, or affected by, the organisation from suffering from similar

discrimination in the future. Not only would this weaken the ability of employment

tribunals to tackle discrimination in the workplace more widely, but it would leave the

United Kingdom in clear violation of its obligations under the aforementioned

international treaties, most obviously under the International Covenant on Civil and

Political Rights which the Human Rights Committee has explicitly stated requires the

availability of “measures, beyond a victim-specific remedy, to be taken to avoid recurrence

of the type of violation in question”.

16. ERT believes that clause 2 would render section 124 of the Equality Act 2010 non-

compliant with international law, and therefore recommends that it should not be

included in the final Bill.

Clause 44: Repeal of Duty to Prepare Sustainable Community Strategy

Background

17. Chapter 1 of Part 5 of the Local Government and Public Involvement in Health Act 2007

(the 2007 Act) provides for co-operation between local authorities and “partner

authorities” in various ways. Section 104 establishes a broad range of authorities which

may be “partner authorities”, including fire and rescue authorities, police authorities,

youth offending teams and many others. Chapter 1 of Part 5 of the 2007 Act came into

force on 30 December 2007.13

18. Section 4 of the Local Government Act 2000 (the 2000 Act) requires local authorities to

prepare a “community strategy” for promoting or improving the economic, social and

environmental well-being of their area and contributing to the achievement of sustainable

development in the United Kingdom. Under subsection 4(3)(a)(i) of the 2000 Act (as

amended by section 114 of the 2007 Act), in preparing or modifying their community

strategy, a “responsible local authority” must consult and seek the participation of each of

12 HL Deb 27 January 2010, col. 1472. 13 Section 245(2) of the 2007 Act.

Recommendation 1: Clause 2 of the Draft Bill should be deleted.

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its partner authorities. Under section 103, a “responsible authority” is any of the

following: (a) a county council in England; (b) a district council in England, other than a

council for a district in a county for which there is a county council; (c) a London borough

council; (d) the Council of the Isles of Scilly; (e) the Common Council of the City of London

in its capacity as a local authority. Section 114 of the 2007 Act, which amended section

4(3)(a)(i) of the 2000 Act came into force on 30 December 2007.14

19. Section 1 of the Equality Act 2010 – which has not yet been brought into force – requires

an authority to which that section applies:

(...) when making decisions of a strategic nature about how to exercise

its functions, [to] have due regard to the desirability of exercising them

in a way that is designed to reduce the inequalities of outcome which

result from socio-economic disadvantage.

20. Section 1 is commonly referred to as the “public sector socio-economic duty”. Section 1

applies to all authorities considered “responsible authorities” under the 2007 Act.

Subsection 1(4) provides that it also applies to any “partner authorities” in relation to a

responsible local authority but only in relation to its participation in the preparation or

modification of a sustainable community strategy.

21. Clause 44 of the Draft Bill would remove the duty of local authorities to prepare

community strategies under the 2000 Act. As a consequence, clause 44 would also remove

the socio-economic duty from partner authorities when they participate in the

preparation or modification of a community strategy.

Analysis

22. Given that section 1 of the 2010 Act has not yet been brought into force, ERT accepts that

clause 44 will not have any impact on the protection of the rights to equality and non-

discrimination. However, ERT is disappointed by the government’s continued reluctance

to bring section 1 into force.

23. ERT believes that section 1 is a vital and necessary tool in tackling socio-economic

inequalities and was disappointed when, in November 2010, the Home Secretary

announced that the government would not be bringing sections 1 to 3 into force, stating:

Equality has become a dirty word because it has come to be associated

with the worst aspects of pointless political correctness and social

engineering. Just look at the socio-economic duty. In reality, it would

have been just another bureaucratic box to be ticked. It would have

14 Ibid.

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meant more time filling in forms and less time focusing on policies that

will make a real difference to people’s life chances.15

24. ERT strongly supported the public sector socio-economic duty as a progressive measure

recognising the link between identity-based discrimination and socio-economic

disadvantage and the need to coordinate efforts to address these two forms of inequality.

Principle 14 of the Declaration of Principles on Equality highlights the link between these

two forms of inequality, stating that:

(...) as poverty may be both a cause and a consequence of

discrimination, measures to alleviate poverty should be coordinated

with measures to combat discrimination, in the pursuit of full and

effective equality.

25. This link between discrimination and one form of socio-economic disadvantage – income

poverty – has also been noted by the UN Independent Expert on the question of extreme

poverty and human rights who, in her report of August 2008 to the General Assembly,

stated:

Patterns of discrimination keep people in poverty which in turn serves

to perpetuate discriminatory attitudes and practices against them. In

other words, discrimination causes poverty but poverty also causes

discrimination. As a result, promoting equality and non-discrimination

is central to tackling extreme poverty and promoting inclusion.

Measures to eliminate poverty and efforts to eliminate all forms of

discrimination must be understood as mutually reinforcing and

complementary.16

26. The link between discrimination and poverty has also been noted by UN treaty bodies. In

its General Comment No. 20, for example, the Committee on the Economic, Social and

Cultural Rights stated that Article 2(2) of the International Covenant on Economic, Social

and Cultural Rights prohibited discrimination on grounds of economic and social

situation. The Committee elaborated:

Individuals and groups of individuals must not be arbitrarily treated

on account of belonging to a certain economic or social group or

strata within society. A person’s social and economic situation when

living in poverty or being homeless may result in pervasive

discrimination, stigmatization and negative stereotyping which can

lead to the refusal of, or unequal access to, the same quality of

15 Home Office, “Socio-economic duty to be scrapped”, 17 November 2010, available at:

https://www.gov.uk/government/news/socio-economic-duty-to-be-scrapped--2.

16 Report of the UN Independent Expert on the question of extreme poverty and human rights, UNGA 63rd

Session, 2008, Paras 29–30.

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education and health care as others, as well as the denial of or unequal

access to public places.17

27. One important indicator of socio-economic disadvantage in the United Kingdom is the

level of income poverty. While few in the United Kingdom suffer from absolute poverty,

relative poverty remains prevalent. The most widely-watched measure of relative poverty

in the UK is the proportion of individuals with household incomes below 60% of the

contemporary median. The Institute of Fiscal Studies has reported that, in the latest year

for which data is available (2010–11), the number of individuals living below this poverty

line was 9.8 million (16.1% of the UK population) before housing costs, rising to 13.0

million (21.3% of the UK population) when housing costs are included.18 The Office for

National Statistics (ONS) reported that in 2010, 17.1% of the United Kingdom population

were at risk of poverty or social exclusion.19

28. In view of the foregoing, ERT believes that section 1 should be brought into force as soon

as possible. Clause 44 represents a further weakening of the potential impact that the

socio-economic duty could have by abolishing community strategies, which are designed

to promote or improve the economic, social and environmental well-being of the area.

Clause 44 would have required local authorities and partner authorities to consider how

to reduce the inequalities of outcome which result from socio-economic disadvantage

when developing such community strategies.

29. ERT believes that the socio-economic duty in section 1 is a vital and necessary tool in

eliminating socio-economic inequalities, without which the United Kingdom will struggle

to meet its obligations under international law, including the International Covenant on

Economic, Social and Cultural Rights. On that basis, any reduction in the impact that

section 1 could have should be resisted, and the provision should be brought into force as

soon as possible.

17 Committee on Economic, Social and Cultural Rights, General Comment No. 20: Non-discrimination in

economic, social and cultural rights, UN Doc. E/C.12/GC/20, 2009, Para 35.

18 Institute for Fiscal Studies, Living standards, poverty and inequality in the UK: 2012, 2012, p. 4, available

at: http://www.ifs.org.uk/comms/comm124.pdf.

19 Office for National Statistics, Comparison of UK and EU at-risk-of poverty rates 2005 – 2010, June 2012, p.

10, available at: http://www.ons.gov.uk/ons/dcp171776_266844.pdf.

Recommendation 2: Clause 44 of the Draft Bill should be deleted and section 1 of the

Equality Act 2010 should be brought into force as soon as possible.

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Schedule 8, Part 6: Rail Vehicle Accessibility Regulations: Exemption Orders

Background

30. Section 182 of the Equality Act 2010 (the 2010 Act) provides that the Secretary of State

may make “rail vehicle accessibility regulations” in order to ensure that persons with

disabilities are able to access and use rail vehicles. Section 182 came into force on 1

October 201020 and was the successor provision to section 46 of the Disability

Discrimination Act 1995 which it repealed and replaced.

31. Section 183 of the 2010 Act provides that the Secretary of State may make exemption

orders which exempt specified rail vehicles or carriages from the rail vehicle accessibility

regulations. Section 207(2) provides that exemption orders must be made by statutory

instrument. Section 183(3) provides that the Secretary of State may make regulations

which govern how applications for exemption orders are to be made. Section 183 came

into force on 1 October 201021 and was the successor provision to section 47 of the

Disability Discrimination Act 1995 which it repealed and replaced.

32. The first Rail Vehicle Accessibility Regulations made under section 46 of the Disability

Discrimination Act 1995 came into force on 1 November 199822 (the 1998 Regulations)

and applied to all rail vehicles. The technical specifications within the Regulations were

developed by the government. However, on 1 July 2008, European Union legislation came

into force which provided new technical specification for rail vehicles for persons with

disabilities.23 These standards differ from the existing British ones, but apply only to trains

used on the interoperable rail system, which comprises the major lines of all Network Rail

infrastructures. The EU legislation came in the form of a European Commission Decision

and the standards were therefore automatically binding in the United Kingdom.

33. To avoid two separate, but different, regulatory regimes for the interoperable rail system,

the Rail Vehicle Accessibility (Interoperable Rail System) Regulations 200824 removed

interoperable rail vehicles – which amount to approximately 75% of all rail vehicles25 –

from the scope of section 46 of the Disability Discrimination Act 1995 and the 1998

Regulations, and made the procedure by which a rail operator could apply for an

exemption order entirely administrative, rather than requiring that any order be made by

statutory instrument.

20 See above, note 5, Article 2(12)(f). 21 Ibid. 22 The Rail Vehicle Accessibility Regulations 1998, S.I. 1998/2456, Article 1. 23 Commission Decision of 21 December 2007 concerning the technical specification of interoperability relating to ‘persons with reduced mobility’ in the trans-European conventional and high-speed rail system, 2008/164/EC. 24 S.I. 2008/1746. 25 Department for Transport, Handling of Exemptions from Rail Vehicle Accessibility Regulations: Consultation on Proposed Changes, March 2013, Para 2.3.

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34. All non-interoperable rail vehicles – the remaining 25% - continued to be governed by

sections 46 and 47 of the Disability Discrimination Act 1995, and the 1998 Regulations,

until they were replaced by the Rail Vehicle Accessibility (Non-Interoperable Rail System)

Regulations 2010,26 and exemption orders continued to be required to be made by

statutory instrument. Upon the introduction of the Equality Act 2010, the status quo was

maintained. Sections 46 and 47 of the Disability Discrimination Act 1995 were replicated

through sections 182 and 183 of the 2010 Act.

35. Paragraph 19 of Schedule 8 would delete subsection 183(3) and insert a new subsection

183(7). The combined effect would be that the Secretary of State would no longer need to

make regulations by statutory instrument (or at all) governing how applications for

exemption orders for non-interoperable rail vehicles are to be made, and exemption

orders for non-interoperable rail vehicles would not need to take the form of a statutory

instrument. The process would be administrative, as it is with interoperable rail vehicles.

Part 6 of Schedule 8 implements the outcome of the Department for Transport

consultation on this issue in which it concluded that:

(vii) By moving to an administrative system, applicants for an

exemption would know the result far sooner than now – perhaps in 3

months rather than 6 – 12. This would reduce uncertainty for

operators and allow them to introduce vehicles sooner than they

might currently feel able to due to the inherent risks and doubts which

surround the current system.

(viii) Official, legal, Ministerial and Parliamentary time would also be

saved – indeed, it is improved efficiency in public administration that

would form the main tangible benefit to be gained by the proposed

change.27

Analysis

36. The rights to equality and non-discrimination imply that difference is accommodated so

as to ensure that all groups are able to participate in society on an equal basis with others.

Article 2 of the Convention on the Rights of Persons with Disabilities defines

“discrimination on the basis of disability” as:

(...) any distinction, exclusion or restriction on the basis of disability

which has the purpose or effect of impairing or nullifying the

recognition, enjoyment or exercise, on an equal basis with others, of all

human rights and fundamental freedoms in the political, economic,

social, cultural, civil or any other field. It includes all forms of

discrimination, including denial of reasonable accommodation.

26 S.I. 2010/432. 27 See above, note 25, pp. 1 – 2.

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37. Article 2 defines “reasonable accommodation” as:

(...) necessary and appropriate modification and adjustments not

imposing a disproportionate or undue burden, where needed in a

particular case, to ensure to persons with disabilities the enjoyment or

exercise on an equal basis with others of all human rights and

fundamental freedoms.

38. Article 9(1)(b) of the Convention on the Rights of Persons with Disabilities (CRPD) deals,

amongst other areas of life, with transportation, and states:

1. To enable persons with disabilities to live independently and

participate fully in all aspects of life, States Parties shall take

appropriate measures to ensure to persons with disabilities access, on

an equal basis with others, to the physical environment, to

transportation, to information and communications, including

information and communications technologies and systems, and to

other facilities and services open or provided to the public, both in

urban and in rural areas. These measures, which shall include the

identification and elimination of obstacles and barriers to accessibility,

shall apply to, inter alia:

(a) Buildings, roads, transportation and other indoor and outdoor

facilities, including schools, housing, medical facilities and workplaces

(...)

39. In summary, therefore, the state, public bodies and private sector organisations are under

an obligation to reasonably accommodate persons with disabilities, including in access to

transportation. Whether state-run or privately operated, rail vehicle operators must

ensure that rail vehicles are fully accessible for persons with disabilities, and that they

incorporate all “necessary and appropriate modification and adjustments”, so long as this

does not impose “a disproportionate or undue burden”.

40. ERT notes that both the 2008 and 2010 Regulations require that all rail vehicles be fully

accessible to persons with disabilities by 2020 and that after this date, exemptions will no

longer be permitted. ERT also notes that the number of exemption orders granted for

non-interoperable rail vehicles is already very low as train manufacturers have gained

enough experience to design and build fully compliant vehicles. The table below provides

information on the number of exemption orders granted since 2006:

Year Number of Exemption

Orders Granted28

2006 1

2007 0

28 See above, note 25, p. 8.

15

2008 2

2009 0

2010 1

2011 2

2012 1

2013 (up to 31 July) 1

41. On the condition that exemption orders, either under the 2010 Regulations (for non-

interoperable rail vehicles) or the Commission Decision of 21 December 2007 (for

interoperable rail vehicles), are only made where the applicant would otherwise be faced

“a disproportionate or undue burden”, ERT does not object to exemption orders in

principle. ERT does believe, however, that the process by which exemption orders are

made must be sufficiently transparent to ensure that orders are only made which meet

the above test, and are therefore in accordance with the United Kingdom’s obligation

under CRPD.

42. ERT is therefore concerned that the level of scrutiny for exemption orders for non-

interoperable rail vehicles would be reduced by Part 6 of Schedule 8. Section 184 of the

2010 Act sets out the current process as follows:

(a) An application is made to the Secretary of State for the exemption order;

(b) The Secretary of State must then consult the Disabled Persons Transport

Advisory Committee and such other persons as he thinks appropriate before:

(i) making an exemption order in the terms of the application for the

order;

(ii) making an exemption order in such other terms as the Secretary

of State thinks appropriate; or

(iii) refusing to make an exemption order.

(c) The Secretary of State must then consult the Disabled Persons Transport

Advisory Committee before deciding which parliamentary procedure available is

to be adopted in connection with the making of the exemption order. There are

two options: the draft affirmative resolution and the negative resolution

procedure.

(d) The negative resolution procedure can only be made if the Secretary of State has,

after consulting the Disabled Persons Transport Advisory Committee, and other

appropriate persons, made regulations, governing the procedure, which are

themselves subject to the draft affirmative resolution procedure.29

43. ERT is concerned that the level of scrutiny involved in the order-making process, which

currently involves Parliamentary oversight, will be reduced once the process becomes

29 The relevant Regulations are the Rail Vehicle Accessibility Exemption Orders (Parliamentary Procedures) Regulations 2008 (S.I. 2008/2975).

16

entirely administrative. ERT believes, therefore, that the amendments made by Part 6 of

Schedule 8 should only be accepted by the Committee upon confirmation by the Secretary

of State for Transport that any future administrative process will include the following

elements which would address that concern:

(a) Applications for exemptions will be published online, together with any

accompanying documents;

(b) The Disabled Persons Transport Advisory Committee will continue to provide its

opinion on whether the exemption should be granted;

(c) The decision, together with the terms of the exemption, will also be published

online.

44. Given that (i) the process of granting exemptions for the majority of rail vehicles (those

that use the interoperable system) is already administrative, (ii) the number of exemption

orders currently made is very low, and (iii) no exemption orders will be permitted at all

after 2019, ERT accepts the government’s rationale behind Part 6 of Schedule 8.

45. However, ERT believes that the amendments made by Part 6 of Schedule 8 should only be

accepted by the Committee if it is satisfied that that the reduced level of scrutiny over

applications for exemptions will not lead to exemptions being granted more readily, and

that the Secretary of State for Transport confirms that the elements listed in paragraph 43

will form part of any future administrative order-making process.

Recommendation 3: Part 6 of Schedule 8 should only be accepted by the Committee if it is

satisfied that the reduced level of scrutiny over applications for exemptions will not lead to

exemptions being granted more readily, and that the Secretary of State for Transport

confirms that the elements listed in paragraph 43 will form part of any future

administrative order-making process