Enabling Legislation or Dissembling Law? The Disability Discrimination Act 1995
| Date | 01 January 1997 |
| Published date | 01 January 1997 |
| DOI | http://doi.org/10.1111/1468-2230.00066 |
LEGISLATION
Enabling Legislation or Dissembling Law? The
Brian Doyle*
The surprising volte-face epitomised by the Disability Discrimination Act 1995
(DDA 1995) is the product of a curious concoction of political forces and events. A
government, which in the early 1990s had been unwilling to recognise the
phenomenon of disability discrimination, had come slowly to a concession of the
facts of social exclusion and marginalisation of a sizeable minority.
1
Recognising
the mischief, however, was a necessary but insufficient step towards identifying
the remedy. Official policy still clung to the talisman that education and
persuasion, rather than legislation, represented the appropriate means to the end of
a society within which disabled persons would be fully integrated and afforded
equality of opportunity. The emergence of disability rights activism, seeking to
emulate the experience of the civil rights movement among disabled Americans in
the previous decade, and prepared to use all forms of political and extra-political
action to advance its agenda, applied the political pressure for reform. Enthused by
the legal advances attained in the United States via its comprehensive civil rights
law — the Americans with Disabilities Act 1990 — disabled Britons and their
allies rallied to the Civil Rights (Disabled Persons) Bills.
2
These private members’ measures were a constant goad to a government
unwilling to burden businesses with prescriptive regulation but mindful of the
cross-party support which the disability rights agenda attracted.
3
When in May
1994 the then latest version of the Civil Rights (Disabled Persons) Bill was
defeated by cynical means of parliamentary procedure, little could it be imagined
that this damaging setback would be the catalyst for government-sponsored reform.
The furore surrounding these events and the reliance upon minority parties of a
government riven by Euro-scepticism led to what was proposed to be a limited
initiative in law reform. That was certainly the tone of the Green Paper of July
1994, and the White Paper and draft Bill that followed it in January 1995.
4
Yet
The Modern Law Review Limited 1997 (MLR 60:1, January). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.64
*Faculty of Law, University of Liverpool.
This note draws upon Doyle, Disability Discrimination: The New Law (Bristol: Jordans, 1996).
1 That evidence is collected and explained in Barnes, Disabled People in Britain and Discrimination: A
Case for Anti-Discrimination Legislation (London: Hurst & Co/British Council of Organizations of
Disabled People, 1994).
2 The literature on the ADA 1990 is voluminous, but a fascinating account of its legislative history is
provided by Percy, Disability, Civil Rights and Public Policy: The Politics of Implementation
(Tuscalusa: University of Alabama Press, 1989). Australia’s Disability Discrimination Act 1992 also
provided a template for law reform. For a recent comparison of the US ADA and Australia’s DDA,
see Tucker, ‘The Disability Discrimination Act: Ensuring Rights of Australians with Disabilities’
(1995) 21(1) Monash Univ L Rev 15.
3 The background to the Civil Rights (Disabled Persons) Bills is explored in Doyle, Disability,
Discrimination and Equal Opportunity (London: Mansell, 1995).
4A Consultation on Government Measures to Tackle Discrimination Against Disabled People (London:
Department of Social Security, 1994) (Green Paper); Ending Discrimination Against Disabled People
(London: HMSO, 1995) Cm 2729 (White Paper).
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