Disability Rights Commission Act 1999

Section 3: Formal investigations

This section gives the DRC the power to conduct formal investigations and requires it to do so if asked by the Secretary of State.

• 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 DRC 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 3). 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 Secretary of State in regulations. Among acts which might be considered for inclusion in regulations are acts breaching section 6 of the Human Rights Act 1998 which affect disabled persons.

• 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 section 4), or with any undertakings in a statutory agreement (see section 5).

Subsection (4) enables the DRC 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 DRC to make the decision to initiate an investigation. It is also for the DRC 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 sections 4 and 5 and Parts I, II and III of Schedule 3.

Schedule 2 sets out provisions relating to the appointment, tenure of office, remuneration, pensions etc of additional commissioners appointed for a formal investigation. Additional commissioners may be appointed by the DRC with the approval of the Secretary of State.

Part I of Schedule 3 sets out the detailed procedure to be followed in conducting a formal investigation. The key stages are:

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

• the DRC must publish or give notice of the holding of an investigation. Where the DRC 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 DRC 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 DRC may serve the notice on its own initiative. If the information or documents required are in the hands of others the DRC must first obtain authorisation from the Secretary of State. Where a person fails to comply with a notice requiring information or documents, or where the DRC has reasonable cause to believe that he intends not to comply with it, an application may be made to a county court or the sheriff for an order requiring compliance (paragraphs 4 and 5); and

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