3 English Summary
Summary of NOU 2005: 8 Equality and Accessibility Draft statute – Act relating to prohibition against discrimination on the basis of disability (Discrimination and Accessibility Act) and amendments to other Acts
3.1 Terms of reference and composition of the Committee
In November 2002, the Government appointed a legislative committee to investigate the need for legislative and judicial measures to strengthen the legal status and protection against discrimination of persons with disabilities. The terms of reference state as follows:
“The Committee shall draft a new bill and/or proposals to amend existing legislation in order to strengthen the protection accorded by the law against the discrimination of persons with disabilities. The object is to promote full participation in society and equality between persons with disabilities and other citizens.
The Committee’s proposals must aim to provide a genuine strengthening of the protection accorded by the law against the discrimination of persons with disabilities. The Committee must determine who shall be awarded rights and duties, including whether individual rights should be awarded to individuals with disabilities in more areas than is the case in currently applicable legislation. The Committee must discuss possible sanctions and take a stand on rules concerning the burden of proof and forms of responsibility in the event of sanctions in civil law. The Committee shall consider whether special bodies should be responsible for effectively monitoring compliance with the legislation.
The Committee shall ensure that the proposed legislation lies within the framework of Norway’s obligations in respect of international law, including Article 14 of the European Convention on Human Rights as interpreted by the European Court of Human Rights, Articles 2 and 26 of the United Nations International Covenant on Civil and Political Rights, Article 2 of the United Nations International Covenant on Economic, Social and Cultural Rights and relevant rules within the European Economic Area. The Committee should also review anti-discrimination legislation in other countries and the work carried out in this field in international organisations, including work on a United Nations Convention on the Rights of Persons with disabilities.”
The Committee was composed as follows:
Chairman: Professor dr. juris, MD, Aslak Syse, Department of Public and International Law, University of Oslo.
The following members of the Committee were appointed:
Mr. Gunnar Buvik, President, Norwegian Association of the Disabled
Ms. Guro Fjellanger, self-employed
Mr. Atle Larsen, health service ombudsman, Norwegian Federation of Organisations of Disabled People (FFO)
Ms. Susanne Moshuus, lawyer, Norwegian Association of Local and Regional Authorities
Ms. Hedda Remen, Judge of the Court of Appeal
Ms. Sissel Stenberg, Head of Political Secretariat, Stavanger Municipality
Ms. Elisabeth Lea Strøm, lawyer, Confederation of Norwegian Business and Industry
Professor Jan Tøssebro, Department of Social Work and Health Science, Norwegian University of Science and Technology.
3.2 Value platform and objective. Interpretation of protection against discrimination
Background and values
The value-related point of departure for the work of the Committee is that all people are equal and have the same human worth. Human worth is the same regardless of biological, social and cultural factors such as gender, ethnicity and disability. Disabilities are a natural expression of human diversity. All people are vulnerable to changes resulting from age, sickness and other circumstances. Most people will experience changes in ability in different phases of life.
The principle of human equality constitutes a basis for human rights. This principle is the source of rules concerning the right to equal treatment and prohibition against discrimination. Such rules are rooted in a number of binding human rights conventions.
The principle of human equality is also fundamental to our democratic welfare society. The concept of democracy is based on the assumption that all people are equal. The solidarity concept of the welfare society can also be seen as rooted in the principle of equality. A primary political objective consistent with this involves ensuring “full equality and active participation” for persons with disabilities. Other stated primary objectives are associated with improved accessibility, a focus on individual needs in connection with services, inclusive working conditions and economic and social security. In the view of the Committee, all of these objectives can be derived from the equality principle and the goal of full equality and active participation.
The report of the Manneråk Committee, Official Norwegian Report 2001: 22 From User to Citizen, documents and describes how people with disabilities meet obstacles created by society that limit their potential for equal participation in the community. This shows that the stated political objectives and values associated with disability and persons with disabilities are not in practice satisfactorily reflected. There is a gap between the ultimate standard and the reality. A broad political consensus concerning this view resulted in the appointment of the legislative committee. The Committee’s terms of reference are confined to legal measures, but the Committee has also drawn attention to certain other means of closing the gap referred to above. Legislation alone is not capable of ensuring equality for persons with disabilities. Changes of attitudes and ways of thinking are important instruments for ensuring that due regard for persons with disabilities is taken into account in specific decisions. Financial incentives and other positively directed measures might furthermore be capable of furthering the objective. The Committee has nevertheless, in accordance with the terms of reference, given priority to the task of drafting legislation that can help to ensure such equality, primarily by preventing discrimination and promoting accessibility.
Understanding of the term “disability”
During the last decade, there has been a shift in perspective in the understanding of the term “disability”. The traditional view has been that disability is a quality of the individual. This view is based on a medical understanding of disability, where a disability is regarded as the result of individual biological factors associated with sickness, injury or physical defects. According to this view, disability should be responded to with medical treatment and rehabilitation in order, if possible, to “correct” the problem experienced by the individual. This view has long been the object of considerable criticism, particularly with regard to its failure to take into account the possible decisive significance of the environment for whether biological factors result in disability. The structure of society and the specific situation are decisive for the extent to which an individual regards himself or herself as disabled. Just as a wheelchair user is less disabled in an environment without stairs, a blind person is not disabled when using a telephone. Thus, disability is not only associated with individual qualities and biological factors, but also to a greater or lesser extent with the situation and the environment.
In other words, disability is not a quality, but a factor or a situation that may be brought about in an individual’s meeting with society. The Committee subscribes to the essential features of this understanding of disability. The World Health Organization has prepared a classification, International Classification of Functioning, Disability and Health (ICF), that is intended to serve as an analysis tool for both treatment and research and for shaping policy. The work of the ICF is based on a view of disability as a complex phenomenon that can be explained neither by means of a purely medical model nor by means of a purely social model based on a view of disability solely as a socially created problem:
“Disability is a complex phenomena that is both a problem at the level of a person’s body, and a complex and primarily social phenomena. Disability is always an interaction between features of the person and features of the overall context in which the person lives, but some aspects of disability are almost entirely internal to the person, while another aspect is almost entirely external.”
In the view of the Committee, it is important to point out that the relations between the three elements of the ICF’s definition; impairments, activity limitations and participation restrictions are not always equally clear. Disability need not result in limitations, either in activity or participation, and conversely, participation restrictions may even occur for individuals without disabilities.
Although the Committee subscribes to a relational or social understanding of disability, the Committee finds it difficult to apply such a definition in the legislation. This is primarily owing to the extent to which the concept incorporates consequences while the legislation is precisely designed to combat these consequences. The Committee has therefore adopted disability as the key term. Disability denotes qualities associated with the individual, cf. the more precise explanation of the protected ground in the introduction to the draft statute. At the same time, the Committee does not wish to reserve protection against discrimination for persons who have a disability, but rather to provide protection against discrimination on the basis of disability. Rather than defining a protected group of persons, the Committee wished to define a protected ground. It thus makes no difference whether a discriminated person has a disability or whether he or she has been discriminated against on the basis of an assumed disability or because he or she has a child with a disability. The focus shall be on the discriminatory act. The Committee has also attached importance to protection against discrimination on the basis of former disability, assumptions concerning future disability and the disability of other persons (e.g. a spouse or child). This is laid down in section 4 of the proposed statute.
Understanding of the term “discrimination”
Both legislation and legal theory operate with the terms direct and indirect discrimination. Discrimination that is associated with explicit different treatment is referred to as direct discrimination. Cases where neutral or formally equal treatment results in discriminatory different treatment are referred to as indirect discrimination. The most important factor involved in this distinction is that differences in result are also included in the discrimination concept.
As regards protection against discrimination, it is required that the different treatment is of a negative character . This differentiates discrimination from positive discrimination, i.e. different treatment designed to compensate for the fact that specific groups have a weaker social status than others. In order to be characterized as discrimination, the different treatment must lack a just cause and/or have a disproportionate negative consequence . According to generally accepted morals and major human rights conventions, certain individual factors do not constitute a just cause for different treatment, e.g. gender, skin colour, sexual orientation, etc. Disability is also an individual factor that does not constitute a just cause for different treatment. It is nevertheless important to point out that certain forms of different treatment on the basis of individual characteristics such as disability must be accepted. For example, blind people would be excluded from taking up employment that requires driving a car.
However, even when different treatment is justified on objective grounds, it may be found to be discriminatory if there is disproportionality between ends and means, between the objective consideration on which the different treatment is based and the negative consequence of the different treatment for the affected parties. What constitutes a just cause and what constitutes disproportionality in any individual case will depend on the specific circumstances and how the specific limits of the discrimination concept are defined.
Prohibition against discrimination is often followed up by prohibition against harassment, prohibition against instructions and prohibition against reprisal against persons who institute legal proceedings for discrimination. This also applies to the statute proposed by the Committee. The delimitation of the discrimination concept applied in the legislation does not necessarily conform to an individual’s subjective experience of discrimination or harassment. In the proposed statute, the Committee therefore uses the term discrimination to denote the illegitimate and unlawful form of different treatment.
3.3 The working procedure of the Committee and descriptive chapters of the report
The legislative committee has functioned from December 2002 to April 2005, and has held a total of 20 meetings. Of these, 10 have had a duration of two or three days. The Committee has held meetings with state institutions and with private organizations and groups involved in efforts towards improved protection against discrimination for other “vulnerable groups” on the basis of sexual orientation, ethnic origin, religious considerations or gender. The Committee has held several national, and one international, seminars where corresponding issues have been raised, in addition to an open hearing for any persons and organizations that wished to contribute.
During the course of its work, the Committee has obtained an overview of and presented relevant current Norwegian legislation, ties in relation to international commitments and legislation of other countries.
The greater part of the legislation relating to persons with disabilities concerns social assistance or individual rights intended to have a “compensatory” function. Prohibition against discrimination has not been included in this legislation, but the legislation has nevertheless afforded a certain protection in some areas.
Nor has protection against discrimination in other areas played a major role in Norwegian legislation, but there have been changes here in recent years. In parallel with the work of the Committee, the Government and the Storting have drafted and adopted a new Act relating to prohibition of discrimination on the basis of ethnicity, national origin, ancestry, skin colour, language, religion and ethical orientation (Discrimination Act) in addition to a separate Act relating to a joint enforcement apparatus for discrimination matters (the Equality and Anti-Discrimination Ombud Act). These Acts were adopted in April 2005 and the Ministries’ proposals were therefore important documents for the Committee’s considerations. This legislation supplements Act No. 45 of 9 June 1978 relating to equal status between the sexes (Gender Equality Act), which prohibits discrimination on the basis of gender. The legislative committee has wished to harmonize its proposals with the remainder of Norwegian discrimination legislation in order to prevent fragmentation of protection against discrimination. This applies to terminology, understanding of the discrimination concept and various enforcement issues.
Pursuant to its terms of reference, the Committee shall ensure that Norwegian law complies with Norway’s international law and human rights obligations. These can be inferred from binding conventions that have precedence over Norwegian national legislation. This applies to the United Nations Covenant on Civil and Political Rights (1966), the United Nations Covenant on Economic, Social and Cultural Rights (1966) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR, 1950). In addition, both the United Nations and the Council of Europe have issued a number of recommendations and guidelines with which Norway should comply when drafting and applying national legislation. The most important “soft law” implemented in this area is the UN’s “Standard Rules on the Equalization of Opportunities for Persons with Disabilities” from 1993. The Committee’s chairman and secretary have on two occasions participated as advisers to Norway’s UN delegation in connection with the current negotiations concerning a new United Nations convention on equal rights for persons with disabilities.
EEA cooperation also entails certain obligations for Norway. Norway is hardly obliged to comply with EU legislation in this area, but it is nevertheless regarded as desirable to do so. In the area of employment, the EU has adopted Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (framework directive) and, pursuant to EU Council Directive 2000/43/EC of 29 June 2000, member states are obliged to adopt the principle of equal treatment between persons irrespective of racial or ethnic origin. In addition, a number of political steering documents have been issued as part of the EU’s anti-discrimination work. Furthermore, the EU has adopted a number of directives and regulations that place requirements on accessibility, particularly in relation to means of transport, and several such requirements are currently being prepared. Rules have also been issued that provide for a greater emphasis on universal design and other social considerations in connection with public procurements through EU Council Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, and EU Council Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts. Work on implementation of these directives in Norwegian statutes and regulations is in hand.
Other countries have had legislation for a number of years designed to ensure equal treatment of, and improved accessibility for, persons with disabilities. The members of the Committee have therefore conducted a number of study visits to consider other countries’ protection against discrimination, and their experience and assessments. The Committee has visited Australia, Canada, the UK, Finland, Ireland, Sweden and the USA. Investigation of other countries’ legislation and enforcement of such legislation has been important for the Committee, since the Committee’s proposed statute must be viewed as a form of second or third generation discrimination legislation in relation to persons with disabilities. During the visits, the Committee visited representatives of public authorities, interest organizations and critical legal institutions. In this way, the Committee has gained not only an insight into the legislation, but also an understanding of how the legal provisions function in practice.
3.4 The Committee’s general considerations
Shift in perspective from welfare approach to human rights approach
During the last 20 years there has been a shift in perspective in relation to persons with disabilities at both national and international levels. In international terms, the approach has been characterized by charity or care thinking. The legal position of persons with disabilities has been regarded as a welfare issue, not as a question of human rights. Consequently, “disability” is not specifically referred to as a ground for discrimination in the UN human rights covenants of 1966, or in the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. However, in recent years, there have been signs of a change in perspective, cf. the “UN Standard Rules” of 1993, referred to above. Furthermore, the United Nations has started work on a binding convention on equal rights for persons with disabilities. (The working title of the convention is Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities.) The human rights approach is a clear precondition for this work.
The cause of this shift in perspective is associated with the changed understanding of disability from a traditional biological/medical approach involving an emphasis on qualities of the individual to a relational approach, where disability is understood to be a consequence of society’s lack of accommodation to the diversity of the population. The relational understanding emphasizes that all persons, regardless of disability, are equal citizens. Society must therefore adapt to the variation in the requirements of its citizens. Only such an understanding can ensure that everyone is able to take part in society on an equal footing. The Committee’s proposed statute will contribute to laying down this changed understanding in binding rules of law.
Various forms of protection against discrimination
Figur 3.1
Protection against discrimination manifests itself in different ways in different countries. Protection against discrimination can be laid down in a number of types of legislation. Regulation can be laid down in the Constitution or in ordinary legislation. In ordinary legislation, it is possible to establish protection against discrimination in both criminal and civil law. Protection against discrimination may furthermore be given differing extent, dependent upon the grounds for discrimination and the social sectors affected.
The Committee’s recommendation is that the primary protection should be provided in civil legislation, on a par with legislation that protects against discrimination on the basis of gender and ethnicity, religion, etc. In the view of the Committee, civil legislation has definite advantages over purely constitutional protection or a primary emphasis on protection afforded by criminal law.
There are several possible approaches to providing protection via civil law dependent upon which social sectors and grounds for discrimination the regulation applies to. In the countries the Committee has studied, protection against discrimination is marked by various approaches. Grounds for discrimination and social sector appear to constitute two main dividing lines, and these may be combined in different ways:
Legislation in category A is characterized by general application of protection against discrimination to most areas of society and is common to several grounds for discrimination. Such legislation is characterized by a human rights approach. The more areas of society and grounds for discrimination included, the more pronounced is the universal character of protection against discrimination. Protection against discrimination in major human rights covenants is formulated in this way, e.g. article 26 of the Covenant on Civil and Political Rights, article 14 of the European Convention for the Protection of Human Rights and article 1 of protocol No. 12 of the Convention. A particular characteristic of the provisions of the convention is that the grounds for discrimination are not stated exhaustively. In countries that have a constitutional prohibition against discrimination, it is usual that this includes several grounds and applies in general to all areas of society. However, constitutional regulation normally only places limits on the public authorities and not on private parties. Finland, Sweden and Canada all have prohibition against discrimination in their constitutions. In Canada, protection against discrimination at the statutory level is formulated as general “human rights” legislation. Ireland’s legislation is common to a number of grounds for discrimination and covers in total most areas of society. In Australia, several grounds for discrimination are covered by the same statute at the state level. Apart from the incorporated provisions of the Convention, there are no examples of such legislation in Norway.
The legislation in category B is characterized by the general application of protection against discrimination to most areas of society but is limited to protection in relation to a single ground of discrimination or a number of closely related grounds. The approach is based on group rights . Historically, such legislation often comes into being when a group has long been oppressed or discriminated against. After attaining a degree of strength, such groups take up the fight for better legal protection of the group. In many countries, this approach is associated with the fight for civil rights. The Norwegian Gender Equality Act belongs to category B. The Act was adopted as a result of a focus on oppression of women and the fight for women’s rights. The new Act (from 2005) against discrimination on the basis of ethnicity, religion, etc. (Discrimination Act) is correspondingly general, applies to most areas of society and a limited ground for discrimination. This Committee has primarily been assigned the task of assessing legal protection against discrimination of persons with disabilities, which is also based on a group approach. Viewed as a whole, it can therefore be established that the group approach is predominant in Norway. In other countries too there are a number of examples of legislation against discrimination on the basis of disability that fall into category B. In the USA, the UK and at the federal level in Australia, separate statutes protect against discrimination on the basis of disability, while other statutes provide protection against discrimination on the basis of gender and ethnicity. Such a broad group approach is clearly similar to the approach that has been adopted in Norway. The same approach also underlies the UN Convention on the Elimination of all Forms of Discrimination against Women, the UN Convention on the Elimination of All Forms of Racial Discrimination and the ongoing work in the UN on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities. The EU Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin falls likewise into category B.
The legislation in category C provides protection against discrimination on several grounds while applying to a limited area of society . The legislation is based on the assumption that protection against discrimination is only needed in a single specific area of society. In European countries, anti-discrimination legislation is often initiated by the EU. The EU Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (framework directive) is legislation in category C since it requires prohibition against discrimination on several grounds, but only within the area of employment. In several EU member states, neither arguments concerning human rights nor the fight for group rights have played a decisive role at the national level. The legislation has been adopted as a result of the requirements laid down in the Directive. The framework directive is a minimal directive that allows for national legislation applying to several areas of society and several grounds for discrimination. Most countries have mainly confined themselves to implementing the requirements of the framework directive and have consequently adopted legislation in category C. This applies for example to Sweden and Finland. In Sweden, there are also examples of legislation in category C that were not initiated by the EU. In Finland, the general constitutional protection (category A) is supplemented by a civil Act based on the area of society-approach which implements the framework directive. Norway too has implemented the framework directive. In accordance with the directive, new equal treatment chapters have been adopted in the Working Environment Act, and thus legislation in category C. This regulation will give way to the generally applicable Acts against discrimination on the basis of gender and ethnicity, religion, etc., which will include the area of employment. The provisions of the Working Environment Act thus function purely as referring provisions in matters concerning such discrimination.
Legislation in category D includes protection against discrimination for a single ground for discrimination in addition to applying to a limited social sector. In some countries, several such Acts coexist as an arbitrary result of solving specific problems by means of legislation with a narrow scope. Such an approach can be characterized as fragmentary , and is adopted on an ad hoc basis when different groups are found to be discriminated against in specific areas of society. Prohibition against discrimination in the Norwegian housing legislation, which provides protection on the housing market against discrimination on the basis of homosexual orientation, has such a fragmentary character.
The Committee’s general recommendations: separate or joint Act?
In its deliberations, the Committee has taken as its point of departure that protection should include all areas of society where persons with disabilities risk discrimination. The Committee takes the view that the human rights approach (category A) is, in principle, to be preferred. Equal ranking of the various grounds for discrimination will result in a considerable signal effect. This applies particularly to the forms of discrimination that the general public are less preoccupied with. Inadequate accessibility for persons with disabilities may be such a form of discrimination.
Joint regulation further prevents some groups from more or less arbitrarily enjoying stronger protection than others, and prevents one or more areas of society from more or less arbitrarily being perceived as more important than others. An Act that covers such a broad range of grounds will focus on the discrimination itself rather than on the delimitation or definition of the ground for discrimination. Joint regulation will moreover be appropriate where discrimination can be associated with several grounds (multiple discrimination) and where it is not clear what grounds the discrimination can be associated with. The Committee would also point out that countries such as Canada, Ireland and Australia report positive experience with legislation covering a broad range of broadly defined grounds. On this basis, the Committee holds the view that a joint, general anti-discrimination Act (category A) would in principle be the best way of providing citizens with general protection against discrimination, both on the basis of disability and on other bases. Proposal of such a general Act did not lie within the framework of the Committee’s terms of reference, and the Committee was not sufficiently broadly composed to be able to judge what grounds and what areas of society should be covered by a generally applicable Act.
The Committee’s proposal for a separate Act against discrimination on the basis of disability involves a parallel to the remaining Norwegian anti-discrimination legislation (category B). Since it has now (2005) been decided that the enforcement of anti-discrimination legislation shall be gathered in a single joint body authorized by a separate Act, this will prevent fragmentation of protection against discrimination. It will also be easier to provide for the Committee’s focus on accessibility issues in the form of clear proposals laid down in a separate Act relating to prohibition against discrimination on the basis of disability. While discrimination on the basis of, for example, gender and ethnicity in many cases originates in attitudes, exclusion of persons with disabilities is often the result of inadequate accessibility caused by physical obstacles and other barriers.
The conclusion of the Committee has therefore been to propose a separate Act against discrimination on the basis of disability. At the same time, the Committee recommends that the Government as soon as possible appoints a separate legislative committee to consider the desirability of a single joint Act against discrimination in Norway and, if appropriate, to propose the drafting of such an Act. Such a committee should also be able to consider existing differences in protection against discrimination across various grounds and also whether protection against discrimination should be given constitutional protection by means of a separate provision in the Constitution.
3.5 The Committee’s proposed statute
Act relating to prohibition against discrimination on the basis of disability
The Committee has proposed a separate Act relating to prohibition against discrimination on the basis of disability (Discrimination and Accessibility Act) . The main emphasis is placed on a prohibition against direct and indirect discrimination. This prohibition against discrimination is, like prohibition against discrimination on other bases in Norwegian law, supplemented by a prohibition against harassment, a prohibition against instructions regarding discrimination and prohibition against reprisal against persons who institute legal proceedings concerning discrimination. It is also prohibited to be an accessory to any form of discrimination. These provisions are laid down in sections 3 to 7 of the proposed Act. Different treatment that is necessary in order to achieve a just cause and which does not involve disproportionate intervention in relation to the person or persons so treated is not regarded as discrimination pursuant to the proposed Act.
When interpreting the prohibition against discrimination, the purpose provision in section 1, first paragraph, will have significance as an interpretive factor. This is worded as follows: “The purpose of the Act is to ensure equality and promote equal opportunities for social participation for all persons regardless of functional ability and to prevent discrimination on the basis of disability.”
In section 2 it is laid down that the Act “shall apply in all areas of society with the exception of family life and other circumstances of a personal nature”.
In order to ensure fulfilment of the purposes of the Act, “public authorities and organizations of employers and employees”, as well as “employers in the public and private sectors” are subject to specific activity obligations. This is provided in section 3.
On the basis of the wish for a broadly defined ground for discrimination, it is laid down in section 4 (Prohibition against discrimination) that the prohibition “applies to discrimination on the basis of present disability, past disability, possible future disability or assumed disability as well as discrimination on the basis of other persons’ disability”. No exception has been made for any specific diseases or conditions.
In section 8 it is laid down that the prohibition against discrimination shall not apply to positive discrimination that helps to promote the purpose of the Act, but such discrimination shall cease when the purpose of it has been achieved.
In the event of breaches of the anti-discrimination provisions, the new bodies that shall have responsibility for monitoring compliance with all discrimination legislation in Norway will be the Equality and Anti-Discrimination Ombud and the Equality and Anti-Discrimination Tribunal . This apparatus will be assigned both a proactive role and an enforcement function. As a general rule, the Ombud has the right to state opinions but does not have decision-making powers, whereas the Tribunal has decision-making powers including the right to issue an order to stop, rectify, etc. Compensation for breaches of the Discrimination and Accessibility Act may only be granted by the ordinary courts. No threats of punishment have been proposed in connection with breaches of the provisions of the Act since the Committee considers that civil law, with civil law requirements as regards assessment of evidence and consideration of guilt, will constitute more effective legislation than placing breaches of the Act in the domain of criminal law with its special rules regarding burden of proof and criterion of guilt, which would then necessarily apply. When assessing whether or not discrimination has taken place pursuant to the provisions of the Act, it is proposed in section 12 that a special burden of proof provision shall apply. This provision states that “if there are any circumstances that give reason to believe that there has been a breach of any of the provisions”, such a breach shall be assumed to have taken place “unless the person responsible for the act, omission or remark produces evidence showing that no such breach has taken place”.
The Committee’s recommendations concerning improved accessibility
As mentioned above, it can be inferred from the protection against discrimination laid down in international human rights covenants that inadequate accommodation in certain situations may be discriminatory. All foreign legislation studied by the Committee includes special rules concerning accommodation in relation to persons with disabilities. The accommodation requirement is characterized as an obligation to ensure “reasonable accommodation”, “reasonable adjustments” or similar wording. The principle of reasonable accommodation is also included in the EU framework directive. The provisions have in common, firstly, that the obligation may only apply to the reasonable accommodation. Secondly, the obligation does not apply to accommodation that will entail a disproportionate burden for the person or body subject to the Act. The disproportionality limitation entails that accommodation constituting an “undue burden” or “undue hardship” may not be demanded. The content and extent of the obligation varies otherwise from country to country.
The Committee has proposed special accommodation obligations in its proposed statute, which is also the background for the main title of the report “Equality and Accessibility” and the choice of short title of the Act (Discrimination and Accessibility Act). In preparing the accommodation obligations, the Committee considered whether “universal design” could be used as a legal standard when specifying detailed requirements regarding accessibility to buildings, constructions, developed outdoor areas, ICT, means of transport, etc. The Committee has commissioned a legal opinion that elucidates various legal issues regarding the use of such a standard in legal texts, and this showed that such an approach is possible. Universal design will ensure accessibility for persons with disabilities and, in addition, benefit many persons regardless of an assessment of their ability. Improved accessibility and universal design will, for example, have importance for pregnant women, parents of young children with and without perambulators, persons with temporary disabilities and persons who, owing to advanced age, have reduced mobility, weak eyesight, hearing or sense of direction.
The Committee has proposed that such accessibility requirements be laid down in three separate provisions. In section 9, public undertakings and private undertakings that offer goods and services to the general public are required to make active and targeted efforts regarding general accommodation (universal design). By universal design is meant “design or accommodation of the main solution as regards the physical conditions so that the normal function of the undertaking can be used by as many people as possible”. Public undertakings and private undertakings that offer goods and services to the general public are furthermore obliged to ensure that universal design is applied to the normal functions of the undertaking provided this does not entail an undue burden for the undertaking. When assessing whether the design or accommodation entails an undue burden, particular importance shall be attached to the necessary costs associated with the accommodation, the undertaking’s resources, the consequences of the accommodation in dismantling disabling barriers, whether the normal function of the undertaking has a public character, safety considerations and the consideration of cultural heritage. Breach of the obligation to ensure the application of universal design pursuant to the third paragraph is regarded as discrimination if a person with a disability is adversely affected by the inadequate accommodation. It is not regarded as discrimination if the undertaking meets specific provisions laid down in statutes or regulations concerning the obligation to implement universal design.
In section 10, obligations regarding individual accommodation within reason are imposed in four situations on the basis that such accommodation is most appropriate in relations involving a special responsibility regarding the person with a disability, that the relation has a permanent character and that the arena concerned constitutes an essential part of the life of the individual . Persons subject to the Act are, respectively, employers (in order to ensure that employees or job applicants with disabilities are able to take up or continue employment, have access to training and other forms of competence development as well as perform work and have a potential for progress in their work on an equal footing with other employees), schools and other educational institutions (in order to ensure that pupils or students with disabilities are given equal opportunities for education and training), and municipal authorities (firstly, in order to ensure that pre-school children with disabilities are given equal opportunities for development and activity, and, secondly, to ensure accessibility to day centres, respite care facilities, etc. of a permanent nature and are particularly designed for persons with disabilities). Here too, it is proposed that the obligation does not include accommodation entailing an undue burden. Breaches of the obligation to individually accommodate within reason, pursuant to section 10, shall be regarded as discrimination.
In cases involving breaches of the accommodation obligations pursuant to sections 9 and 10, compensation shall not be the normal reaction. Accessibility will only be improved if the Equality and Anti-Discrimination Tribunal uses its decision-making powers to order stoppage, rectification, etc. This is made clear in the proposed statute.
The Committee assumes that section 11 contains the most controversial proposals. Here are laid down clear obligations that “buildings, constructions and developed outdoor areas intended for the use of the general public” shall be subject to universal design from specified dates. These dates are not the same for new and existing buildings, etc. The Committee has assessed that the proposed statute can be adopted and enter into force on 1 January 2007 at the earliest. The date for enforcement in relation to new buildings, etc. has therefore been set to 1 January 2009. Buildings, etc. erected or completed following major alterations (general renovation) and that are designed for the use of the general public shall, after this date, be subject to universal design. In the case of buildings, constructions and developed outdoor areas completed prior to this date and intended for the use of the general public, the requirement regarding universal design commences on 1 January 2019. This will involve an obligation to make necessary alterations before the final date for compliance with the obligation unless major alterations are carried out before this date. The Committee has proposed that the ordinary planning and building authorities shall have responsibility for ensuring that the requirements of the first and second paragraphs are observed by processing plans and applications for planning permission pursuant to the Planning and Building Act. During its work, the Committee has had necessary contact with the Committee preparing a new Building and Planning Act, which is due to submit its findings in 2005. The Committee regards it as desirable that corresponding obligations are laid down in this Act, which is the main legal instrument for the ordinary planning and building authorities. It provides for restrictive granting of dispensations when there are important conservation considerations or other special considerations (safety regulations, and escape routes in the event of fire, etc.). Dispensations from the planning and building authorities may be brought before the Equality and Anti-Discrimination Tribunal by representative organizations for persons with disabilities, see section 14. The state planning and building authority can institute legal proceedings regarding the validity of such a revocation decision.
In the view of the Committee, the remaining proposals of the Discrimination and Accessibility Act will entail negligible costs, which will be outweighed by the socio-economic benefit of reduced discrimination. The Committee has commissioned estimates of the potential cost of the proposals in section 11. The estimates from ECON Analyse are based on an assessment of the following questions: a) What proportion of the buildings is “intended for the use of the general public”; b) What proportion of the buildings is already subject to universal design?; c) What are the additional costs (e.g. per unit area) associated with universal design for new buildings?; d) What is the cost of adapting existing buildings?; e) How will the efficiency of area utilization in buildings be affected by universal design requirements?; and f) To what extent will owners and tenants adapt the use of buildings so that they can reduce the parts of the buildings subject to the new requirements? The estimates are uncertain, but they indicate that costs associated with universal accessibility requirements in new buildings from 2009 and in existing buildings from 2019 will total approximately Euro 4.4 billion over the period 2005–2025 (calculated at present values). This corresponds to an average annual cost of approximately Euro 220 million, or approximately 0.1 per cent of Norway’s gross domestic product. By way of information, Norway has a population of 4.6 million people.
The Committee’s recommendations beyond the scope of the Discrimination and Accessibility Act
In the view of the Committee, equality for certain persons with disabilities will not in practice be adequately ensured by protection against discrimination and requirements regarding improved accessibility in accordance with the proposed statute of the legislative committee. This applies, inter alia, to persons with severe cognitive disabilities and disabilities particularly involving dependence upon continuous assistance from other persons, for example deaf-blindness. This will only to a small extent be alleviated by an obligation to ensure physical accommodation. The Committee has therefore proposed certain amendments to the Social Services Act in order to strengthen the equality of this group as a supplement to the Discrimination and Accessibility Act. This applies to the service “user-managed personal assistance” (BPA), which it is proposed shall in future include the possibility of “personal assistance”. Furthermore, “municipal day centres” for persons unable to obtain or retain employment including permanent sheltered employment owing to severe disability should be a new obligatory social service.
In order to ensure that accessibility remains a major priority in all contemplations concerning planning and alterations to buildings, the Committee has proposed that the purpose provision of the generally applicable Planning and Building Act be amended in such a way that the principle of universal design and due regard for accessibility for persons with disabilities are clearly specified as important considerations affecting all measures pursuant to the Act.
3.6 Further work on a Discrimination and Accessibility Act
The Committee will submit its report to the Minister of Justice on 18 May 2005. The recommendations will then be circulated for comments to all affected bodies, and the Government will then, on the basis of comments received, consider whether or not a bill should be drafted in accordance with the Committee’s recommendations. The bill itself will, in such event, be drafted by the competent ministry and submitted by the Government to the Storting in the form of a Proposition to the Odelsting.
In the above, it has not been mentioned that the Committee’s recommendations contain a number of dissenting views that reflect essential disagreements, and which are expected to be clarified by the consultation round. On the one hand, the Committee’s representatives from the Confederation of Norwegian Business and Industry and the Norwegian Association of Local and Regional Authorities wished only to a limited extent to impose increased costs on the public sector. This has resulted in reservations against the accessibility provisions of section 11 and against establishment by statute of new services in the Social Services Act.
On the other hand, three members of the Committee, including the two representatives from organizations representing persons with disabilities, held the view that, in certain areas, the Committee has not gone far enough, for example by not submitting proposals for universal design in ICT and accessibility requirements in relation to means of transport. In addition, a number of minor dissenting views arise from the wish of some representatives that the Penal Code be applied more actively against discriminatory acts. The Committee’s majority has, for its part, stressed that a civil law prohibition with sanctions enabled by a separate enforcement mechanism would be more suitable and more effective, both for preventing and for responding to discrimination.
The Committee was dissolved when its report was submitted to the Ministry of Justice. The Committee has not been assigned any tasks associated with the follow-up of this report. The report has been published as Official Norwegian Report 2005: 8, and is available on the Internet (http://odin.dep.no). It is also available in braille and as an audiobook. Orders for Official Norwegian Report 2005: 8 in its various formats can be addressed to: Avdeling for offentlige publikasjoner, P.O. Box 8134 Dep, NO-0033 Oslo, Norway.