Past Disabilities

HC Deb 31 October 1995 vol 265 cc109-18

Lords amendment: No. 1, after clause 1, to insert the following new clause— (".—(1) The provisions of this Part and Parts II and III apply in relation to a person who has had a disability as they apply in relation to a person who has that disability. (2) Those provisions are subject to the modifications made by Schedule (Past disabilities). (3) Any regulations or order made under this Act may include provision with respect to persons who have had a disability. (4) In any proceedings under Part II or Part III of this Act, the question whether a person had a disability at a particular time ("the relevant time") shall be determined, for the purposes of this section, as if the provisions of, or made under, this Act in force when the act complained of was done had been in force at the relevant time. (5) The relevant time may be a time before the passing of this Act.")

3.56 pm

The Minister for Social Security and Disabled People (Mr. Alistair Burt)

I beg to move, That this House doth agree with the Lords in the said amendment.

Madam Speaker

With this, it will be convenient to discuss also Lords amendments Nos. 2, 3, 67 to 70, 72, 74, 77, 79, 91, 97, 98, 113 to 123, 129 and 130.

Mr. Burt

This group of amendments relates primarily to part I of the Bill. The main changes involve extending the Bill's protection to cover people who have had a disability; putting human immune deficiency virus on the face of the Bill as an example of a progressive condition; introducing an additional power to make regulations stipulating effects on normal day-to-day activities which are to be treated as being, or, as the case may be, not being, substantial effects; and making the clause 2 guidance subject to the negative procedure. The remaining amendments are of a minor nature and are largely for clarification.

I shall speak to a couple of the more substantial amendments in the group, which will extend the provisions of the Bill to people with a past disability and honour a commitment made on Report on 22 May by my right hon. Friend the Secretary of State for Wales, who was then Minister for Social Security and Disabled People. He said that the Government accepted that the Bill should confer protection against discrimination on people who have had a disability that meets the Bill's definition.

Hon. Members will recall that the Bill did not initially protect people against discrimination related to a disability from which they had recovered to the extent that they no longer experienced a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

We were persuaded that people who have had a disability need the same degree of protection as will be available to disabled people. It is an important part of the recovery process to be able to participate in social activities and to engage in employment. Discrimination, which undermines recovery by blocking access to employment or services, would be particularly damaging.

Amendment No. 121 places on the face of the Bill infection by the human immunodeficiency virus as an example of a progressive condition. It has always been our policy that people who have such a condition will be protected by the Bill from the moment that it leads to an impairment that has any effect on that person's ability to carry out normal day-to-day activities, whether or not the effect is substantial. The examples included no viral conditions and the amendment has helped to correct that omission.

We have made it clear before that people with HIV will be covered by the Bill only if they meet all the requirements of schedule 1(7), that is, not until the first effect on normal day-to-day activities manifests itself. As the great majority of people with HIV infection are symptom-free, they would not be covered. HIV is a progressive condition and Lords amendment No. 121 gives it as a fourth example of such a condition.

Sir Michael Neubert (Romford)

I am indebted to my hon. Friend for drawing attention to the innovation embodied in Lords amendment No. 121 at a time when concern has been expressed in connection with another Bill. Could he estimate what the cost to the state will be as a result of the change?

Mr. Burt

The number of people expected to be brought under the Bill is negligible because the Bill, in its original form, was intended to cover people with progressive conditions anyway. The inclusion of HIV in the Bill has not changed the Bill's intentions towards progressive conditions or towards people who may have had HIV in any case. It uses HIV as an example of a viral condition and makes it clear that people can come under the terms of the Bill even if they have such a condition. The amendment only established that on the face of the Bill. Therefore, there is no extra cost.

Mr. Alfred Morris (Manchester, Wythenshawe)

The hon. Gentleman said that the cost of what is proposed is minimal. At what stage does he expect to be able to say anything about the total cost of the Bill as amended? Has he any idea of what the total cost of what the Government are proposing will be?

Mr. Burt

That is not really at issue. As the right hon. Gentleman knows, the total cost of the Bill will depend, to some extent, on the speed with which regulations are brought into effect. The main difference between the Bills offered by the Government and the Opposition has been that to introduce the Bill too rapidly would increase the costs to those who are going to be expected to provide goods and services in future. Our method of introducing the Bill over a period will mean that the costs will be reasonable for industry, while still matching the aspirations of disabled people.

Mr. Morris

I am grateful to the Minister, who, as always, was as helpful as was possible. I mentioned the total cost of what is proposed because such great play was made about the cost of my Bill—the Civil Rights (Disabled Persons) Bill. It was said repeatedly that that would cost £17 billion. If the Government felt able to make that costing, how long will it be before they can cost what is proposed in this much different Bill?

Mr. Burt

As I courteously said to the hon. Gentleman, the great difference between the costings—and the resistance from the Government to his Bill and to similar Bills—resulted from the fact that they lacked the flexibility of this Bill in terms of its regulation-making power to introduce matters within the remit of the Bill over a period of time. The problem with the hon. Gentleman's Bill and other Opposition Bills was that their requirement to introduce provisions at a very early stage substantially increased the costs to employers and business—by so much that it would have made life awkward.

Mr. Alan Howarth (Stratford-on-Avon)

With great respect to the hon. Gentleman, that is simply not correct. The Civil Rights (Disabled Persons) Bill envisaged that its provisions should be brought in over variable periods to be decided at the discretion of the relevant Secretary of State. There was a lot of Government propaganda that said that it all had to be done within five years at the staggering cost of £17 billion, but that was disinformation. The comparison that the Minister is seeking to make is wrong.

Mr. Burt

We have heard the arguments about the merits of the respective Bills many times. It was the considered view of Conservative Members—and this view prevailed—that the cost would be prohibitive because of the way in which the previous Bill was drawn. We do not need to go back over those arguments. We are dealing today with a series of amendments to this Bill—a Bill that will substantially advance the cause of disabled people. If we concentrate on that, the merits of the Bill, as it will be amended, will become clear.

Mr. Tom Clarke (Monklands, West)

I see much logic in the case that the Minister seeks to present on behalf of the Government, who have clearly changed their position. However, the House be unable to decide on these matters unless we know whether, by definition, those affected by the Bill accept the decision of the House of Lords on amendment No. 30. What is the Government's view on that amendment?

Mr. Burt

The hon. Gentleman knows our view on amendment No. 30 very well. We seek to overturn that amendment, as we have made plain from the moment that it was passed in the House of Lords.

Amendment No. 116 inserts into the Bill a power to make regulations stipulating effects on normal day-to-day activities, which are to be treated as being or not being substantial adverse effects. Hon. Members will be aware that the Bill defines "disability" as a physical or mental impairment that has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities.

We believe that businesses, disabled people, and courts and tribunals will, in the vast majority of cases, know who is and who is not protected by the Bill. However, experience may show that express provision is appropriate to clarify the position in relation to some conditions. This power enables that to be done without the need for further primary legislation. It complements other regulation-making powers covering other aspects of the definition that were in the Bill when it left this House. I therefore commend the amendment to the House.

Mr. Tom Clarke

This is the first of several occasions when I hope to catch your eye, Madam Speaker, to welcome the Government's climbdowns during the progress of the Bill. We have witnessed a series of concessions and U-turns, and the defeat in another place on a major principle. Ministers have been forced to recognise that the Bill which left this House seven months ago was simply not adequate to tackle disability discrimination. Nowhere is that clearer than in the area covered by the Lords amendments.

We argued day after day in Committee about the definition of disability. We argued that the protection offered by the law should not be confined by medical definitions of disability. We argued that protection should be extended to those likely to suffer discrimination because of a history of or reputation for disability. We also argued for protection for those likely to suffer discrimination on the grounds of future disability, not just those with conditions such as multiple sclerosis and muscular dystrophy but those infected with HIV.

Ministers resisted those arguments throughout the Committee stage, and the evidence exists. The right hon. Member for Richmond, Yorks (Mr. Hague) said in Committee that he did not think that we could justify to the country including in the Bill people who were thought to have HIV". He said that to do so would make the Bill too broad because it would include people who were not understood to be disabled in any generally accepted sense of the term".—[Official Report, Standing Committee E, 7 February 1995; c.83.] On protection from discrimination for those suffering from HIV, I am delighted that the Government have now given way. But notwithstanding their U-turns, we are bound to seek reassurances on the implementation of their commitment. We know from experience of the Act sponsored by my right hon. Friend the Member for Manchester, Wythenshawe (Mr. Morris) in 1970 and my Act in 1986 that Ministers cannot always be relied on to implement every aspect of existing disability legislation, so we must be sure that there is no reluctance on their part in this matter and that the law will be fully implemented to protect those to whom protection has been offered only at a relatively late stage.

We also welcome the addition of those with past disabilities, as contained in the amendments, subject to the same proviso that more needs to be said about implementation. With specific reference to the regulations and guidance, which define "substantial adverse effects", we seek Ministers' assurance that that phrase will be interpreted in a flexible way. Will Ministers assure us that the fluctuation in levels of the adverse effects suffered by many disabled people will be taken into account when the regulations are made?

Subject to those comments, we welcome the amendments. My only regret is that Ministers have not accepted that perceived disability should be considered at this stage and included in the Bill. I regret that, following my intervention, the Minister confirmed his decision.

Credit should be given where it is due. Many thousands of people will benefit from the Government's concession, made even at the eleventh hour. I congratulate all those representatives of organisations of disabled people and others who lobbied the House on a cold, uncomfortable day. What has been achieved is their success and their victory. In that spirit, I welcome what the Minister has said.

Mr. Alfred Morris

The Minister was not personally involved in the Committee, but he will know that we were repeatedly blocked in trying to include in the Bill what the amendments now propose. In particular, we discussed HIV at length, and of course we welcome the Government's belated conversion.

The Minister used the words "We were persuaded" to explain the Government's conversion. We accept that compliment, which justifies our stance in the debates today in supporting further changes to the Bill, as now drafted. That is not unreasonable when we recall that the Bill left the Commons in March. It was 44 pages long, but there are 47 pages of Lords amendments. They are amendments to a Bill that the Government were quite satisfied was well drafted before it left here. We hope that the few further improvements that we are seeking today will be readily granted against that background.

Mr. Neil Gerrard (Walthamstow)

I should like to discuss amendment No. 121, to which the Minister and my hon. Friend the Member for Monklands, West (Mr. Clarke) referred, which relates to the inclusion of progressive conditions and HIV in the Bill.

The Minister repeated the assurance given by his colleague in Committee that the Bill, as originally drafted, covered people with AIDS and symptomatic, but not asymptomatic, HIV. The recent concession by the Government is a welcome change of heart. I have always believed that it was important that the Bill should offer a clear recognition of the true medical significance of the progressive nature of HIV.

The concession will help to offset some of the hysteria that still surrounds discussion of the subject. That was evident earlier in the summer, when the press got hold of the story that the Government had agreed in another place to make the amendment. There was dreadful press coverage about that, in the Daily Mail in particular. As I recall, matters were not helped by certain Conservative Members.

It could be argued that it is of marginal importance whether something is dealt with in the Bill or in regulations, but it is not of marginal importance to those people with the HIV infection or those working with them. It is not a trivial matter. The Bill as amended still does not allow for the creation of a disability commission with teeth; instead, it relies on advisory councils. It is therefore important that as much as possible is spelt out in the Bill so that employers, providers of goods and services and those who may be discriminated against know that they are covered by its provisions.

I still believe that the Government's approach to the definition as it relates to asymptomatic HIV leaves something to be desired.

However, asymptomatic HIV is not covered by the Bill, and I continue to be unaware of any reason why the legislation will prevent employers who want to do so demanding pre-employment tests and, on the basis of those tests, discriminating against people who turn out to be HIV-positive but do not yet show symptoms. That is a remaining loophole, which I am afraid some employers will continue to use to bar some applicants.

As survival rates increase, as the efficiency of drug regimes to help people who have HIV infections improves, I can foresee that becoming more and more of a potential problem in future as long as that loophole remains.

4.15 pm

The fundamental flaw in the Bill, even with those welcome amendments, is that it continues to rely on medical models with a medical approach to disability, defining disability purely in terms of people's physical impairments. It says nothing about attitude. It says nothing about the physical and social arrangements that discriminate against people and build barriers against them. It says nothing about perceived disability. I am glad about the change of heart on a history of disability, but those flaws remain.

I believe that the Minister used the words "any impairment". Later, when he described some of the clauses in more detail, he made it clear that we were continuing to use the definition of "substantial and adverse impairment" and effects on day-to-day activities. I should be grateful if he would say something about the way in which he envisages the regulations being framed.

Undoubtedly, some people's conditions vary from time to time. That certainly applies to the issue that I have spent most of my time talking about—people who have HIV infections, who may sometimes be perfectly well for a time but who then will be quite ill for a time. There are people with sight impairment whose conditions are not constant and vary from time to time.

It would be interesting to hear from the Minister the way in which he envisages dealing with people with problems that vary in intensity, in the regulations that will put into effect the definition of substantial and adverse effects.

I welcome the improvements in the definition, which have been dragged out of the Government during the Bill's passage. It is a pity that the Government continue to resist the civil rights based approach and insist on the approach to definition that remains in the Bill. However, it is perhaps better than when we started.

Mr. Roger Berry (Kingswood)

In one sense, the group of amendments that we are discussing reflects the Government's whole approach to legislation.

On the one hand, there has obviously been movement. That group of amendments shows that the Government have moved significantly in relation to definition.

In Committee, we were told that it was necessary to have the narrowest possible definition, and that, if we were to include history of impairment in the category, it would open the floodgates and cause enormous problems. I am pleased to say that the Government have now recognised that they had to move to accept a broader definition of disability—just as I am delighted that the Government have moved from their position of 15 months ago, when they felt that no legislation at all was necessary on that subject.

Although movement is always welcome, the problem in relation to the definition of disability—as indeed for the legislation as a whole—is that, when the Government have moved, they have moved too little and too late.

It was always the case that, when the Government consulted on definition, their idea of definition had very little support. Several of us have referred, on occasions, to the red book—"Consultation on Government Measures to Tackle Discrimination Against Disabled People". I find that red book—the outcome of the Government's consultation exercise on the Bill—almost as interesting as the Red Book that the Chancellor places before the House every year.

One reason I find it so interesting is that it states that, of those who offered a view on the definition, only five supported the Government's original approach. The vast majority of people felt that a much broader definition was necessary. I welcome the fact that this group of amendments accepts that argument—we shall discuss amendment No. 30 later. I regret that the Government have not gone much further and taken a sensible approach.

A number of us have referred to the definition used in the Americans with Disabilities Act, which was used in the Rehabilitation Act 1973, and thus goes back 22 years in the United States. We have used that legislation to invoke the argument that we need to include those with a history of impairment as well as those perceived as having an impairment. Those two aspects are closely related, which is why I hope that I am not out of order in making my point.

The Government now accept that it should not be lawful to discriminate against someone with a history of impairment, if that is the reason for the discrimination. The Government accept that disabled people should be protected from unfair discrimination for that reason.

But let us suppose that an employer says, "This person has applied for a job with my company. This person has a history of mental illness, which is over—it is history—but that history suggests a finite probability that the illness might recur. If the illness recurs and I employ this person, I may have to make reasonable adjustments to the accommodation in order to allow him. Therefore, might it not be reasonable for me not to employ this individual?"

When we talk about a history of impairment, we are often talking about how an employer or service provider now perceives an individual. If a potential employee has a history of impairment, it affects the employer's perception of the future. Will the Minister clarify whether, when he accepts the idea that we should seek to prevent discrimination against people with a history of disability, he seeks to prevent discrimination against someone whose potential employer believes that his or her history may impose a burden on the company?

We must be clear about that. I am worried that, because the Government specifically wish to exclude the notion of discrimination on the grounds of someone's perception of a disability, they might—in the case that I have given—use that exclusion as a reason for not acting against discrimination on the grounds of history.

I hope that I have made my argument clearly. I have made my point as clearly as I can, but it is for other hon. Members to determine whether they understand it. I hope that the Minister will tackle that issue.

I welcome this group of amendments, although they have not gone far enough, which is why we shall have a debate on amendment No. 30. I want to ensure that the Minister's interpretation of history in the context of the amendments we are discussing will not create the problem that I have identified.

Mr. Alan Howarth

I simply want to ask a question of the Minister. When he uses the term "history", does he use it to refer exclusively to an individual person, or to a family history? I should be grateful if he will advise the House on whether his policy is intended to protect those born into families with a history of disability, such as genetically transmitted diseases. Would an individual be protected against discrimination by an employer or a provider of goods and services who is aware that that person may be in the pre-symptomatic phase of a genetically transmitted disease, for example?

Mr. Burt

rose—

Madam Speaker

Does the Minister have the leave of the House to speak again?

Hon. Members

Aye.

Mr. Burt

I turn first to the issue of HIV. The hon. Member for Walthamstow (Mr. Gerrard) was correct in saying that my predecessor looked at the issue very carefully. The position in relation to asymptomatic HIV remains the same: it is too broad to include in the legislation. I am grateful to the hon. Gentleman for welcoming the fact that the Bill now covers HIV when symptoms occur and impair.

It is quite important for the House to say that, no matter how conditions are contracted, where there is illness, disability and disease, it will act—as society would—with compassion. That strong statement must appear on the face of the Bill, and it is a central part of the argument. I think that the House would be following a very unhappy route if it were to try to distinguish how people are in certain circumstances—particularly in relation to health and illness—and to explore those circumstances in every case. We would have to open the net extremely wide, and I will have no truck with that.

The Bill recognises that all people who are affected by crippling diseases, however they have been contracted, will be treated in exactly the same way when they manifest symptoms. Everyone is in the same boat, no matter how a disease is contracted. It is important to clarify that point, and I hope that hon. Members will find it useful.

The hon. Gentleman also referred to flexibility, and I hope that I can reassure him and the House on that point. Hon. Members will be aware that the process of establishing the regulations involves extensive consultation before we issue guidance. We recognise that certain conditions fluctuate, and that substantial episodes may occur rarely, with large gaps between them. The regulations will be flexible enough to deal with the fact that substantial episodes may occur at some stage in the distant future.

Mr. Gerrard

Will the Minister clarify how the regulations will work in relation to the 12-month period that is mentioned in the Bill?

Mr. Burt

I think that there has been some confusion about the 12-month period. It does not mean that episodes must recur within 12 months; that is not the issue as far as I am concerned. The likelihood of an episode recurring, not the frequency of the recurrence, is the main factor.

A person will be regarded as disabled if it is likely that the substantial adverse effect will recur at least once after—not before—a period of 12 months from the first occurrence. If it is clear that an episode will recur, it will fall within the terms of the definition. I think that the hon. Gentleman will find the regulations flexible in that area. There has been a great deal of consultation to ensure that that is the case.

I think that I understood the hon. Member for Kingswood (Mr. Berry) pretty well. He seemed to be getting at exactly what we are getting at in terms of putting history on the face of the Bill. It is important that the Bill protects a person with a history of disability according to the Bill's definition, who may have recovered from that disability, but who may suffer a recurrence. From memory, I think that the circumstances that the hon. Gentleman described would be covered by the Bill.

I want, if I may, to scale down the gung-ho element in this debate. The House is grown-up enough to realise that the process of legislation involves hard debate, on Second Reading and in Committee, and in the Lords. There are times when the Government have to think extremely carefully, and are moved only after the passage of time. That is not the same as a climbdown or a U-turn: it has to do with the process of debate. The Government have to listen to the arguments, here and in another place; they have to deal with lobby groups and others; and if they take some time to produce amendments, that is because it is our duty to weigh these matters carefully. That is the proper process of government.

I therefore hope that, on subsequent amendments, we will not go through this little charade of suggesting that the Government have been ground down and overturned on every point. That is not how it works.

4.30 pm

Mr. Berry

Given the history of the fight for civil rights for disabled people, and the fact that, 15 months ago, the Government were opposed to any legislation, it would be nice if the Minister would now apologise to all the groups who were told 15 months ago that they had no right to protection of any kind.

Mr. Burt

We should also bear in mind the Government's history of passing legislation supporting disabled people, from 1979 onwards. We have a superb record, but it is rarely referred to by Opposition Members.

I said earlier that the Government had grave reservations about the costs—and everything else—involved in previous Bills on this subject. I am pleased to say that our Bill has moved the debate on. The Government are entitled to credit for that, just as all who have persuasively argued their case are entitled to credit for it.

Mr. Tom Clarke

As the Minister seems to be seeking absolution, should we agree to that until he has made a full confession? Will he answer one simple question: when tabling today's amendments, did he consult the right hon. Member for Chelsea (Sir N. Scott)?

Mr. Burt

My right hon. Friend is and will remain a firm friend, who has done a great deal for disabled people. I have no doubt that he would be in favour of the Bill and of all today's amendments. He remains a strong voice for disabled people in the United Kingdom.

My memory has now recovered somewhat in relation to the costs of the Bill, which temporarily slipped my mind when I was discussing the matter earlier. The original estimates of the costs of introducing this Bill are between £300 million and £1.2 billion. The range is so wide because of the timetable, but, as hon. Members will understand, this Bill costs much less than previous Bills—

Mr. Berry

rose—

Mr. Burt

I will give way to the hon. Gentleman for the last time. If I keep giving way, we will not be able to make progress.

Mr. Berry

We all want to make progress, but the Minister has just made a throwaway remark about the costs of previous Bills, clearly referring to the Civil Rights (Disabled Persons) Bill. May we hear again on the record that the Government's estimate of £17 billion was outrageous and wrong, and opposed by the all-party disablement group and by every organisation that looked objectively at the figures? It amounted to a smear on our Bill.

Now I am happy to make progress.

Mr. Burt

The hon. Gentleman seems to have got that off his chest. He can put it on the record if he wants to. The Government's view remains different from the hon. Gentleman's; that is why we have this Bill and not the hon. Gentleman's.

Question put and agreed to.

Lords amendments Nos. 2 and 3 agreed to.