§ '.—(1) The Secretary of State may make regulations to enable a provider of services under Part III of the 1995 Act to lodge an action plan with the Commission.
§ (2) An action plan may provide for changes to policies, practices or procedures or any other arrangements under Part III.
§ (3) An action plan shall comply with any requirements as to its form or its content as specified by the Commission.'.—[Mr. Boswell.]
§ Brought up, and read the First time.
4.39 pm§ Mr. Tim Boswell (Daventry)I beg to move, That the clause be read a Second time.
Before I speak to the new clause, I make it clear to the House that I am new to the responsibility of speaking on disability issues for my party. That will perhaps become apparent in a few moments. I take up that burden with some diffidence, but with a degree of satisfaction. It is important for all of us who have constituency and other experience of these issues to be aware of the importance of achieving their proper resolution—for the individuals concerned, and their families and carers, and in respect of setting the tone of society. We must show that we have a collective responsibility and a collective readiness to care for, protect, support and empower the people who may benefit from the Bill. It will be particularly appropriate to consider whether those who are not in a position to be articulate in their own interests might be able to use the commission to advance their rights.
On a personal note, I express my gratitude to my immediate boss, the shadow Secretary of State, my hon. Friend the Member for Maidenhead (Mrs. May), who previously assumed this burden and took the Bill through Committee. I also thank my hon. Friend the Member for Tiverton and Honiton (Mrs. Browning), who participated constructively in those debates. In the same vein, may I say how pleased I am to have the opportunity to debate this matter, on this and no doubt on subsequent occasions, with the Government team? I am glad to see on the Government Front Bench the Minister for Employment, Welfare to Work and Equal Opportunities and the Under-Secretary of State for Education and Employment, the hon. Member for Barking (Ms Hodge), who had to bear the burden of taking the Bill through Committee. She has had to think about the amendments and respond to them, and one could fairly say that she has done a good job. She has come back with a number of serious amendments, which we shall discuss in due course. They reflect the concerns expressed by my hon. Friends and others in Committee and offer a degree of tidying up as well.
Given the context, and the failure to achieve consensus in the past, but also given the real advances that successive Governments have made in this area, it is right that there has been some consensus on this matter. It is in 366 that spirit that we move our new clause. One might almost call it "Opposition lite", in the sense that it is the only new clause that we are moving. The selectors, in their wisdom, precluded consideration of one or two other matters, which may already have been touched on in Committee.
This provision would add a new element. I recognise that the Under-Secretary is in a difficult position because this comes right at the end of our consideration of the Bill and their Lordships have already dealt with the Bill. If she does not quite like what we have said, there is not much that we can do about it, but she may be able to reflect our thinking and that of the disability groups that contacted us. In that case, we will have supplied a draft and she can decide what to do about it.
The hon. Lady knows better than I do that clause 4 sets out how the commission may make a formal investigation and serve notices on individuals or legal persons to do something about the discrimination that has been found to be practised. That is a practical and sensible approach, because the clause suggests that
The notice may require the person concerned…to propose and finalise an adequate action plan (subject to an in accordance with Part III of schedule 3)…and…once that action plan is finalised, to take any action which…is specified in the plan; and which he has not already taken".I emphasise to the House that action can be taken only in the context of a complaint or an investigation that has shown a defect in the arrangements when someone has gone to the person concerned and said, in English, "What are you going to do about it?" That is reasonable enough.The new clause goes further and builds on the concept by looking at action that might be taken—occasionally, my classical training comes back into my mind—proleptically, which means ahead of being forced to do it, before a formal investigation. Hon. Members with Treasury experience will be familiar with the concept of taking an idea to the Inland Revenue and saying, "We are minded to do this; would you take note of it and advise us whether it is acceptable?" That is the background to our thinking.
We are not trying to subvert the concept of action plans. We want to build on the idea and extend it to cases in which the commission has made no formal request for action. The disability interests who have lobbied us have said that it would further assist service providers and disabled people if the commission were able to be proactive, helping with the development of action plans for organisations that it was not proceeding against for discrimination. Service providers who were genuinely trying to act responsibly and take account of the Act and who wanted to be sure that they were taking the reasonable steps required of them under part III might feel reassured if their action plan were endorsed—or run—by the commission, even if that does not in itself admit to an exemption. We are not trying to produce an elaborate means of hoodwinking the commission, drawing the wool over its eyes or doing a sweetheart deal. We are saying that it would be helpful for those with a problem to be able to explain to the commission in good faith how they would like to deal with it and ask the commission for a response.
We expect the commission to be heavily engaged initially. We are not saying that it should be required to take a role on action plans if it does not want to. It could 367 politely decline to comment. We recommend that the commission should be given the chance to develop that side of its activity without subsequent onerous primary legislation to make that possible. Equally, the commission must have the discretion to make provision for action plans that meet its requirement to be lodged with it.
The issue of precedent is bound to be raised at this point. It was suggested in Committee that action plans had no precedent in UK law. I remember at least the concept of action plans in relation to education. We were considering education action zones in the Education Act 1993. Local education authorities or schools were required to produce them. The idea is not new. My wife is not a speaker of Welsh, but the Welsh Language Act 1967 provides for mandatory action plans, called statutory schemes, for public authorities in Wales. There is also Australian legislation that provides for similar action plans, as well as the precedent, which I have cited before, of what the Inland Revenue can do.
Nobody wants to overload the new commission. Nobody wants it to be tricked into signing up to something that is unsatisfactory or second rate. We want to enable it to give advice in good faith about plans before push comes to shove in litigation or legal process. That is consistent with many of the points that the Conservatives have made on the Bill. The Government like to emphasise the importance of partnership, consensuality and trying to get things agreed rather than people taking what I might call narrow-minded, litigious attitudes, if that can be avoided.
I refreshed my memory about that in relation to the general functions of the commission and, if the hon. Lady cannot accept the new clause as drafted—if she can, of course, I shall be delighted—I would like her to say something about the possibility of the commission's at least considering giving assistance to service providers, as part of its general duties.
The commission is supposed
to work towards the elimination of discrimination … to promote equalisation of opportunitiesandto take such steps as it considers appropriate with a view to encouraging good practice in the treatment of disabled persons".Those are general obligations, but they might also be applicable to the particular case.In any event, we are anxious, and the new clause is an attempt to put down a marker that says, "Let us be as constructive and flexible as possible. Let us encourage people to think about their actions ahead of the event, before they are forced to." The result could be better-planned action taken in better time, and matters might be resolved before it is ever necessary to get involved in the rather messy—and, one hopes, infrequently used—business of enforcement.
I commend the new clause to the House, and I shall be interested in any comment made about it on either side of the House, as well as in the Minister's response.
§ Mr. Mark Oaten (Winchester)The concept of the action plan certainly has some appeal, but my concern about the new clause is that it would be in danger of adding to the several different tiers of action that the commission could take.
368 At present, there are three powers. The first, which we all welcome, is an education role, which involves going out and talking to organisations, working with them and trying to put good practice in place. The second, slightly tougher, power is the power to enter into written agreements. Perhaps we shall debate later whether those should be private or public. The commission can certainly say, "Something isn't right, and we need to put a written agreement in place to tie up some of the issues."
The third key area—the last resort—is the issuing of non-discrimination orders. My problem with the action plan is that it could cover any of those powers. I can envisage an action plan involving a management consultancy function, in which an organisation would want to get involved as part of its education work. Organisations could welcome the commission in and say, "Give us advice." In those circumstances, it is almost inconceivable that, by the very nature of its work, the commission would not come back with an action plan describing what the organisation should do. That would happen almost naturally, as part of the education process.
As for written agreements, I must ask: what will an agreement be about? Surely it has to be about what the organisation should do to put things right—the very point at which the action plan would, by default, apply. Thirdly, a non-discrimination order would also need to set out the reasons why it was being made, and why things needed to be put right.
Therefore, although I welcome the concept behind the new clause, I think that, by default, actions plans will be made at several stages anyway. Indeed, I would be extremely concerned if they were not, because that would make nonsense of the commission's existing procedures. On that basis, I do not support the Opposition's proposal, because it clouds the issue and would put in place a fourth tier and, because of the other powers already provided, that will not be necessary.
§ The Parliamentary Under-Secretary of State for Education and Employment (Ms Margaret Hodge)I welcome the hon. Member for Daventry (Mr. Boswell) to his Opposition Front-Bench position. I look forward to working with him on a whole range of issues involving people with disabilities, and I hope that there can be unanimous agreement across the Floor of the House on many of the issues that we face and the policies that we shall try to develop.
I hope that, having read our proceedings in Committee, the hon. Gentleman will recognise that we tried to respond to amendments and incorporate them if they improved the Bill. I hope that he will listen to my reasoning on the new clause and withdraw the motion.
I am sad that the hon. Member for Maidenhead (Mrs. May) has left. I have certainly enjoyed working with her on these issues. I first met her when she stood against me in Barking. At that time she was Essex girl, but now she represents the royal county of Berkshire. I do not know what effect that has had on her; I prefer to remain Essex girl, representing Barking.
§ Mr. BoswellIf the Minister cares to consult my CV, she will see that I was born in Brentwood. I am inextinguishably and indelibly Essex man.
§ Ms HodgeA combination of Essex man and Essex girl will do wonders for our proceedings.
369 I agree entirely that it makes sense for organisations to plan to meet their duties under all parts of the Disability Discrimination Act 1995, including part III, and that it often makes sense to prepare an action plan. Indeed, the disability rights task force—which I am currently chairing and which is examining what further amendments may be required in legislation and what further action needs to be taken to improve civil rights for people with disabilities—has considered the issue and come to the preliminary view that action plans should be voluntary, not compulsory, for the private sector.
I also agree that the commission may want to help organisations to develop action plans. The difference arises over whether it would be appropriate or whether there is a need to make provision for regulations in the Bill to allow that to occur.
§ Mr. BoswellThe Minister is being very helpful. Can she confirm that we do not need to make a special provision for the commission to be helpful to those who volunteer to prepare the plans, because the Bill as drafted provides for that?
§ Ms HodgeI was just about to say that. The commission can decide whether to produce guidance for service providers on the form and content that action plans might take, and there is nothing in the legislation that would prevent it from doing so. Indeed, I would imagine that the commission will find it appropriate to provide guidance for organisations seeking to fulfil their duties under part III of the 1995 Act. I hope that it will reassure the hon. Gentleman further to hear that there is nothing in the Bill to prevent a service provider from approaching the commission for advice on the development of an action plan.
I have some concerns about the new clause. I understand that the concept is drawn from the Australian legislation, which is quite distinct from ours. In Australia, the production of an action plan can lead to an exemption from specified provisions of the legislation for a specified period, as long as the service provider sticks to the plan.
Individual cases going to court in Australia are subject to a form of central control that is reminiscent of old Labour and is certainly not embodied in the Bill, which is why I wonder why the official Opposition are in favour of the new clause. A case can be taken to court only with the consent of the Human Rights and Equal Opportunities Commission in Australia. There are incentives in the Australian model to work with the commission to establish action plans.
If new clause 2 were agreed to and an action plan were in place, a disabled person could be prevented from taking action in the United Kingdom. If, for example, an organisation had adjusted the service that it provides, such as by providing signing, and a blind person entered the organisation's premises wanting to be taken somewhere, but the organisation refused to oblige, the individual could not take action against the organisation for failing to provide that additional service, which was necessary to exercise his or her rights, if there had been an action plan stating that signing provision was sufficient.
370 Therefore, in the United Kingdom context, an action plan could limit individuals' rights to service provision as provided by part III of the Disability Discrimination Act 1995.
§ 5 pm
§ As neither the United Kingdom's current system nor the Bill provides incentives, I wonder whether voluntary actions plans—under which the commission would have power to impose certain requirements—would work.
The hon. Member for Daventry also mentioned the impact of action plans on the business community. I have real concerns about whether the provisions of new clause 2 would undermine the business community's confidence in working with the commission. As he will know, in creating the commission's framework we have been determined to engender such confidence.
The idea that our Disability Rights Commission should impose or specify action although it has no reason to believe that an organisation has broken the law does not sit well with our concepts, enshrined in the Bill, that written agreements—to which the hon. Member for Winchester (Mr. Oaten) referred—and formal investigations should begin only when the commission believes that discrimination has occurred.
For those reasons—and with my confirmation that no provision will stop voluntary co-operation and assistance between the Disability Rights Commission and organisations, or prevent the commission from giving guidance—I hope that the hon. Member for Daventry will withdraw the new clause.
§ Mr. BoswellThe hon. Lady has perhaps slightly over-argued her case. She mentioned a situation in which it might be impossible to deal with a particular individual's disability on the grounds that the action plan had whitewashed the general issue, making it inappropriate to apply a plan's provisions to that individual. A case can be made for that possibility, which concerned me when I considered the Bill. However, I think that if an action plan were signed on a new and different type of disability, it would not be sufficient simply to have regard to previous provision, unless it were clearly done in the context of a progressive improvement in standards generally.
I said rather little about the impact of plans on business, as I was anxious that there should be—as the hon. Lady rightly said that there should be—a coincidence of commitment, interest and involvement by business and the commission in getting the matter right. I also did not try to suggest that plans should take away individuals' rights or make matters more inflexible than they need to be.
Nevertheless—it would be churlish of me not to say so—the hon. Lady had already given me an entirely satisfactory assurance on the voluntary aspects of the commission's work. It is important—both in general education and, as the hon. Member for Winchester said, at all levels—that there should be proper collaboration and sharing of good practice. It is also very reassuring to hear that the commission may engage itself in the affairs of a particular service provider and seek to give advice.
The advice will not in itself be binding, by precluding the law, and I did not really want it to be. Nevertheless, 371 the advice will help people to seek and implement best practice. That is what we all want to do. I therefore beg to ask leave to withdraw the motion.
§ Motion and clause, by leave, withdrawn.