Grand Committee Report of 13 January 2005

Official Report of the Grand Committee on the

  Disability Discrimination Bill [H.L.]
  (First Day )
  The Committee met at quarter past three of the clock.
  [The Deputy Chairman of Committees (Lord Brougham and Vaux) in the Chair.]
  The Deputy Chairman of Committees (Lord Brougham and Vaux): Before I put the Question that the Title be postponed, I remind your Lordships of two points of procedure. Noble Lords will speak standing, and the House has agreed that there will be no Divisions in the Grand Committee. Unless, therefore, an amendment is likely to be agreed to, it should be withdrawn.
  If there is a Division in the Chamber while we are sitting, the Committee will adjourn as the Division Bells are rung and resume after 10 minutes.
  Title postponed.
  Lord Carter Lord Carter: moved Amendment No. 1:
  Before Clause 1, insert the following new clause—
  "PUBLIC REPRESENTATION

  (1) Section 4C of the 1995 Act (office-holders: introductory) is amended as follows.

  (2) In section 4C(3)(a) the words "and in respect of which they are entitled to remuneration" are omitted.

  (3) In section 4C(3)(b) at end insert "or regional or local authority"."

  The noble Lord said: The amendment would extend the protection of the legislation to public appointees who do not receive any remuneration for their work. It would also cover public appointments made by regional and local authorities such as school governors. At present, disabled people who serve on public bodies such as health authorities are protected against discrimination if they are appointed by Ministers and paid for their services. If they are not paid or the post-holder is appointed by a public body such as a local authority, they are not covered. It has been pointed out by the Disability Charities Consortium that unpaid service on public bodies can provide an important bridge for disabled people into paid employment, and that service on public bodies allows disabled people to become fully involved and valued in their communities.
  It is worth pointing out that the record of public bodies in promoting disabled people's inclusion is poor. The Joint Committee had some figures from the department showing that there are 9.7 million disabled adults and 750,000 disabled children—more than 10 million people altogether—yet only 3 per cent of members of non-departmental public bodies are disabled people. Another part of the reason why disabled people are excluded from
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  public life is the failure of too many public bodies to make reasonable adjustments to allow disabled people to participate by, for example, holding their meetings in locations with loop induction facilities and that are accessible for wheelchairs.
  Whether or not a public appointee receives some remuneration should make no difference when it comes to them being protected by anti-discrimination legislation. Indeed, many disabled people who would be interested in public appointments are discouraged from accepting posts that are remunerated as it may adversely affect their benefits position. Similarly, why should a disabled person whose post is a ministerial appointment be protected against discrimination, while someone appointed by a local or regional authority receives no protection?
  The Disability Discrimination Act 1995 (Amendment) Regulations 2003 extended protection to office holders where they are entitled to remuneration and where the,
  "post is one to which appointments are made by a Minister of the Crown, a government department, the National Assembly for Wales or any part of the Scottish Administration".
  The Joint Committee, which I had the honour to chair, recommended that the Government re-examine the subject—it was covered by Clause 15 in the draft Bill— and all existing anti-discrimination legislation, with the intention of ensuring that no statutory elected and appointed office and post holders were excluded from coverage. The Government did not accept that recommendation. They feel that the DDA offers protection at least as comprehensive as any other domestic anti-discrimination legislation, which I find hard to understand given the distinction between the remunerated and the unremunerated posts.
  The committee also recommended that the relevant clause should be reviewed, and that the full Bill as introduced to Parliament protected disabled councillors from direct discrimination in appointments to posts of the kind described in the amendment. The Government said that they did not accept that legal oversight was necessary in relation to such appointments within a democratically elected body, which I thought a rather odd answer. There we are, however; that was the answer that we got. The point is straightforward. I beg to move.
  Lord Addington: I support the noble Lord, Lord Carter, in this amendment, which deals with one of the loopholes that we have discovered. Although this Bill comes under the heading of "a good thing", it has loopholes. It is one of our jobs to close them and this amendment would be a step in that direction.
  The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham): I—
  Lord Skelmersdale: If I may be allowed to, I would like to say a few general words and start this Grand Committee stage on behalf of the official Opposition in what I hope will be seen as a spirit of friendliness and co-operation, which I hope will continue through all stages of the Bill. I said previously that we all want to see the Bill on the statute book in both a reasonable time and in a reasonable state. However, having the

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  Committee stage in Grand Committee does not help. Proceedings in Grand Committee always take longer, which is why I fought for a Committee of the whole House—clearly not very successfully. Any resultant delay is the fault of the Government Whips and not any Member of your Lordships' Committee.
  The Minister has made a great start on her side as far as co-operation is concerned and I would like to congratulate both her and her officials on managing to get the promised quasi Keeling schedule to us before Christmas. Perhaps a reflection the word "quasi" is a little unfair. Non-statutory were the words that the Minister used on Second Reading. However, in my own defence, "quasi" is shorter.
  As the noble Lord, Lord Carter, said, as it stands now, office or post holders are covered by the Act as far as their role as employers of both direct employees and contract workers are concerned. Furthermore, local authority partnerships, barristers and advocates employed by local authorities arguably could be said to be contract workers, but could be directly paid employees. Curiously, those in charge of practical work experience courses are all covered. However, they are covered under Section 4C(3)(a) only if their employer, for want of a better word, is paid. Many office or post holders will not be paid as such. Like Members of this House, they will get only expenses that can hardly be described as remuneration. It seems to us on this side of the House that since both the remunerators and the remunerated are doing exactly the same job, they should be covered in exactly the same way. Therefore, I agree with the noble Lord, Lord Carter.
  Baroness Hollis of Heigham: I—
  Baroness Wilkins: I briefly add my support to the amendment. The lack of education and life opportunities mean that many disabled people lack the confidence to take part in public life. These unpaid public appointments are a vital bridge for many in gaining the confidence and experience to go further. I hope that the Minister will give kind consideration to this amendment.
  Baroness Hollis of Heigham: I apologise for twice apparently inhibiting Members of the Grand Committee from speaking. However, I would like to welcome and thank the noble Lord, Lord Skelmersdale, for his comments on behalf of the Official Opposition. As he recognises, the Bill has had pre-legislative scrutiny in a committee chaired by my noble friend Lord Carter.
  Several Members of the Grand Committee were also on that committee and I appreciate that, as a result, we have not needed some of the probing amendments that we might otherwise have needed because that job has already been done in pre-legislative scrutiny. I hope that that should allow us a more expeditious handling of this Bill and to focus on policy issues rather than elements of the drafting. As a consequence, as the noble Lord rightly said, that should allow us to do what disabled people are expecting—to get this Bill securely on the legislative book before any judgment may be made at the end of this parliamentary Session.
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  The apparent discrepancy raised by my noble friend about appointments by Ministers but not appointments by local and regional authorities is more apparent than real because one is done in the first clause and the other in the second clause. Therefore, I do not think that there is an issue, but let me spell the matter out in greater detail.
  The purpose of this clause, as its heading suggests, is to ensure protection against discrimination for disabled people involved in public representation. That is the very thing the DDA already does and the Bill would complete. Once our package of reforms is in place, the DDA will protect office holders as comprehensively as any other equality legislation.
  The 2003 regulations covered many offices and posts for the first time—as Committee Members will know because most of us were present at those discussions— and gave greater protection to offices and posts that had previously been covered. For example, police officers gained protection for the first time and people appointed by Ministers gained much wider protection than had previously existed under the DDA. This clause covers councillors, fulfilling a promise made by the Government towards inclusion. Clause 2 covers the functions of public bodies and is therefore intended to cover appointments—for example, school governors— made by such a body in that clause. Therefore, many of the concerns that my noble friend had are not well founded because it is simply a case of a disjunction of the purpose of the two clauses.
  Let me expand a little. The Disability Discrimination Act 1995 (Amendment) Regulations 2003 transposed the European Framework Directive on equal treatment in employment. The DDA now protects those who are appointed to an office to discharge functions personally, are remunerated and who perform their duties under the direction of another, and also those who are appointed by government or on advice of Ministers. They are protected not only in relation to the appointment, but also, for example, in the tasks they undertake and in how their appointment is ended. Previously only ministerial and government appointments were protected and then only in relation to the actual appointment. This means, for example, that the chair and commissioners of the DRC are covered in this way or lay magistrates because they are appointed by the Lord Chancellor. People holding the office of police constable are protected separately by the DDA, but also as a result of the 2003 regulations.
  This Bill brings forward the remainder of our reforms that affect office holders. The provisions contained within the Bill will further extend cover to local councillors (Clause 1).
  In addition, Clause 2 will ensure that in broad terms all the activities of the public sector are covered by the DDA; for example, people appointed by local authorities—as my noble friend asked—and regional authorities which are not covered under Clause 1. This would mean that it would be unlawful for a public authority to treat a disabled person less favourably, or fail to make a reasonable adjustment without justification when carrying out its functions. As I say, school governors would be a good example of that.

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  Our approach therefore means that the DDA will work in a similar way to the Race Relations Act. It also applies, for example, to the appointment of members of the management boards of the new NHS foundation trusts as they are selected by a board of governors. Present NHS trusts appointed by the Minister are already covered. In future the equivalent in the foundation trusts will be covered but under Clause 2, not Clause 1. Essentially, my noble friend is perfectly honourably criticising Clause 1 for not being Clause 2. I hope that with that explanation he will feel able to withdraw his amendment.
  Lord Carter: Yes, but before I do I must refer to the remarks of the noble Lord, Lord Skelmersdale, regarding the Bill being discussed in Grand Committee. As a former Chief Whip, it gives me great pleasure to say that it is all the fault of the usual channels. I have received the answer that I expected to get from the Minister. I am extremely glad we have it clearly on the record—which is what I wanted—that Clause 2 covers this area, which has caused some concern. That will be a great relief to people who were concerned about the matter. I thought that that was probably the case, but I wanted to be absolutely sure that there was no overlap and that the matter was quite clear. That is a good start. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 1 [Councillors and members of the Greater London Authority]:
  Lord Oakeshott of Seagrove Baymoved Amendment No. 2:
  Page 1, line 10, at end insert—
  "( ) a unitary authority;"
  The noble Lord said: Before I move the amendment I should like to say from the Liberal Democrat Benches that we wish to see this Bill on the statute book as soon as possible. We said that; we mean it; and that is why I now propose to get on with moving Amendment No. 2.
  We believe that Grand Committee is entirely appropriate for a Bill of this sort, and we think this is the right way to handle it.
  This is a very simple, tidying up amendment. In the long list of local authorities mentioned in the Bill, which includes the Council of the Isles of Scilly among others, there is no explicit mention of unitary authorities, which obviously are now fairly widespread in this country. Although the Explanatory Notes state that all local authorities are covered, we believe that it would be simpler and clearer for the avoidance of doubt specifically to include unitary authorities in the list. I beg to move.
  3.30 p.m.
  Lord Skelmersdale: Having dealt with the amendment proposed by the noble Lord, Lord Carter—which in retrospect perhaps might be described as slightly the cart before the horse—we now move on to a series of amendments that deal with which directly elected bodies should be covered by the Disability Discrimination Act.
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  I put my name to this amendment as it would appear, and I hope only appear, to cover an omission in the list. However, I would be quite content to be told that although not expressed in the words of the amendment, the unitary authority is already covered, as it could be either a county council or a district council. If the unitary authorities are not covered— and I take the point that the Explanatory Notes say that they are because all local authorities are included—they most certainly should be.
  Baroness Hollis of Heigham: The suspicions of the noble Lord, Lord Skelmersdale, are entirely correct. I am sympathetic to this amendment, because there could be a question asked as to whether there was some exclusion of a type of authority. I have checked this carefully, and I am assured that unitary authorities are a subset, if you like, of the existing list. Therefore, all authorities in English, Welsh and Scottish local government are fully included.
  While the term "unitary authority" is often used, it is not a separate category of local authority. It simply describes an authority that is exercising in its area all the principal local government functions, such as housing, education and social services. The unitary authority could be either a county council, because of the coterminosity of its boundaries, or it could be a district council. If it is a district council, it has county council functions conferred by order, and the same is true if it is a county council. We are following here the descriptive practice of local government legislation which insists that unitary authorities can be either district councils or county councils. Therefore, no unit of local government is excluded from the purview of this legislation.
  Lord Oakeshott of Seagrove Bay: I hear that classic Civil Service answer. It seems to me that unitary authorities are a subset of at least two other categories, so it would be simpler to make it "unitary authorities", but I am happy to accept that assurance and withdraw the amendment at this stage.
  Amendment, by leave, withdrawn.
  Lord Skelmersdale Lord Skelmersdale moved Amendment No. 3:
  Page 1, line 17, at end insert—
  "(1A) Sections 15B and 15C apply to the following—

  (a) Members of Parliament; and

  (b) Members of the Scottish Parliament."

  The noble Lord said: We now get to the largest group of amendments that we are likely to consider during this part of the Bill; Amendments Nos. 3, 4, 7, 9, 13, 21 and 22. This being Grand Committee, it is very unlikely that any amendments, except possibly Government ones, will be accepted. I put down this series of amendments in shorthand form. Clearly, Amendments Nos. 3, 4 and 7 do not fit in very well with new Sections 15B and 15C, which would have to be reworked by better draftsmen than I. However, I am concerned here with the principle; namely that no publicly elected authority should be excluded from the Act. That is based on recommendation 44 of the Joint Committee's report, which can be found in paragraphs 257 to 262.
  Amendments Nos. 9 and 22 aim to question which bodies will be considered public under this Bill and which Her Majesty's Government are going to exclude. I am well aware that the difference, according to the Government, between the bodies listed in the Bill and the two national bodies is that the latter make law, and that makes them distinct. However, there are two counter-arguments here, which have not been addressed. First, in a limited fashion local authorities do make law in the shape of bylaws, admittedly under national law. None the less, the laws that they make have the effect of controlling the electorate's behaviour, for example in car parking, blue badges, and in certain other respects.
  Amendment No. 13 probes what acts it is intended that public authorities may conduct that if permitted will allow discrimination against disabled people, in the light of the statement in the Bill that new Section 21B(2) does not apply to an act of a prescribed description. The second is that governments, once elected, have office and post holders, and do control employees, even if they are not technically or legally employers. Surely, then, they should not be excluded from anti-discrimination legislation. We have had a little bit on that already, but it would be helpful to have a little more explanation.
  It is often said that governments do not make legislation binding themselves in modern times. That may be so—but it was not always so. What about the Parliament Acts, especially the second one, under which this Government pass legislation that has failed to get agreement in both Houses? I am sorry, I should not have said "this Government", as in fact that involves governments of both parties. I correct myself.
  Baroness Hollis of Heigham: Of all parties, not just both.
  Lord Skelmersdale: Ah, but it depends what you believe the standing of the second Parliament Act is, when you make that remark.
  What about the Executive not extending the period between elections beyond five years without the agreement of your Lordships' House?
  New Clause 49 covers the activities of public authorities more widely than Clause 1 does, covering Ministers, local authorities, the police, NHS bodies and other government organisations, as the Joint Committee recognised. However, the Scottish Parliament itself is specifically excluded, as are persons,
  "exercising functions in connection with … the Scottish Parliament".
  The same words are to be found in Clause 2 and are replicated in both places by applying to Westminster as well. The Government, whether in the shape of the Scottish Executive or not, need to control both, so they should be included under the coverage of the amended Act.
  Similarly, new Clause 21C refers to Acts of the Scottish Parliament rather than the Parliament itself. It refers also to,
  "a member of the Scottish Executive",
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  whereas new Clause 49B refers to someone exercising functions in the Scottish Parliament,
  "other than the Scottish Parliamentary Corporate Body".
  The question in my mind is why are there differences between the two new sections. If the Minister would tell me the answer to that, demands for the exception of the Scottish parliamentary corporate body will become clearer. I beg to move.
  Baroness Hollis of Heigham: The noble Lords, Lord Skelmersdale and Lord Higgins, have tabled a series of amendments which the noble Lord, Lord Skelmersdale, has introduced and described for us. Amendments to Clauses 2 and 3—that is, Amendments Nos. 7, 9, 13, 21 and 22—would remove a number of exemptions for bodies and acts of bodies from the provisions outlined in Clauses 2 and 3 which deal with discrimination by public authorities when carrying out their functions and places a duty on them to promote equality for disabled people. Amendments Nos. 3 and 4, which relate to Clause 1, refer to the coverage of Members of Parliament in Westminster and Edinburgh and would provide rights under the DDA when Members are carrying out their official business.
  I would like to begin by addressing those amendments which relate to Parliament. Amendment No. 7 would remove the exemptions granted to Parliament and persons exercising functions in connection with proceedings in Parliament from the requirement not to discriminate in exercising functions of a public nature. Amendment No. 21 would remove from the Bill the exemptions from the general duty to promote equality that would be introduced by Clause 3, including the exemptions relating to Parliament and the Scottish Parliament. Amendments Nos. 3 and 4 would provide protection from discrimination for MPs and MSPs.
  The Disability Rights Task Force in its 1999 report, From Exclusion to Inclusion looked at whether the Disability Discrimination Act should be extended to cover elected members including councillors, MPs, MSPs and Members of the Welsh Assembly. The task force was unequivocal in its recommendations. While it sought the protection of the law for local councillors, which my noble friend Lord Carter has just pressed me on and which we are delighted to see in the framework of the Bill. The task force recommended that internal procedures of Assemblies or Parliaments should be used to secure reasonable adjustments for their Members. The Government agree with that conclusion.
  The inclusion of Members of Parliament within Clause 1 would undermine an important principle. That principle is that Parliament should have sole control over its own affairs and procedures; it is the principle of "exclusive cognisance".
  Contrary to this principle, the imposition of non-discrimination duties in relation to MPs would mean that issues surrounding the conduct of their official business could be determined by employment tribunals and, on appeal, the courts.

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  The same argument applies to the exemptions for Parliament from the new duties applied to public authorities. These very limited exemptions follow the pattern of the exemptions from equivalent provisions in the Race Relations (Amendment) Act 2000.
  If the DDA were extended to functions such as these, MPs here in Westminster who had been disciplined by the Speaker might expect to be able to challenge such sanctions in courts or tribunals. This would allow the courts to exercise control over parliamentary procedures in breach of the principle of "exclusive cognisance"
  Members of the Committee will wish to note that the Joint Committee which scrutinised the draft Bill considered this exemption and invited the Clerks to the Parliament to give written evidence. The Joint Committee did not, however, recommend that these exemptions should be removed from the Bill. So there has been no support from either the task force or the Joint Committee.
  Nevertheless, while the Government believe that these exemptions are necessary, I hope that Members of the Committee will agree that Parliament should still choose to behave as if the exempted functions relating to Parliament were within the scope of the DDA in the same way as it voluntarily applies the provisions of other Acts. In other words, as far as possible it should bring itself within the spirit of the legislation without exposing Parliament to external jurisdictions. For example, it would be only right that noble Lords who are wheelchair users should be able, as they are today, to enter the Chamber, take part in debates, and so on.
  Amendment No. 21 also refers to exemptions relating to national security. These are designed to ensure that information of a sensitive nature is not disclosed in proceedings under the DDA. I think that Members of the Committee would accept that need.
  Finally, Amendments Nos. 9, 13 and 22 would remove the powers for the Secretary of State to prescribe by regulation certain public bodies which are not subject to the duty not to discriminate in Clause 2 and the new public sector duty in Clause 3. They would also remove the power that enables the Secretary of State to prescribe that certain acts are excluded from the anti-discrimination provisions. There is no hidden agenda there; should the security services be reorganised, for example, it would allow for a consequent adjustment to be made quickly and simply rather than needing primary legislation. That is the type of instance where such a regulatory power would be needed. The Delegated Powers and Regulatory Reform Committee and the Scrutiny Committee are content with this regulation.
  With this explanation, which is essentially about the supremacy of Parliament to control its affairs while expecting it to exercise the spirit of the legislation, I hope that the noble Lord will feel able to withdraw the amendment.
  Lord Skelmersdale: Yes, of course I will withdraw the amendment. However, I rather think that time has
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  moved on since the task force reported. The whole subject has been thought about much more widely as a result of that report. To rely for your principal argument on what the task force said—
  Baroness Hollis of Heigham: I also said the Joint Committee.
  Lord Skelmersdale: I shall get to the Joint Committee in a minute. As I was saying, relying on the task force is rather like saying, seven years into a particular party's term of office, that all ills are to blamed on another party's government. I do not think that that particularly carries any weight.
  Much more weight can be given to the report of the Joint Committee. After tabling Amendment No. 3, I noted that the Disability Rights Commission said:
  "We have sympathy with the amendment, which highlighted the omission of MPs and other elected politicians from the DDA. We believe that this needs further consideration".
  I am sure that it will continue to consider this. Sooner or later, it will come back to the government of the day with its suggestions or requirements, if any. In the mean time, as I am perhaps being a little previous, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  3.45 p.m.
  [Amendment No. 4 not moved.]
  Lord Carter Lord Carter moved Amendment No. 5:
  Page 3, leave out lines 18 to 31.
  The noble Lord said: The amendment is straightforward and seeks an assurance from the Government. The Joint Committee had a number of concerns because the provisions to protect disabled councillors against discrimination were confusing. That was particularly the case for reasonable adjustment where there was concern that it did not explicitly cover auxiliary aids. It was also felt not to be consistent with the wording of the employment provisions. The committee therefore recommended that the wording of new Section 15C followed the duty of employers to make reasonable adjustment.
  We were pleased that the Government have listened to our concerns and streamlined the reasonable adjustment duty of the Part 3 provisions. There is an inconsistency which we believe can be answered on the record by the Minister. The Government have retained a regulation-making power further to define the reasonable adjustment duty. This means that the Government could, if they wished, restrict the duty in the future.
  The Disability Charities Consortium pointed out to me that since October 2004 the Government do not have this power in other areas of employment, including contract workers, officeholders and barristers. I should have thought that the barristers would be well able to look after themselves.
  I am sure that the Government would not abuse this power to place disabled councillors at a disadvantage compared with other employees. We merely seek an undertaking that the Government would not want to restrict the duty in future. I beg to move.
  Lord Skelmersdale: The negative instruments, which are to control the duty on authorities and their members to make adjustments, need elucidation, as the noble Lord, Lord Carter, said. Exactly what do the Government have in mind, especially when regulations make provisions for steps which may never be reasonable for authorities and their members to undertake?
  "Never" is a dangerous word in politics. I have a hazy memory—which I was trying to clear with a rapid question to my noble friend Lord Higgins—of a politician in the 50s, well before my time, who said "never". He was subsequently proved wrong and had to resign. While this is not a parallel situation as orders can be changed quickly in the light of experience, nevertheless the noble Lord, Lord Carter, and I would like to know how far the Government are proposing to go.
  Baroness Hollis of Heigham: That is not exactly the question which I believe is at the core. Let me have a go at explaining exactly how the provision is meant to work. New Section 15C sets out the duty of an authority to make reasonable adjustments in relation to its disabled members and broadly follows the pattern of Part 2 of the Act which deals with employment and related matters.
  An authority will be under a duty to make an adjustment where a provision, criterion or practice it applies, or which is applied on its behalf, or a physical feature of premises which it occupies or controls, places a disabled member at a substantial disadvantage in comparison with non-disabled members in relation to the carrying-out of official business. An authority will then be under a duty to take reasonable steps to prevent the provision, criterion, practice or physical feature from having that effect.
  New Section 15C(3) provides that the duty in subsection (2) does not apply if the authority could not reasonably be expected to know that the member has a disability and is likely to be affected in the way mentioned in subsection (1).
  New Section 15C(4) enables the Secretary of State to make regulations elaborating on the duty to make adjustments should evidence emerge that it is not practicable to follow the general approach adopted for the rest of Part 2 of the DDA.
  There are no equivalent powers to those set out in new Section 15C(4) in the rest of Part 2 of the DDA. However, powers in almost identical terms to these existed in the DDA until 1 October 2004, but have now been repealed. Let me explain why.
  In 2003, the House debated and accepted the European regulations of 2003, which came into effect on 1 October 2004. Those regulations transpose the
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  European Union Framework Directive. They effectively rewrote and replaced Part 2 of the DDA. There is no minimum size, for example, for a firm to be exempt from the workings of the DDA. They were hugely important changes. Regulations made under Section 2(2) of the European Communities Act 1972 permit of no further sub-delegation; therefore as part of that exercise all pre-existing powers were repealed and replaced as necessary with provision on the face of Part 2.
  Should the need for modification of Part 2 arise on any matters within the scope of the Employment Framework Directive, this may be dealt with by further regulations made under Section 2(2) of the European Communities Act 1972.
  The same cannot be done in relation to the new Sections 15A, 15B and 15C, which regulate a relationship falling outside the scope of the Employment Framework Directive. Therefore we need specific powers to make regulations and those powers have been taken.
  Perhaps I may give example to show how this addresses the point made by the noble Lord, Lord Skelmersdale. At present, Section 18B(1) of the Act sets out the factors to be taken into account when a person decides whether it is reasonable or not to make an adjustment. Such factors include the extent of financial and other resources available to make adjustments.
  Section 18B(2) of the Act sets out the steps which a person may need to take in relation to a disabled person to comply with the duty to make reasonable adjustments. They might include allocating some of a disabled person's duties to another person. Section 18D(2) of the Act defines what is and what is not a physical feature. For example, it describes as a physical feature any feature arising from the design and construction of a building or premises.
  These factors, steps and definitions of physical features have worked well when applied to the relationship between employers and employees. Only time and experience will tell whether they work equally well in relation to the relationship between local councils and their members. We hope that they will and we have no reason to think that they will not. But if changes are required in future, Ministers will be able to make them through regulations with an appropriate level of parliamentary scrutiny, as conferred by the Delegated Powers Committee.
  I hope that in response to that technical description— the need arises because of the discrepancies between the EU directives and what we are seeking to do with councillors—my noble friend will feel able to withdraw his amendment. I hope that he is satisfied with what was, I am afraid, a rather long reply.
  Lord Carter: It is common parlance in this House to say that I will have to read what the noble Baroness said Hansard and then decide what to do. However, I really will have to read it on this amendment and in the mean time I beg leave to withdraw it.
  Amendment, by leave, withdrawn.
  Clause 1 agreed to.
  Clause 2 [Discrimination by public authorities]:
  Baroness Masham of Iltonmoved Amendment No. 6:
  Page 3, line 32, at end insert—
  "( ) In the 1995 Act, after section 21(2) there is inserted—
  "(2A) In determining their duty under subsection (2), NHS hospital trusts shall ensure that adequate equipment is available to enable disabled persons to be diagnosed and treated to the same standards as other persons, in particular with regard to the provision of x-ray services.""
  The noble Baroness said: In moving Amendment No. 6, I would like to thank the noble Baronesses, Lady Royall of Blaisdon and Lady Neuberger, for putting their names to it. The amendment states:
  "In determining their duty under subsection (2), NHS hospital trusts shall ensure that adequate equipment is available to enable disabled persons to be diagnosed and treated to the same standards as other persons, in particular with regard to the provision of x-ray services".
  This is a very serious matter and getting worse.
  There has been a European directive stating that staff should not lift patients. This is putting patients in intolerable positions when they go into hospital for diagnosis and treatment if suitable equipment is not available.
  The problem was brought to my notice first-hand when I fractured a leg in two places getting stuck in a door in your Lordships' House about a year ago. I went to St Thomas's Hospital for an X-ray and a male nurse told me that he would have to get a hoist from one of the wards. It never came.
  Eventually an Australian radiographer said that I had waited too long and the person who came with her got me on the X-ray table. There was no equipment which made this job easier in the accident and emergency department.
  One in five people in Britain are disabled in some way. This is no small matter. I could quote many cases where there have been huge difficulties for patients. Patients are brought to hospitals for all sorts of investigations and health screening such as cervical smears and prostate investigations. After an accident, it may be important to move a patient very carefully.
  Some years ago, when I was on a regional health authority, I asked questions about facilities for disabled people when I could never find them mentioned on the agenda. Their needs seem often to be forgotten.
  I fully understand that hospital and health workers in the community should not damage themselves by lifting heavy patients. One the other hand, patients who have a disability should have the facilities to be diagnosed and treated; otherwise is it not a very serious case of discrimination?
  Disabled people have enough to put up with without the extra worry of no help, no facilities and sometimes no treatment. I beg to move.
  Baroness Royall of Blaisdon: I support the noble Baroness, Lady Masham of Ilton. Equality of treatment should be an absolute right. People with disabilities and able-bodied people should—indeed, must—expect the
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  same access to diagnosis and treatment. If that access is impaired in any way due to inadequate equipment, the result is discrimination. Naturally, I fully support the aims of the European directive and its protection of the health and safety of staff.
  The purpose of the Bill is to extend and to build on the Disability Discrimination Act. I believe that this is an opportunity to end the particular discrimination mentioned by the noble Baroness.
  Baroness Neuberger: I support the noble Baroness, Lady Masham, and want to talk briefly from personal experience. As chair of an NHS community trust, I was embarrassed and ashamed of facilities made available to people with major disabilities in access to a whole variety of services. Of course we all support the EU directive to protect healthcare workers and others when lifting. But disabled people are frequently left to have a mammograph to access other services if they are, for instance, using mental health services. That simply will not do.
  The Government could do something by issuing an instruction to health authorities, but they could do even more by putting the requirement on the face of the Bill.
  Lord Ashley of Stoke: I, too, support the noble Baroness, Lady Masham. It is a profoundly important amendment. She mentioned the situation to the All-Party Disability Group last week and I was horrified to hear the evidence. It is condemnation of what is happening in British hospitals to disabled people and it is hard to believe.
  Why have we not previously heard of this scandal— because scandal it is? It is the old story of people suffering in silence and it simply is not good enough. We know what the situation is and the noble Baroness, Lady Masham, has done the committee a great favour. I hope that my noble friend Lady Hollis will be able to respond constructively.
  Baroness Hollis of Heigham: I do not know whether what I am about to say will be regarded as responding constructively. The amendment would insert a new Section 21(2A) into the DDA requiring NHS hospital trusts to have regard to the provision of adequate equipment for the diagnosis and treatment of disabled people when considering their duty under Section 21 to make reasonable adjustment.
  No one could fail to sympathise with the examples mentioned today. I have taken careful advice and I must say that the amendment adds nothing to the current duty of the hospitals. It would not require them to make any adjustments that were not reasonable or to consider factors that they do not already consider. For example, it could be a matter of resources, which are one of the tests of reasonableness. In that case, it is not essentially different from the mother of a newborn premature baby who feels that she should have the right to an incubator in the local hospital but will have to travel 50 or 100 miles to get it because the hospital cannot justify the expense or provide the trained staff to do so. I am not saying that

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  those are identical examples, but the question of resources applies across the board in that situation too.
  4 p.m.
  Under the new public sector duties, hospital trusts have further responsibilities in relation to the delivery of their functions, as well as a duty to promote equality of opportunity. Those will have a further positive impact on the delivery of health services to disabled people. However, I do not know whether, in the instance suggested by the noble Baroness, Lady Neuberger, a disabled person needing a mammograph or X-ray would need a different type of equipment that is so expensive that it might be organised on only a regional basis, so requiring travel. That seems not impossible.
  In that sense, although I entirely sympathise with what the noble Baroness, Lady Masham, said about a hoist—that is completely unacceptable—I gently suggest that the amendment would add nothing to the current duties, responsibilities and functions of hospitals. The amendment is not the right way of addressing the issue. However, the noble Baroness raised the matter yesterday at Starred Questions, so it has been raised beyond the all-party group. At Starred Questions, my noble friend Lord Warner was rightly concerned at the situation that she described. He is taking it away to have a look at it, which may be a more helpful and appropriate response than trying to lay a mandatory duty on hospitals to provide equipment, training and trained staff to handle it. That may not be appropriate in all situations, and is not reasonable. I expect her to get a response from my noble friend that I hope will obviate such situations occurring in future.
  Baroness Masham of Ilton: I thank all noble Lords who have spoken, including the Minister. However, we need more than sympathy. Sympathy is all very well, but there are people in our hospitals now probably sitting and waiting for treatment because there is not so simple a thing as a hoist or monkey pole above an X-ray table. Some such things are not very expensive. Today, I was interviewing for the Winston Churchill Fellowship in Kensington, and someone said to me that it was all very well the Chancellor of the Exchequer putting Africa in order, but that a neighbour of his had just had a stroke and had appalling problems in a hospital in Kent. People are beginning to realise the problem.
  It is not good enough for disabled people to suffer in silence. It is our duty in Parliament to do something about it. As the Minister said, the problem probably is resources. Why should disabled people come at the bottom of the list? That is what the Bill is all about. I will get together with the supporters of the amendment before the next stage. I will also try to have a word with the noble Lord, Lord Warner, and see whether we can have something constructive. I do not mind where it goes, but something has to be done. With that, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 7 to 9 not moved.]
  Lord Skelmersdale Lord Skelmersdale moved Amendment No. 10:
  Page 4, leave out lines 13 to 15.
  The noble Lord said: I am afraid that I find a new subsection of new Section 21B to be rather difficult to follow, and I hope that the Minister will be able to elucidate, especially as no light was thrown on it by looking at the Explanatory Notes. As I read it, Section 55 is all about victimisation—where person A treats person B less favourably than he could other people in the same position as B, because the latter has done various objectionable things.
  However, I note from Section 55(3) that, where B is a disabled person or a person who has had a disability, the disability in question shall be disregarded in comparing his circumstances with those of any other person for the purposes of subsection (l)(a). So where B is a disabled person, or was previously disabled, the disability shall be disregarded, making the section rather like the The Water Babies, a matter of "do as you would be done by".
  We are still, of course, in the compass of public authorities here. I do not understand why special mention has to be made for them, when everyone is already covered by Section 55. I hope that the Minister will be able to tell me. I beg to move.
  Baroness Hollis of Heigham: I accept that it is very difficult to work out some of the import of the provisions, because of the structure of the Bill and the interweaving with the DDA.
  The amendment concerns the victimisation provisions of the DDA, as they would be amended by the Bill. Section 55 of the DDA defines victimisation. It sets out that a person—I shall call this person the "first person"—unlawfully discriminates against another person if he treats that person less favourably because he or she has taken part in proceedings under the Act against the first person, or because the first person believes that he or she will take part in such proceedings. Unlike other forms of discrimination made unlawful by the DDA, victimisation is prohibited both in relation to disabled and non-disabled people.
  The easiest way in which to illustrate the point is with an example. If one of my employees—in fact, when I turn around and stare at them, I realise that they are not actually my employees, because they are civil servants—but if one of them helped a disabled person to take me to court in connection with alleged discrimination, it would be unlawful for me to treat my employee less favourably as a result, irrespective of whether that person was disabled or not. That is the context in which it applies.
  Amendment No. 10 would remove subsection (6) and would have the effect of removing a non-disabled person's right not to be victimised in connection with the exercise of public functions. This would mean that it would be lawful under the DDA for a public

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  authority to deny a discretionary grant to a non-disabled person because he had assisted a disabled person to bring a claim of disability discrimination against the public authority, for example. That seems an unlikely example, but it is not impossible.
  What we are seeking to do is to protect that situation uniquely here, in which a non-disabled person has aided a disabled person and to prevent that non-disabled person subsequently suffering discrimination. I hope that with that explanation, the noble Lord will not want to press the matter further.
  Lord Skelmersdale: No, of course I shall not press the matter further. However, since this part of the Bill deals with public authorities and victimisation would be covered by it anyway, my question was really why special mention must be made of Section 55. I do not understand the need for it.
  Baroness Hollis of Heigham: I am informed that what it basically does is replicate the existing provisions, repeating what we already have.
  Lord Skelmersdale: Well, if it repeats what we already have—
  Baroness Hollis of Heigham: Sorry, I mean as regards public authorities. For example, if a police authority arrested someone who was disabled, a non-disabled person assisted that disabled person in whatever way and the police subsequently hassled the non-disabled person giving assistance, the provision replicates the duty—they would not be able to do so. That is why we have included the reference to Section 55, because we are extending these powers to a new series of public authorities.
  Lord Skelmersdale: Yes, indeed. But I should have thought that rather than going through all this rigmarole it would have been far easier to amend Section 55. However, that is how the draftsmen have decided to do it, and I am not in a position to press the matter any further. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Skelmersdale Lord Skelmersdale moved Amendment No. 11:
  Page 4, leave out lines 19 to 21.
  The noble Lord said: Amendment No. 20 in Clause 3 has been grouped with Amendment No. 11. Again, I hope that this is a quick question with a quick answer. However, one can never be entirely sure with the noble Baroness quite what sort of an answer one will get.
  The policy intention of new Section 21B(7) is, according to the Explanatory Notes, that the rest of the Act takes precedence over Section 21B other than when appointments are made by a Minister or on recommendation or approval by a government department. That would apply during periods of direct rule in Northern Ireland. It also covers the National Assembly for Wales, or any part of the Scottish Administration, or when someone else directs the
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  employee, in which case any failure would fall to the fault of the director. These exclusions are logical given new subsections (2)(b) and (3).
  If the rest of the Act takes precedence, why make special provision in this way for public authorities? Again, this is slightly related to my last question, it seems a very difficult way to achieve the policy objective. Subsection (1) is only a catch-all subsection, which then goes on to have exclusions such as subsections (2) and (3). I really cannot see how that fulfils the policy intention of the Government. I beg to move.
  Baroness Hollis of Heigham: In defence of the Government, just because a question is simple does not mean to say that it has a simple answer, despite the efforts of noble Lords sometimes to say "I want a yes or no".
  These amendments would remove important provisions to prevent overlap, or double provision. In particular, Amendment No. 11 would remove new Section 21B(7)(b), which ensures that Section 21B, the new provision that requires reasonable adjustments and outlaws discrimination against disabled people when exercising public functions, does not apply when another provision of the DDA would have applied but for a provision made by or under the Act.
  I think that it would be helpful to give an example here. Section 28C of the DDA places a duty of reasonable adjustment on schools. However, Section 28C(2) makes it clear that the duty of reasonable adjustment would not require schools to make adjustments to physical features of their premises or to provide auxiliary aids and services. The reason that there is this exemption to the reasonable adjustment duty is that provision is already made through other means. In respect of school premises, Sections 28D and 28E of the DDA place a duty on schools to plan strategically to improve accessibility, while auxiliary aids and services are provided through the special educational needs framework.
  The effect of this amendment would be to require double provision in schools. They would have to provide auxiliary aids and services both in response to the DDA and in response to the special educational needs framework. It is not only unnecessary, but confusing. That is why we have those exemptions. I could go into further detail, but that may answer the concerns of the noble Lord.
  Lord Skelmersdale: Like the noble Lord, Lord Carter, just now, I shall have to read that extremely carefully. It is not so long an explanation as he got.
  Lord Carter: I think it was probably quite easy to understand in the original Sanskrit.
  Lord Skelmersdale: That may be. However, perhaps I shall try the English version first before rushing to my computer to get it translated into other languages, which I may or may not be capable of interpreting.
  I think that I got the point, and I certainly will not cross-question the Minister further. We are told that with my Amendment No. 11 there would be double

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  provision. I shall have to look at that, especially in terms of the legislation on special educational needs. I shall do so between now and the next stage. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  4.15 p.m.
  Lord Skelmersdale Lord Skelmersdale moved Amendment No. 12:
  Page 4, leave out lines 22 and 23.
  The noble Lord said: The amendment deals with an apparent double negative. Given that under proposed new Section 21B (7)(a),
  "Subsection (1) … does not apply to anything which is unlawful under … this Act",
  "anything" surely means just that, including subsections (1) to (8). Why make special provision for Part 5, which covers public transport? In other words, in terms of this clause is not paragraph (c) of subsection (7) already covered by paragraph (a)? I beg to move.
  Lord Davies of Oldham: The argument with regard to this amendment largely follows the one that we have just had on the last amendment. This is indeed a technical provision which is designed to ensure that the prohibition of discrimination in the exercise of public functions does not overlap with provisions elsewhere in the Act.
  In particular. Part 5 of the DDA allows the Secretary of State to make regulations setting accessibility standards for public transport vehicles such as rail and other public transport vehicles. Not all of these powers have yet been exercised. For example, Section 32 of the Act applies to taxi accessibility regulations, for which powers have not yet been exercised.
  If the amendment were accepted, the new provisions prohibiting discrimination in the exercise of public functions would apply in cases where powers under Part 5 of the Act had not yet been exercised. That would mean that a public authority that operated a public service vehicle, which was not within the scope of current PSV regulations, would be placed under a duty of reasonable adjustment in respect of those vehicles. The trouble is that that would undermine the general approach taken in Part 5 of the Act which seeks not to require piecemeal adjustments but rather that vehicles meet appropriate standards as set by the Secretary of State.
  The approach to making vehicles accessible which is in Part 5 of the Act ensures that the access solutions are effective and sustainable and, most importantly, that they cover the needs of the widest range of disabled people. The Part 5 provisions are quite clear in specifying that not only must the vehicles meet the comfort and reasonable safety requirements in relation to wheelchair users, they must also meet the needs of disabled people generally. That is an important distinction enshrined in the Act. After all, some vehicles can be made suitable for a wheelchair user but may be very difficult for someone with walking difficulties to get in and out of. The issue
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  was identified during the passage of the DDA when Parliament sought assurances from the Government that we would press for higher access standards, for example, than were then currently available in taxi designs.
  Our overall approach is to ensure that activities regulated by one part of the Act are not also regulated by other provisions. We are concerned that this technical amendment would make an obligation on public authorities for partial requirements on public transport providers in circumstances in which the DDA itself requires higher, wider and more comprehensive standards which we are seeking to preserve. For that reason, on technical grounds, we ask the noble Lord to recognise that the amendment would cause real difficulty in this area.
  Lord Higgins: One of the problems with the legislation is that sometimes it is not in the least bit apparent—not only as far as the clause is concerned but also as far as the amendment is concerned—precisely what its scope is. I would like to focus on one word that the Minister used. He said that the Government were against a "piecemeal" approach. Of course, that depends on how large the piece is. If the piece were to cover the whole of local authorities, the Act would be implemented faster in those areas—for example on school buses or whatever—that might be desirable. We do not necessarily need to wait for the whole of the implementation of Part 5 for the public sector to move a little faster. Is the Minister saying that any improvements in the public sector will have to wait until we do the whole lot?
  Lord Davies of Oldham: The danger is obvious. If we seek to make progress by incremental approaches to the issue, that might militate against the overall standards to which we are committed through the DDA, which are necessary for the widest possible provision. The answer to the position is that we need a standard approach for each vehicle—not piecemeal—but an approach that is comprehensive so that we meet the objectives and the standards of the DDA itself. Our anxiety about the amendment being agreed is that it would indeed potentially enforce upon public authorities a narrow and very limited advance which itself would militate against meeting the standards to which we are already committed.
  Lord Higgins: I notice that the Minister has abandoned the word "piecemeal" in this context. He is really saying that if one were to make some improvement sooner in this particular area, it would somehow prevent one doing any more in the future. I have some difficulty in understanding that argument, but let me consider the matter. I will not re-read what he said because what he said was clear enough, but it seemed not to make sense. I will consider the matter and if need be return to it at Report.
  Lord Oakeshott of Seagrove Bay: It made perfect sense to me and I congratulate the Minister on a brilliant performance in paraphrasing the word "piecemeal" without actually using it.
  Lord Skelmersdale: The amendment has not been withdrawn by my noble friend so I shall have a go. I

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  thought that I understood the Minister to say that orders that had not yet been made under this Act would be covered if the subsection were removed. I find that extremely difficult to follow notwithstanding what the noble Lord, Lord Oakeshott, seems to have understood from the remark. Like my noble friend, I shall consider the Minister's argument extremely carefully on this occasion because even in Sanskrit it does not make sense. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 13 not moved.]
  Baroness Darcy de Knayth Baroness Darcy de Knayth moved Amendment No. 14:
  Page 6, line 10, at end insert "and are the only means of achieving that aim"
  The noble Baroness said: I have kept silent until now because I did not wish to delay the Committee. However, I am afraid that I shall be taking my time on this amendment. I was not silent because I did not support many of the other amendments, particularly Amendment No. 6 in the name of my noble friend Lady Masham.
  Amendment No. 14 seeks to ensure that public bodies do not discriminate against disabled people by narrowing the scope of their justifying discrimination under subsection (5). I raised this issue on Second Reading, on 6 December, when I said that Sir Peter Large, in his evidence to the Joint Committee,
  "thought that that proviso might nullify many of the objectives or emasculate the effectiveness of Clause 2".—[Official Report, 6 December 2004; col. 698.]
  He has not changed his mind since Second Reading.
  I have huge respect for Sir Peter's views, as, I know, does the Minister. While I would like her to accept the amendment or bring in one of her own, I know that there is little chance of that, so I very much hope that she will be able to answer some questions and clarify what the new justification means in practice. The DRC says that this would enable it effectively to explain it in the code of practice that it will have to write. I hope that the Minister will give examples of how, and how often, the Government expect the provision to be used and thus, I hope, allay some fears.
  There seem to be three problems: where the line lies between functions and services; the fact that regulations under subsection (7) will have effect as a longstop so it may not be possible to effect redress retrospectively; and the fact that "proportionate" depends on two tests, neither of them truly objective.
  On the line between functions and services, let me say at once that I understand, as does Sir Peter, why the "legitimate aim and proportionate" proviso was introduced and that functions and services have to be treated differently. It just needs tightening and narrowing down, which is what Amendment No. 14 would do.
  Clause 2 is so hugely to be welcomed that it would be more than disappointing if it did not live up to our expectations. Our fears centre on the activities of some
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  local authorities whose attitudes and behaviour towards disabled people are not always ideal. We fear that sooner or later the proviso will be used to override disabled people's interests.
  Several questions arise on the functions and services divide. Are the functions of planning and granting of planning permission by local authorities covered under Clause 2 as functions or as services? The process of planning a car park could be a function, whereas operating one is presumably a service. Pedestrianising an area could be held to be a function. Could its continuing existence be deemed a service? What about, for instance, congestion charging, park-and-ride schemes, establishing home zones, setting out nature trails, and any other activities involving highways, roads, footpaths and pavements? Are they covered as functions or as services?
  On Second Reading, I raised the question in relation to footbridges over rivers in col. 697. The Minister referred at col. 709 to functions such as providing and maintaining them but said that there may be some exceptions which doubtless will be explored in Committee.
  If all these areas are not covered—and these are only examples—can the Government do anything to ensure that they are? Moreover, can the Government now do anything to avoid complications that will arise if it is not clear which problems should be tackled as functions and which as services?
  Paragraph 38 on page 8 of the Explanatory Notes refers to one justification. It says:
  "It is envisaged that a public authority will be able to rely on this justification only in relation to matters of public interest (for example, the detection of crime)".
  Two questions arise: what exactly is meant by "matters of public interest", and why is this significant limitation not stated on the face of the Bill? It is very important that the Minister spells out the answers to these two questions.
  Although the distinction between a function and a service is not always clear, it would seem that many of the problems associated with access relate to functions, not services. Add to that the fact that regulations made under subsection (7) would seem to act as a longstop after some treatment or failure to comply has caused harm—it may not be possible to effect redress retrospectively—and I hope that the Minister and the Committee will understand why I am concerned about the "legitimate aim and proportionate" proviso on its own, unamended.
  As I said in col. 697 on Second Reading, Sir Peter's worries about subsection (5) stem from the fact that it depends on two estimates—an assessment of the number helped and the number harmed if the action is taken to achieve the legitimate aim, and an assessment of the extent of injury caused by those harmed compared with the degree of benefit enjoyed by others.
  Sir Peter Large writes:
  "The two assessments multiplied together result in a highly suspect subjective assessment of how far some had benefited from the authority's action and how much harm it had caused others. I cannot see how this can be defended on the grounds that it

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  'provides an objective justification'. How proportionate, for example, would the legitimate aim of pedestrianising a shopping centre be if it meant improvements for 500 fit pedestrians but forced 50 disabled people to shop elsewhere? Disabled people are in double jeopardy in all such assessments. They are always likely to be in a minority and the actual harm done to them is seldom anticipated and never fully recognised after it has taken place".
  I hope that Sir Peter is being unnecessarily gloomy. I hope that he is proved wrong. I remind the Committee and the Minister that the Disability Rights Commission also said that it would welcome clarification of what the new justification means in practice to enable it to write the code of practice.
  It has to be said that Clause 2 is not exactly even-handed. Subsection (4)(c) allows discrimination if it is too expensive to avoid it. Are not resources always scarce? Subsection (4)(d) allows discrimination if,
  "the treatment, or non-compliance with the duty, is necessary for the protection of rights and freedoms of other persons".
  The concept of legitimate aim and proportionate means comes into the equation only when the rights and freedoms of disabled people are being considered.
  I very much hope that the Minister can set our minds at rest. Clause 2 could enable public bodies to do so much, and is hugely welcome in principle, but I fear that it may, as it stands, provide a loophole for some public bodies to do very little. I look forward to some clear and, I hope, encouraging and positive answers from the Minister. I beg to move.
  4.30 p.m.
  Lord Morris of Manchester: I regret very much, as a serial legislator and proposer of legislation in this policy area, that illness made it impossible for me to attend the Second Reading debate on this deeply important Bill. Better late than never, however, and I most warmly welcome it now as a major further advance toward full citizenship for disabled people.
  Like my noble friend Lady Darcy de Knayth, my noble friend Lord Ashley and many others, I look forward to the Bill's early enactment and will do all I can to hasten its progress. As before, I congratulate Ministers on their achievement in making this the first Bill to come to the House in the current parliamentary Session: more especially, of course, Maria Eagle as Minister for Disabled People, but also and not least my noble friend Lady Hollis. Naturally, too, I express my admiration of my noble friend Lord Carter; we are all indebted to him.
  My special interest in this amendment has to do with its source. It was in 1978, as the then and first Minister for Disabled People, that I appointed Peter—now Sir Peter—Large to chair the Committee on Restrictions Against Disabled People (CORAD) to inquire into, and make recommendations on, discrimination on grounds of disability. There could have been no better choice for it was CORAD's report, of which this Bill is a lineal descendant, that first set out the compelling case for legislation.
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  Ever since then Peter has performed a hugely important role in the long and arduous campaign to outlaw disability discrimination; whatever concerns him is eminently worthy of our attention in this Committee.
  While very few disabled people I have known have been more severely disabled than Peter, no one I have known was or is more able than him. The noble Baroness has most ably expressed his concern, which in hard summary is expressed in his observation that,
  "the protection afforded by the requirement for a 'legitimate aim' is negligible and that the concept of 'legitimate aim and proportionate means' only enters the equation when the rights and freedoms of disabled people are being considered".
  I know that my noble friend will, as ever, respond as helpfully as she can to the extremely important questions posed by the noble Baroness; and I do hope that an accommodation can be reached that will fully reassure Sir Peter.
  Lord Addington: The wording of the amendment—
  "and are the only means of achieving that aim"—
  is probably its most attractive feature initially. That wording, if included in the Bill, would reinforce the central message of what we hope we are achieving; that is, only if there is no other way of achieving an aim will people be permitted to discriminate. For all the reasons that have been stated, having such a provision on the face of the Bill would reinforce the aim that we are discussing.
  I very much support the noble Baroness, Lady Darcy de Knayth. I am very glad that the noble Lord, Lord Morris, is present. Our earlier deliberations had a certain feeling of not being official as the noble Lord was not present. I welcome the noble Lord back to the fold.
  Lord Ashley of Stoke: I echo what my noble friend Lord Morris said about our great friend Peter Large, and, of course, what he said about my noble friend Lady Hollis and Maria Eagle. I mentioned them at Second Reading.
  We cannot improve on the comprehensive and detailed presentation of the noble Baroness, Lady Darcy de Knayth. However, I should like to make a further point. If the proposed new justification provision could provide wide scope for public bodies to justify discrimination, we should not accept it. If it could provide narrow scope for such discrimination it would be unacceptable, but for it to provide wide scope for discrimination would be the death of the object of this Bill. We all know that—at least in my estimation—public bodies all tend to make any excuse and clutch at any straw to save costs. If they think that this provision will be costly, they will grab that excuse at all costs. I hope that my noble friend will give her usual sympathetic consideration to the amendment.
  Lord Carter: We dealt with this matter on the Joint Committee. Although we were reasonably satisfied with the provision in the end, I believe that concern

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  arises given the problem of defining a service and a function. I believe that constitutes part of the problem. The Joint Committee stated:
  "This issue is particularly important because there is no consensus about exactly what activities of public authorities are services and what are functions. The Local Government Association (LGA) thought that the difference between a service and a function was 'a grey area', and noted that local councils did not see a great deal of difference between the two concepts. The Minister agreed that there were some grey areas".
  We took legal advice as this is a legal point. If my memory serves me right, I am sure we were satisfied that we had the correct use of the term.
  Lord Skelmersdale: Yes, but given the short debate we have just had, it seems that the question of Sir Peter Large, to whom we all very rightly pay tribute, concerns what exactly constitutes public interest. It seems to me that the words in the Explanatory Notes and the words in the Bill are quite different. The Bill refers to,
  "a proportionate means of achieving a legitimate aim".
  That may or may not be in the public interest, but it is certainly in the interest of the authority that is pursuing the particular course of action.
  The noble Baroness, Lady Darcy, may not have chosen exactly the right words, but I, for one, would certainly like to see the limitation that has been suggested; namely, that the justification is only in relation to matters of public interest in one way or another on the face of the Bill. The noble Lord, Lord Addington, is absolutely right. We do not want in any respect to undermine either the aims of the Act, or the amendment order, and the changes being made by this Bill. We want to make sure that the thing is as watertight as it possibly can be. I should have thought that some form of words in that respect are most definitely necessary here.
  Baroness Wilkins: I would like to add my support to the amendment of the noble Baroness, Lady Darcy de Knayth, because it would seem that both she and Sir Peter Large have identified a loophole through which some public bodies—and local authorities in particular —will squeeze. Potentially the new justification provision could provide wide scope for public bodies to justify discrimination.
  The main problem is that the assessment of whether treatment or a failure to comply with a duty under Section 5 depends on subjective judgments, as the noble Baroness, Lady Darcy, has said. Sadly, disabled people are always likely to lose out in those judgments. I hope that my noble friend will be able to allay our fears.
  Baroness Hollis of Heigham: I shall do my best and I shall give a longer answer than I had originally intended as we seem to be running together several different issues regarding what is a function and what is a service. I am very grateful that the noble Baroness, Lady Darcy, gave me notice of the questions that she wished to raise. Therefore, I hope that I shall be able to answer them.
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  Behind this matter is the question of what we mean by "proportionate". There seems to be a general belief here regarding "proportionate" being considered in some Benthamite sense as regards 500 versus 50, and the 50 always losing out. The example given by the noble Baroness concerned pedestrianisation. She asked whether the provision would always mean that minority rights would be overridden because you can claim that "proportionate" means that the majority will must always prevail. I had hoped that we had had a go at that at Second Reading, but clearly we did not do so sufficiently. No other body that I am aware of has raised this concern. "Proportionate" is a good term here. It does not relate to a balance of numbers but to whether there are proportionate means of achieving the aim of public policy. A pedestrianisation scheme, for example, would not be judged on the numbers affected—500 for, 50 against, or whatever— but on whether it achieved that public aim, taking into account the effect on the rights of disabled people and whether the way of going about it had the least detrimental effect on disabled people. That is the intent. There may very well be clashes of policy, of which I shall give examples. A clash may arise between the pressure exerted by the provisions of the DDA and another consideration, for example, the environment.
  I refer to the concept of "proportionate" with regard to pursuing a public interest policy. I take issue with the noble Lord, Lord Skelmersdale. If I may say so, by definition only decisions taken in the public interest would be legitimate aims of public bodies. That is the definition with which we are working. A local authority may have broader policy concerns; for example, an environmental concern to take traffic out of a city centre due to a desire to reduce pollution, increase pedestrian access and so on. You then have to decide whether the way in which that local authority is going about that is proportionate; that is, whether it has chosen a policy that is the most sensitive to the needs of disabled people, and the least detrimental to them.
  What you cannot say, obviously—I think that everyone would agree with this—is that the needs of disabled people will always trump all other legislation. That has been accepted in the case of listed buildings. However, one has to adopt a proportionate response. That proportionate response ensures that the needs of disabled people are not overlooked as opposed to the argument being advanced that they would be outvoted. The concept of proportionality comprises ensuring that those rights are considered and are protected when pursuing a different goal, for example, as I say, an environmental goal or the repair and rehabilitation of major listed buildings. That is the push behind the concept of proportionality. As I think the disability organisations have made clear, "proportionate" is a good and protective term, not, as has been suggested, a way of overriding the rights of minorities.
  The second set of questions raised by the noble Baroness in particular concerned functions and services, and whether there was confusion in that regard. The underlying approach is the same for both.

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  It is important that bodies understand their duties and that they should broadly take the same approach for services and functions. The DRC will issue guidance. I agree that it is a difficult area. The matter is not immediately obvious even to those of us who have been involved in local government for many years. As I say, the DRC will issue guidance that I hope will address the questions that the noble Baroness raised.
  However, as regards the specific points of which she helpfully gave me notice, all the functions of public bodies will be covered unless explicitly excluded on the face of the Act. For example, planning and planning permissions are a function; operating a car park is a service; highways and pedestrianisation et cetera depend on the facts of the case, but Clause 2 ensures that all activities of public authorities are covered. The noble Baroness pressed me on what was meant by matters of public interest. New Section 21D(5) permits justification of less favourable treatment, or failure to make a reasonable adjustment, only if it is a proportionate means to meet a legitimate aim of a public authority. That phrase is built into EU law and means that the treatment must be in the public interest.
  4.45 p.m.
  I hope that I have allayed some of the fears about the concept of proportionality. As I say, it is used in the Employment Equality (Sexual Orientation) Regulations 2003, and is a well known principle of EU law and ECHR law, carefully designed to enable a court to assess the legality of government action.
  Let me give another example, as opposed to the pedestrianisation one that we have explored fairly thoroughly this afternoon. It might be necessary for a law enforcement agency such as HM Revenue and Customs to stop a higher proportion of wheelchair users than other travellers coming through customs, if it had information suggesting that particular passengers were likely to be concealing illegal drugs in the frames of wheelchairs on a certain day. On the other hand, it would clearly not be proportionate for a wheelchair user to find that the local police stopped him or her every time that he or she visited a local shopping centre.
  I shall give another example. A blind juror might not be selected for a case if it was necessary to see the evidence. That would be less favourable treatment for a reason related to disability, but the overriding importance of administering justice fairly means that the less favourable treatment would be proportionate in that case.
  One further argument may be worth mentioning. Those of us with local or central government backgrounds will be familiar with the fact that there are often several different routes to achieving a particular policy outcome. For example, one might want a park and ride system or greater facilitation of the use of public transport, both ways of trying to keep cars out of a city centre. There may be very different ways of achieving that aim. It is rare that there is only one route to achieving a particular policy outcome.
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  The Government believe that the amendment would limit the justification defence too severely. The principle of proportionality is an accepted principle of administrative law that is designed to deal with a public authority having to choose between a number of courses of action. It has three key elements that the public authority must show. I hope that the first allays some of the concerns raised by the noble Lords, Lord Addington and Lord Skelmersdale. The first element that an authority must show is a pressing policy need to show that there is a legitimate aim. The second is that the authority's action is causally related to achieving that aim. The third is that there was no other way to achieve the aim that had a less detrimental impact on the rights of disabled people.
  If we were to accept the amendment, no public authority that had a choice of two equally proportionate and legitimate courses of action would be able to use the justification—even if the overall benefit of the action was generally accepted—which would be perverse.
  The matter is clearly of concern to Members of the Committee. That is a fairly full explanation on proportionality—it is a good and well established issue that protects disabled people's interests so far as possible, but accepts that they may have to be overridden where essential and less favourable treatment is justified in particular circumstances, such as justice and courts of law—and on the specific questions asked by the noble Baroness, Lady Darcy de Knayth, and my noble friend Lord Carter, about functions and services. That issue is more apparent than real; we seek to respond in the same way to both issues. I hope that I have allayed her fears and, through that, those of her friend, Sir Peter Large, who is someone whom the entire Committee respects and whose views it takes very seriously.
  Baroness Darcy de Knayth: I thank the Minister for her very full reply. I thank the many people on both sides of the Committee for their support. I agree with the noble Lord, Lord Addington; it is nice to have the noble Lord, Lord Morris, with us, and his support is telling given his outstanding record on disabled people's legislation. The noble Lord, Lord Addington, put his finger on it as usual; the amendment would deliver exactly what we hope that it has been designed to achieve. I am grateful for the support of the noble Lord, Lord Ashley. As he said, I fear that some public bodies clutch at any straw to save costs.
  The noble Lord, Lord Carter, referred to the grey area, which he thought was more or less cleared up in Committee; but as the noble Lord, Lord Skelmersdale, said, it is not totally cleared up. We need to know what the public interest is.
  The Minister gave a very careful and detailed reply, and I will have to read it very, very carefully. However, she has not set my mind at rest. I absolutely understand that proportionate is meant to be good, and Sir Peter Large understands that it is meant to be a good thing. You still come down to the fact that it will be a subjective assessment of what the impact is on people. She said that justice would be involved in the public interest, and she has mentioned the prevention

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  of crime. She said that a blind juror might not be able to be on a jury because it required reading. I would have thought that the evidence that required reading—
  Baroness Hollis of Heigham: Forgive me. I said that the juror might be required to see part of the evidence, not something that could be translated into Braille. For all I know, it may be fabric, clothing or photographs, something that was perhaps not immediately available to someone who was blind.
  Baroness Darcy de Knayth: There is texture … This is the sort of thing that shows that it is difficult, and it is a subjective judgment.
  The Minister said that the DRC will issue guidance that would help us to understand the function-service divide. The DRC has specifically said with regard to this amendment that it would welcome a clear answer from her to say where the divide is, which would help when writing guidance.
  I will read what the Minister said extremely carefully, and I am grateful to her and to her department and her officials for all the trouble that they have taken over this. I apologise that the notice of my questions was reasonably late in the day. I am not totally satisfied, so perhaps we could continue discussions outwith the Committee, and perhaps by letter. I may have to come back again, because in a Pepper v Hart situation it might be useful to know precisely what is in the minds of the Minister and the Government. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 2 agreed to.
  Clause 3 [Duties of public authorities]:
  Lord Rix Lord Rix moved Amendment No. 15:
  Page 8, line 3, leave out "that is unlawful under this Act"
  The noble Lord said: During my Second Reading speech, I spoke about what I believe is a policy gap between what the Government are trying to achieve through the public sector duty as it is currently framed, and what is actually likely to be achieved. I hope that noble Lords will forgive me if I dwell on this matter for a short time more.
  Amendments Nos. 15, 16 and 17, put forward today by the noble Lords, Lord Carter, Lord Addington and Lord Adebowale and me, are our best attempt at a sensible package of measures to fill this policy gap. I know that Amendment No. 19 has been grouped with ours, for it addresses part of the same issue, but harassment is dealt with under Amendment No. 15 only. We have sought to address both the Government's conviction that it is not possible to mirror the Race Relations (Amendment) Act 2000, and the conviction of most of the rest of us that dealing with harassment under the wording of this Bill would relate to employment only, and possibly to service provision and education; nothing more. That would be most unsatisfactory, and it would be well short of the Government's intention to tackle proactively the harassment of disabled people.
  For example, both Mencap and Mind have local experience of ill-informed nimbyism at its best—or should I say at its worst. I have with me a recent example from Andover, where the local Mencap society encountered something more akin to a hostile mob rather than an informed debate on proposals to purchase a house for four people with learning disabilities. Public education can only do so much to promote common sense and common decency. The fact that nimbyism has gone on now for so many years seems to indicate that a number of prospective neighbours display a great deal less intelligence and dignity than the very people who they denigrate and vilify.
  It may be argued that this kind of policy gap in the public sector could be filled as part of the more general duty to promote equality of opportunity. The argument would go that if a disabled person cannot leave their home because they are likely to be a victim of harassment, the public authority is not promoting their equality of opportunity effectively. I would not be at all convinced by such an argument.
  Recent research around the Race Relations (Amendment) Act shows that public bodies direct resources to meet their explicit duties first. Therefore, unless we make harassment a clear priority, very little will happen. It could also be argued that this policy gap is already filled by current legislation, namely the Protection from Harassment Act 1997 and the Criminal Justice Act 2003. However, both laws are again reactive. Tackling the problem on a person-by-person basis would be to rely on the traditional model of anti-discrimination, which the Government have made clear is insufficient to drive forward positive changes in society. Indeed, that is the very point of the public sector duty.
  Anecdotal evidence would also suggest that clear-up rates for cases of harassment, bullying or hate crimes against disabled people, and particularly people with a learning disability, are not good. Getting cases to court is proving extremely difficult. Mencap's Living in Fear report of 2000 found that in over half the cases bullying of a person with a learning disability continued well after the matter was reported. In the Andover example that I gave, I would expect the appropriate public bodies, most likely the local council and the police, to undertake early, pro-active intervention once they were aware of the problem. I would expect that to involve listening to residents' concerns; tackling ignorance and prejudice; demonstrating that these types of housing projects are already happening very successfully in Andover and the rest of the country; ameliorating genuine worries and ensuring a safe and positive local environment in which disabled people can live and be active and respected members of the local community.
  I assure your Lordships that I could give many more examples in a range of areas, and I am sure that many of your Lordships are aware of some too. I will refrain from doing so for the sake of brevity. I thank noble Lords for their patience, and I hope that the Minister

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  will accept Amendment No. 15, or at least promise to come back with a government amendment that covers the same ground. I beg to move.
  Lord Carter: As I added my name to this amendment and also I am the lead name on Amendments Nos. 16 and 17, perhaps it would be helpful if I explained, as has been made clear, that we have taken the amendments together because obviously they cover the same area. Amendment No. 15 deals with harassment or hate crime, as the noble Lord, Lord Rix, said. Amendments Nos. 16 and 17 are alternative words to promote good relations, and Amendment No. 19 in the name of the noble Lords, Lord Skelmersdale and Lord Higgins, reflects recommendation 40 of the Joint Committee, which was not accepted by the Government.
  First, I will deal with the hate crime issue. This amendment would extend the definition of harassment to a public sector duty. As it stands now, harassment is only unlawful in the area of employment, and is not explicitly covered in education, or goods or services. It does not extend to community relations. Obviously, these areas are important for disabled people if they are to enjoy their opportunities in freedom and safety.
  The Disability Rights Commission strongly supports amendment of Clause 3 to ensure that the scope of the public duty is widened, to enable effective action against harassment of and violence against disabled people outside the workplace; a duty to eliminate harassment, which currently in the Bill applies only to harassment that is unlawful under the DDA, not to wider hate crime which affects, they claim, one in five disabled people and nine in 10 people with learning difficulties; inclusion of disabled people in community and cohesion initiatives; the promotion of general understanding and awareness of disability in the community; including respect for distinct communities such as the deaf community, and improving civic participation and combating social exclusion and deprivation.
  As the noble Lord, Lord Rix, has said, two pieces of law attempt to tackle this issue reactively. We are pleased that the Government recognise in the Criminal Justice Act 2003 that hate crimes against disabled people are a significant problem.
  5 p.m.
  The key questions for the Minister are as follows. If the general duty is not amended to fill what we feel is a gap, is the duty sufficient to give public authorities the power to act to tackle hate crimes and the causes of hate crimes against disabled people? For example, in a judicial review, could a public body argue that it did not believe that it had the power to tackle the issue under the Bill as currently worded? Does the duty legally require public bodies to tackle hate crimes and the causes of hate crimes? Does it make it clear that they should do something if there is a problem? Does the duty sufficiently prioritise and tackle the issue even if the public authority recognises that it could do something and is supposed to do something? In other
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  words, could a public authority argue that it would have liked to do something but that there were a number of other important priorities? As I have said, there is doubt whether the duty is sufficient and whether it requires public bodies to tackle the issue proactively.
  As I have said, unlawful harassment under the Bill applies only to harassment that is unlawful under the DDA, and does not tackle the wider question of hate crimes. Recent research on the Race Relations (Amendment) Act 2000 shows that public bodies direct resources to meet their explicit duties first, with all other duties vulnerable to fluctuating will and competition from other priorities. We heard that from the noble Lord, Lord Rix.
  I turn to Amendments Nos. 16 and 17, which are alternatives to each other. Amendment No. 16 strengthens the disability equality duties, requiring public authorities to take into account the effect of their actions on the social inclusion of disabled people. The intention behind the proposal for a duty to promote inclusion for disabled people is to place a duty on public authorities to assess their policies, practices and procedures for impact on a safe environment for disabled people; to take proactive steps to eliminate so far as they can the negative and stereotypical attitudes towards disable people, which may ultimately result in harassment, lack of opportunities and exclusion; to increase awareness and understanding among non-disabled people of the benefits and the positive action measures; and to take steps to encourage and enable disabled people to take part in civic participation.
  To sum up, is the duty sufficient to give public authorities the power to tackle hate crimes and the cause of hate crimes? Does it legally require them to tackle hate crimes and the cause of hate crimes? Does it give sufficient priority to performing that duty?
  On the wording of the promotion of good relations, which the Joint Committee supported but the Government turned down for reasons which I still find hard to understand when I read them, we want to see an explicit duty which achieves the following key aims. It should tackle harassment and hate crimes against disabled people, and promote a positive attitude towards disabled people and the civic participation of disabled people. In conclusion, I quote the Minister at Second Reading, who said: "My noble friend"—that was me—
  "produced a form of words about social inclusion which I found rather attractive".—[Official Report, 6/12/04; col. 706.]
  Lord Adebowale: I support the amendments tabled by the noble Lords, Lord Carter and Lord Rix, which I believe will have the support of many other noble Lords. I first declare an interest as the chief executive of Turning Point, a charity which supports people with learning disabilities and those with mental health problems. Turning Point is also a member of the New Spirit Coalition, which has been campaigning on the Bill.
  I support the amendments tabled by the noble Lords. This is because at the moment the Bill does not do enough to require public bodies proactively to tackle harassment and hate crimes against disabled

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  people or to promote positive attitudes towards disabled people. That is clear when one reads and thinks through the Bill. We know from the many campaigns through the years on race and disability that it is not enough to be reactive in making law on civil rights; we have to be proactive in making such laws.
  This Bill does not go far enough in its proactivity. That is despite the fact that disabled people experience significant discrimination and exclusion.
  The recent report called Hidden Lives from Turning Point, my own organisation, examines the issue more deeply. It found that despite the principles and targets in Valuing People, the Human Rights Act and criminal legislation such as the Criminal Justice Act, people with a learning disability, for example, still suffer discrimination.
  Service users have told us about the taunts and jibes that they face, about when they had been punched while waiting for a bus and about the sense of isolation that they felt. One man said:
  "They don't understand people with a learning disability. Sometimes it can upset you. It makes me feel cross, but there is nothing you can do, so I just ignore it".
  I have to say that the same quotes could have been made 10 or 15 years ago, and are still being made by members of my own race. We need to pay attention to such quotes in discussing the Bill.
  A support worker told us about how it affects the people she supports. She said:
  "The fear of discrimination and rejection makes it almost impossible for people to mix with others in the wider community".
  We also know that discrimination is not isolated to people with a learning disability. The sad fact is that a DRC survey found that a third of disabled people have experienced harassment in public due to their disability, and the Government's strategy unit found that disabled people have a much greater fear of crime than non-disabled people.
  I also know from my work at Turning Point that people with mental health problems face terrible stigma. That was highlighted in the Social Exclusion Unit's report about mental health. That is why Hidden Lives recommended the explicit inclusion of a duty to promote good relations in the Bill. I am grateful for the work done to move from that idea to the workable amendments that we have before us today.
  The sorts of things that I envisage public bodies will do to fulfil their duties would be simple yet effective ways to challenge attitudes and to tackle incidences of discrimination head on. It may include, for instance, awareness campaigns or work in schools to promote better understanding of disability issues. It would also include making sure that the police and social services work together to ensure that resources are available so people with a learning disability understand what constitutes harassment, are aware of their rights and are confident to speak out. The fact is that many people at present are not clear. One survey found that more than half of people with a learning disability do not know where to go for help if they are harassed or bullied.
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  I particularly like the concept of promoting civic participation in the amendments proposed by the noble Lord, Lord Carter. That is something which Turning Point works to enhance for the people we support. I know that many other organisations are working with us in that regard. We have seen at first hand how it can change attitudes. One example is that of a woman called Clara, who has a profound and multiple learning disability, yet is a member of her local neighbourhood watch. She, who is curious by nature and likes hearing about her neighbours' news, enjoys the meetings. But also, her representation at the meeting ensures that the other members have a better understanding of learning disability issues and respect her as an equal part of the group.
  However, as the Hidden Lives report found, all too often people with a learning disability are set apart from their communities. Many people with a learning disability do not have friendships outside service settings or participate in wider social networks. For some, the only place they visit during the day is the day centre. That is segregation from people who live in the same street and town, and it isolates people with a learning disability and other disabilities from society and new relationships. That reinforces prejudiced attitudes and limits opportunities and expectations.
  Requiring public bodies to promote social inclusion and positive attitudes will challenge this existing culture and ensure opportunities are available to all disabled people. That will help to build cohesive communities where discrimination of disabled people is simply unacceptable and people have the opportunity to maximise their life chances.
  Of course, there is a risk that the Government will view these amendments as unnecessary. They may argue that the public sector duty to promote equality in the Bill is sufficient and that it covers and encourages the sorts of activities I have described. But the noble Lords, Lord Carter and Lord Rix, have made a persuasive argument for why that is not the case, and I for one wholeheartedly agree with them. Without a specific duty requiring public bodies to promote positive attitudes and inclusion, the important work of proactively challenging prevailing cultures and attitudes towards disability will simply not be done.
  In addition, as Lord Rix has so carefully explained, the duty to eliminate harassment applies to harassment only as defined in the Bill. As I understand it, that would not include the harassment and bullying that people have told me they experience on many occasions. That everyday harassment must be covered by the Bill. We have seen the success that can happen when government, individual and communities place a priority on tackling discrimination. We are succeeding in turning the tide of discrimination in respect of other social groups, including the one to which I belong. These amendments would ensure that the same profile and attention is given to tackling discrimination against disabled people and to promoting inclusion. I

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  hope that other noble Lords will join me in supporting the amendments of the noble Lords, Lord Rix and Lord Carter.
  Lord Addington: I would like—
  Lord Skelmersdale: My amendment, Amendment No. 19, is grouped with this set of amendments, so perhaps I might be allowed to say a word.
  I was particularly alarmed to discover, from a whole variety of sources, exactly the extent of harassment that is going on. The DRC, in its attitudes and awareness survey of 2003, said that 22 per cent of disabled respondents said that they had experienced harassment. Mencap's Living in Fear report has already been mentioned. The 2004 survey of disabled people in Scotland, carried out by the DRC in Scotland and Capability Scotland, said that almost half the participants in their survey had experienced verbal abuse, intimidation and/or physical attacks because of their disability. One in five respondents suffered an attack once a week or more. That is horrific.
  The Mayor of London's 2003 survey of disabled Londoners, entitled Another Planet?, found that 79 per cent of disabled people reported that they had experienced harassment. According to the same survey, 8 per cent of disabled people fell victim of violent crime in comparison to 4 per cent of non-disabled people. Disabled people were also four times more likely to be assaulted.
  The only way in which we can get over this harassment is by proper education and understanding of the needs and realities of being disabled. The noble Baroness, Lady Hollis, spoke at Second Reading of having had a short period of disablement herself, and I took very much to heart what she said. But imagine what it is like for someone like the noble Baroness, Lady Masham, or the noble Baronesses on the other side of the Chamber, who spend the greater part of their lives in wheelchairs. I do not know, because they have not yet told us, whether they have been subject to harassment from time to time. I would most certainly hope not. What we therefore need is for positive attitudes towards disabled people to be promoted. I am delighted that Amendments Nos. 16 and 17 have been tabled, because they are far better than my own amendment, Amendment No. 19, to which I do not now need to speak at all.
  I note that, in the Government's original response, they argued that unlike other equality legislation the DDA grants rights only to disabled people, and the draft Bill already introduces a requirement on public authorities to promote equality. However, promoting equality does not go quite far enough, does it? In any case, the DDA does not grant rights only to disabled people; in a few days' time, we will come to an amendment towards the end of the Marshalled List seeking to remove able-bodied people.
  I agree with and took particular note of the words of the noble Baroness, Lady Hollis, on social inclusion, at Second Reading. I am slightly surprised that the noble
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  Lord, Lord Carter, in particular, did not use the words "social inclusion" in his amendment, but it means pretty much the same thing.
  Lord Carter: They are in my back pocket.
  Lord Skelmersdale: I do not have any great experience of the back pocket of the noble Lord, Lord Carter, but of course I believe what he says.
  Baroness Hollis of Heigham: Do you want to?
  Lord Addington: With a certain amount of trepidation, I support the amendment. With respect to the need to eliminate harassment, the amendment would remove the words,
  "that is unlawful under this Act".
  That brings the whole thing into sharp focus. You are allowed to harass people about certain things but not others, and a certain group is vulnerable.
  As has already been said, the problems of disabled people have been acquired at birth or by accident during some point in their life. They will need support. We are also fighting against stereotypes; anybody who is different from you is always slightly inferior. It is a fact, I am afraid, that when any half dozen people are in a room, that is always the assumption. Over time, we have trained ourselves not to do this.
  In virtually all groups, when the difference becomes apparent, there is always an immediate check—"Oh! What are you like. What's different about you? You're not like us". That is what we are talking about. Practical examples have been given, but we must do something to address the problem. It can be addressed only by providing information and making sure that people realise that these differences are not that great. Anyway, it is not something that the person has done—it is just something that is. We must attack the problem and we will not do so by saying, "We'll just make sure that nothing nasty happens to you". That is effectively how this provision could be interpreted. The parliamentary language and the legal terminology may not be correct, but that is certainly the sentiment behind the amendments.
  As the noble Lord, Lord Adebowale, pointed out, the civil participation in Amendment No. 16 is probably the strongest suggestion that we are bringing people into the mainstream of society. That must be done in certain ways. It does not matter if these amendments are not accepted as long as that is done. This proactive duty is the main step forward ideologically in this Bill as opposed to the 1995 Act. I hope that the Minister will be in a position to tell the rest of her colleagues in the Government that this Committee thinks we should go an extra step. I invite the noble Baroness to take this very difficult step. Let us face it; we will have a very good champion if she does.
  Lord Ashley of Stoke: We have had a long debate, and I shall be very brief. I congratulate the noble Lord, Lord Rix, and my noble friend Lord Carter on an excellent presentation. They certainly persuaded me, although I needed no persuading.

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  I have recently had experience of the effect of violence and harassment on two young people. They were devastated; they were hit and threatened with knives by thugs in the street. They were not disabled people, but strong young men. They were very disturbed indeed by their experience. So I can only imagine the effect of something similar on disabled people, especially those with a learning difficulty. We should take any opportunity there is of reducing this kind of hate crime and harassment. The amendments provide exactly that opportunity.
  The one killer fact for me is this: if there is provision, as there is, in the race relations legislation, which deals with the concepts of hate and violence, we cannot possibly afford not to have such provision in the Bill. The message would then go out that hate and violence are banned in race relations legislation but are okay when it comes to disabled people. That message simply cannot go out, and I therefore hope that the amendments will be accepted.
  Baroness Hollis of Heigham: As Members of the Committee suspected, I am not in a position to accept these amendments. I shall come back to that point later.
  Two issues have been raised. The first is a description of and a call on the DDA to understand and seek to eliminate, as far as possible, issues of harassment. Some of the examples given by the noble Lord, Lord Rix, my noble friend Lord Carter and others have been quite shocking and an affront to our concept of decency. There is no disagreement about that.
  However, you cannot somehow turn a public body into a de facto police force, with powers to tackle individuals through the legal system, when an example of harassment has occurred. We have other and appropriate means for doing that—namely, the Public Order Act 1986, which leads to police action against the offence of harassment. More recently, the Protection from Harassment Act 1997 can deal with both a civil wrong and a criminal offence. Although my noble friend Lord Carter did not mention it, I am sure he is aware that under the DDA, disabled tenants are protected from harassment by a landlord or manager of the premises. So there are clear routes through the legal pathway. For racial harassment, however, that is not always the most obvious form of redress.
  The question is whether one can appropriately require and expect our local authorities and public bodies to engage in an activity beyond that of the policing function to seek to overcome the causes of harassment and not just to control the activity. Most of the discussion today has been on that point.
  Much of the discussion has suggested that because the Bill, unlike the equivalent race legislation, does not include a duty requiring public bodies to promote "good relations", it is somehow weaker and fails, by implication, to take the issue of harassment of disabled people as seriously as, say, the harassment of people from our ethnic minority communities. We do not accept the argument that just because the corresponding race
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  legislation has a duty to promote good relations between races and ethnic communities there should necessarily be a corresponding disability duty. There is no automatic correlation between the provisions required to drive equality for disabled people and those to drive equality on other grounds.
  We have heard some horrendous stories and examples. My honourable friend the Minister for Disabled People made it clear during the pre-legislative scrutiny that the Government were open to persuasion if evidence could be provided that the Bill was lacking in some respect. But we would need to be very clear about the circumstances that the current provisions fail to address, and how changes to the duty could remedy this in a way that was workable and made sense for the bodies concerned.
  I do not think that the term "good relations" works as appropriately in the disability context as it does in the race context. There seems to me a clear difference between the experience of ethnic minority people living in identifiable communities with institutions such as places of worship, restaurants, shops, and so on, and the experience of disabled people living in the same communities as non-disabled people and using the same community institutions. There is a very real difference when it comes to building mutual understanding between white, Afro-Caribbean, Asian, Pakistani and Bangladeshi communities or between Asian, Pakistani and Bangladeshi communities and the Afro-Caribbean community. There is a need to explain and interpret communities to each other. That is not a similar equivalent responsibility within disability equality legislation.
  I have listened carefully to the debate; I think a critique has been offered. I do not believe that the wording is correct and appropriate, or even, on reflection, whether "social inclusion" is. I would like to reflect on the arguments and see whether, in the light of what has been said today and in the light of further discussions, we can explore the issue further on Report. In the light of that undertaking, I ask that the amendment be withdrawn.
  Lord Carter: Before the Minister sits down, that is the first time I have really understood the Government's argument about the use of the phrase "good relations". I can accept the argument; I can see the difference between race relations and the rest. I am delighted to hear that the Minister is prepared to try and find a form of words which will meet our concerns.
  Lord Rix: I, too, was getting very worried until the Minister's last sentences, when she held out some hope. I shall not enter into an argument about whether the provisions should apply to black people or disabled people in restaurants or shops. I shall live in hope that the wording that will emerge from the Minister's office will be suitable.
  The provision would be quite simple if our amendment were accepted. Under the heading "General duty", subsection (1) of new Section 49A would state that every public authority shall, in carrying out its functions, have due regard to the need to eliminate harassment. I

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  use the old-fashioned pronunciation of "harassment". That seems quite simple; it would not put a tremendously onerous duty on local authorities. It just means that they have to consider other things under the Bill.
  I shall live in hope. I beg the Committee's pardon because I must now leave. I broke a tooth just before we sat down and I want to see if the noble Lord, Lord Colwyn, is in the House. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 16 and 17 not moved.]
  The Earl of Listowelmoved Amendment No. 18:
  Page 8, line 9, at end insert—

  "( ) the need to provide adequately trained and supported carers for disabled persons where this is necessary to promote equality of opportunity between disabled persons and other persons;

  ( ) the need to provide adequately trained and supported carers for disabled persons where this is necessary to eliminate harassment that is unlawful under this Act;

  ( ) the need to provide adequately trained and supported carers for disabled persons where this is necessary to eliminate discrimination that is unlawful under this Act; and

  ( ) the need to provide adequately trained and supported carers for disabled persons where this is necessary to address the need to take account of a disabled person's disabilities."

  The noble Earl said: The purpose of the amendment is to find out from the Government whether, if someone who has a disability and experiences unsatisfactory or inappropriate care, as a result of which he experiences harassment and discrimination or is unable to access education, obtain work or sustain employment, he would, under the clause, have a case to take forward. I move this amendment very tentatively, given my lack of specific knowledge in this area. I am slightly overawed, as I was on Second Reading, to be speaking in this company, given its depth of knowledge.
  Some 68 per cent of children who are in local authority residential care, in children's homes, have a psychiatric disorder, according to the Office for National Statistics. So a large number of these children will have a disability, whether it is identified or not. I am talking about children in residential care, but I think that there is a wider point to be made.
  I have met many of the practitioners working with these children and know that they are hugely committed. They do an immensely difficult task, yet broader society fails to recognise how difficult it is. Sixty per cent of these children have experienced abuse or neglect. A further 10 per cent experienced family breakdown before going into care. We also know that in this country there has been a long and very sad history of sexual abuse of children in residential care.
  In 1998, 60 per cent to 70 per cent of the workforce had no relevant qualification for working with these children. They had such extreme needs, yet were being cared for by people who were simply not trained up to meet those needs.
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  5.30 p.m.
  The Government are taking action and I shall come to that. Reference has been made today to the Radio 4 "Today" programme and an item on residential care for children in Brighton. A large number of small, private providers appear not to be doing their job sufficiently well and the children are not being properly managed and contained in those institutions.
  In practice, there are difficulties. There are 20,000 children with disabilities in residential care. There are also many elderly people in care homes and it is disturbing to think of the quality of care which many of them receive. In the past, the response to the difficulty has been the closure of children's homes. In the 1980s, many children's homes were closed. The problem is that a group of children need residential care and it appears that a number of unscrupulous private providers, seeing the market opportunity, have put children in environments where staff are poorly trained. That, too, was documented in the recent Channel Four programme "Dispatches" on "Profiting from kids in care".
  Many elderly people whose faculties are declining and are suffering from disabilities are also cared for by people who are not adequately trained and supported to meet their needs. I recently listened to a report from the National Institute for Clinical Excellence on mental health and elderly people and I was most stuck by the strong parallels, the lack of support for staff, the isolation of the homes and the inability to work with other services because staff are so poorly trained. That was all very familiar to me.
  The professionalism of staff working in such an environment with looked-after children is beginning to improve with the introduction of a National Vocational Qualification for childcare for a large proportion of them. However, it is a basic qualification.
  On the continent, most children in care are not fostered but are in residential childcare. They are cared for by pedagogues and social educators who have two to three years professional training equivalent to that of teachers or nurses. I recently visited the Scottish Institute for Residential Childcare whose expert on continental childcare told me that he could not think of any history of sexual abuse of children in care on the continent.
  I also recently spoke with a German practitioner when he was visiting this country. He is a pedagogue, has worked in a children's home for two years and is a researcher at the University of Lunenburg. He was so surprised by the history and by the fact that a residential childcare worker is not allowed to share a car with a child in care because of concerns of further abuse. It was quite bizarre for him.
  I hope that I am not straying too far off the subject. I suspect that I may be and I apologise if I am. But one wants to ensure that children and elderly and vulnerable people in residential care, or care in other settings, are not harassed within them or when they go out. We talked about the stigma of people with disabilities, the number of attacks made on them and difficulties in the workplace. Unless they are cared for

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  well in their home settings, they will not have the resilience and confidence to deal with the outside world.
  I look forward to discovering from the Minister whether this group of children, and more generally those disabled people with carers, are caught by this clause. I want to emphasise the need for those working with disabled people always to encourage them to feel that they can participate and be involved and that their voices are important and are heard. We must ensure that carers have good interpersonal skills at a highly sophisticated level so that they can work with vulnerable people and those with disabilities. They must be effective practitioners, stand back from what they are doing and consider and develop their practice.
  I apologise if I am off the mark. I do not intend to speak on any other amendments on the Bill and I apologise for the time I have taken now. I also apologise for not having given the Minister warning of the details of my concerns, but I look forward to her response. I beg to move.
  Baroness Masham of Ilton: What are the safeguards for disabled people who have to rely on carers? There was a recent case of terrible abuse to disabled people living in a care home in Hull.
  Secondly, why do we not take advantage of the good qualification of pedagogues? I have seen them in operation with disabled people and children in Germany and we might as well take advantage of Europe now that we are part of it. We have to put up with so many ridiculous regulations from Europe—for instance, the registration of horses, with which I am involved—but we do not take on the useful registration of people looking after disabled children and adults, as pedagogues do. I believe that there is a three-year training course, combining teacher, nurse and social worker.
  Baroness Hollis of Heigham: The amendment would set out on the face of the Bill a duty on public bodies to have due regard to the need to provide adequately trained and supported carers where this would be necessary to eliminate discrimination and harassment, and to promote equality of opportunity for disabled people.
  I greatly respect the concern of the noble Earl, Lord Listowel, about the wellbeing of children in residential care. However, he acknowledged that his contribution was on the wider issues—I in no sense dispute much of what he said—on the wellbeing of looked-after children. We need only look at the history of the past 10 of 15 years to see how too often society has failed most of its vulnerable children. There is no difference between us in that regard. However, the noble Earl seeks to do something different. He raised and registered his concerns, which I am sure that many Members of the Committee will share, and talked about the need of society to respond.
  The Government's view is that the duty as drafted already requires bodies to give due regard to care need, the way it is delivered, the way in which it is delivered and who is delivering it. As part of that, they must also think about how carers are trained and supported.
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  When a local authority has care for disabled children perhaps with mental health problems, physical disabilities or psychiatric conditions, it will be under a duty to promote equality for them as an intrinsic part of providing their care. That will apply to all aspects of their care and affect all aspects of their lives. That broader duty therefore is indeed enshrined in the Bill. However, the noble Earl will understand that DDA legislation is not the right place to start laying qualifications for the training of carers in residential homes. That is a matter for other departments, other consultation documents and other developments with local authorities and the like.
  I assure the noble Earl that we recognise that by placing the duty to promote equality on local authorities within that context, the right way to pursue that may be through social services' activity and so forth. The duty exists and will, I hope, make an appropriate contribution to ensuring that looked-after children has at least as effective a claim on the rights, responsibilities and resources of society as all other children.
  Lord Skelmersdale: Before the noble Earl responds, I want to ask the Minister a question. She is right in saying that the duty will appear in the amended Act. Such duties are often followed up by codes of practice issued by the Disability Rights Commission. Is it her understanding that the codes of practice will give suitable weight to the needs of staff working with looked-after children with mental health issues and other disabilities? Have the Government begun to look at the wider application of the public-sector duty to children, including looked-after children? If the Minister can confirm that they have, I am sure that that would help the noble Earl.
  Baroness Hollis of Heigham: My understanding is that that is the case and I am pleased that the noble Lord, Lord Skelmersdale, pressed me on the matter.
  I apologise to the noble Baroness, Lady Masham, who raised a couple of points to which I failed to respond. She asked me about the more general safeguards for carers over and above the particular case of looked-after children. She will know that we have a Commission for Social Care Inspection and care standards legislation. She will also know that the General Social Care Council registers and is responsible for the training of social workers. However, if the noble Baroness would like more specific detail, I shall be happy to obtain it from my colleagues in the Departments of Health or Education, whichever is more appropriate according to the age group.
  The Earl of Listowel: I thank the Minister for her helpful reply. I also thank the noble Baroness, Lady Masham, and the noble Lord, Lord Skelmersdale, for their helpful contributions. Indeed, I thank Members of the Committee for their patience on this amendment and I beg leave to withdraw it.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 19 to 22 not moved.]
  Lord Addington Lord Addington moved Amendment No. 23:
  Page 9, line 2, at end insert—

  "( ) Regulations under subsection (1) shall ensure that a body responsible for a school—

  (a) publishes a disability equality scheme that sets out how the body will fulfil its duties to eliminate unlawful discrimination against, and harassment of, disabled people, and promote equality of opportunity and positive attitudes and civic participation in relation to disabled pupils, disabled employees and disabled parents or guardians;

  (b) must demonstrate that they have taken the actions they have committed themselves to, and achieved the appropriate outcomes;

  (c) must report on their progress;

  (d) must review the scheme, within no more than three years, and make appropriate revisions to it where necessary.

  ( ) The body responsible for a school is determined in accordance with Schedule 4A to the Act."

  The noble Lord said: The amendments are tabled to ensure that schools are placed under specific disability equality duties and that that is specified in regulations. In particular, they should publish a disability equality scheme. Amendment No. 27 tries to limit the additional bureaucracy that is placed on the scheme.
  Our discussion on Amendments Nos. 15, 17 and 19 covered much of the background to the belief that schools should be brought within the scope of the Bill and given additional duties to act within it. School is the first place where civil society takes an active part in the upbringing of children and if we get things right there we will enhance the opportunities for disabled people and get them together with non-disabled people.
  There has been much legislation on this subject. Indeed, I see many Members around the Committee who have been involved in Bills brought forward to improve the lot of disabled school children. Some of the ground-breaking work, especially under the previous government, occurred primarily as a result of the school-based approach. But still it is a little hit and miss, although I am sure that it will improve over time. An additional provision purely on the grounds of education, therefore, would not be inappropriate because we are taking things further than addressing only the needs of disabled pupils.
  The amendment has also been tabled because certain groups are worried that schools are not covered by the Bill. Will the Ministers show us where schools are guaranteed to be in the main thrust of the changes? Apparently, universities and colleges are—and the Government's programme states that if you want to participate in civil society, having employment is a good way forward. The Government have been encouraging that for a long time. If we can ensure that disabled school children will obtain the full benefit of the Bill and are at the forefront of its provisions, I shall be happy. It is not something that the Government have encouraged for a long time. If a group of people who will be even more dependent on getting good
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  qualifications—it is barely possible in today's society—can be assured that they will get full benefit from the Bill, and that there is no question of their being removed from it, I will be happy. If not, there is a potential flaw.
  I hope that the Government will be able to give me a full answer on that and allay my fears. If those groups outside are right, we effectively are making the Bill less good than it should be. I beg to move.
  5.45 p.m.
  Lord Carter: I read the amendment with interest. The lawyers will have seen the letter from the Special Educational Consortium that sets out the problem. When the Minister replies, it would be helpful if she could confirm that the Government have the power already in new Section 49D, which was mentioned by the noble Lord. It states:
  "The Secretary of State may by regulations impose on a public authority … such duties as the Secretary of State considers appropriate for the purpose of ensuring the better performance by that authority of its duty under section 49A(1)".
  That duty sets out the need to eliminate discrimination and harassment, and to promote equality of opportunity and,
  "the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons".
  Then, in new Section 49E we have compliance notices and, in new Section 49F, the enforcement of compliance notices. All the powers are there. New Section 49D(5) states that anyone who makes regulations shall consult the Disability Rights Commission. The powers are there; the question is of when and how the Government use them. That is probably the point. Do we need to spell them out in detail as the noble Lord has done, or are they implicit? They cover all public authorities, not only education authorities. It will be interesting to see how the Minister can help us with the use of the regulation-making power.
  Lord Skelmersdale: Further to that, chapter 1 of part 4 of the Keeling schedule refers to schools. In considering the amendment, I found the Keeling schedule extremely useful, because it puts the whole matter together and in context. I notice that, under proposed new Section 28D on accessibility strategies and plans—this is not in the Bill; I am talking about the Keeling schedule—each local education authority must prepare, in relation to schools for which they are the responsible body, an accessibility strategy. Clearly that is not the issue here, but schools must also prepare further such strategies at such times as may be prescribed. That is very much covered by the issue here. In other words, specifically for schools, the DRC and the Government can insist that such strategies are produced, kept up to date, followed through and all the rest of it. I am not really sure that the amendment is necessary.
  So far as the details of the amendment are concerned, I want to ask the noble Lord, Lord Addington, to whom reports of progress must be made, as covered in proposed

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  new paragraph (c) in the amendment. Clearly, schools are reviewing themselves, but to whom must they demonstrate that they have taken the steps and actions that they said that they would?
  Lord Addington: The answer is the Secretary of State or his office.
  The Lord Bishop of Worcester: I also was concerned to support the amendment. I accept that there are powers around that can be used to achieve the objectives that I take it are behind the amendment. However, saying that they are around is not the same as being clear on how and whether they will be used. The purpose of the amendment, as I understand it, is particularly to probe that question.
  I totally agree with the noble Lord, Lord Addington, in that the inclusion of schools in a very specific and direct way is crucial to the furthering of the objectives of the Bill. I was not quite as persuaded as evidently some others were by the Minister's comments on the previous amendment about the fact that one cannot make analogies between what happens to disabled people and to people in minority ethnic groups. However, it is certain and analogous in both cases that the promotion of good and positive attitudes is a crucial part of the role of schools.
  I am very well aware that the argument is used that schools have so many duties put on them, have to report on so many things, and are subject to so many requirements to produce more paper that one should not include things that are extra without being very clear that they are necessary. However, in the instance of knowing what happens to children with disabilities if positive attitudes are not specifically required to be encouraged, if we are not to have the amendment, we need some very direct and positive assurances from the Minister if we are to feel confident that this key instrument in promoting the objectives of the Bill will be used.
  I speak knowing that the Children's Society, among other bodies, thoroughly welcomes the Bill and feels that it is excellent that is being brought forward. It would regard any failure on the subject as a matter of serious concern.
  Lord Oakeshott of Seagrove Bay: From these Benches, I thank the right reverend Prelate for his support. He put his finger on the key requirement. As the noble Lord, Lord Carter, mentioned the Special Educational Consortium, I thought that I would quote its views briefly. It states:
  "At the Second Reading of the … Bill, Government Ministers were equivocal about how far it was intended for the Public Duty to apply to schools … It is of the utmost importance to make clear, unequivocally, that schools have a duty to … ensure that they promote equality for disabled pupils in everything they do".
  The consortium makes it clear that it strongly supports the amendment tabled by my noble friend and me. The Disability Rights Commission states that it strongly
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  backs the amendment, as does the Children's Society, as the right reverend Prelate said. This is an occasion when, unequivocally, the amendment or something very like is the way to do things.
  Lord Carter: I would like to come back on another point. I was remiss in not thanking the Minister at the beginning of the debate today for the Keeling print of the Bill, which was enormously helpful, as the noble Lord, Lord Skelmersdale, said. That print shows, at proposed new section 28M on page 100, that—it is a role for the Secretary of State and the National Assembly—if the appropriate authority is satisfied, whether on a complaint or otherwise, that the responsible body has acted or is preparing to act unreasonably in the discharge of a duty imposed by or under proposed new Sections 28D or 28E, or has failed to discharge a duty imposed by or under either of those sections, it may give the body such directions as in the discharge of the duty appear to it expedient. All the powers are clearly there if the Government are prepared to use them.
  Baroness Hollis of Heigham: Yes. Amendments Nos. 23 and 27 would require the Government to place specific duties under the duty to promote equality in schools. Before I turn to the detail, I want to make a couple of broader remarks. To some extent, we are touching on the issue that we raised on Amendment No. 11, which was overlap. Schools have an extensive range of existing duties, under both disability law and education law. Those duties are significant and designed, for example, to ensure that disabled people are not discriminated against, and that schools plan to increase access to education for disabled pupils. Indeed, those duties go further than duties on other bodies. For example, schools already need to produce accessibility plans.
  The recent Ofsted report,Special educational needs and disability —Towards inclusive schools, found that the revised inclusion framework that we introduced through the Special Education Needs and Disability Act 2001 had contributed to a growing awareness of the benefits of inclusion and to some improvements in practice. The visits to the schools for the survey finished in November 2003, six months after schools' first accessibility plans were due to be published. It is therefore good news that 50 per cent of schools had already published their plans. The report went on to highlight the need for additional progress and to bed down that strategy, which is being pursued.
  We are also developing, with the Disability Rights Commission, education experts and other disability organisations, a resource bank to help schools to make reasonable adjustments to their policies and practice to prevent discrimination against disabled pupils. As noble Lords will be aware, our consultation document, Delivering equality for disabled people, set out our proposals for using the powers to impose specific duties that would be granted by new Section 49D. We will respond to that consultation in due course.

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  My noble friend Lord Carter is absolutely right. In the education sector, our priority is clear. We must ensure that SENDA and other existing measures bed down. We need to decide whether applying the full specific duties to schools is appropriate in that context. However, even if we decided that it was not appropriate to put the full weight of specific duties on schools, we are keeping the matter under constant review. As my noble friend rightly identified, new Section 49D would allow us to oppose further duties at a later date if that were necessary to achieve the outcomes for disabled children and teachers that we all want—in other words, if the SENDA moves do not deliver what we all want, hope and expect them to do.
  The noble Lord, Lord Skelmersdale, was right. Section 28D of the DDA, which was inserted by SENDA, requires schools to draw up accessibility plans and gives powers to the Secretary of State to prescribe further plans that schools must draw up.
  With those reassurances, I hope that Members of the Committee will accept that we seek to bed SENDA down and avoid overlap provision. There are strong responsibilities placed on schools to meet their needs and promote equality for disabled children, but we have additional and further powers to amplify that if, in practice after we have bedded SENDA down, those powers are clearly seen to be needed. In that case, we can return to the issue then. I hope that the Committee feels that the Government are responding appropriately and are making education central to the matter, whether at school or adult level. Discrimination, whether on medical or social models, is as much about mindset as about physical or mental capacity. That is why education needs to be at the centre of our concerns.
  Lord Lucas: Could the noble Baroness clarify which kinds of school are covered by existing powers? Do they cover city academies, fully private schools, and private special schools that provide largely for pupils paid for out of the public purse? Where is the line drawn in this complicated collection of styles of school that we now have?
  Baroness Hollis of Heigham: I shall be very happy to send the noble Lord a copy of the consultation document on schools that is currently under consideration.
  Lord Addington: Once again, the debate confirms that having the noble Lord, Lord Carter, on your side is a good idea.
  Baroness Hollis of Heigham: He has not even been your Chief Whip.
  Lord Addington: We could reminisce for a while. I thank Members of the Committee. The amendment was a genuine attempt to clarify a point of concern. I hope that it was taken on that basis. The Minister sounds to me, with my inexpertness—I have never hidden it from anyone; it always becomes apparent— as though she has answered the questions. If tidying-up points have to be raised later, I shall come back to
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  them, but I hope and suspect that most of the problems have been addressed by what the Minister said. In that light, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  6 p.m.
  Lord Skelmersdalemoved Amendment No. 24:
  Page 11, leave out lines 14 to 23.
  The noble Lord said: Amendments Nos. 24 and 25 are quite simple and not nearly as dramatic as the Marshalled List in conjunction with the Bill might perhaps tempt some noble Lords and observers to think. Clearly, if subsection (3) on the page 11 is left out, there is no point in having subsection (4), so we can dispense with the second amendment very easily indeed.
  The first amendment covers a very simple point. While there is clearly no point in having compliance notices unless they are enforced, it is equally clear that the courts are the right people to enforce them. There were long discussions on the last Bill with which the noble Lord, Lord Higgins, the Minister and myself were concerned—the Pensions Bill—on the matter of compliance notices.
  The problem in this Bill is that public authorities are given three months to respond to the compliance notice issued by the Disability Rights Commission, which is a thundering long time. I agree that that is the maximum, but these things tend to take up the maximum time in my experience. The three months given in the Bill is more than generous. If the response is inadequate in the view of the Disability Rights Commission, it may then take the matter to the courts for them to decide. The trouble is that there is no limit to the time that the courts may take, but it would be unusual for the courts to complete their review of the matter in less than another three months. That is a likely minimum of six months during which time the specified duty is not being conducted and discrimination is therefore continuing.
  I believe that the process will take far too long. The intention of the amendments is to ask the Minister—I do not think that we can add anything useful to the Bill—what she can do to speed up the process from the first failure of a duty to its resolution by the courts. I beg to move.
  Baroness Hollis of Heigham: The answer is that I do not know. I do not know whether there is anything that can be done to speed up the process. This is clearly a probing amendment. I was prepared to defend the need for the DRC's three months to get engaged and the way that the court processes work. However, the noble Lord understands that perfectly well and has described it perfectly adequately and accurately, so I do not need to go through all that material. The noble Lord is clearly concerned about whether the process that we have constructed is too elongated and drawn out and justice for the individual gets lost in the process.
  I will take further advice on this matter but, as it stands, what we have done is model this procedure broadly on the lines of the CRE. The CRE has never

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  had to proceed beyond the issuing of a compliance notice. In other words, the CRE's compliance notices have stuck and it has not had to go through to the second stage which indeed would elongate the process by going through to a court action. That is because the length of time for the CRE, which I understand is equivalent to the one proposed here, allows it to mediate, teach, explain, persuade and, if necessary—bluntly—to hassle and bully people into compliance. That is why we have the three-month period.
  I will check with the DRC that it feels that the time-scale is appropriate as modelled on the race relations Acts. In our judgment it seems to be, but that is based on the supposition that the time-scale is successful and court action does not need to follow. If I am wrong then we should reflect again, but I am happy to have the noble Lord on side to see expeditious justice.
  Lord Skelmersdale: I am grateful to the Minister for agreeing to look at this problem—if indeed it is a problem and I have not highlighted a myth, which I know that I sometimes do, as the Minister has told me privately from time to time. However, I remember, although I cannot pin it down at the moment, that the DRC quite regularly supports or initiates court cases in the field of disability. I made a speech months ago on exactly that subject. If that is going on already outwith the Bill, it is likely that there will be a need for the occasional court case because of the Bill. That is what I am concerned about. However, as I said, I am grateful to the Minister for saying that she will consider the matter. As I said earlier, I do not think that this is the subject for an amendment to the Bill but it is something that we should watch very carefully indeed.
  Amendment, by leave, withdrawn.
  [Amendment No. 25 not moved.]
  Clause 3 agreed to.
  Lord Ashley of Stoke Lord Ashley of Stoke moved Amendment No. 26:
  After Clause 3, insert the following new clause—
  "DISABLED PERSONS' RIGHTS TO INDEPENDENT LIVING
  Persons with disabilities are to be entitled to the same choice, control and freedom as any other citizen, at home, at work, in education and as a member of the community."
  The noble Lord said: The purpose of this new clause is to propose enforceable rights to independent living for disabled people. We have come a long way in the past 30 years or so from a patronising, pitying attitude to disabled people, but without full rights to independent living we fall well short of our goals. In my view, that is one of the highest priorities for the next Parliament. I understand that, at present, it is the subject of an intensive programme of work by the Disability Rights Commission and I very much hope that the Government takes that on board. I shall listen very carefully indeed to the response of my noble friend Lady Hollis.
  The concept of independent living sounds very general, but it contains a range of very definite specifics. Some of those are taken forward in the Bill through new transport rights, the extent of the DDA's public functions and the public sector duty to promote
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  disability equality. If the splendid amendments about disabled tenants and leaseholders proposed by my noble friends Lady Wilkins and Lady Darcy de Knayth, and the noble Lord, Lord Addington, are eventually accepted they would add enormously to independent living.
  The concept arises through our failure to provide independence for disabled people. Schools, jobs, leisure and all the things that we take for granted are beyond reach, as vast numbers of disabled people know to their cost. It is remarkably sad that so many of our citizens are deprived of so many basic rights.
  Independent living means disabled people having the same choice, control and freedom as any other citizen. It means providing practical assistance based on their own choices and aspirations. Now is the time to move decisively on this. We need to guarantee that disabled people can grow up with their families, go to neighbourhood schools, use the same buses, get jobs commensurate with their abilities and have equal access to the same services and establishments and social life, culture and leisure.
  It may be argued that we have made some progress, with community care and direct payments, and indeed we have. But there are many defects. For example, the DRC calculates that direct payments are particularly low for people with learning difficulties and mental health service users, with take up of only 10 per cent and 2 per cent of all direct payment recipients respectively.
  The essential point is that full rights to independent living must be properly financed and carefully planned. With that, we can release human talents and potentialities that would benefit not only disabled people themselves, but the whole of our society. That is a marvellous goal and we will not be satisfied until we have achieved it. I beg to move.
  Lord Skelmersdale: I added my name to this amendment because I certainly agree with the principle. However, I made the point that disabled people are people first and disabled second. Therefore, it goes without saying that any rights and duties that are attached to able-bodied people should also be attached to disabled people. I am fairly confident—the Minister will correct me if I am wrong—that, when general duties, controls and freedoms are legislated for in the whole panoply of civil and criminal law, disabled people are covered just as much as the able-bodied. However, in principle I support the amendment.
  Lord Addington: It only remains for me to say that the noble Lord, Lord Ashley, is right in this matter and that the House should support him.
  Lord Carter: I did not add my name to the amendment, but I should have done. As always, the noble Lord, Lord Ashley of Stoke, speaks with enormous authority and experience on this issue. We can all agree with the amendment, but it is what is known in the trade as a declaratory clause and I am sure that the Minister has a note from the draftsman saying that it is not necessary or something of that nature.

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  I also wonder whether the amendment is in the right place in the Bill because it comes after Clause 3 in the section relating to public authorities and refers to rights that should apply to disabled people in all contexts, not only public authorities. The right place for the amendment—and it would be excellent if the Minister would accept it—is a declaratory clause right at the front of the Bill.
  Lord Skelmersdale: Before the noble Lord sits down, does he believe that the Minister has a back pocket?
  Lord Carter: I am sorry?
  Lord Skelmersdale: A back pocket.
  Lord Carter: In Committee, we can speak as many times as we like. However, it would be extremely ungallant of me to refer to whatever the Minister has behind her.
  Baroness Hollis of Heigham: The notion that the Minister has a civil service in her pocket should not be regarded as an appropriate statement for any of us to make.
  As my noble friend said, the amendment as worded is not necessary: the noble Lord, Lord Skelmersdale is exactly right. There is currently nothing in law that prevents disabled people from being entitled to the same choice, control and freedom as any other citizen. In that sense, the amendment is redundant. There is no law that says X, Y or Z applies to everyone except disabled people. However, that is not the issue, as I am sure my noble friend Lord Ashley would agree. The crucial matter is that disabled people have the opportunity to make use of existing rights. In other words, the rights must not be merely declaratory, but deliverable.
  Too often, the barriers that people face are too great, which is what the DDA aims to tackle. By making discrimination against disabled people unlawful, it ensures that they can have greater choice, control and freedom in their lives. As Committee Members know, the DDA outlaws discrimination against disabled people in a range of situations including employment, education and the provision of goods, facilities and services. Requiring providers of hospital services to examine their policies and procedures, as we discussed earlier, or service providers to adapt or remove steps to a cinema or church to make access possible for wheelchair users is already within the DDA.
  However, the current duties go only so far, which is why, through Clause 3 in the draft Bill, we are placing new duties on public authorities in the exercise of functions and requiring them not only to dismantle barriers but to promote equality of opportunity for disabled people. Those public authorities will have specific duties to make reasonable adjustments to the way that they fulfil their functions. More than that, they will have to consult disabled people on their priorities when developing policies and methods of delivery. They will then have to prioritise actions and reporting arrangements to reflect the priorities
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  expressed by disabled people. Those new duties are aimed at ensuring that disabled people's needs are not considered as separate issues but are mainstreamed in all that public authorities do. The new duties should be transforming.
  6.15 p.m.
  As my noble friend described today, I am aware that the Campaign for Independent Living sets out a number of aims, the "seven pillars of independent living", covering accessible housing; education; employment opportunities; provision of advocacy services; community care; access to information; and provision of welfare benefits, including direct payments.
  I do not want to take up the Committee's time in listing all the activities under way in government, or how far this Government and, indeed, previous governments have moved in this direction. However, I can assure the Committee that the Government are working hard to improve services and facilities for disabled people in all of these areas.
  Finally, I would like to highlight in particular the review being undertaken by the Prime Minister's Strategy Unit to examine how to improve the life chances of disabled people. The Strategy Unit review started a year ago, and an interim analytical report was published in June this year. I understand that the unit will publish its final report shortly. I am happy to do my best to ensure that all Members of your Lordships' Committee receive a copy when it does. That report will set out the Government's long-term vision for disabled people and I would expect its recommendations to aim at significantly improving outcomes for them.
  I hope that with that assurance my noble friend will consider that we are properly and rightly addressing the concerns that he has outlined today.
  Lord Ashley of Stoke: I thank my noble friend for that perceptive response. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 27 not moved.]
  Clauses 4 and 5 agreed to.
  Clause 6 [Rail vehicles: application of accessibility regulations]:
  Lord Higgins Lord Higgins moved Amendment No. 28:
  Page 12, line 37, leave out subsection (1).
  The noble Lord said: We come to a series of amendments on the section that is concerned with important transport issues. I wish to make two preliminary points. First, a number of these amendments are probing amendments. However, one or two anguished phone calls were made to us during the Recess from people who did not fully understand that if one said that one wanted to leave something out, one did not mean that one wanted to leave it out! Consequently, I stress that a number of them are probing amendments, although some of them are not.
  The second general point that I ought to make is that the report of the Delegated Powers and Regulatory Reform Committee on this Bill makes something of an onslaught on Clause 6(3). That has been backed up by no less than the chairman of the Merits of Statutory Instruments Committee, who also finds a number of these provisions somewhat doubtful or, indeed, objectionable. Perhaps the most appropriate spot to deal with that would be during discussion of Amendments Nos. 30 and 31 in the name of the noble Lord, Lord Carter.
  Lord Carter: I believe there is a letter in circulation which states that the Government are accepting the recommendation of the Delegated Powers and Regulatory Reform Committee. I have not seen the letter, but I hear that it is around. If that is the case, that would be extremely good news.
  Lord Higgins: No doubt that will emerge in due course. The point I—
  Lord Davies of Oldham: I had not realised that one of the roles of my noble friend Lord Carter was to pre-empt the ministerial response. However, I can confirm that what he has just said is accurate and that will therefore help us with subsequent developments on this part of the Bill.
  Lord Skelmersdale: Before we go any further, may I point out that my noble friend has not yet finished moving his amendment and that our deliberations would proceed more quickly if we allowed him to do so?
  Lord Higgins: I was merely making the point that for the avoidance of doubt—as I think is the normal legal jargon—it would be appropriate to deal with those issues when we discuss the relevant amendments of the noble Lord, Lord Carter, rather than when discussing the amendment that I shall now finish moving.
  Amendment No. 28 concerns a somewhat different point. It is concerned with the definition of a "railway". One would have thought that a railway scarcely needed to be defined. However, Clause 6(1) amends the definition of "rail vehicle" that appeared in the 1995 Act. As I understand it, what now appears as an alternative to the wording in the 1995 Act effectively duplicates or replicates Section 46(6)(a) of the 1995 Act, but it does not do so as far as the following section in that definitional part of the 1995 Act is concerned. Consequently, the part of the definition which stated,
  "first brought into use, or belonging to a class of vehicle first brought into use, after 31 December 1998",
  will no longer appear in the legislation if we go along with the clause as drafted. Therefore, my question is a rather simple one: why do the Government want to remove that? Obviously, the 1995 Act already referred to vehicles that were somewhat old. They are even older now, so I am not clear why the Government are making this change.
  More generally, I am not absolutely clear just how wide this definition now is. It is obviously very important that it should cover all rail vehicles. Am I
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  right in thinking that it includes Tube trains, which presumably are rail vehicles? Does it include something which will be familiar to all those who have attended party conferences in Blackpool; namely, Blackpool trams? Has there been consultation on that? I hope that the Minister can clarify precisely what the intention is with regard to this definitional problem. I beg to move.
  Lord Oakeshott of Seagrove Bay: I should like to ask the Minister what is a prescribed system in this case. I think that I know what a railway is and what a tramway is, but if he could help me as regards what a prescribed system is, I would be very grateful.
  Lord Davies of Oldham: First of all, I owe the noble Lord, Lord Higgins, an apology for intervening in his speech before he had finished moving the amendment. I was following the very bad example of my former Chief Whip. This is not the first time that I have been led astray in that way. However, I apologise for that.
  The noble Lord is right that the matter of the orders and how we deal with the statutory instrument issues can be discussed on a later amendment. However, I wanted to indicate that I believe we have a positive response regarding the committee's deliberations that will help subsequent discussions on later amendments.
  I am not surprised that the noble Lord was slightly discomforted over the Christmas Recess because, subtle as he is in tabling amendments which exclude things that were never intended to be excluded, he may be just a little too subtle for people outside Parliament. Not surprisingly, they were struck with horror at the impact that the amendment would have upon our proposals, should it be carried. The provision in the Bill would enable us to deliver two of the key recommendations of the Disability Rights Task Force which were fully supported by the Joint Scrutiny Committee and command extensive support right across the disability organisations.
  Subsection (1) to Clause 6 may appear to be a minor tinkering with the definition of a "rail vehicle", but the implications are profound. By replacing the definition of a "rail vehicle" in Section 46(6) of the Disability Discrimination Act with one which does not limit it to vehicles brought into use after a specified date, this subsection would allow us not only to make regulations to set an "end date" for compliance with rail vehicle accessibility regulations, but also to apply those regulations to rail vehicles when they are refurbished.
  On both those counts, we have been pressed extensively to make progress, and we need to change the definition to be able to effect the outcome. If we did accept the amendment, it would be lawful for all rail vehicles brought into use before 1999 to remain non-compliant, which is exactly the opposite of the objective which I know we all share.
  It will be possible for the Government to set an end date by which time such vehicles must comply with rail vehicle accessibility regulations. Our proposals will bring obvious benefits to disabled passengers by

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  ensuring that refurbishments to vehicles are completed in accordance with the standards of the rail vehicle accessibility regulations.
  During the pre-legislative scrutiny on the Bill, we made it clear that having carried out initial consultation, we would consult during the passage of the Bill on draft regulations that would set out our final proposals. We realised that that was unlikely to happen during the early stages of the Bill's progress. When we decided to announce the key elements of our proposals before Second Reading so that the House could be clear about how we intended to use the regulation-making power, we said that the end date that we propose is 2020.I recognise that there is a very strong campaign for the date of 2017—and, of course, the Joint Committee also emphasised that date.
  Lord Higgins: That is a matter for the next amendment, which I also have not moved yet.
  Lord Davies of Oldham: Perhaps I am pre-empting the noble Lord a little, but I wanted to put the matter in the context of the recognition that, with regard to this amendment, it is important that we do not circumscribe the Government's ability to change definitions in the DDA, in order that we have flexibility to make progress on this and other areas of debate, which the noble Lord will come to in his subsequent amendments, when I give him the opportunity, as I shall by sitting down.
  Lord Oakeshott of Seagrove Bay: Before the Minister sits down, can I ask him what the prescribed systems are?
  Lord Davies of Oldham: Yes, I can be positive about the fact that we are talking about all rail systems— light rail systems and, indeed, the Tube, as well as the more conventional rail cars. The issue, therefore, is that we are covering all rail systems.
  Baroness Masham of Ilton: I do not know whether my question falls under these amendments, but it is an extraordinary situation. Disabled people in wheelchairs have ramps at stations to get them on and off the train. Sometimes, in an emergency, the train stops and people have to get off—it has happened to me twice. Could the trains carry ramps? That would make it much easier in the circumstance when the train stops and people have to get off.
  Recently, when my husband was in intensive care, I had to get off at an unmanned station, and the guard said that the ramp was locked up, so due to health and safety regulations I could not get off. I had some ramps in my car and I got the person who brought my car to the station to use the ramps. I told the guard to go up to the other end of the train and make himself scarce. A young doctor, another guard and the person who came to fetch me got me off the train. If the train had been carrying the ramps, there would have been no problem. They could be strapped on, because there are
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  only two seats on each train that are acceptable. Those small things would make a huge difference, and they are not expensive.
  Lord Higgins: Does the provision apply to Blackpool trams?
  Lord Davies of Oldham: Yes—I meant to include Blackpool trams in the definition of light railway.
  In response to the noble Baroness, I recognise the force of her point. She will recognise that by the very broad definition which we are seeking to achieve for railways, I could not give her an assurance that we could insist on ramps being carried by every conceivable rail vehicle that we describe in the framework of this provision. Of course, some trains do carry ramps. The noble Baroness is absolutely right that it is an obvious additional facility for the disabled, which is to be welcomed. She will also recognise that there are certain vehicles under this category where that would be very difficult indeed to achieve. Therefore, we would have to deal with it with some understanding of the problems of the definition.
  6.30 p.m.
  Baroness Masham of Ilton: It could probably go into regulations, as an advice.
  Lord Davies of Oldham: Yes, indeed, it is the case that a train must have access to a ramp. I hear what the noble Baroness is saying about emergency stops, when the provision is not there. That raises some interesting issues, and it is a point to be pursued. She would recognise that I am not able to give a general assurance at this stage when we are discussing the widest category of rail provision.
  Lord Higgins: That was a helpful clarification of the situation, and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Higgins Lord Higgins moved Amendment No. 29:
  Page 13, line 8, at end insert—
  "( ) The Secretary of State may not make an exemption order after the end of the year 2017."
  The noble Lord said: This is the amendment that the Minister was so keen to comment on. It is arguable that in some respects the drafting is not perfect, but it includes the magic number 2017. This is an important amendment, which has had widespread comment, not least in the Joint Committee chaired by the noble Lord, Lord Carter. It is extremely important that the railway industry should have a clear deadline by which it is required to comply with the requirements regarding accessibility of rail vehicles; I hope that the Government can go along with that view. Whether where the amendment is at the moment is the best place for it is open to consideration, but one of the advantages of dealing with the matter in Grand Committee is that we can rehearse the arguments before we come to a view as to where an amendment should be made in the Bill and what it should say, should we wish—as I think we will if we cannot persuade the Government—to vote on it.
  As I understand it, the Government have in mind 2020. The Joint Committee—the noble Lord, Lord Carter, will correct me if I am wrong—came down in favour of 2017, with exemptions for one or two items to 2025. The year 2017 would be the same as the bus deadline, and there is some case for consistency there. There has been a great deal of discussion on the matter, back in the Disability Rights Task Force in 1999, the DTI in 2003 and the Joint Committee in 2004. Clearly, we are about to reach the point where we make decisions on the matter, and there seems to be a strong case for 2017. The crucial issue is the costs, and to what extent the date is practical.
  It was pointed out in one of the other reports that the calculation of costs in the impact assessment is virtually double what it was being said last year on bringing the date forwards. No doubt the Minister can give us a clear assessment of the extent to which the costs of compliance will be increased if the date is earlier rather than later, both with regard to refurbishments, to which he referred, and new rolling stock.
  I am sure that the noble Lord, Lord Carter, and others will have points to make on this. As I said, it is an important point. I do not fully share the views of some of those outside who say that if we do not have a firm date, there is a danger that it will be put back later, whereas if it is in the Bill it will be more difficult to subsequently change it without primary legislation. Nonetheless, the case for clarity is considerable. I beg to move.
  Lord Addington: I have total sympathy with the amendment and one of the reasons why it was mentioned, although I realise that we might have moved on slightly from this. The simple reason is that when the first Bill came through, very long run-in times were granted, which led to initial panic, then people thought that it was tomorrow's problem, they started to think in the medium term or long term, and total inactivity was the result. That is why the point made by the noble Lord about having a definite time period has its strengths. It also has weaknesses, in the fact that everyone will immediately put things off until they have to do them, in the hope that someone else's budget will be the one that is cut. Probably that is a good reason why 2025 would have been such a disaster. Despite such a long run-in time, if you put it off for long enough you cannot do anything. That is one of the things that goes on here.
  Will the Minister take this opportunity to make sure that he has an idea of what the state of progress will be in the time scales that are given? What progress will we make in five or 10 years' time? Has any thought been given to that? How much closer will we be? How much further on with the targets will we be? Having targets that are achievable within the time scale is a great way of preventing slip. Have we got anywhere on that, and has some thought been given to it? Although I think the world has moved on from this, I am totally in sympathy with the words down on the Marshalled List
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  of Amendments, and I feel slightly cheated by progress and achievement that we cannot have a good old fight on it.
  Lord Carter: The noble Lord, Lord Higgins, is quite right. Recommendation 28 was that the Committee's analysis of the evidence we have received, together with the Department for Transport's own data, led us to suggest an end date of the end of 2017. We concluded that this, together with a limited exemption system, which would itself expire in 2025, would be an appropriate compromise between the needs of disabled people and the industry's current replacement programmes. As my noble friend the Minister said, the final proposal of the end date would be included in the draft regulations, which we plan to consult when they are introduced. The Government have now proposed an end date of 2020.
  There are two aspects to this: one is the end date itself, 2017 or 2020; and the other is exemptions. Recently, I chaired a substantial conference on this Bill and transport, and there was an official there from the Department for Transport responsible for inclusion and mobility. I took the opportunity to ask her how robust the exemption procedure would be in 2020. I was assured that it would be robust, that they did not see that many rail vehicles would be exempt, except perhaps heritage vehicles and so on. I began to think that it would not be a bad result if we get to 2020 with very few rail vehicles exempt. That is not a bad compromise on the 2017 that we wanted, although that will mean for three years that a disabled person travelling by bus or coach will have an accessible vehicle and then might have to move on to a train without the same degree of accessibility. However, we can discuss that.
  I am tempted to say that a railway carriage was driven through the arguments of the Department for Transport, rather than a coach and horses, when I saw only recently the correspondence between my noble friend Lord Hunt of King's Heath, the Chairman of the Merits of Statutory Instruments Committee. He had written to the Chairman of the Delegated Powers Committee, and they had recommended that the exemption orders under Section 47 of the 1995 Act should continue to be statutory instruments subject to the negative resolution procedure, and not Orders in Council. We have heard from the Minister that, as always, the recommendation of that Committee has been accepted.
  Then one reads the previous correspondence between the noble Lord, Lord Hunt, and my honourable friend Alistair Darling, the Secretary of State for Transport. There is a long letter about exemptions and the way in which they were working. The last letter from my noble friend Lord Hunt of Kings Heath, the chairman of the Merits of Statutory Instruments Committee, is pretty strong stuff. It says,
  "the cumulative effect of so many exemptions seemed to be contrary to the Government's policy objective, under both the Disability Discrimination Act 1995 and the draft bill, of,

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  improving transport facilities for the disabled. Our 18th Report (HL Paper 163, Session 2003–04) drew further exemption orders to the special attention of the House on the ground that two of the Government's policy objectives appeared to be in conflict. By putting or keeping non-compliant rail vehicles in service, these exemptions achieve the objective of avoiding delay to the travelling public but, we believe, they may do so to the detriment of the objective of improving access for the disabled".
  This is extremely important. If we are going to accept the Government's argument that it should be 2020 on the grounds of cost—which we might if the argument were persuasive—that would be on the basis only of a really robust exemptions procedure. We do not want to be left in 2020 with a large number of rail vehicles still exempt.
  In 2020, 2,080 vehicles will still be non-compliant. In 2017, the figure will be 4,256. If we agree to 2017, 4,256 vehicles would still be outstanding, and that figure would halve by 2020. That is a significant change. Fifty per cent more rail vehicles will become compliant.
  All this stands or falls by the quality and the robustness of the exemptions procedure. If we are to accept 2020, we need to be convinced that the exemptions procedure will be really strong. I hope that the department will be able to deal with the very strong criticisms that have been made in the letter to the chairman of the Merits of Statutory Instruments Committee.
  Lord Oakeshott of Seagrove Bay: In layman's language, if there is a deal on 2020, which may well be the sensible solution, we must be sure that it will stick.
  On Second Reading, I raised the question about the big differences in cost between 2017 and 2020. I want to thank the noble Baroness, Lady Hollis, for the very helpful letter of 14 December that she sent to me and copied to other Members of the Committee. It makes the point about considerably fewer vehicles having to be refurbished if we wait the extra three years. Some 4,355 will need to be replaced in 2017 or only 2,200 in 2020. That is a big difference.
  It is a sensible point that if the final cut-off date is 2020, a reasonable number of vehicles will be refurbished before then. They will not all be done on the last day.
  The most powerful point in the letter, which very much concerns me, is that if the end date is brought too far forward, it threatens the viability and accessibility of some rural railways. We must always remember that railways are a vital public service. If lines have to close, they are not accessible to disabled people or anyone else. That was a helpful letter, but if there is a deal, there must not be any wriggle-room, if I can use that term again.
  Lord Higgins: Is the implication of the noble Lord's remarks that if there is a very big reduction in cost between 2017 and 2020, very little is being done up to 2017?
  6.45 p.m.
  Lord Oakeshott of Seagrove Bay: I suppose that might be the case. I do not know what the run-through is, though no doubt the Minister can explain it to me.
  Lord Carter: There is a table in our report that is quite helpful. In 2013, the number will be 6,269; in 2017, the figure will be 4,256; in 2020, it will be 2,080; in 2025, the original year that the Government suggested, it would only have been 69. There is obviously a trade-off between numbers and time, but those are the figures that we were provided with on the Joint Committee.
  Lord Davies of Oldham: Let me begin by emphasising that those figures were given accurately to my noble friend and the Joint Committee. I am grateful to the noble Lord, Lord Oakeshott, for his contribution. He is right in saying that there is a trade-off with regard to compliance. I shall try to answer the point raised by the noble Lord, Lord Addington, with regard to the rate at which vehicles are replaced, which obviously affects the whole issue of compliance.
  I recognise the strength of feeling about the question of clarity on an end date. We are all as one on the desirability of a clear definition of when compliance has to be largely met. However, I may differ from the Committee on the extent to which that needs to be in the Bill. What the Committee will recognise is that the Government have entered into the debate in the best possible faith and with the recognition that there has been very intense pressure for the suggested date of 2017. Our initial response, as the Committee will recall, was to propose 2025.
  Our proposal now to work towards 2020 is the compromise that the noble Lord, Lord Oakeshott, mentioned with regard to the question of costs. The costs are almost doubled as between the amount needing to be spent in 2020 and 2017. We are talking about a difference of between more than £300 million and just over £150 million, so it will be recognised that we are not talking about negligible sums. Therefore, it is quite proper that the Government should consider the question of serious costs for the railway industry.
  I emphasise, to reassure the Committee, that the exemption provisions in the DDA, which would be amended by this Bill, are not used lightly by the Secretary of State. Each case is considered on its merits. Key stakeholders, including the Disabled Persons Transport Advisory Committee, are consulted, and the decision is based on all the factors. Where exemptions are granted they are generally time limited and may contain other conditions which the Secretary of State considers appropriate. The amendment would restrict the Government's ability to make exemptions beyond 2017.
  We are well aware of the strength of feeling behind that proposal, but it should be recognised that the end date of 2020 not only has the merits of saving the rail industry a very substantial cost, but brings the requirements for rail vehicles into line with those for coaches, which are in many cases providing broadly similar longer distance services. It might be helpful if I follow my noble friend Lord Carter into a statement of costs. If 2017 were chosen—I believe that my noble

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  friend quoted this figure—4,355 rail vehicles would need to be replaced before their normal life expiry at a total additional cost of £353 million. Those are the figures to which the noble Lord, Lord Oakeshott, kindly referred, and which I re-emphasise for the record. Based on our preferred date of 2020, 2,200 vehicles would be affected at a total cost of £169.7 million.
  Lord Carter: Just in case there is any confusion, those are updated figures. The figures that we had are probably a year or more out of date.
  Lord Davies of Oldham: I understand that my noble friend is in that position—it behoves me to be as accurate as I can in the present circumstances. It also helps to explain that aspect which the noble Lord, Lord Addington, mentioned, about what seemed to be increased costs. Inevitably, as we have pursued over time with great intensity the necessary evaluation of potential costs, we have been able to produce more rigorous figures, which reflect our best estimates on that position.
  On balance, we believe that our proposal will command the broad support of the community. It will be recognised that inevitably there is a compromise with regard to choice of date. However, if we failed to propose any date at all, the Government would be open to considerable criticism. We recognise that there is a necessity on the issue of compliance and that the date is of great significance in those circumstances.
  The amendment would have an unfortunate impact on other aspects of the rail system, which would not be helpful. It would certainly mean great problems for the heritage rail industry, where we would lose the capacity for those necessary exemptions. However, I know that the noble Lord moved the amendment in the spirit of recognising that there would be a need for flexibility in that regard. However, equally, he will expect me to seek to identify that the amendment would have some unfortunate consequences of that nature if it were pressed, which I am sure that it will not be.
  Very considerable progress has been made on these issues. These are serious and major costs for a major industry, and a great deal of progress has been made. The Government have moved from the position that we adopted on the date of 2025. I hope that therefore it will be recognised on all sides of the Committee that we are making progress with regard to a very important aspect of compliance across the whole range of the rail industry.
  Lord Addington: Has any thought been given to progress targets, measuring how far we should have got in making the rail stock compliant in the time frame of 2020?
  Lord Davies of Oldham: We are dictated to rather more by the nature of the industry and the time at which rolling stock reaches the end of its natural life than just mere aspiration.
  Lord Addington: We were told at considerable length, and it was one of the arguments that we have
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  not heard for the end date of 2020, that 15 years is the normal refurbishment time for a train. Perhaps if we could hear how many trains should be refurbished by whatever point, we could put that down as a target. That would at least keep people on their toes. Interim targets have been used in the very different industry of broadcasting to achieve things such as audio description. That was seen to be a good thing. A target that fits in with the engineering schedule would be very reassuring to have to ensure that compliance will happen on time.
  Lord Davies of Oldham: I believe that it will be recognised that when we have a date to which the industry will be gearing itself, as rolling stock becomes out of date and new rolling stock comes on stream, there will be the determination to move towards compliance. The fact that I am reflecting to the noble Lord is that the rate at which rolling stock goes out of date and is necessarily replaced is governed by the economics of the industry and also by the nature of the composition of the rolling stock that we have at present.
  The noble Lord may have in mind some flow chart to show the rate at which the changes will be effected, but there would not be a consistent flow chart in those terms. What it would reflect is the nature of the rolling stock that we already have and when it goes out of use. The noble Lord must recognise that we cannot address the matter with the kind of precision that I believe he was driving towards in his questions.
  Lord Higgins: We are grateful that we are making progress on an important issue, on which there seems to be a degree of flexibility on the Government's part. One aspect that we have not fully considered is the question of the competition between the various parts of the transport system. The requirement on the bus companies will come into operation in 2017, so if we go for an end date of 2020 for the railways, things are not exactly in line. The Minister referred to coaches—I suppose that he was distinguishing between buses and coaches. Though that is a fairly subtle distinction, the coaches are more in competition with the railways than buses are and there may be a case for having the two in line. I imagine that the normal lifespan of a coach is probably significantly less than that of a normal railway carriage.
  I understand that quite a number of the requirements to meet the standards set down for slam-shut doors on trains have still not been met. Perhaps we may return to that matter under a later amendment. What is emerging very clearly is that, if there is a deal on 2020, we have to be absolutely sure about the enforcement and monitoring side of things. But subject to that, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Carterhad given notice of his intention to move Amendment No. 30.
  Page 13, line 21, at end insert "which applies only to a rail vehicle that is specified or is of a specified description"

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  The noble Lord said: If my understanding is correct that the Government are accepting the proposals of the Delegated Powers Committee, I do not propose to move Amendments Nos. 30 and 31. I do not believe that I need to.
  Lord Higgins: No! If that is so, I believe that we need rather more implication than we have had. I do not believe that that is an appropriate way in which to proceed. The Delegated Powers Committee makes recommendations, in very strong critical terms of the Government. Indeed, the chairman of the Merits of Statutory Instruments Committee also did so. Instead of in the course of debates in this Committee replying to the various points made, because the function of the regulatory committee is to help this Committee in its deliberations, we are told that there has been some concession—we know not what. The amendment under which we were going to debate the matter in detail is suddenly not moved, and we do not know what the answer is. We will really not know what the situation is if we proceed like this.
  Lord Carter: The whole or main purpose of Amendments Nos. 30 and 31 was to remove the blanket exemption by Order in Council and suggest that it should be replaced by the procedure in the 1995 Act, which is the negative resolution procedure. We have heard from the Minister that the Government are going to do that; they are going to remove the Order in Council proposal and revert to the negative resolution procedure, which will enable them to deal with heritage vehicles, and so on. That was the proposal that I was going to make on the basis of the undertaking that the Minister gave. There is no need for me to make it, because he has accepted it.
  The Deputy Chairman of Committees (Viscount Ullswater): Perhaps the noble Lord should move the amendment, so that we can get back into order.
  Lord Carter: The amendment would ensure that the blanket exemption for heritage railways will be enacted through statutory instrument. That will ensure that an appropriate level of parliamentary scrutiny will apply to the exemptions procedure. The report of the Delegated Powers and Regulatory Reform Committee said that they recommended that,
  "exemption orders under section 47 of the 1995 Act should continue to be statutory instruments subject to the negative resolution procedure".
  I hope that when the Minister replies he will confirm what he has already said. I beg to move.
  7 p.m.
  Lord Higgins: I do not wish to delay the Committee longer, but both the Regulatory Reform Committee and the chairman of the Merits of Statutory Instruments Committee took very strong exception to the way in which the Government proposed to act. They argued in simple terms that the arrangement
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  whereby a Minister could act not by order but by diktat, effectively, was not satisfactory because we did not get the parliamentary scrutiny required.
  If the noble Lord is right in what his amendment does, no doubt in the light of the earlier exchanges the Government can simply accept it and we will then all know where we stand. I am not sure whether that is what the Minister will do, but it is at least worth examining the arguments that the Regulatory Reform Committee put forward, which were that the Government gave two reasons. The first was that the provision was not consistent with Section 43 of the 1995 Act, so their argument that it was helpful in that respect was wrong. The second was that the current procedure was a burden, in terms of both cost and time.
  If the Government believed that last week, they clearly would not accept the amendment this week. I am not the least clear about the question of costs of time. We are suddenly told that to have a negative instrument procedure would result in an increase in cost compared with the Minister acting by diktat. Somehow that would save the railway industry expense, we are told, but I am not clear how. If that argument was made before, why is it no longer valid?
  The argument is also made in terms of time. Given that we are talking about whether everything should happen by 2020, the amount of time taken up by the statutory instrument procedure is unbelievably trivial. The noble Baroness laughs; she is right. We are talking about six weeks as against 20 years, and we are suddenly told that that was a pressing reason why the Government thought that they could avoid parliamentary scrutiny. If the Minister is going to accept the amendment, I hope that he will tell us so. If he is not going to do so, I hope that he will tell us why and, in particular, why the Government have changed their mind.
  Lord Davies of Oldham: I shall ask my noble friend to withdraw the amendment; I would have preferred it had he not moved it. The noble Lord, Lord Higgins, is somewhat unchivalrously looking a gift horse in the mouth. The Government have recognised the strength of the argument put forward by the Merits of Statutory Instruments Committee and the Delegated Powers and Regulatory Reform Committee on the issue. We accept the arguments that have been put forward. The action will need to be taken with great precision.
  With the greatest respect to my noble friend, he has made an early shot at the issue, as he is fully entitled to do. We intend to bring in an amendment on Report. That will also be the occasion for the noble Lord, Lord Higgins, to challenge the Government yet again on our competence. I suppose that we just had five minutes of ritual comment on that but, on this occasion, the Government are on the side of the angels, if I can define the Delegated Powers and Regulatory Reform Committee as being angelic; I certainly can the Merits of Statutory Instruments Committee. We are all on the side of the angels, so goodness and light will come out of the developments when the Government table their amendments for Report. I hope that, on

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  that basis, my noble friend will feel able to withdraw his amendment. That will be followed by a suggestion that we adjourn.
  Lord Carter: It would give the Committee a nasty shock if I did not withdraw the amendment. We seem to work on the basis that the Government accept a proposal that has been made, but that the noble Lord, Lord Higgins, correctly thinks that they should have a really good kicking before we accept their proposal. On the basis that the Government will suggest a correct amendment and accept the proposal of the Delegated Powers Committee, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 31 not moved.]
  Lord Davies of Oldham: This may be a convenient moment for the Committee to adjourn until 3.30 p.m. on Monday.
  The Deputy Chairman of Committees: The Committee stands adjourned until 3.30 p.m. on Monday 17 January.
  The Committee adjourned at five minutes past seven o'clock.