Grand Committee Report of 17 January 2005

Official Report of the Grand Committee on the

  Disability Discrimination Bill [H.L.]
  (Second Day)
  The Committee met at half past three of the clock.
  [The Deputy Chairman of Committees (Lord Ampthill) in the Chair.]
  Lord Addingtonmoved Amendment No. 32:
  Page 13, line 28, at end insert—
  "(5) The Secretary of State shall produce an annual report giving full details of all exemption orders granted under section 47 of the 1995 Act in the previous 12 months and that report shall be presented to both Houses of Parliament."
  The noble Lord said: Amendment No. 32 is basically about making sure that there is a report about any exemptions that are granted. I know that the Government have given an assurance that the procedure in the draft Bill and the one that is in place in the current version of the Bill will be different, and we will be going back to negative instrument procedure.
  There is a little bit of history here, and it is something to which I should give witness, and indeed, the noble Lord saw the end of it. The Merits Committee has stated that there was a constant drip, drip, drip, of exemptions being granted for the rail industry. I know that it will not be quite the same in future, but it points to the fact that negative instruments are things that you must dig into and have a good long hard look at to find out what is going on, but they will be coming through at a pretty high rate.
  All this amendment says is that you shall print, or make public, a list of how many exemptions were granted under that power in the Bill, no matter which way it comes, in the past year. That means that we will not be so dependent on that committee or on any successor body if the political heat goes out of the issue. It will take time to make sure that we are becoming more aware that this stream is coming through, or changing. I suggest that making sure that there is some formalised form of reporting over any fixed period of time for any form of exemption dealing with these matters would be a good idea. It would allow people to know where they have to look to, and it would not be dependent on something that potentially might become subjective, or people might decide no longer needs that degree of attention.
  At the moment, the Committee has brought this issue forward, and the words of the noble Lord, Lord Hunt, ring loud across this section of debate. I suggest that this amendment, or something like it, is included in the Bill. It might mean that we can have
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  something slightly more than belt and braces. A guarantee of Government in the Bill would mean that we would not have to worry quite so much in the future. I beg to move.
  Lord Higgins: This seems to be a sensible amendment, and our inclination is to support it. However, perhaps one should also consider the present situation before we start to have a future annual report. As far as I am concerned—this may be my lack of adequate research—I am totally unaware of what the list of exemptions is at the moment, and I am unclear what action has been taken by the Government with regard to those exemptions. From the representations made by various outside bodies concerned with disabilities, my impression is that they are rather sceptical about whether the Government have been as enthusiastic as they might have been in dealing with the whole issue of exemptions. I hope that the Minister can say that in addition to accepting this amendment, he will provide before Report stage an up-to-date list of what the exemptions are, what their status is, and to what extent the Government have been enforcing the procedures. That is important.
  In moving this amendment, the noble Lord referred to earlier discussions. Perhaps I might express my appreciation to the noble Baroness for a letter that she wrote to the chairman of the Regulatory Reform Committee, saying that the Government proposed to accept the proposals put forward by that committee. That is what one understood to be the situation following the debates the other day. Unfortunately the letter did not reach me until the following day, although the report had been out for some time. It would have been helpful if we had received that.
  Having said that, a particular point arises. In the Bill as it stands, exemptions will be made without any parliamentary control whatever. The Government have now accepted the proposals put forward by the Regulatory Reform Committee that the matter should be dealt with by negative instrument. It is not the least bit clear, however, from the letter that the noble Baroness sent to me, why the Government have changed their original stance. They accept what the committee said about lack of consistency but they also stated that they proposed to deal with the matter in the way set out in the Bill at the moment as it would be more costly for the industry if it were dealt with by negative instrument. I do not understand why that is the case and certainly, the Minister's letter to the committee does not make that clear.
  Not only the Regulatory Reform Committee but also the Merits Committee were concerned about some of these issues. However, I am not clear that the Minister has also written—perhaps she will inform me of that—to the Merits Committee about the various points of concern. This is an important issue. The general consensus is that we want a date in the Bill for the matter to be concluded. However, in a sense, there is a trade-off: the earlier the date, the more likely there are to be exemptions; the later the date, the less need there is for exemptions. However, if we are to agree on

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  a particular date on Report, as I hope we shall, we need to know exactly what the position is as regards exemptions.
  As we said on the previous occasion, it is very important indeed that if a later date is chosen, say, 2020, we should have a reasonable expectation that the matter will be enforced. The noble Lord's amendment would be helpful in maintaining a degree of control over the matter. According to various organisations for the disabled, the present situation is not satisfactory. It is curious that, so far as the rail industry is concerned, apart from a copy of a letter it wrote about the effect of the 1995 Act, we have had virtually no representations from it at all. It is a very one-sided set of representations at the moment. That is surprising as one would have thought that the organisation responsible for railways co-ordination on these matters—I believe it is the Association of Train Operating Companies (ATOC)—would have had rather more to say on the subject than it has up to the present.
  Having said that, I hope very much that the Government will accept the amendment proposed by the noble Lord.
  Lord Carter: On the final point that the noble Lord, Lord Higgins, made, it is true that the relevant evidence submitted to the Joint Committee was very skimpy, to put it at its politest. I rely on my memory but I do not think that ATOC sent us any evidence although I shall have to check that. We had some from the Confederation of Passenger Transport. Certainly, if we had any evidence from ATOC at all, it was very thin.
  This is an important amendment. It would be a very good idea to have an annual report. The Merits Committee highlighted a substantial problem, which we on the Joint Committee were not aware of. To be absolutely frank, if we had been aware of it, we would have reported in much stronger terms than we did. If we are to have an annual report on exemptions, it should show the length of exemptions being granted, the number of exemptions being granted and lack of progress being made as shown by repeat applications for exemptions. I am told that vehicles are still being built that are non-compliant and need exemptions despite the relevant law being in place for six years. That issue was also looked at by the House of Commons Public Accounts Committee.
  It is important that the department places a sensible time span on the length of exemptions. A maximum of five years has been suggested by the Disability Charities Consortium. That may seem rather tough, but the Government should establish a principle regarding the length of exemptions. Obviously, the number of exemptions being granted is important, and the Disability Rights Commissioner could play a key role in increasing oversight of the exemptions process.
  I have already mentioned the lack of improvements being made by repeat applications for exemptions. I have also mentioned the new non-compliant vehicles, which seem to demonstrate a complete failure of the
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  industry to take the issue of accessibility seriously and incorporate accessibility into the planning and design of new vehicles. There should be limited use of exemption for these vehicles and increased use of the fining system. Operators should not be forced to take their stock out of service, because that would be hard on the rest of the travelling public, but they should be fined for using inaccessible stock. That would ensure that the issue was taken more seriously at the design stage.
  The whole thing turns—and this is a debate to which we will return on Report—on the end date, whether it should be 2017 or 2020, and the robustness of the exemptions procedure when we get to 2020. I repeat what I said on an earlier amendment. I recently chaired a substantial committee on the relationship between the Bill and transport and well over 100 people from the transport industry were there. I received an assurance from an official from the DfT that the intention was that, if the end date were 2020, there would be a very robust exemptions process.
  I repeat what the noble Lord, Lord Hunt, said in his letter to the delegates of Delegated Powers and Regulatory Reform Committee. He stated:
  "We took the view that exemptions of up to 15 years would give no incentive to the railway industry to provide a solution to the fitment which had breached the RVAR. This view was strengthened when two of the statutory instruments we subsequently reviewed extended previous exemptions because the original problem had not been rectified".
  The railway industry has, to put it kindly, not been taking the needs of disabled people seriously. When we get to Report, the House will want to see something from the Government to satisfy all our concerns about the matter.
  Lord Ashley of Stoke: I strongly support the amendment moved by the noble Lord, Lord Addington. It is very important because this is the best and most effective way of monitoring what is happening with exemptions. Without a monitoring system, anything can happen—and we know what may happen given the present situation and attitudes to disability in this industry. It is very important to accept the amendment and I hope that the Government will do just that. The DRC seems to be suggesting that the new Disability Committee of the single commission when it starts working should also be informed of the risk of exemptions. That is a very good idea because that committee could then work hand in hand with the authorities and bring pressure to bear for disabled people making sure that the exemptions were not handed out like confetti.
  The DRC is also suggesting, in a splendid briefing from Caroline Ellis, that the new commission ought to have the power judicially to review the decisions of the Secretary of State for making excessive exemptions. That may not come within the remit of this amendment, but it is worth considering and I put it to the Committee. I enthusiastically support the amendment moved by the noble Lord, Lord Addington.
  Baroness Wilkins: Briefly, I add my support this amendment and wonder whether any such report

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  could also contain the number of applications for exemptions that were not granted. That would offer the added benefit of allowing the Secretary of State to demonstrate to disabled people that their access to the system is important and that the industry does not give an extension every time it wants to do something that will cost a little money. I hope that the Minister will agree to the amendment.
  Lord Davies of Oldham: I am not going to agree to the amendment and I hope that the noble Lord will withdraw it in due course. However, I do sympathise with the representations made in this Committee about openness with regard to these issues. We recognise that the exemption provisions are the subject of a great deal of concern and I want to make it clear to the Committee that we intend that full information should be provided on these issues.
  3.45 p.m.
  Let me, first of all, clear up a matter from Thursday. During a slight procedural difficulty over one amendment, I did not make the position of the Government clear with the degree of clarity to which I would normally aspire. That was on how we handle exemption provisions in future. We have accepted the suggestion in the report of the Delegated Powers and Regulatory Reform Committee on the issue that they should be subject to the negative procedure before Parliament. We intend to table an amendment for Report to give effect to that. It is a very important safeguard with regard to information, so far as exemptions are concerned.
  Let me also emphasise that all exemptions are listed on the Department for Transport's website. I have a print-out to hand with a substantial list of all the exemptions, which are in the public domain. Of course, we keep and have kept the Delegated Powers and Regulatory Reform Committee informed, as we are obliged to do under existing procedure, and which we intend should continue in future. I hope that that reassures the Committee that we have in place a rigorous system to ensure that the matter can be carefully monitored without the need for an annual report, as the amendment suggests.
  The Secretary of State does not exercise exemption powers lightly, however. Each case is treated on its merits and key stakeholders, including the Disabled Persons Transport Advisory Committee—our statutory adviser on transport and the mobility needs of disabled people— are consulted. The final decision is based on all the factors and evidence in each case. Where exemptions are granted, they are generally time limited, and have other conditions that the Secretary of State considers appropriate.
  We already submit a full explanatory memorandum on all exemption orders to the Merits Committee, which includes the comments received from the Disabled Persons Transport Advisory Committee. We already provide the material which would constitute the annual report, therefore. Under our assurance to continue with present procedures, we will continue to provide the information.
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  We intend to place all the information on the department website. As I said, the site already includes a full list of the exemption orders. Those measures will ensure that information can be scrutinised immediately on any exemption, so that interested parties would be able to take action and respond to the information instead of waiting for an annual report to the House, which might mean a delay of 11 months or longer before it became available.
  I understand the concern about the exemption orders, and particularly why the amendment should have been tabled in circumstances where we had it in mind to change the procedures. We have now indicated that we will continue with existing procedures, and I have identified how we make the information available to all concerned. We have changed our position on the matter because we take the Delegated Powers Committee very seriously. We recognise its strong concerns on the matter, triggered by the anxieties expressed by the Merits Committee. We have met that requirement.
  Under the new procedures, less cost could have been involved so far as complying with parliamentary procedures. However, that issue is in the past because we have accepted that we will meet the requirements of the committee. All the material therefore about exemptions is in the public domain. It is on the department website. It will be the subject of a full report to the Committee under the procedures that we are obliged to follow.
  I hope that it will therefore be recognised that an annual report would be merely replicating what we already put in the public domain. In many cases it would do so in a tardy nature and less prompt than the way in which we provide information under the present structure. It is on that basis that I hope that the noble Lord will believe that we are meeting the requirements which prompted his amendment and that he will feel able to withdraw it.
  Lord Higgins: I should like to take up one or two points. First, I am unclear from what the Minister said whether, in addition to writing to the Regulatory Reform Committee, the Government have also written in response to the criticisms made by the Merits Committee to the chairman of that committee. Perhaps the Minister will let me know whether that is so.
  As regards costs, the Minister says that there will be a savings in cost to the Government of adopting the proposal originally put forward in the Bill rather than the negative instrument argument. But that was not at all the argument put forward by the Government, if I understand the Regulatory Reform Committee's report correctly. The Government have made representations to that committee to argue that there would be a saving in cost to the industry—not to the Government, but to the industry. I am not the least bit clear what that saving in cost for the industry would have been.
  I understand what the noble Lord said about the website. Of course, not having it in front of me immediately, I do not know to what extent it is simply a list of exemptions or to what extent—the point, I

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  think, that the noble Lord on the Liberal Benches had in mind—the list of exemptions had alongside it the justification, the time limits that had been imposed and so on. Perhaps the Minister could tell us whether that is so. In any case, perhaps we could have a hard copy of the list so that we can get an idea of how big it is.
  The other point arises regarding new vehicles coming into operation that are not compliant. It seems quite extraordinary that the Government, having looked into all that, appears to be going to exempt vehicles that are not compliant, which presumably, in turn, will be those that last longest towards the end of the deadline date. That seems a strange decision for the Government to have made—I presume that it was the present Government and not the previous government who made it. But either way, it seems to be a rather strange decision. It would be helpful if the noble Lord could clarify those points.
  Lord Oakeshott of Seagrove Bay: Perhaps I may just say to the Minister that I have sympathy with him for doing his best to read out those arguments, but they are very thin. I thought, in particular, the argument that you would not want to have to wait 11 months for an annual report when you could read it sooner on the website was particularly stupid. No one is suggesting that it is taken off the website. But, equally, not all disabled people and not all people find it easy to access a departmental website. That is not realistic. We think that it is perfectly reasonable and sensible once a year to have a proper printed access-easy report. If we are talking about openness and transparency, what could be simpler than to have a written report once a year? I urge my friend to stand very firm on his amendment.
  Lord Carter: My noble friend Lord Ashley raised an important point; that is, the question of judicial review. Now that the exemption procedure has been, as it were, returned to the parliamentary process and will be subject to negative instruments, so the policy of the Government will be endorsed by Parliament. Presumably, that would still be available for judicial review if the decisions of the Secretary of State regarding exemptions did not fit the declared policy objectives.
  Lord Davies of Oldham: I shall answer the final point first while it is fresh in my mind. My noble friend is right. Of course, it would still leave it open to the question of judicial review. On the question of cost-benefit, perhaps I was somewhat coy in saying that there was saving to the industry as well as to the Government. The simple fact of the matter is that we were seeking a simpler mechanism for the process, which would have been quicker and was therefore likely to reduce costs to the industry. The arrangements that we are returning to—the parliamentary negative resolution procedure—will make the process more lengthy, and therefore there will be some additional costs. However, I am not going to the stake on the question of costs, and I am sure that the noble Lord, Lord Higgins, would not expect me to. There are additional costs due to the
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  slower process of the exemption orders, compared with the initial proposals, but that is now water under the bridge, and I am not sure that it would be particularly fruitful to continue to debate comparative costs.
  On the more general issues, we wrote a letter not to the Merits Committee but to the Delegated Powers Committee on this matter. I might add that, with regard to responsiveness on these issues, the noble Lord, Lord Addington, actually prompted a debate under the negative procedure on one of the specific exemption orders. I remember having the pleasure of replying to that debate. So it is not as if the Government have been unaccountable on the matters—nor, of course, should we be.
  Of course, we can provide hard copy in addition to information on the web. I believe that request came from the noble Lord, Lord Higgins, in particular. We would be pleased to do that. The date until which the exemption order operates is included in the information. We simply question the value of producing a specific annual report, with all the resources that that would entail, when we are already making the information widely available within the framework of the parliamentary procedure.
  I recognise the usefulness of the debate. I do not for one moment gainsay the significance of the exemption issues. That is why, of course, we responded so promptly and positively to the Delegated Powers Committee and to the Merits Committee when they identified that they did not like the change that we were proposing. We intend to introduce an amendment on Report to give effect to that. I hope that, in the spirit of constructive response on this well-aired issue, the noble Lord will review his demand for an annual report, which I do not believe would increase the amount of information in the public domain in any way. I hope that on that basis he will withdraw his amendment.
  Lord Higgins: It is fairly apparent that the second argument that the Government put forward to the Delegated Powers Committee was probably very weak indeed—in fact, that it may have had no basis at all. Be that as it may, what has happened is this: the Government came up originally with a proposal on the exemptions, with no parliamentary control provided whatever; they have now come up with an acceptance of the comments of the Delegated Powers Committee, saying that they will go for the negative resolution procedure. That view was expressed by the Delegated Powers Committee, but that committee was not involved in negotiation on the date for the deadline as against how tight the whole thing is.
  It is seriously arguable that the negative resolution procedure will not be adequate, for the reasons that we have given, and we may need to return to the matter on Report. We all know the situation only too well, from considering the instruments that came out after the Pensions Bill passed through this House, when thousands and thousands of instruments were subject to negative resolution procedure. The chances of Members examining them all in detail is pretty small— and whether one of them will shift through between

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  now and 2017, let alone between now and 2020, seems very doubtful. Therefore, there would seem to be a very strong argument for an affirmative rather than negative resolution procedure. We are making progress, but perhaps we should make a bit more.
  Lord Addington: When the Minister gave me his answer, I felt that if we were not in a Grand Committee I would have been quite happy to press the matter to a Division. He did his best, but I am afraid that we were not given a very good argument.
  4 p.m.
  I have raised a point that was brought to my attention through my membership of the Merits Committee. The committee—its chairman in particular—brought it forward because of the sheer number of exemptions. There are now more than 60. Indeed, the committee would again have debated the matter were it not for the simple reason that it was being discussed in the Bill.
  The explanation that the information is already available and we therefore do not need to publish anything further in a more easy-to-find place, is spurious. Everything is easy to find if you know where to look. Parliamentarians had not tracked down the problem until the committee debated it and got to terms with it. We must be concerned about its membership changing because those members now familiar with the issue are containing it.
  The amendment is important to the Bill because at present we are dependent on a group of experts and the collective memory of the Merits Committee in doing its job. That is not good enough.
  Lord Morris of Manchester: What is published on the website is a list, whereas the amendment calls for an annual report giving full details of all exemption orders. Am I right in thinking that that is an informed argument as far as the noble Lord is concerned?
  Lord Addington: It is one of the factors taken into account. Unless we can get such information into the public domain, there will always be a tendency to ensure that lawyers have access to it and to hope that the sheer volume of such information ensures that some of it becomes public. It will every now and again. I have no option but to withdraw the amendment, but I believe that the Government are standing their ground in a bad place. I hope that they can come forward with an amendment—not necessarily this one and not necessarily here—but they should address the problem in one way or another. If not, they will be forcing us to return to the issue. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 6 agreed to.
  Clause 7 [Rail vehicles: accessibility compliance certificates]:
  On Question, Whether Clause 7 shall stand part of the Bill?
  Lord Higgins: We have discussed the fact that a large number of exemptions are in force and that more are
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  likely to be made. It is not clear how these appear on the accessibility compliance certificates. Does the certificate state that a vehicle is compliant, or that the vehicle is not compliant but subject to an exemption as a result of the following arguments? Presumably, the certificate cannot state that it is compliant if it is not.
  I am still not clear about the situation as regards new vehicles. Are the Government proposing to issue compliance certificates which state that the vehicle is compliant, even though it is not? Can they give us more detail?
  Lord Davies of Oldham: The intention is that the rail industry will be in line with the system already in place for buses and coaches under the Public Service Vehicles Accessibility Regulations. The clause would be to require prescribed railway vehicles to be assessed independently for compliance with the Rail Vehicle Accessibility Regulations before they could be brought into use. At the moment, there is no formal signing-off procedure for rail vehicles before they enter service. Compliance with RVAR is not assured at present, and the purpose of the clause is to remedy that position.
  The fact that there has been no signing-off- I think that that was the noble Lord's phrase—with regard to the vehicles has resulted in some cases in contractual disputes between manufacturers and purchasers over compliance issues, and a resultant delay in vehicles being brought into service. It has led to more applications for exemptions from a certain aspect of the regulations because non-compliant features are not identified until a late stage in the building process. What has been welcomed by the disabled lobbies is an improvement to that situation.
  The operators of high-speed trains need a certificate under European legislation, because there are common requirements across Europe for such trains. The clause allows the Secretary of State to appoint the assessors to carry out checks in relation to a compliance certificate and signing off the vehicle accordingly. It will bring the obvious added benefit to disabled people that rail vehicles comply with the regulations when they come into service. I am grateful to the noble Lord for asking questions on the clause, but it is a linchpin of our constructive endeavours. I would be shocked beyond measure if he pressed the issue to the point where the clause was withdrawn from the Bill.
  Lord Carter: As I understand it, the clause adds a whole new section into the 1995 Act. It is extremely good, setting out the compliance certificate and the compliance assessment that can be done. It also says that that includes,
  "pre-assessment activities (for example, a consideration of how the outcome of a compliance assessment would be affected by the carrying-out of particular proposed work)".
  All that is new. I simply wonder how the Government ever managed without them before.
  Lord Higgins: I entirely understand the Government's good will so far as the matter is concerned. However, the Minister did not really take my point. I shall put the question to him again. What is the situation if the vehicle is not compliant—that is

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  to say, if it has been given an exemption? Will the Government issue a compliance certificate if it does not require an exemption? That is highly desirable. I am not clear whether the compliance certificate will actually appear on the vehicle, which would seem a good idea.
  In all events, what is the situation with regard to a compliance certificate for a vehicle that is not compliant and has been given an exemption? Once you give compliance certificates that have exemptions, the value of them is significantly reduced. Are we to have compliance certificates that are subject to exemptions? If so, what is the procedure for ensuring that non- compliance certificates are issued?
  Lord Davies of Oldham: The Government intend that compliance certificates should be issued only to vehicles that are compliant, and to those features that are compliant. If the vehicle is coming into service with a feature that cannot satisfy the compliance requirement, it will have an exemption order with a date in relation to the exemption. All exemption elements will be defined by an exemption order. The vehicle will come into service on only the basis of a certificate of compliance.
  Lord Skelmersdale: Or exemption.
  Lord Davies of Oldham: Or exemption—but the exemption will be clearly specified and, as exemption orders are listed, there will be a date for the necessary meeting of the requirements of the exemption order, so that the vehicle comes into full compliance apart from the feature exempted. That is the basis on which we are operating. My noble friend Lord Carter asked how we dealt with the situation previously. The answer is: less satisfactorily than we intend to deal with it in the future. That is why the clause is in the Bill.
  Certification ought to guarantee that fewer exemption orders are necessary. It will be quite clear to all those constructing the vehicle and intending to employ it the degree of compliance that they will require for the certificate. Therefore, the redemption orders ought to reduce by that very fact.
  The noble Lord asked specifically whether the orders would be displayed on the vehicle. We do not intend to do that. The documents would not be easy to read as they would refer to regulations which might not be regarded as advancing the public's insight into the situation greatly. However, the certificates must be made available to any inspector who demands to see them when inspecting the vehicle concerned. The certificates are therefore necessary but they are complex. They have cross-references which do not lend themselves easily to public display, but it is clear that they are meant to be an important plank in our enforcement regime with regard to the compliance of railway vehicles and to bring those into line with other sectors of the transport industry.
  Lord Higgins: I am grateful for that reply. They ought to be described as compliant or non-compliant certificates. I hope that the Minister will look again at
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  whether some form of certification should appear on the vehicle so that if it is not compliant the disabled person who is unable to get on board can realise why that is so.
  Clause 7 agreed to.
  Clause 8 [Rail vehicles: enforcement and penalties]:
  Lord Higginsmoved Amendment No. 33:
  Page 16, line 30, after "a" insert "prescribed"
  The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 37, 41, 45 and 46. They all insert at appropriate places in the Bill the word "prescribed". The amendment aims to tighten the definition of "penalty" which is to be found on page 19 in new Section 47J. The question is the extent to which the penalties are defined.
  In many other parts of the Bill they are defined clearly in relation to scale 3, or whatever, in terms of a fine or some other provision. But there are no minimum or maximum penalties in the Bill and it seemed to us that there was some case for tightening the matter up so that we have some idea of whether the penalty could be derisory.
  From the representations that we have received, it seems that a number of vehicles are not compliant and that no penalty has been imposed. It has been suggested that penalties are imposed only if there are serial breaches of the law or deliberate defiance. Quite why it would be serial breaches rather than a particular breach is not clear. In most other areas of the law, one does not have to be a serial offender in order to incur a penalty and we believe that that should be made clearer in the Bill. I beg to move.
  Lord Davies of Oldham: I am grateful to the noble Lord, Lord Higgins, for tabling the amendment because it gives me the opportunity to show the approach that we are taking to the setting of penalties and that the procedure is reasonable and transparent. New Section 47J, which the noble Lord accurately identified as being at the heart of this issue, would be inserted into the Disability Discrimination Act by Clause 8, and it provides for the penalties to be prescribed. In a strict sense, Amendments 33, 37,41,45 and 46 are unnecessary, because that is exactly what we intend to see happen.
  4.15 p.m.
  In framing the enforcement measures in this Bill, the Government recognised that the rail industry, as well as disabled people, needed to be clear about what was required of them, and indeed what the penalties would be for non-compliance. We have therefore made provision for the maximum penalties not only to be prescribed in regulations, but for them to be capped. In no circumstances can the level of the penalty ever exceed 10 per cent of the turnover, as determined in accordance with affirmative regulations made under new Section 47J.
  Clearly, the level of any penalty must be related to the seriousness of the breach of regulations. The precise issues to be taken into account when a penalty

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  is being levied will be set out in a code of practice that the Secretary of State is required to produce under new Section 47J(8). Knowing that both Houses of Parliament will be interested not only in the prescribed penalties, but in the detail of the code that will be used in applying them, we have proposed that the Secretary of State will be under a duty to lay the draft code before Parliament for consideration, under Section 47J(10).
  In addition, new Section 47K(4) sets up a mechanism whereby a person subject to a penalty may give a notice of objection to the Secretary of State if he considers either that he is not liable to the imposition of a penalty, or that the penalty is too high. In such circumstances, the Secretary of State must consider the objection and cancel, reduce or leave the penalty. Furthermore, new Section 47L provides the mechanism for an appeal to the court on the same grounds.
  I hope that the Committee will recognise that the provisions that will be made in relation to the setting of penalties would provide for the appropriate scrutiny of the system, to ensure that it is fair and reasonable by both Houses of Parliament. It is on that basis that we are setting up a procedure that is fair and reasonable, and open and clear to all parties. On that basis, I hope that the noble Lord will consider that his amendments are unnecessary.
  Lord Carter: The Minister might need to write to me on this. When we refer to the turnover, as I understand it most rail vehicles are leased by the operating companies. I imagine that the leasing company would be responsible for alteration. I do not know whether it is a turnover of the leasing company or the operating company.
  Lord Higgins: As I understand it, all the railway carriage-producing companies are actually banks.
  Noble Lords: Oh!
  Lord Higgins: I am open to correction, but that is my understanding. Therefore, the point just made by the noble Lord, Lord Carter, is very important indeed. The penalty appropriately applicable to a bank may not be the same to a small-scale carriage building operator.
  Lord Carter: I am tempted to observe that it would be deals on wheels.
  Noble Lords: Oh!
  Lord Carter: Sorry.
  Lord Higgins: Or vice versa, wheels on deals.
  Having said that, the noble Lord did not answer the point that I made, which is whether penalties are not at present being imposed except in cases where there is a deliberate abuse, or the individual concerned has a series of offences. Is that the case?
  Secondly, he deals with the maximum figure, but he does not deal with the question of a minimum figure. Is it the case at the moment, as far as enforcement of these procedures is concerned, that in some cases no
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  penalty is imposed? Why does the clause deal with the maximum, and not impose a minimum penalty in the case of anyone who is offending?
  Lord Oakeshott of Seagrove Bay: Since we seem to be dealing in banking language, will there be a collar as well as a cap?
  Lord Tebbit: Is all this fun and games actually very relevant? Surely it is the operator who is responsible, and it is up to him whether he leases a vehicle which fails to comply. Who has leased it to him is another matter; it is a matter not for the leasing company or indeed for the manufacturer, but for the operator.
  Lord Davies of Oldham: I have always prided myself on having friends in high places, and I am grateful to the noble Lord, Lord Tebbit, for clearing up that point with devastating accuracy. He is right, of course: the responsibility lies with the operator; that is who must comply, not the banks or other backing institutions that may or may not provide a legitimate vehicle. It is the operator who takes responsibility.
  The reason why we have a maximum limit is obvious. We have set it at 10 per cent of turnover because we are interested in having a penalty that bites, but we are conscious of the fact that rail companies vary between GNER, which operates a major system of railways across major track, and quite small railway companies. For those minor companies, a penalty that would be marginal to a major operating company would be absolutely crippling. That is why we are using percentage terms.
  In response to the question from the noble Lord, Lord Higgins, on how far we have got with proceedings, the problem is that there have not been any prosecutions. Under the DDA, there was no enforcement mechanism, so the only thing that could go wrong was the implementation of criminal proceedings. That has not occurred, for all the reasons that the Committee is likely to recognise. That brings in an enforcement procedure of considerable rationality, which I commend to the Committee. It has a cap, because we need to safeguard the smaller companies and ensure that any punishment levied is appropriate for both small and large companies.
  The issue of a minimum figure does not apply, because it would relate to the nature of the offence. We are mindful of the fact that minor infringements can occur. The issue may arise under later amendments. There may be a minor infringement, such as providing an out-of-date ramp, if an operator could not find the appropriate and legitimate ramp in time. That would be an infringement, which might potentially be brought to the attention of the enforcement authorities, which would not want to be constrained by a minimum limit. They would want to take action appropriate to the offence. But we have a real concern about imposing a maximum limit, which is in the Bill.
  On that basis, I hope that the noble Lord recognises that we are introducing an enforcement procedure which, at present, does not exist under the DDA. That is the basis of this clause.
  Lord TebbitOne other issue worries me, and I have waded through the Bill several times without finding

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  the answer. In what way is there an exemption for operators of railways such as the Bluebell line, who set out deliberately to recreate a world which has gone by? It would obviously be absurd to try to bring such operators within the scope of the Bill. How are they exempted and dealt with? I know that if I carry on talking for a moment longer and the Minister leans back far enough, he will hear the answer come to him in a flash. It will be the right ear that he will hear it in, I believe.
  Lord Higgins: To ensure that communications operate effectively, could I clarify with regard to the first point raised by my noble friend Lord Tebbit whether the provisions apply only to operators and not to manufacturers? Part of the problem, as we have seen, is that companies are producing non-compliant stock, and there is a shortage of compliant stock.
  Apparently there have been complaints that slam- door carriages have remained in operation long after they ought to have complied. Again, it would seem appropriate to have a minimum penalty of some kind if this is to work effectively.
  Lord Davies of Oldham: I am acquainted with the slam-door phenomenon, which predates a great deal of our deliberations in this Bill, because it refers to rolling stock that goes back 35 years or more. They are an infringement of every safety requirement. We have the inspection of slam-door carriages, which cannot be made safe. The fault, if the noble Lord will recall, is the inability of the rail company to bring the new rolling stock on-stream as rapidly as we would have wished.
  A complicating factor has been that the power system required by the new trains made excessive demands on the electricity supply from particular power stations. They could not run the trains because they did not have the power. We are entering a complex world, and no one would thank me for digressing on all the problems in this area connected with transport on behalf of the Government. The issue is sufficiently complex.
  On the more general point made by the noble Lord, there was just a moment of consternation at this end because on Thursday, at the previous sitting, the Committee had a short reference to this question of heritage railways. It was indicated that this concept of exemption was based substantially on exemptions in that area. It could not be expected to make any sense for it to comply with certain aspects of these provisions. That is certainly the case.
  Lord Higgins: It may be slightly worrying that the carriages on the Brighton Belle, which I originally used to take me to my constituency, are now part of the Orient Express.
  Noble Lords: Oh!
  Lord Higgins: I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Addingtonmoved Amendment No. 34:
  Page 16, line 36, leave out "may" and insert "shall"
  The noble Lord said: I will speak to Amendments Nos. 34, 35, 36, 38, 39,40,42,43 and 44. This is a may/shall argument. I know, as many people in Parliament do who have been here for any length of time, that eyes start to glaze over when the concept of may/shall comes into play. However, this follows on from the debate that we have just had, and I thank the noble Lord, Lord Higgins, for having done some of the spade work for me. Really what we are saying here is that if an operator has received warning and is not complying with the law, we believe the Secretary of State should be required to impose a penalty.
  That is all that this amendment does. It may be construed by the Government as removing flexibility of response and approach, but if you have gone through the procedure and have received a warning, there should be some penalty. The good parts of Clauses 7 and 8 make an enforceable system, which might actually be able to get in and change something. The classic thing is that there is no point in having such a draconian punishment for an offence; you will never impose it. An example is the death sentence for jaywalking. This amendment is trying to make sure that we have something appropriate and that it is applied.
  An amendment of this type is required because the rail industry has a history, which we have already heard referred to in discussions today, where it decides to stall and not do anything else. It is very good at pleading its case, and I have no doubt that a bit of coffin-waving comes in. Then we suddenly find out that nothing much is happening. If this new light- touch system is to work, it must be a light-touch system with fairly sharp teeth. It may not have to take out huge fatal wounds, but you have to make sure that people know that they will be nipped. That would be a step forward. I beg to move.
  4.30 p.m.
  Lord Skelmersdale: I had not intended to speak on this group of amendments. However, I was riveted by the Minister's reliance on the relevant website earlier when we discussed the matter of an annual report to be laid before Parliament, which was proposed by colleagues on my far left—or perhaps they are not these days.
  Lord Oakeshott of Seagrove Bay: Not that far Left!
  Lord Skelmersdale: All right, not that far Left.
  I refer to the amendment introduced by the noble Lord, Lord Addington. New Section 47E(l)(a) and (b) tells us that a certificate will state in what respect rail vehicles do not conform with the Rail Vehicle Accessibility Regulations. Consequently a fine will be in the offing and the relevant people must sort themselves out or a notice will come whistling through the letterbox. Thanks to what the Minister said we know that the website tells us the improvement deadline and the deadline by which the rail vehicle

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  should be made compliant, but we do not know—so far as I am aware as I have not seen the website, nor the hard copy that the Minister promised us—what the website states with regard to rail vehicles with exemption certificates not complying with the arrangements which are rightly being made in the Bill.
  Lord Davies of Oldham: Let me emphasise again that we are concerned to construct in Clause 8 an enforcement regime which at present does not exist. That is the weakness of the Disability Discrimination Act. It is a great flaw that only criminal prosecutions can be pursued, and they are few and far between. In fact, none has been pursued with regard to transport. Clause 8 concerns civil sanctions, which have been broadly welcomed by disability organisations and the railway industry. We believe that they will provide a responsive and effective system for addressing breaches of the Rail Vehicle Accessibility Regulations, but we must ensure that they are used wisely and intelligently to achieve the desired end, and are not just used as a crude enforcement procedure.
  The problem with replacing "may" with "shall", as proposed in the amendments, is that it would give the Secretary of State absolutely no discretion in deciding whether to take enforcement action against an operator. I understand that some might say that that is how things should be. However, on serious reflection, we could all think of perfectly legitimate circumstances in which it would be inappropriate for the enforcement procedures to be implemented with rigour. I refer to a minor infringement where a warning and drawing attention to the breach would be sufficient to achieve remedial action.
  I mentioned that train operators and their staff will be required to deploy boarding ramps in certain circumstances in order to facilitate access and egress for disabled passengers. However, something may have gone wrong with a ramp that operators intended to use and they may use another which does not exactly meet the required specifications. The company set out to meet its obligations and the action was effective although the ramp that was used did not meet the specifications. However, a letter from the inspectorate would ensure that enforcement procedures came into play.
  There must be discretion in regard to such situations. All that we are saying about enforcement procedures is that you must make sure that the punishment fits the crime. Judgment must play its part regarding whether a warning notice is sent and action is taken. We do not want a warning notice for a breach of the regulations to be disproportionate and to instigate bureaucratic responses to issues that could be dealt with in a more sympathetic way which guarantees that the needs of the disabled travelling public are fully met.
  We would expect that the majority of breaches could be rectified without recourse to full enforcement sanctions. For example, a police officer has considerable powers of arrest but is also empowered with a wide range of discretion to take action without recourse to the full rigour of the law. It must be in the disabled community's interests that breaches are rectified in the shortest possible time frame against a background where the
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  penalty arrangements will provide the ultimate financial sanction should operators fail to respond to earlier notices.
  The Government intend to use the provisions in Clause 8 to ensure compliance with the Rail Vehicle Accessibility Regulations. There is no question of the provisions being window-dressing. We intend to bring an enforcement mechanism into the DDA that at present does not exist. However, we also want to be sure that the provisions are used in appropriate ways that recognise the circumstances which prevail and are flexible. I understand the motivation behind the amendments but I merely indicate that this matter concerns enforcement which requires discretion. The amendments would have the effect of reducing all discretion, and that cannot be in the interests of the travelling public.
  Lord Addington: I have one question before I sum up. Has the noble Lord or the department given any thought to providing a code on enforcement? That would address some of the concerns.
  Lord Davies of Oldham: I take on board the point that the noble Lord makes. He has the right to press me regarding areas where I believe that discretion should be exercised. I shall consider the point that he has made. However, I hope he will recognise that to press these amendments would introduce an element of rigour which would destroy all discretion. Written procedures will be introduced that will have to be followed regarding notification of the breach and response to it. We are not suggesting that this matter should involve a telephone call or anything like that. Certain procedures will have to be followed. However, I ask the noble Lord to consider that a degree of obvious discretion is needed.
  Lord Addington: There is not too much between us. I hope that the art of the probing amendment has not been forgotten. We are trying to find out whether the Government have any idea under what criteria enforcement will occur, and whether that will be made public. Rail companies are not in the habit of complying with these provisions because they do not really have to. That is what we are trying to get into the open. The noble Lord has tried to give as helpful a response as he can, but in my opinion the issue has still not been adequately addressed. We shall have to reconsider the matter and see whether we can address it in another way.
  Lord Skelmersdale: Before the noble Lord withdraws the amendment—I realise that he intends to do so with some speed—I asked the Minister whether the website mentioned the rail vehicles that failed to conform and had exemption certificates.
  Lord Davies of Oldham: I apologise to the noble Lord for not having responded to that entirely reasonable point. We will certainly look at the nature of the information to be included on the DfT website. The information that I had at that stage certainly included the question of end dates with regard to exemption, as I indicated earlier. However, we will

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  take on board the noble Lord's point about the details of a failed exemption application and I will respond to him accordingly.
  Lord Skelmersdale: I am grateful.
  Lord Addington: I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn
  [Amendments Nos. 35 to 46 not moved.]
  Lord Addingtonmoved Amendment No. 47:
  Page 20, line 2, after "maximum" insert "or be less than the minimum"
  The noble Lord said: This is a slightly different take on the same issue of minimum payment and enforcement. The idea behind this is incredibly simple. If a fine is to be imposed, this is where my perhaps over-flowery point about teeth and biting earlier really comes in. We should ensure that when a fine is imposed, it is not cheaper for the person to pay the fine than to correct the situation. That is really what this is about. As I said, the Government are addressing the problem. However, this is just one of those other things on which we need some assurance. As we have heard, under the previous system, there was extension after extension, the lawyers knew the form—you would have a good case and it was normally passed. This is a case of, "Oh, we just pay the fine for a time and it does not really matter too much—it is always cheaper". Long term, it might not be, but how many times can it be resisted? I just see a few accountants or people saying, "Well, let us take a few chances".
  These two amendments are designed to ensure that if you have irritated someone sufficiently by breaking the law, when you are fined it hurts at least as much as having done what you were supposed to do in the first place. I think that is probably a reasonably sound principle. I beg to move.
  Lord Ashley of Stoke: As the noble Lord, Lord Addington, said, these are simple amendments, yet they are very clever. They are simple because it is preposterous to impose a fine on a firm or organisation that means nothing to them compared to the cost of refurbishment, as in this case. It almost goes without saying that the amount of a fine for failing to refurbish should be at least as great—certainly, in my view, greater—as the costs of that refurbishing.
  The amendments are clever because the same objection cannot be raised to these amendments as has been raised previously. As I understand the Minister, the objection previously was that small firms would be hit if there was a minimum punishment. That does not apply in this case because we are comparing like with like. The small firm is not being hit in any disproportionate way. The cost of the penalty is being compared with the cost of refurbishment. The size of the firm does not matter. These are splendid amendments, which I hope the noble Lord will press as far as he can.
  Lord Davies of Oldham: I am grateful to the noble Lord, Lord Addington, for moving these amendments, which give us the opportunity to spell out even further
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  and more fully our enforcement proposals, although I am in great danger of reiterating the arguments that I presented on the previous group of amendments.
  The noble Lord will recognise that the root of the problem is how one would enforce a minimum that was within bounds to the very small heritage railway regarding any infringement that might occur there, but which would not, however, make an iota of difference to one of our great railway companies that run our major lines. That is the problem with the concept of minimum, and the reason why I indicated earlier that I am not enamoured of the concept.
  We need to ensure that penalties are effective. However, I do not think that these amendments address the question of whether the offence is not the physical nature of the vehicle that is being used but an operational breach. That raises interesting questions about what the minimum should be for an operational breach of the regulations. Again, I sought to illustrate that in our earlier discussion on these matters.
  4.45 p.m.
  We are clear that we want an enforcement regime, and prescribed in the regulations is a maximum penalty. We have provided for the penalty to be capped because of the reasons that I identified. What we cannot accept is that the concept of a minimum is valid within this context. I make the obvious point that somewhere a railway such as the Cairngorm Funicular Railway has two vehicles. The Midland Metro runs only 16 tram cars. It is difficult to set the context of minimum within the framework of such small scale exercises with small operating levels and annual turnovers against what we are largely concerned with in this Bill—the travelling public in relation to major operators who provide our rail services up and down the land. Therefore, we do not see that there is a case for specifying a minimum.
  Setting a penalty at a level that is never less than the cost of modifying the vehicle may seem to make reasonable sense. I can see the attraction of, and intelligent thought behind, the proposal. However, the Committee should consider what happens if the dual cost of bringing the vehicle into compliance and paying the fine means that the operator goes out of business. Have we gained from that position? We have certainly ensured that the travelling public are safeguarded against a breach of regulations, but we are trying to affect the operator's behaviour so that he runs the system without any breach of regulations. We are not seeking to make him unviable so that the service is withdrawn, because we cannot see how the travelling public would benefit from that.
  I say to the noble Lord that I understand entirely the sentiment behind his amendment. As my noble friend Lord Ashley indicated, we all want to make the enforcement procedures effective against a background where we have been obliged to be content for almost a decade now with an Act that has no enforcement procedures at all that work in relation to transport. We are making considerable progress with this Bill. However, there are limits on the extent to which we can carry out enforcement measures without destroying the

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  very objective that we seek to achieve—the safety and welfare of the travelling public, especially those with disabilities.
  Lord Ashley of Stoke: I wonder whether my noble friend the Minister has misunderstood the point that we were making. There would be no question of a dual cost of refurbishment and a fine. As I understand it, either the operator refurbishes or there is a fine—one or the other. There would be no dual cost.
  Lord Tebbit: It grieves me to say this, but I have some sympathy with the Minister. He mentioned the business that has 16 tram cars. Suppose the cost of bringing those tram cars up to standard is greater than the business can stand. Suppose that the Minister has no option but to fine the company that full amount. The company will go out of business. The disabled would-be passenger will not be able to travel on it because it is not there; neither can the passengers who have been using it travel on it any longer. In such an extreme case, who gains? We must give a large measure of discretion in these cases to those who will enforce the law. Of course, sometimes things will go wrong and they will not get it right. I am sure that there are several people in this building, at both ends of the Corridor, who are well capable of attacking those responsible for not having done what they could have done in a reasonable world.
  We must be careful at times with legislation such as this. The more complex it is, the more it goes into detail and the more onerous the requirements are, the more likely it is that, somewhere along the line, we have got it wrong or that the enforcement will be wrong. The more rigid we make these requirements and the less discretion we give to those whose job it is to enforce it, the more likely it is that we will find ourselves stuck with the consequences of legislation that is entirely binding and which offers no discretion, but that we can all see in some particular case has become an ass. I hope that, as this legislation goes through, we will be very aware of that.
  I hope that one day, in I do not know how many years' time, this legislation will have fallen into abeyance simply because attitudes will have changed. By virtue of the existence of this law for long enough, people will not dream of going against its spirit and requirements, but I have some sympathy with the Minister.
  Lord Addington: I am always slightly wary when the noble Lord, Lord Tebbit, gets to his feet. He wields the stiletto very artistically. However, the basic point and the history behind this amendment still hold good. The railway industry has proved itself to be a master at getting round regulation. The most attractive of the amendments, Amendment No. 48, states that the fine must not be less than the cost of doing the work. That is the spirit that should be envisaged. If my amendment is crude, my reaction is to go away and think of something that is slightly more flexible but has the same spirit.
  On the issue of heritage railways; if they do not have an exemption, they should be treated the same as everyone else, although most of them should have an
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  exemption. The general consensus is that if a person in a wheelchair wants the genuine 1930s experience of sitting in the guard's van on a non commercial route, by all means they should have it. All sorts of things go on in people's personal lives that we would not normally recommend and they are welcome to that form of masochism. It is when railways are used for transport to work and so forth that the provision counts, so the argument does not hold water.
  The case of the very small operator has some validity, but unless the Government are more forthcoming about the criteria under which they will enforce this legislation we will have to return to this matter. We must have more information. If the Government have not thought about the matter, please could they do so and provide the information because at the moment the door is still open for a good lawyer with a good series of precedents to come forward and say, "You let us have it last time". That has been the experience.
  I hope that the Minister has taken away from the last three groups of amendments, which all touch on the same thing, that the industry as a whole does not fill those of us who are interested in the matter with any confidence. The noble Lord, Lord Tebbit, said that he hoped that the legislation would not be necessary.
  The fact that this is the second Bill introduced in 10 years to deal with this matter probably indicates that the will is not there. For that reason, we must push the Minister a little further. A code of implementation would address the concerns raised in almost all the amendments to the clause. I hope that the Minister will consider them. I am happy to meet him between now and Report to discuss what steps can be taken. The more I have listened, the more I have become convinced that we need more guidance and information on the criteria that are being used. We can even build in review of the criteria, but we must have more information and authority. If someone is put in charge who does not regard this as a priority, nothing may be done. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 48 not moved]
  On Question, Whether Clause 8 shall stand part of the Bill?
  Lord Higgins: I am a little puzzled. I believe that we have covered all aspects but I am a little puzzled by the wording at line 17 on page 22. I am not clear what it seeks to catch. It refers to "public transport: offences", and states,
  "A person who falsely pretends to be a person authorised to exercise power under section 47G"—
  which is concerned with the inspection of vehicles—
  "is guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale"
  It goes on to state that,
  "after 'Forgery and false statements' there is inserted ', and impersonation'."
  I am not clear why the Government think it likely that people will be rushing around impersonating inspectors. This seems to be a case of using a hammer

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  to crack a nut. Is there a widespread history of people doing such a thing? If so, were they caught and what happened to them? Perhaps they ended up in the Clock Tower. It seems to be a strange situation and the relevant sanction would more appropriately be in terms of the Mental Health Act than anything else.
  Lord Davies of Oldham: When I saw that there was to be a Clause 8 stand part debate, I had not lighted upon this section as prompting it. The noble Lord has me very much on the defensive. Apparently, we must guard against the case of someone carrying out an impersonation. We can think of two categories—first, someone seeking to cause trouble for the organisation concerned. Because people in all walks of life are terrified of inspectors, no one ever checks their credentials and there is anxiety in that respect. Secondly, there is the danger posed by someone who ends his term of office as an inspector against his will and carries on the practice for a short time for his own amusement and the discomfort of others.
  The noble Lord may think that I am being somewhat far-fetched and as I sit here I feel somewhat far-fetched with these illustrations. However, I have no better, as he has caught me on the hop with his questions. Suffice it to say, we believe that we need to guard against the impersonation of inspectors, which is why the provision appears in the Bill.
  Lord Tebbit: Would the noble Lord give way?
  Lord Davies of Oldham: I give way with trepidation.
  5 p.m.
  Lord Tebbit: Would not that not fall under the general umbrella offence of committing a public nuisance? I would have thought that it might well do. As this legislation gets more and more complicated, it worries me.
  Lord Carter: I can help my noble friend. I think that there used to be a programme on television called "The Wheeltappers' Ball". Perhaps this is the wheeltappers' ball clause.
  Lord Davies of Oldham: If anyone is asking me to challenge the noble Lord, Lord Tebbit, on the definition of a public nuisance, all I can say is that I do not have a 25-year record to fall back on in those terms. However, I hear what he says. The clause is in the Bill because of the obvious dangers if such impersonation is carried out. It mirrors the provision in other Acts with regard to transport inspectors. There is just cause for anxiety on the matter.
  Lord Higgins: The trouble with questioning something that seems slightly fatuous such as the clause is that everything becomes laughable. However, we ought not to have provisions that are not really justified. Has there been any such case, even in the wider scope that the Minister just mentioned, of someone being prosecuted? Without being unduly
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  facetious, if there is a former inspector who is going on inspecting—presumably unpaid—that seems highly desirable; it saves public funds.
  Lord Oakeshott of Seagrove Bay: Slightly more seriously—
  Lord Higgins: It is serious.
  Lord Oakeshott of Seagrove Bay: Absolutely. Would the Minister accept that there is a fairly general view in the Committee that the clause might rather over-egg the pudding, and so think about it again?
  Lord Davies of Oldham: Yes, I accept that. I do not have an answer to the noble Lord's question at present. On the whole, I tend to think that if there is a precursor to such a measure in other Acts, there is reason for it. However, I do not have a direct answer for him. We will look one up and make sure that we have satisfactory answers at the next stage of the Bill's progress.
  Clause 8 agreed to.
  Lord Oakeshott of Seagrove Baymoved Amendment No. 49:
  After Clause 8, insert the following new clause—
  "BUS ACCESSIBILITY REGULATIONS
  In the 1995 Act, after section 47 (exemption from rail vehicle accessibility regulations) there is inserted—
  "Bus vehicles
  47A BUS ACCESSIBILITY REGULATIONS

  (1) The Secretary of State may make regulations for the purpose of securing that it is possible—

  (a) for disabled persons—

  (i) to get on to and off regulated bus vehicles in safety and without unreasonable difficulty;

  (ii) to be carried in such vehicles in safety and in reasonable comfort; and

  (b) for disabled persons in wheelchairs—

  (i) to get on to and off such vehicles in safety and without unreasonable difficulty while remaining in their wheelchairs, and

  (ii) to be carried in such vehicles in safety and in reasonable comfort while remaining in their wheelchairs.

  (2) Regulations may in particular create an offence of parking a motor vehicle at a bus stop contrary to the purposes set out in subsection (1).

  (3) A person found guilty of an offence under subsection (2) is liable to a fine not exceeding level 3 on the standard scale and up to 3 penalty points on their driving licence.""

  The noble Lord said: The amendment's purpose is a simple one—to provide a real deterrent to prevent drivers parking their cars at bus stops, thereby making access for disabled people to buses difficult. We do not believe that the Bill and the arrangements as they stand are in practice effective.

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  In making significant improvements in disabled access or disabled facilities, there normally has to be substantial investment by either the operators or of public money. Unusually, this case is different. Bus operators have spent very large sums on low-floor vehicles, wheelchair places, grab rails and low-level bells, but that investment is to a considerable extent being wasted because of a simple lack of enforcement procedure. It is not only wheelchair passengers who find it difficult to access buses if they have to park out in the road because of parked vehicles. The amendment makes sense for other people with temporary mobility impairments, such as, most simply, young mothers with a number of children and a buggy.
  The DRC does not feel that our amendment is necessary, as it says that the matter is the responsibility of local authorities, and that Clauses 2 and 3 should help to deal with local authorities that fail to keep bus stops clear. I have read and reread Clauses 2 and 3, and cannot see in practice for the life of me how they will solve the problem.
  I shall digress for a moment into personal experience and, indeed, an admission of guilt. I frequently go to our butcher on Kennington Lane on a Saturday morning. It is very popular, and lots of people come and go. Years ago, I sometimes parked at the bus stop or the edge of it. That was very naughty of me. I was not really aware of what I was doing or how significant that could be. I certainly do not do that any more but, yet again, last Saturday, two or three vehicles were parked at that bus stop.
  The present arrangements are not effective. People will not take much, if any, notice of the parking ticket deterrent, which is what we have. It seems perfectly reasonable not only that, if necessary, such parking should be made an offence punishable by a level 3 fine of up to 1,000, but—even more significantly—that it should be possible to have three penalty points on your driving licence as a result. I make another admission: that would be a very effective deterrent for me at the moment. I am sure that I am not alone in having some penalty points, given how many speed cameras there are these days.
  It really is tragic that so much public sector service vehicle investment has been made but, because of people being selfish and not thinking and there not being an effective deterrent, it has in practice been wasted or seriously undermined. I beg to move.
  Lord Davies of Oldham: I appreciate the way in which the noble Lord introduced the amendment, which I recognise is expressed in constructive terms. He will know that, under Section 40 of the Disability Discrimination Act, there is a power to introduce accessibility regulations in respect of public service vehicles. Indeed, we have already used that power to introduce the Public Service Vehicles Accessibility Regulations. They have applied to all new vehicles since 31 December 2000 used on a local and scheduled service that have a capacity of more than 22 passengers.
  I emphasise the 22 passengers because, if the noble Lord intends to press his amendment at a subsequent stage, it will have to be drafted with a margin more
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  attention to detail than at present. It would apply to any vehicle that carries eight or more passengers. A family sports utility vehicle could fall within that category if it had eight seats; certainly a family minibus would. I am sure that it was not his intention to bring that within the framework of a public transport vehicle. There is another great difficulty. I realise the condign nature of attracting three penalty points on the offender's licence. However, it could not be enforced by local authorities, so we would need a different mechanism altogether. The amendment has those weaknesses.
  In more general terms, we recognise that making vehicles accessible—we have made considerable progress on that over the past four to five years;—is only a part solution to the problem. If the vehicle is accessible but it cannot get close enough to a place for people to have access to it, its inherent accessibility is set at naught. I recognise the difficulties of that. Part III of the DDA already applies to bus stations and airports, so accessibility is guaranteed in terms of the provision of facilities for the vehicles seeking to pick up the disabled. As the noble Lord emphasised, the problem is bus stops.
  Clause 3 would place a new duty on public authorities to promote equality of opportunity for disabled people, and that has implications for bus stops. It is clear that a vehicle parked at a bus stop reduces the effectiveness of our vehicle accessibility regulations. We have looked at the issue of bus stop parking very seriously in discussion with the bus industry and local authorities. It is largely one of traffic management and enforcement. We consulted in 1999 and 2000 on bus stop clearways which prohibit all vehicles except for limited stopping by local buses and taxis to set down and pick up passengers.
  Responses indicated that bus operators and organisations representing passengers, and particularly disabled and older people, wanted all bus stops to be clearways for 24 hours every day of the week, with parking restrictions applying at all times. However, concerns were expressed that restrictions operating all day, every day, would present problems with enforcement, might not be appropriate on all bus routes—such as those on which the bus is an intermittent traveller—and could be unacceptable to local residents due to taking away their parking opportunities. Of course, it could have a negative impact on local businesses, such as the noble Lord's butcher, who am I not sure would be as enthusiastic in his avowal of the situation as the noble Lord himself.
  Issues were also raised that the imposition of restrictions at times when buses were not running would prevent the use of valuable road space for such necessary activities as overnight deliveries to shops, without giving any compensating benefits to bus operators and passengers at times when no bus was running. We concluded that clearway restrictions and enforcement should not be required universally, and that, where they were used, they should be in force only while buses were operating. That approach was felt to be more sympathetic to the representations that we received.

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  In areas where bus stops are not obstructed by cars, it is not necessary to protect the stops. However, at busier locations, particularly in urban areas, we recognise the need for clearways, and have revised legislation to simplify the procedures for specifying and enforcing them. Local authorities are now able to introduce and enforce those without the necessity of a traffic regulation order. We have therefore made some progress in terms of empowering local authorities.
  I emphasise that the amendment has defective qualities, but think that the noble Lord will recognise that I am arguing that a balance must be struck between the rights of access of the disabled to buses, which have been converted to promote such access, and the actual use of road space, for which there are always competing demands. We have to strike a balance between those competing demands.
  Lord Higgins: I want to ask the Minister a rather more general point. There has been quite a lot of coverage in the press and so on about provision for the disabled on buses and coaches, with a particular distinction between local authority buses, private buses, school buses and so on. Where does that appear, as it does not appear in the Bill? As I understand it, the Bill does not cover buses at all.
  Lord Davies of OldhamWe are building on a section in the Disability Discrimination Act to enforce that. That is why we were able to introduce bus compliance from 2000, as I mentioned. I have figures stating that 39 per cent of all buses are already accessible, rising to 80 per cent in our large urban areas. In the London fleet, 90 per cent of buses are accessible. We have made considerable progress so far as the vehicles themselves are concerned; the amendment relates to the question of how close to the bus one can get.
  Lord Higgins: But is that covered in this Bill or is it in some way amending the 1995 Act? I just was not clear what legislation deals with the provision of disabled people on buses and coaches.
  5.15 p.m.
  Lord Davies of Oldham: Clause 3 will have some effect in that area. It will require local authorities to consider the needs of disabled people when carrying out their functions. One of their functions is parking enforcement and the management of traffic. Of course, we have recently had a management of traffic Act that strengthens significantly the role of local authorities with regard to those issues.
  When deciding whether to provide bus-stop clearways, a local authority will need to think about the possible impact on disabled people as well as the other factors that it would normally consider, which obviously would relate. The noble Lord was quite fair when he commented on the situation in the past. There is some obvious concern, for instance, for local businesses as regards how close people can park cars for access, particularly at those businesses where people carry quite heavy loads from the business to the
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  car. We are saying that within this Bill, because we make greater impositions on local authorities with regard to the disabled, that enters into the framework discussions for decisions in that area.
  Lord Oakeshott of Seagrove Bay: I thank the noble Lord for the constructive and, perhaps I may say, characteristically friendly spirit of his response, and for the improvements, particularly in relation to the minimum 22-seat vehicles, that he has suggested in response to my amendment. But the more I listened to the noble Lord, the more I thought that he was making the case for my amendment rather than arguing that it was unnecessary.
  In particular, as regards the points about Clause 3 and that this places a duty on local authorities, the problem is—I did not hear him denying it—that it is not effective. The local authority effecting the parking ticket sanction, as I have described it, is not working. That is why we propose tougher and more effective penalties, which is virtually a new regime in this case. It just does not work. That is the problem with the Minister's reply. I accept the point that there needs to be a balance and that we do not necessarily have to have clearways 24 hours a day, seven days a week.
  But, in a sense, that is a false alternative to what I am putting forward. Current rules—that is, the times and so on—for parking are not being enforced. I do not believe that they can be enforced because the penalties are not strong enough. So, with accepting the point about needing to limit it to larger public service vehicles, obviously I will withdraw the amendment now, but I shall certainly press the matter at Report unless I get those points in detail addressed and answered. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 9 [Recognition of disabled persons' badges issued outside Great Britain]:
  Lord Higginsmoved Amendment No. 50:
  Page 22, line 34, leave out "outside the United Kingdom that are" and insert "that is"
  The noble Lord said: This is a probing amendment related to the part of the Bill concerned with disabled persons badges and, in particular, those issued outside the United Kingdom. I stress that it is a probing amendment because it is certainly not our wish that national governments overseas should be able to legislate for a situation in the United Kingdom.
  But it raises a series of issues. For example, as regards the drafting perhaps I may refer to line 35. which refers to,
  "made by the appropriate national authority"
  That presumably refers to the badge itself being issued in that country.
  However, the clause raises a number of issues about what is meant by a "recognised badge" and which countries' badges we will recognise. For example, what is the situation with regard to a badge issued in the United States, which might have been issued by a local authority rather than the federal government of the United States. Would that be covered? How are the

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  police and traffic officers to recognise those badges? Are they to be issued with a series of tables showing the badges of the various countries? It would be helpful to know which countries' badges the Government believe should be covered, where that is specified in the legislation and how they are to be recognised. I hope that the situation in those respects can be clarified. I beg to move.
  Lord Davies of Oldham: Perhaps I may delight the noble Lord by saying that the first country to be included in the definition is Northern Ireland. In our research when looking at this issue, we found that Northern Ireland was not covered by existing provision. So we intend, under this clause, to ensure that that is so.
  On the question of which countries will be included, the stimulus behind the broader perspective is obviously the countries of the European Union. We accepted a resolution of the European Conference of Ministers of Transport (ECMT) to provide reciprocity with member and associate member states of ECMT. It is therefore largely directed to the reciprocal rights and development of opportunities for other European countries.
  I hear what the noble Lord says about the discretion of the local state badge as opposed to the federal government badge in the United States. In my voluminous notes on this particular amendment, I have not got any reference to the US, so I am not able to help on that. But I will do the necessary researches by the time we next meet to discuss those issues.
  The obvious point is that it is the appropriate national authority that is in the Bill. I hear what the noble Lord says about the federal versus state position in the United States. At this stage, we can interpret that only in federal times, although we are not linking it to the issue of the foreign badge. When we refer to the "national authority", we are talking about the United Kingdom authority for the issuing—that is, the Secretary of State of the United Kingdom. So we are not linking it directly to the issuer of the foreign badge.
  We seek to meet the obvious needs of reciprocity as regards the European Union. We are merely indicating that that will largely meet the provision with regard to what is recognised as the single colour and denomination of the badge across Europe. Of course, other national positions outside the European Union do not fit directly within that framework.
  In reply to the noble Lord, I am not briefed to cover in detail his question about the federal versus individual states of the United States. We are aware that the badges are issued at state level. We would have to be assured about who recognises the issue of those badges. After all, these badges relate to a particular part of our own community and their needs. We would need to be assured that there was similar rigour with regard to the issuing of badges by any other authority.
  I am being vague about that simply because I am not briefed to deal in detail with the individual states of the United States and the legitimacy of their disabled badges. Suffice it to say that what is behind the thinking of this clause relates greatly to the European
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  Community against a background where when travelling by car our disabled citizens expect to avail themselves of facilities in the rest of Europe. It is only right that we recognise reciprocity on that basis.
  Lord Higgins: We are not getting very far on this amendment for the reasons that the noble Lord mentioned; namely, that he has not been briefed on the point. There seems also to be some confusion here between the law of any jurisdiction outside the United Kingdom on the one hand and the appropriate national authority on the other hand. There may be jurisdictions outside the United Kingdom that are not national authorities.
  I may reflect my ignorance, but I had not realised that the disabled system was a national system in all those other countries, rather than a local one. In the expanded European Union, is it the case that all disabled badges are issued by a national authority or are some of them issued by local authorities- for example, Poland or wherever? There seems to be some lack of certainty on the part of the Government about exactly what is or is not covered.
  The noble Lord has not answered my point about how those people enforcing or facilitating the provisions will know that a badge is appropriate if there are a multiplicity of badges. It seems to cover not simply those countries with which we have reciprocal arrangements but all countries outside the United Kingdom. Again, the drafting on this is a bit wobbly.
  Lord Davies of Oldham: It is obvious that we are concerned to preserve our national authority's right to recognise and provide regulations for the recognition of other badges. The issue with regard to the European Community is relatively straightforward. In order to obtain the same kind of specification of badge, the authorities in other countries must have issued the badge within a framework that we recognise.
  The noble Lord has prompted that there may be other badges issued by other authorities that we ought to take care to recognise. That is so. Within the framework of that clause, we are preserving that right. We will authorise the acceptance of those badges that meet our requirements of the categories of people benefiting from them and the rigour with which they are subject to scrutiny in those countries. That is the best that I can do for the noble Lord.
  Lord Higgins: That may be the noble Lord's best, but it is not frightfully good. It is not clear just how this will work. Again, who will enforce this? Will it be parking wardens as well as the police? Will they be issued with an enormous sheet of sample disabled parking permits so that they can look at a windscreen and decide whether a badge is appropriate or whether it is a forgery? The noble Lord is asking us to approve this clause, but he is too uncertain about what exactly is involved. Will there be a list? Will it be issued and, if so, to whom?
  Lord Davies of Oldham: We have got clear lists of countries that meet the requirements for our recognition of badges; that is, the European countries. That is a result

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  of the resolution of the European Conference of Ministers of Transport to which I made reference earlier, which requires that the European states should establish similar reciprocity for members and associate members across the European Community. It is also the case that associate signatories to that include other states, such as Australia, Canada and the United States. What I cannot answer is the point that the noble Lord made about federal constitutions, and who actually issues the badge in those individual states. We will have a list of agreed badges that we will recognise, which will include members of the European Union. They will also have the advantage of the common badge that we issue to our disabled, in the same format. Then there are the associate member states—and I was merely wrestling earlier with the precise, not to say arcane, point, of who issues disabled badges in the federal states of the United States of America.
  5.30 p.m.
  We need to recognise badges in our national regulations, and that is what we are doing. The national authority relates to the Secretary of State in England and the National Assembly for Wales for the recognition proposal. That has nothing to do with the issuing authority; it is our recognition that is relevant. We are the recognising authority for the badges.
  All badges issued under the EU regulations are to a common design; they are harmonised already, and, therefore, are valid and recognisable. We shall not recognise others until we are reassured about status. Of course, the noble Lord has every right to press me, but my hesitation with regard to his question was simply due to the fact that I cannot tell him at this point who is the issuing body in the United States. I shall need to clarify that for him on some subsequent occasion.
  As for enforcement, as the Committee will recognise, in addition to police, traffic wardens and parking attendants, we have the civil enforcement officers created under the Traffic Management Act 2004 to which I referred under the previous amendment to help us to enforce traffic management. All those categories of persons will be part of the enforcement authority with regard to any infringement of the provisions with regard to the use of the badges.
  Lord Higgins: It may be helpful if the Minister could write to me before Report stage and spell out the situation, and tell me what happens about people from Australia, New Zealand, South Africa and so on. Essentially, I would like to know about reciprocity and the reciprocal arrangements that have been made. However, I do not believe that we can get any further on the matter at present. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Higginsmoved Amendment No. 51:
  Page 22, line 39, leave out ", or include,"
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  The noble Lord said: I should stress that the amendment does not mean that we do not believe that disabled persons' badges are not extremely important to those who have them. We are simply concerned with the technicalities of the clause
  Subsection (2), to which the amendment refers, states:
  "In exercising the power under subsection (l)(b), the appropriate national authority may specify a provision only if it appears to the authority that badges issued under the provision are issued by reference to persons who are, or include, disabled persons"
  Apparently, badges that do not include disabled persons are all right. What are these badges? I beg to move.
  Lord Davies of Oldham: We may be at cross purposes with regard to the effect of the amendment. As we see it, the amendment would deny us the opportunity to recognise badges that may be issued to other than individual disabled people. The noble Lord will recognise that badges are issued not only to individual disabled people but also to organisations involved in the provision of transport for disabled people to enable them to park, for example, close to disabled persons' homes. We are seeking to change the terminology used in connection with those badges, removing the word "institution", to which many disabled people object and find offensive and inappropriate, and inserting the appropriate term, "organisation".
  There is no evidence that other countries make similar provision for organisations providing transport services for disabled people. However, we have recognised in the wording of the proposed new section of the Chronically Sick and Disabled Persons Act 1970, which would be inserted by Clause 9, that such badges may be issued so that we can also extend reciprocity to them. So this is an extension of the concept of reciprocity to organisations that have the right to issue the badges.
  The amendment would deny us the opportunity to recognise such badges. If we cannot recognise badges from organisations authorised to issue them elsewhere, we might find—reciprocity having been denied—that a group of disabled people from this country would be unsure of their badge being recognised elsewhere. I realise that I have not met exactly the point that the noble Lord made. However, my objection to the amendment is really quite important, as we are seeking to create a facility that involves reciprocity and which would be lost if his amendment were made part of the Bill.
  Lord Higgins: The amendment was a probing one, and I understand the Minister's argument. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Higginsmoved Amendment No. 52:
  Page 22, line 43, leave out from beginning to end of line 3 on page 23.

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  The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 53 and 54. I believe that it would be helpful to discuss all the amendments together.
  The amendments are concerned with someone who produces a badge that is not recognised or authorised, and the heavy penalty that may be imposed on him under Clause 5. How is an enforcing officer to know whether a badge is genuine? That was the point that I raised at the beginning of our debate on these amendments relating to badges. Will a list be issued of the relevant badges, and how are those enforcing the law to know whether they are genuine? Although it is undesirable for non-disabled people to purport to have a disabled badge, is it not using a hammer to crack a nut to suggest that the practice is so widespread that we must summarily convict those individuals, no doubt greatly to their inconvenience, and impose a fine on them? Is the practice widespread, and is this set of clauses really necessary? I beg to move
  Lord Carter: I am sure that the blue badge has a photograph of the person to whom it was issued on the back, so if it were required to be produced it would be easy simply to look at the photograph and see whether it was the right person.
  Lord Higgins: Yes, but these provisions relate to badges that are not real badges. Presumably, they could also have a photograph on the back of them. I understand the noble Lord's point, but it is not actually relevant to the amendment.
  Lord Davies of Oldham: We should not minimise the extent of the offence that could be incurred by the misuse of such badges. Parking in some of our inner- city locations can be extremely expensive these days, and it is more than worth someone's while to get away with a fraudulent badge.
  We have to take care on the issue of enforcement. One recognises the value to the disabled of the support given by having the badge, and the privilege that it supplies, but we should not underestimate the significance of those privileges. We must be scrupulous about enforcement. It would not be helpful if it became generally known that no action was likely to be taken against some purportedly foreign badge-owner, who might be a citizen of a member state of the European Union, who displayed an incorrect badge that we did not recognise or authorise and which was not on our list. If it became known that displaying a badge from another European country generally saw off any question of parking enforcement, we might well see a growth in numbers of people from that country arriving with such badges and in the number of our own fellow citizens who decided that it was a useful way in which to get around parking restrictions.
  We are pursuing with some rigour the issue of categorisation of foreign badges and the reciprocal arrangements with regard to them. It is crucial to our enforcement procedures to do so, not least against a background of wanting, quite properly, to offer the best proper amenity to the disabled. But we are all conscious of the fact that illegal parking is the source of enormous
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  amounts of frustration and great inhibition on traffic management, to say nothing of the fact that never a day goes by without there being some incident of road rage, because people have taken advantage of others with regard to parking places.
  This is not a minor issue of traffic management and handling our road space. There are 2.5 million badge-holders in the United Kingdom, so the scheme depends on effective policing in the interests of traffic management, and also on ensuring that genuine badge- holders get their rights and are not disadvantaged by holders of fraudulent badges. That is the basis on which the clause is drafted.
  The amendment is a probing amendment. I have sought to identify to the noble Lord, Lord Higgins, that we have considered this matter carefully, as it is of considerable import to aspects of road transport in this country. We believe that we have the right approach; it is one that requires us to be satisfied about the credentials of the badge that we recognise. At the same time, we see the benefits of reciprocity, whereby our disabled citizens would be able to use their badge in other countries, particularly in the European Union, on the same terms as they do here.
  Lord Higgins: I am grateful to the Minister. As I stressed all the way through on this bunch of amendments, they are probing amendments. We would not wish to disadvantage in any way those who have legitimate badges, while we wish to penalise those who seek to misrepresent the facts and claim that they have such a badge. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 53 and 54 not moved.]
  5.45 p.m.
  Lord Higginsmoved Amendment No. 55:
  Page 24, line 3, at end insert—
  "(c) in relation to other nationalities, the transport authority of the country concerned"
  The noble Lord said: This is a drafting amendment. It relates to the Secretary of State in England and Wales and in Wales to the National Assembly for Wales. There appears to be a lacuna in this section of the Bill, which refers to Sections 21A and 21B. They deal with the issuing of such badges and their acceptance in this country, but the provision refers to England and Wales but not to other countries which we have discussed in relation to other provisions. How is the effectiveness of Sections 21A and 2IB to be operated if there is no amendment of the kind I am proposing? I beg to move.
  Lord Davies of Oldham: This is about the regulation- making power and the regulation-making authority. Obviously we are concerned that we should identify the regulation-making authority in England, which is the Secretary of State. We also recognise that the regulation-making authority in Wales is the National Assembly for Wales, but we do not have the power—

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  nor would we seek in any way shape or form to encourage the notion—to propose that other countries should make regulations under British law.
  Lord Higgins: I may have misunderstood the situation. Are these other authorities not issuing badges which we are going to recognise?
  Lord Davies of Oldham: Indeed, they are, and I sought to reassure the noble Lord in moving other amendments that we would need to be satisfied about the validity of the badges. This is about regulations and we can identify the regulation-making and enforcing authorities in England and Wales, but we cannot specify that other countries should make regulations under our law.
  Lord Tebbit: That prompts the question about Scotland, which presumably makes its own regulations. How do we recognise them?
  Lord Davies of Oldham: Indeed, Scotland has already made its regulations. When I spoke of reciprocity, I mentioned Northern Ireland which was outside the framework and I sought to bring it within. I did not mention Scotland as a devolved Administration, but I could usefully have done so in terms of our recognition. That issue was about the recognition of the badge, but this issue relates to who delivers the regulation. We are not seeking to impose that on other countries, including Scotland, a devolved Administration.
  Lord Higgins: I am grateful to the Minister for clarifying that point and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 9 agreed to.
  Lord Addingtonmoved Amendment No. 56:
  Before Clause 10, insert the following new clause—
  "ANNUAL REPORTS ON BUILDING ACCESSIBILITY
  In the 1995 Act, after section 60 (appointment by Secretary of State of advisers) there is inserted—
  "60A ANNUAL REPORTS ON BUILDING ACCESSIBILITY
  (1) There shall be an annual report published by—

  (a) both Houses of Parliament,

  (b) the Scottish Parliament,

  (c) the Welsh Assembly,

  (d) the Greater London Authority,

  (e) county councils (in England and Wales),

  (f) county borough councils (in Wales).

  (g) district councils (in England),

  (h) unitary authorities,

  (i) London borough councils.

  (j) the Common Council of the City of London.

  (k) the Council of the Isles of Scilly,

  (l) a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39) (constitution of councils),

  (m) parish councils (in England),

  (n) community councils (in Wales or Scotland), and

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  (o) the Historic Buildings and Monuments Commission for England,

  setting out the developments made for access to buildings by disabled persons coming under the jurisdiction of those bodies in the previous year.
  (2) Such annual reports shall be completed before one year has elapsed following the commencement of the Disability Discrimination Act 2005; and before that day for each year thereafter.""
  The noble Lord said: This is a long amendment but it has a straightforward function. We return to an annual report for two reasons. The first is to stop complacency among those groups which have done enough to be legal but are not taking the matter forward and involving best practice. The second is to disseminate best practice among the groups who are involved in that.
  I hope that none of these bodies will fail to comply with the law as it is envisaged, but I hope that an annual report will be a good way of disseminating good practice and give examples of where it could be found and passed on. I beg to move.
  Lord Skelmersdale: I look two, three and four times whenever I see amendments promoting annual reports because I have so often been in the position of the noble Baroness opposite with a brief headed "Resist". I have a strong suspicion that her brief is headed in that way today, unless things have changed dramatically in the past 15-odd years.
  The noble Lord, Lord Addington, is not asking for one but for 15 annual reports from various people and they will not all be put together. Therefore, one wonders who will read them and to what use they will be put. I can readily believe that a few people in Parliament and in local authorities will pour over these reports. However, I wonder what use that will be and exactly what the reports will reveal.
  I have tabled a later amendment on a housing register, which is internal to the individual local authorities and seems to be a much happier arrangement. I am sorry that I cannot support this amendment in the same way as I resisted similar ones in the past.
  The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham): Consistency in the noble Lord is always to be welcomed and much appreciated, I am sure, by the Committee. I understand where the noble Lord, Lord Addington, is coming from. He hopes that such annual reports will disseminate best practice and encourage other local authorities and public bodies to follow suit.
  Perhaps I may make three points, the last of which may suggest to the noble Lord that the amendment is not necessary. First, local authorities vary enormously in the stock they hold. My local authority of Norwich and that of the noble Lord, Lord Oakeshott, of Oxford, have a wealth of historic listed buildings for which adjustment at reasonable expense is difficult—not impossible—to obtain. The noble Lord, Lord Tebbit, has experienced the same difficulty with London clubs. Therefore, to see how many buildings have been made accessible, without taking into account the type and nature of the stock

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  which exists, is difficult. You are dealing with raw material and not producing a proper assessment of the situation. Therefore, I do not believe that the provision would be as helpful as it might, particularly when one recalls the town halls and major public buildings of many cities are Victorian.
  That is not to say that with imaginative architects and good local authorities there may not be ways around the problem. I gained access into Grade I listed buildings in my local authority which had gifted architects. But it is not easy and I do not believe that we should regard all local authorities as the same and produce an annual report comparing one with another. I do not believe that that would be helpful. If a building is listed, the preservation of the fabric, so that it is not deformed, takes priority.
  Equally, it may make good sense for the local authority to provide access to the service rather than access to the premises and a home visit for a certain number of disabled people who cannot access, for example, a municipal town hall may be a more appropriate way, in extreme circumstances, of delivering a service.
  Secondly, not all local authorities start from the same base. Local authorities and principal bodies will be required to publish a disability equality scheme setting out their response to the duty to provide access and how they will measure progress towards disability equality. We want public authorities to involve disabled people in deciding the priorities for action. They may include greater accessibility to public buildings and, if so, information about such accessibility will be a subject that public authorities might need to cover in the disability equality scheme. Others might find that disabled people give better elements of service delivery—for example, better provision of care and support of the home or of social service—a higher priority for eliminating discrimination and promoting equal opportunities.
  Again, there is more than one way of achieving the aim than simply going for physical access to a building. Other local authorities might find that when working with disabled people an alternative way of delivering the service might be a more appropriate pathway.
  The third reason is the most important from the point of view of the noble Lord, Lord Addington. To a degree, some of the noble Lord's concerns will be met by the development of the best value performance indicator 156. That indicator requires local authorities already to report annually on the percentage of their buildings— excluding some such as schools—which are open to the public and are suitable for and accessible to disabled people. The indicator was introduced in 2001–02 and has already demonstrated improvements in accessibility. In the first year, the national average for the percentage of accessible public buildings increased six points from around 30 to 36 per cent.
  Those performance indicators are monitored by the National Audit Commission. In that sense, we already have a vehicle for delivering much of what the noble Lord was concerned about through the best value performance indicators. I would not want to go further than that because different local authorities have
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  different stock and they may well have different views as to the best ways of delivering alternative services to disabled people. A check list would not be right, therefore, but we are moving in the right direction through the performance indicators. I hope that with those reassurances, the noble Lord, Lord Addington, will feel that the spirit behind his question is being met.
  Lord Addington: I thank the Minister for that answer. The noble Lord, Lord Davies, may feel slightly rough by the fact that he was given more difficult subjects to deal with. The noble Baroness has answered virtually every point. There is always the parliamentary caveat that I must read her words in Hansard, but I suspect that she has shown those who helped me to prepare the amendment that many of these points can be left. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Cartermoved Amendment No. 57:
  Before Clause 10, insert the following new clause—
  "VOLUNTEERS
  In the 1995 Act, after section 14D (practical work experience: duty to make adjustments) there is inserted—
  "14E VOLUNTARY POSITIONS: DISCRIMINATION AND HARASSMENT

  (1) It is unlawful, in the case of a disabled person seeking or undertaking a voluntary position, for the voluntary position provider to discriminate against him—

  (a) in the arrangements which he makes for the purpose of determining who should be offered a voluntary position;

  (b) in the terms on which he affords him access to any voluntary position or any facilities concerned with such a placement:

  (c) by refusing or deliberately omitting to afford him such access;

  (d) by terminating the voluntary position; or

  (e) by subjecting him to any other detriment in relation to the voluntary position.

  (2) It is also unlawful for a voluntary position provider, in relation to a voluntary position, to subject to harassment—

  (a) a disabled person to whom he is providing a voluntary position; or

  (b) a disabled person who has applied to him for a voluntary position.

  (3) This section and section 14F do not apply to—

  (a) anything made unlawful by section 4 or any provision of Part 3 or 4; or

  (b) anything which would be unlawful under that section or any such provision but for the operation of any other provision of this Act.

  (4) In this section and section 14F—

  "voluntary position" means unpaid work, excluding the reimbursement of expenses, undertaken in accordance with a specific written volunteering agreement governing the nature and extent of the relationship between the volunteer and the voluntary position provider and such agreement need not be sufficiently formal to constitute a contract;

  "voluntary position provider" means any person who provides a volunteer position to a person whom he does not employ.

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  (5) This section and section 14F do not apply to a voluntary position undertaken in any of the naval, military and air forces of the Crown.

  14F VOLUNTARY POSITIONS: DUTY TO MAKE ADJUSTMENTS

  (1) Where—

  (a) a provision, criterion or practice applied by or on behalf of a voluntary position provider, or

  (b) any physical feature of premises occupied by the voluntary position provider, places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the voluntary position provider to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.

  (2) In this section, "the disabled person concerned" means—

  (a) in the case of a provision, criterion or practice for determining to whom a voluntary position should be offered, any disabled person who is, or has notified the voluntary position provider that he may be, an applicant for that voluntary position;

  (b) in any other case, a disabled person who is—

  (i) an applicant for the voluntary position concerned, or

  (ii) undertaking a voluntary position with the voluntary position provider.

  (3) Nothing in this section imposes any duty on a voluntary position provider in relation to the disabled person concerned if he does not know, and could not reasonably be expected to know—

  (a) in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the voluntary position; or

  (b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1).""

  The noble Lord said: The purpose of the amendment is to extend the protection of the DDA of direct discrimination and harassment of disabled volunteers who are not currently protected when undertaking voluntary work. It also seeks to give disabled volunteers a right to reasonable adjustments to provisions, criteria, practices and physical features of premises occupied by voluntary position providers that place them at a substantial disadvantage compared with non-disabled volunteers.
  The DDA does not give all disabled volunteers protection from discrimination and harassment at work as many do not have sufficiently formal contractual relationships which will qualify them as being employees under Part 2 of the Act. It does not therefore give these volunteers protection from discriminatory provisions, criteria or practices. It also does not give a right to reasonable adjustments to physical features of premises occupied by a voluntary position provider that place a disabled volunteer at a substantial disadvantage in comparison with non- disabled people.
  I do not believe that the amendment places an unreasonable burden on providers of voluntary placements. First, the providers of placements would only be required not to subject disabled volunteers to
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  direct discrimination or harassment. Secondly, they would be required to make only those adjustments to provisions, criteria, practices and physical features of premises that are reasonable, taking into account their financial circumstances and the nature of their premises.
  This amendment is based around the recommendation of the Joint Select Committee— Recommendation 63—which states:
  "The Committee recommends that the Government should consult on and produce a code of practice on volunteers. The Committee further recommends that the full Bill should include a regulation-making power enabling volunteers to be brought into coverage, should the non-statutory code prove ineffective".
  The Government, in response, stated:
  "We have asked the DRC to consider producing a voluntary code of practice on disabled volunteers working with the other equality commissions".
  They ended their response by stating:
  "We will be more certain of how to frame a power once a voluntary approach has been tried and properly assessed".
  Unless there is a regulation-making power, when the voluntary code is shown not to work, how would the Government be able to deal with the matter?
  6 p.m.
  I have a final point for my noble friend. I was struck by an article that I saw in the Guardian, which says:
  "The unsung army of voluntary workers that provide essential services from social care to environmental action should be provided with cash and other benefits, a Home Office minister argues".
  There has been a commission report. The article goes on:
  "The commission, chaired by Ian Russell, the chief executive of ScottishPower, is studying a range of financial and other incentives. It has found a stigma among young people about volunteering".
  We know that there are many disabled people who would like to undertake voluntary work so long as they were protected from discrimination. We know that this Government are a seamless robe of interdepartmental co-operation, particularly where the Treasury is concerned. As this is the year of the volunteer, it would be odd if the Home Office was seen to provide all this financial help for voluntary work at the same time as the DWP was not wholly looking after the interests of disabled people who would like to be volunteers. I beg to move.
  Lord Addington: There is not much to be said on this that the noble Lord, Lord Carter, has not said already, apart from re-emphasising the point that volunteering is seen not only as a way into society but a way into work for many people. You might be required to show an aptitude or a vocation for many activities and professions, and often you might be required to do a degree of volunteering work initially. If you are dealing with any support services, it is quite normal.
  Something like this would strengthen one of the main planks of the Government, which is getting the disabled into work and access to work. This would be complementary to that, and it really should be

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  included. Not including it in the first place was probably a case of, "Oh, too big, too nasty, too complicated", but actually it is integrated into the whole approach of what the Government are trying to do across the board. Unless you take on a set of measures that address at least some of the points raised here, you are always going to cut down many of the economic and social activities available to disabled people.
  Lord Skelmersdale: As the noble Lord, Lord Addington, has just said, volunteering is a definite way that many volunteers manage to get into work. I support this amendment as far as it goes. I accept that the Government have said that they have asked the DRC to produce a code of practice on disabled volunteers, but until it has been produced and is up and running, as I understand it, they are unwilling to legislate in this area. Bills concerning disability rights do not exactly come along like buses, do they? I would have thought that it was a sensible arrangement to have a belt and braces approach here.
  The amendment also gives me the opportunity to ask the Minister about the position of those volunteers involved with charities who contract their services to the NHS or to local authorities for payment.
  Baroness Hollis of Heigham: For example?
  Lord Skelmersdale: For example, the Stroke Association, which provides speech therapy services to the NHS, PCTs and so on. I should have thought that since those organisations are providing a paid service, although they are not paid themselves, they would be covered. If not, they would certainly fall within the scope of this amendment, which is another reason why I support it.
  Baroness Hollis of Heigham: The noble Lord, Lord Carter, anticipated correctly that I was going to repeat the fact that we are asking the DRC to produce a voluntary code of practice among volunteers. I hope that a well-formulated voluntary approach will find a good response from organisations that use volunteers. We want to see how that beds down before considering whether legislation is necessary.
  I was asked whether we might take a regulatory power, but actually I think we would not. From all my experience of the Delegated Powers Committee and all the rest of it, the notion of having a regulatory power without the knowledge of how it would be used—what I would call almost a fishing trip regulatory power— would not be appropriate. The reason that we want to involve the DRC in a voluntary code of practice is that there are real issues.
  I do not think that anyone would challenge for a moment the assertion made by the noble Lord, Lord Addington, that voluntary work can lead into work occasionally, although not nearly as much as is suggested. Usually part-time, paid jobs—not voluntary jobs—lead on to full-time jobs. Given that most volunteering work is done by people already in paid
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  work, as the noble Lord will know, it is not a route into work as often as people would think. However, I would not challenge the desirability of that opportunity.
  There are none the less real, practical difficulties in extending the DDA, because of the nature and diversity of volunteering and the relationships between volunteers and the organisations that engage them. Let me share them with Members of the Committee. What sort of volunteers should be covered? How would a duty to make adjustments work, when the organisation has a relationship which in practice would not place any binding obligations on volunteers for their part? Volunteers vary, from a relationship almost akin to a full-time job, through to an occasional casual role, such as helping out at a holiday play scheme. What sort of fair sanctions might operate against the organisation when the individual has no formal relationship or contractual duties with the organisation in the first place? Those duties can run all the way through from simply running a charity stall once a year at a local political fete.
  Are we proposing that these extend all the way through to that most casual and almost random of instances? I am not sure how you do that. Equally, I am not sure what guidance the DRC might come up with. It is not immediately obvious to me how you should draw the line such that the DDA could be enforced on an organisation without there being some contractual and predictable relationship back from the volunteers who expect to be covered and protected by that legislation.
  There is a problem here. I do not think that written agreements, given that they are not used across the entirety of the voluntary sector, would necessarily be an appropriate way forward, as there seems to be inconsistency in the coverage of volunteers by organisations in that respect. I do not know what a reasonable adjustment might be; the volunteer might turn up one week, not for the next two weeks, and then turn up again a week after that. What costs should the organisation incur when it effectively provides employment for volunteers rather than delivering the service that it is designed to deliver to other client groups? No one would welcome it if a voluntary organisation—some certainly in my authority are very small indeed—was put off using volunteers because it feared that we had placed too many statutory duties; on them, or through fear of litigation. One should not underestimate the lack of sophistication among many voluntary groups and the fears that they might become involved in a quasi-employment relationship and face tribunal proceedings. That would not assist voluntary organisations either.
  It is not that these questions should not be asked or that there may not be answers to them, but we do not yet know what that should look like, and we need the DRC's help to establish a voluntary code to see whether that works. I have had no evidence given to me that there is a problem here or that people with a disability have been discriminated against in their eyes in a way that most of us would regard as a well- founded experience of discrimination from other voluntary organisations.

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  I am not yet sure that there is a problem from the point of view of the potential volunteer. I know that there are real difficulties in going down the legislative route on this score. Given that these are not unreasonable worries and concerns, it is right to ask the DRC to engage with this and to go for a voluntary code. If that voluntary code proves unworkable, real problems remain and people experience discrimination that cannot be responded to appropriately with the DRC engaging in an arbitration or conciliation role, obviously we will have to look at this further. But we are a long way from that now. I hope that the noble Lord will feel able, though the answer may not satisfy him, to withdraw his amendment. This is really as far as the Government can go at this stage.
  Lord Carter: I have the impression that the Minister is not too keen on this amendment. She made a point about who would be covered. The amendment seeks to provide such protection for volunteers who have positions where the arrangements between the parties are,
  "sufficiently formal to constitute a contract"
  This means that many voluntary activities of a short duration, such as running a school fete or collecting for charity, will not be covered. Voluntary positions where the relationship is clearly one more akin to that of employment—where arrangements are formally set out in terms of the obligations placed on the volunteer and the corresponding rights that he has against the provider of the voluntary position—would be covered.
  I am still not clear on, if the voluntary approach does not work and there is no power in the Bill to bring forward regulations, how the Government propose to deal with it. However, I have heard what the Minister has said. She has also invited us to provide some evidence of where there is a problem. The lobby will have heard that and will be working hard to do it. Until we get to Report stage, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Cartermoved Amendment No. 58:
  Before Clause 10, insert the following new clause—
  "PRE-EMPLOYMENT
  In the 1995 Act, after section 16C insert—
  "16D PRE-EMPLOYMENT
  For the purposes of this Part, an employer discriminates against a disabled person if—

  (a) he conducts a medical examination or makes enquiries that are related to disability or are likely to elicit information about disability, and

  (b) he cannot show that the examination or enquiries are necessary or proportionate for the purposes of—

  (i) determining a person's suitability for employment, or

  (ii) equal opportunities monitoring.""

  The noble Lord said: This amendment seeks to offer greater protection for disabled job seekers by preventing employers asking for irrelevant medical
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  history and disability-related information on application forms. It also ensures that employers will only carry out medical examinations as a condition for a job offer if the job genuinely requires it.
  Currently, employers only breach the DDA when they use information obtained from disability-related inquiries to discriminate. This is almost impossible to prove and very hard to enforce. During the time that I served as chairman of the Joint Committee, we heard evidence that many disabled people are put off from applying when employers ask about disability on application forms. Why should they give out this personal information when they have not even been offered an interview? Also, their day-to-day experience with prejudice makes them fearful to give any disability-related information, especially if they do not believe that it is relevant for the job.
  In the public sector and many large companies the advertisement will state that if a disabled person meets the criteria for the job, he or she will be guaranteed an interview. That means that when applying the person must reveal that he or she is disabled to show that they can have an interview. One finds then that somehow he or she just does not meet the criteria. Those large organisations are then able to say that they did their best because they always offer an interview to disabled people who meet the criteria. I would like to know the figures on how many disabled people are appointed to these jobs. There is both overt and covert discrimination going on.
  When this issue was raised by the joint committee, the Minister responded that disability-related inquiries were necessary to provide for reasonable adjustments at interview. In fact, this amendment would not prevent inquiries for that purpose. It would stop the many situations where a disabled person applies for a job and discloses his or her disability on a form that the prospective employer wants completed for its internal statistics on applications. We have all seen these forms, which ask: "Are you disabled, white, Caucasian, black, from an ethnic minority?", and so on. The employer can then decide whether that person should be guaranteed an interview if he or she meets the criteria. As I said, they get the interview, but they do not get the job.
  It would also stop the many situations where a disabled person applies for a job, discloses his or her disability and is, coincidentally, not short-listed for interview. This is where the employer has not said that it will guarantee an interview; it is the other side of the argument. The advert is there. It is revealed that a person is disabled and they do not get the interview. It is a difficult area, and a member of my family went through this experience when applying for jobs. The Government should look at this important area. I beg to move.
  Lord Addington: I support the noble Lord. He has certainly raised an interesting point about trying to elicit information at the correct level and at the appropriate time, and the abuses of that. Malice and ignorance are the two types of discrimination. There is the, "Oh, that will be terribly difficult" response, when

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  it is not terribly difficult to make modifications to a modern building to enable a disabled person to gain access. It may involve simply moving a few desks around. Other people may say, "Let us find a correct way of doing it and ensure that we have the paperwork handy". I believe that would address both points. However, the thrust behind the measure is almost unanswerable.
  6.15 p.m.
  I hope this amendment, if accepted, would mean that you have only to extract the correct information at the right time and that it would prohibit blanket provisions that exclude certain people from the word go.
  Lord Skelmersdale: A member of my wife's family was bitterly disappointed in this respect, having got as far as the interview stage, to be told, "You should not have applied for this job in the first place as you have a white stick and therefore you must be blind," and so on. I am sure that other noble Lords can relate other such examples.
  I accept straight away that the noble Lord, Lord Carter, has hit upon the problem. However, I am not entirely sure that he has hit upon the answer. He spoke at length about the writing of advertisements and the pre-interview stage. However, so far as I can see, the amendment does not say anything about the pre-interview stage. How you would get that into legislation in words acceptable to the draftsman, I am not quite sure.
  Further, unless there is a foolproof method of determining whether the employer, the human resources department or whoever is telling "porkies", I am afraid that the amendment as phrased simply would not work. I would love to think that there was a way of determining that, but I cannot think of it. It will be interesting to hear the noble Baroness's comments on the matter.
  Baroness Hollis of Heigham: There is, indeed, a difficul ty here, but I wonder whether part of the problem is that we have not yet—by definition, because the regulations of last autumn have not yet necessarily come through—seen how adequately the existing provisions bite. Certainly the Government believe that we already have sufficient legal protection afforded to disabled people undergoing recruitment processes. I absolutely take on board the examples to which noble Lords have referred. Certainly, as an employer at my university, if I received a CV in which there were lots of unexplained gaps, I would certainly want to know what they meant. Such questions might reveal a disability and might therefore be regarded as discriminatory.
  In a way, you are damned if you do and damned if you don't. If you admit a disability, you might be guaranteed an interview, but you might think that you will be guaranteed not to get the job. If you do not record the disability but leave unexplained gaps, you probably will not even get an interview as you may be regarded as not having staying power to do the job and
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  so on. Therefore, there are, indeed, problems here. However, as I say, the Government believe that the changes of last autumn and the Bill together should address the problems outlined. They are real problems and we do not wish in any sense to underestimate them.
  It is already unlawful under Section 4(1) of the DDA for employers to discriminate against disabled job applicants in the recruitment process. This includes discrimination in relation to medical examinations and disability related questions. The Government believe that if disabled people and their representatives use the DDA as it is intended, they should already be able to challenge discriminatory treatment in these areas.
  As I say, new provisions introduced a couple of months ago in the DDA regulations—I refer to the European regulations that were brought in—will further assist disabled people in employment. They include, for example, the repeal of the small business exemption. In addition, a new code of practice on employment and occupation was issued by the DRC in October 2004. This code gives guidance on how disabled people are protected from discrimination if they are in employment, if they are seeking employment or if they are involved in a range of occupations. Most importantly, since October the burden of proof in DDA employment cases shifts to the employer once the complainant shows prima facie evidence of discrimination. No one has mentioned my next point, which surprised me a little. A disabled person can use the questions procedure set out in Section 56 of the DDA to find out the employer's reasons for alleged discrimination.
  The Government believe that these two measures in combination will make it much easier for disabled people to challenge unfair and discriminatory questions because they can solicit evidence from the employer on the reasons for any alleged unfavourable treatment and because it will be up to the employer to prove that discrimination has not occurred. Therefore, any employer knowing—as they will know -that Section 56 may provoke an interrogation of their behaviour, is, it seems to me, likely to be as scrupulous in their own interests as they possibly can be when handling an application from someone who they think may be disabled.
  We prefer this approach to the one proposed by the amendment partly because quite innocent questions can elicit information about a person's disability which could put a question mark over the appropriateness of the interview. I have thought about some of those. For example, a simple question such as, "Did you have a good journey getting to the interview"? could possibly elicit unwelcome information about the nature of a disability—that the person being interviewed feels obliged to give—from the point of view of a disabled person. Further examples are: "How do you spend your leisure time away from work"?; or "Tell me something about your strengths and weaknesses". Those are the kind of bog standard questions that you tend to ask at a certain level of interview. Further examples are: "When do you think you last excelled"; or, "When do you think

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  you least excelled"?; and, "What did you learn from it"? Those are classic interview questions. However, they might be regarded as discriminatory.
  Further examples are: "What did you find difficult in your previous job"?; "What was your best achievement in your previous job"?; "Why did you leave your previous job"? or, "How do you think you get on with other people"? I could produce a range of what appear to be innocuous questions. If someone has a history of depression, a question concerning how one gets on with other people may, indeed, be upsetting. Further, the question, "How do you rate your personal skills"? might be asked if the job requires an interface with other people. That is not an unusual question; it could come up and could be considered by the person being interviewed to be discriminatory when the employer has no such intention and when the questions are innocent.
  As I say, we prefer our approach. I refer to the requirement on the employer not to discriminate. Further, if the person being interviewed thinks that discrimination has occurred, the employer will know that under Section 56 of the DDA that person can elicit additional information which may be used as evidence if they go to a tribunal or whatever. Those provisions are reinforced by the regulations introduced last October. We believe that with the help of the DRC we have enough resources to challenge on behalf of disabled people where discrimination is intended and is inappropriate. What we are trying not to do is to catch too many employers in unintended discrimination because a disabled person being interviewed fears that a fairly conventional question has elicited somewhat unconventional information that he or she may think is peculiarly pertinent to them.
  This is a difficult matter but I believe that we have the belt and braces, so to speak, in place already. If we find that is not the case, I am quite sure that the DRC and the relevant organisations will be pressing on our heels.
  Lord Carter: I am extremely grateful to my noble friend the Minister. This has been an extremely useful short debate as it has revealed that there are solutions to some of the problems which have been mentioned. Of course, it could work the other way round as the disabled person may have to reveal, without any questioning at all, the fact that he or she is blind or has a hearing loss and therefore requires special arrangements in which to undergo the interview. This is a tricky area. I should like to read what my noble friend said and take advice on it. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 10 [Discriminatory advertisements]:
  Lord Higginsmoved Amendment No. 59:
  Page 24, line 24, at end insert—
  "(1A) It is unlawful for a person to publish, or cause to be published, an advertisement which invites applications for goods, facilities or services which indicates, or might reasonably be understood to indicate, that an application will or may be determined to any extent by reference to—
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  (a) the applicant not having any disability, or any particular disability;

  (b) the applicant not having had any disability, or any particular disability; or

  (c) any reluctance of the person determining the application to comply with a duty to make reasonable adjustments or (in relation to employment services) with the duty imposed by section 21(1) (duty of providers of services to make adjustments) as modified by section 21A(6) (employment services).""

  The noble Lord said: This amendment, if accepted, would constitute an improvement to Clause 10. Clause 10 as it stands is concerned with discriminatory advertisements and makes specific provision for advertisements to be unlawful if they contain provisions with regard to employment which suggest that the applicant will not be successful if he or she has a disability of one kind or another.
  Clause 10 as presently drafted states that it is unlawful to publish an advertisement which invites applications for an appointment or benefit—I am not clear what is meant by "benefit"—and indicates that an application,
  "will or may be determined to any extent by reference to—

  (i) the applicant not having any disability, or any particular disability,

  (ii) the applicant not having had any disability, or any particular disability, or",

  where the person making the decision whether employment should be offered is reluctant to employ someone who is disabled and that is made clear in the advertisement. That is entirely desirable. In terms very similar to that of Clause 10, Amendment No. 59 seeks to make it unlawful also for a person to publish, or cause to be published, an advertisement which invites applications for goods, facilities or services and which indicates that an application will be determined by reference to an applicant's disability and so on. It seems to us that the scope of the Bill with regard to discriminatory advertisements is not as wide as it ought to be.
  I am heartened that the amendment has the support of the Royal National Institute for the Deaf and some support from the DRC. The DRC points out that this issue was not raised in the task force report or in the Joint Committee report. However, it states in rather exotic terms that it applauds the fact that the amendment has been tabled. It is important to cover this aspect of advertising. The DRC suggests that an advertisement which stated that there was no wheelchair access at a particular meeting, for example, might be regarded as discouraging disabled individuals from attending that meeting.
  Further, an advertisement might state that a product was not suitable for disabled people, or use words to that effect. The amendment, and Clause 10 as it stands, refer to a test of reasonableness and the ability of individuals to make suitable adjustments. That seems to us a not unreasonable extension of the Bill. I beg to move.
  Lord Addington: I added my name to the amendment for the simple reason that, on reading its provisions, I thought, why should it not be included?

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  Advertising is a very important part of the process of imparting information and I would expect it to be covered in the Bill.
  Lord Tebbit: I have some difficulties with the matter. When I get holiday brochures in the Sunday papers or through the door, as we all do, I have often been tempted by them. Presumably holidays constitute a service. Magnificent advertisements appear that tempt one to take a cruise and enjoy lovely outings and so on. If you look at the advertisements closely, you will find that many of the holidays would be extremely unsuitable for someone who was wheelchair disabled. I consider that there should be a lot more openness about this. If anything, I would propose that advertisements should state clearly if a cruise or holiday is not suitable. It would avoid a great deal of irritation to my wife and myself to know in advance to what extent the activities that are part of the package are impossible for a disabled person to undertake. I am looking at this from the opposite end of the telescope to my noble friend Lord Higgins.
  6.30 p.m.
  There is also the question of an activity holiday such as scuba diving. I would have thought that it was extremely important to those who are responsible for the safety of the people they might be instructing in scuba diving to know whether those persons had any disabilities—a history of asthma, for example, or heart disease. It would not be funny for the instructor or buddy, as they say in the trade, of another person diving to discover 30 metres down—or, as I prefer to call it, 100 feet down—that the guy is having an asthma attack or has a heart problem. That would endanger other people's lives. Therefore, it is essential in many cases that the advertisements offering such holidays and services as instruction in underwater swimming make it plain that would-be participants in such activities need to be open and frank about any disabilities that they might have, in the interests not only of their own safety but the safety of others who will be engaged in that sport at the same time.
  We should be very careful about how we legislate in this area. In many ways, I would like to go in the opposite direction and say, "Look, you are offering this service and you must make it absolutely plain if, in your view, it is not suitable for persons who suffer certain disabilities". However, if it becomes clear that people are just trying to avoid the irritation of having somebody about the place or that their lovely beach photographs are being disfigured because someone disabled is in the picture, there should be a means of going for them. It is important that we do not let things slide too far the other way.
  Lord Higgins: I was wondering about the implications of what my noble friend is saying with regard to the recent Ryanair case and the provision of wheelchairs. More specifically, does he feel that his argument applies to Clause 10 as a whole rather than simply to my amendment?
  Baroness Hollis of Heigham: Perhaps I can help. The amendment is about discriminatory adverts, not services.
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  The Ryanair case applied to services. We are talking about discriminatory adverts. The question is to what degree information in an advert is discriminatory. The reason that we have resisted the amendment is that we do not have a single example of a discriminatory advert about goods and services. There may well be goods and services, including the provision of holidays, where discrimination is reasonable. For example, it may not be appropriate for some disabled children to go on certain Outward Bound courses, unless people were equipped properly to help them. That may or may not be reasonable. If it is unreasonable, it should be pursued under provisions relating to services. However, this issue is about advertisements. Although we have asked for examples, I cannot recall seeing a single newspaper advert that was discriminatory. That is our dilemma. The amendment is not necessary because, if the problem is not there, we do not need to fix it. There may be an issue about services—that is caught under Part III of the Act—but not about advertisements.
  Lord Tebbit: I am grateful for the Minister's intervention. We can so easily get into areas that become slightly absurd by questioning whether it should be made plain that bird-watching holidays are unsuitable for blind people, or something of that kind. We would finish up with something like the wonderful Peter Cook sketch about the applicant for the job of acting as Tarzan who unfortunately has only one leg.
  We must retain a sense of reality about this and I am worried about going down this road, especially as the Minister has said that we can find no evidence of there having been a problem. We must be careful about legislating to deal with problems that have not yet arisen.
  Lord Carter: There are advertisements that provide information, which I am sure are okay. It is quite common to take a full page in a magazine or newspaper setting out the itinerary from day one to day 14. It may say, "This involves some steep walking and would not be suitable for persons with limited mobility". That is not discriminatory; it is information.
  Baroness Hollis of Heigham: I hope that, with all those assurances, the noble Lord will feel able to withdraw his amendment. We do not think that there is a problem. We have a difficulty about what is information and what might count as discrimination. Some information would save us from having to ring up and find out whether the hotel has access and so forth. I find it helpful to be told that there is one room or that there are no facilities on the ground floor for disabled or wheelchair access in a hotel. I do not regard that as discriminatory. However, we have no evidence of any problem with newspaper advertisements of the sort that the noble Lord fears, which are analogous to those for employment.
  With that assurance, unless the noble Lord has evidence of newspaper advertisements that are discriminatory, I hope that he agrees that we do not need to pursue this issue.
  Lord Higgins: I am grateful to the Minister and will obviously want to consider what she has said in the light of representations that we have received. However, I still

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  have some difficulty with the point of principle between Clause 10 and the amendment. The main part of Clause 10 is concerned with discrimination, as is the amendment. It would be helpful if the Minister would explain—because I have a slight problem about grasping the point that she made—how the distinction she is making applies to the amendment but not to the main part of the clause.
  Baroness Hollis of Heigham: I am not sure that that is the right question. The right question is whether it is appropriate to extend the discrimination against advertisements that apply to employment—where we all recognise that there have been problems in the past—to the provision of newspaper advertisements for goods and services. We have no evidence of discrimination in such newspaper adverts. Behind that, there may be discrimination in the provision of goods and services, which is the second question, but it is not a question addressed by this amendment.
  There may be occasions where there is discrimination but not on the provision of goods, because it is very hard to think that that might be an issue—except possibly credit for someone with a learning disability; there may be some difficult issues relating to that. The problem with services is likely to relate to physical access and so forth. In that case there may be a problem about whether the information that you are getting is information or meant to deter you. In some cases, that would have to be tested by law under the services provision in Part III, if the DRC is persuaded that, for example, some hotel or holiday practices are intended to be discriminatory. However, as I said, we have not seen evidence of that.
  I am stuck because we have no evidence at all concerning adverts, which is what this amendment deals with. Behind that, in terms of goods and services, given what we are now saying in this legislation and backed up by all that we know from the DRC about this matter, I am not even clear that there will be a problem in terms of the provision of services, let alone the advertising. Whether it is a problem relating to the adverts or to the provision of services, I have not seen evidence to suggest that we need to extend this provision about newspaper advertisements to services and not confine it to employment.
  Lord Higgins: I am sorry to delay the Committee, but I still have a slight problem. Where is the distinction between an advertisement—and I stress "advertisement"—for employment which states, "Don't apply for this job if you are short-sighted", and an advertisement for a meeting that says, "Don't come to this meeting if you need a wheelchair"?
  Baroness Hollis of Heigham: Clause 10 clearly applies to any discriminatory advertisement relating to employment. The noble Lord is suggesting that we need a similar clause to shadow the field of services and the provision of goods. The clause is about what the newspaper advertisement does, not what employers might do. We are banning discriminatory advertisements
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  in the same way as, if one were concerned about age- related discrimination, an advertisement might say, "Anyone over the age of 50 need not apply". That would be a discriminatory advert if there were a power to make it illegal.
  We are saying that there is no evidence that there are any discriminatory adverts in the field of services and goods. Therefore, we do not need a Clause 10B—if this were Clause 10A—applying to Part III of the DDA as opposed to applying to Part II. This is a free-standing clause relating to advertisements.
  Clearly, there is still the issue of discrimination in terms of the provision of goods and services, but that is not what we are dealing with. I have had no evidence at all that we need another clause to cover the provision of goods and services because I have no evidence that it occurs in newspaper advertisements.
  Lord Skelmersdale: On Second Reading, I asked the Minister to talk to the Disability Rights Commission about this subject. Has she done so?
  Baroness Hollis of Heigham: No, but we have inquired—not me personally—about whether there is any in evidence of this problem because, if there were, I would be saying something different. We have been assured that there is not. We have not been assured by the DRC, but we have made inquiries to that effect.
  Lord Higgins: Who did the Minister ask?
  Baroness Hollis of Heigham: There is a history. I was involved in the regulations back in the autumn and we have very thick files containing all the background papers coming through on this subject. We have searched for and asked for evidence of discriminatory adverts. As far as I am aware, the subject has been raised in discussions. My noble friend may be able help me about whether this was raised on the scrutiny committee; I do not know. Certainly, in all the forums that I know—whether in the All-Party Group, the DRC, the scrutiny committee or whatever—no evidence has been produced as far as I am aware, in good faith, of any problem.
  Baroness Darcy de Knayth: The noble Lord said that the DRC applauded his bringing forward this amendment. The briefing says that it does not see why the provision should not be covered in the DDA. Indeed, there is a comparable provision in the Race Relations Act and it could be a useful addition to powers to combat discrimination.
  Lord Higgins: The noble Baroness is right. We seem to have a genuine conceptual difference and for the moment I cannot resolve it in my own mind. I also take on board the points made by the noble Lord, Lord Tebbit. This is one of the helpful things about a Grand Committee. We have gone around the issue and will need to think about it further.
  Baroness Hollis of Heigham: I suggest that, if your Lordships are able to furnish me with three examples

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  of discriminatory newspaper adverts on goods and services that have been published in the past year or 18 months, I will take the matter very seriously.
  Lord Skelmersdale: The Minister must have read the report of the committee chaired by the noble Lord, Lord Carter. Paragraph 339 states:
  "The CRE informed the Committee that they regularly received complaints of discriminatory advertisements relating to goods, facilities or services",
  and that it dealt with X number of cases. I find it difficult to believe that this does not happen in other areas of discrimination. My noble friend is absolutely right to pursue this point and I hope that the Minister will too.
  Baroness Hollis of Heigham: I will pursue the point if I have evidence that there is a problem. I keep coming back to that. Everyone is saying that there may be a problem—perhaps even that there ought to be a problem. All I say is, "Is there a problem? Please give me three examples in the last year that clearly fit the remit", in which case I would certainly ask my colleagues to look at the matter again.
  6.45 p.m.
  Lord Higgins: Fine—one could not ask for fairer than that. As I say, there is a genuine conceptual difference of some subtlety on the rights and wrongs of the argument. I wish to consult further; no doubt so will the Minister and the noble Baroness who spoke a moment ago. Let us see whether we need to return to the amendment on Report. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 10 agreed to.
  Clauses 11 and 12 agreed to.
  Clause 13 [Discrimination in relation to letting of premises]:
  Lord Skelmersdalemoved Amendment No. 60:
  Page 29, line 31, after "been" insert "part or the whole of
  The noble Lord said: We now move to housing proper—notwithstanding the amendment tabled by the noble Lord, Lord Addington, a little earlier—and what is fair and reasonable for a landlord or his management agent to consent to so far as disabled people are concerned with their enjoyment of the dwelling. A later amendment talks about common parts. I looked at the matter from the beginning. On page 29, there are various exceptions to the discrimination in failing to comply with the duty on let premises. The first is that,
  "the premises are, or have at any time been, the only or principal home of an individual".
  I do not live in an Easton Neston, a Chatsworth or a house of that size, but I live in a house that is slightly too big for my needs and has been ever since I bought it.
  Baroness Hollis of Heigham: Oh!
  Lord Skelmersdale: That was how life turned out. It was certainly too big for my needs when I bought it,
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  having only my wife and myself dwelling in it. No one knows what the future will bring; one does not know how many children one will have, and so on. I therefore stand by what I said earlier, which clearly caused the Minister some amusement.
  The result was that, at almost the very beginning, I elected to subdivide the house and let off part of it. The local authority reasonably said that, as that involved a separate lockable entrance, my tenants had to pay the community charge. That is fair enough, so far as it goes. However, the sort of adaption that I made is one where the house could very easily be turned back into a single dwelling by a future owner. That does not appear to be covered by the Bill, so I have tabled the amendment.
  As I said, the large house where the able-bodied owner lives has been partly divided for letting. In my case, it is a wing but it might be a floor of the building. The question therefore arises whether the part of the building to be let is already covered by exemption to new Section 24A(1). I believe that it should be, and I beg to move.
  Baroness Hollis of Heigham: I have either a three- word or a three-page answer, so I shall start on the three-word one, which is, "Your premises are okay". In other words, the legislation does not apply to them.
  Lord Skelmersdale: That is four words.
  Baroness Hollis of Heigham: The noble Lord is right; "You are okay" was how the answer started off. Let me explain why, which may be more relevant for the purposes of Hansard.
  The amendment relates to the principal homes exemption set out in new Sections 24B( 1) and 24H( 1). By virtue of those, the new duty of reasonable adjustment does not apply in respect of the only or principal home of the controller of premises. The amendment would add only a few words to the exemptions, but they are unnecessary. I shall explain why, I hope.
  The purpose of the principal homes exemption is to make sure that people who rent out their own home, whether they continue to live in it or have rented it out while they are away, do not have to make changes that would affect their own enjoyment of their home. Under the new sections, it is clear that the exemptions apply where a controller of premises has let out premises, under new Section 24B(1), or has premises that he wants to let out, under new Section 24H(1). The exemptions apply only in respect of the controller's principal or only home.
  However, the exemptions do not apply if the controller has used the services of a professional such as a managing agent or an estate agent. At that point, the advertisements or notifications must be in appropriate languages, tapes or Braille and so on. We are not necessarily talking about physical adaptions. For example, the exemption would cover someone who has rented out their home for a year while they were working abroad, provided they arranged the letting without using a body like an estate agent. Perhaps they are letting to a friend or a relative.

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  It is also legally clear that the exemption would apply if that same person decided to rent out only part of the house, as in the example that the noble Lord, Lord Skelmersdale, gave. Whoever wrote the example that I have must have known that I would be dealing with him, as it states that the person might have some antique furniture that he does not want damaged, so he puts it into one of the rooms and locks the door. Therefore, the tenant has the full use of part of the home apart from that room. Nevertheless, the exemption would apply.
  That meets the aim of the amendments, which seek to make clear in the Bill that the exemptions apply not only to an individual's current or former home, but to the letting of any part of such a home. The current words do not need that clarification, so I hope that the noble Lord will be happy to accept that his amendments are unnecessary.
  Lord Skelmersdale: I was very relieved by the three/four-word answer, but I am not sure that the full explanation marries to that relief. I thought that I understood the Minister to say that if I was in control of letting the house myself, I would be okay, to use her word, but that if I used a managing agent to do the job for me and make sure that the rent was collected and all the rest of it—although the building and my relationship to the part of the building were the same— the situation would be rather different. If I were in an idle frame of mind—to put things slightly against myself—and used someone else to arrange the letting, even though it was only for the first month, the managing agent would have to allow reasonable adaptations to the property. Is that right?
  Baroness Hollis of Heigham: No. I thought that I was careful when I replied to say that, whenever someone uses a professional agent, we are talking about services—for example, facilities. The noble Lord is quite right that the exemption would not apply if he used a professional managing agent, but we are talking about the sorts of things that they are expected to do under goods and services—such as having information in an accessible format, as I mentioned in my reply—not in terms of any physical adaption to the premises in the way that we would understand it, such as adapting internal staircases or doors.
  Lord Skelmersdale: It seems as though I misunderstood the noble Baroness and she in turn has managed to misunderstand me. I shall have to read very carefully this micro-debate in Hansard. I hope that I do not have to come back to the issue at the next stage, given the three/four-word original answer. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Wilkinsmoved Amendment No. 61:
  Page 31, line 16, at end insert—
  "24DA DUTY FOR PURPOSES OF SECTION 24A(2) TO CONSENT TO ADAPTATIONS

  (1) Subsection (2) applies where—

  (a) a controller of let premises receives a request made by or on behalf of a person to whom premises are let;

  (b) it is reasonable to regard the request as a request that the controller give or secure consent for the disabled person to install or affix an adaptation or improvement in or to the premises;

  (c) the adaptation or improvement would—

  (i) enable a relevant disabled person to enjoy the premises let;

  (ii) enable a relevant disabled person to make use of any benefit or facility, which by reason of the letting is one of which he is entitled to make use; or

  (iii) facilitate a relevant disabled person's enjoyment of the let premises or his making use of any such benefit or facility but would be of little or no practical use to the relevant disabled person concerned if he were neither a person to whom the premises are let nor an occupier of them; and

  (d) the adaptation or improvement is to be undertaken by or on behalf of the disabled person at his own expense and subject to such reasonable conditions as the controller may require.

  (2) It is the duty of the controller to take such steps as it is reasonable, in all the circumstances of the case, for him to take in order to secure consent to the making of the adaptation or improvement or, where he is the person from whom consent must be obtained, it is his duty not to unreasonably refuse such consent."

  The noble Baroness said:The amendment addresses a crucial matter on housing. As my noble friend Lord Ashley of Stoke stressed at our previous sitting, it would form an essential piece in the jigsaw of provisions enabling independent living for disabled people.
  The amendment would place landlords under a duty not to refuse consent unreasonably if a disabled tenant needs to make an alteration to the physical features of a property that he rents. The landlord would not be liable for any of the costs, either of the adaption or their reinstatement. The consent would be subject to such other reasonable conditions that the landlord may require. The reasonableness of a refusal or of conditions that may be imposed would be the subject of secondary legislation and statutory guidance by the Disability Rights Commission.
  The amendment would implement the recommendation made by the Disability Rights Task Force that was previously accepted by the Government. It was also a key recommendation of the Joint Committee of which I was a member. During the passage of the Housing Act 2004, Ministers were sympathetic to the issue. My noble friend Lord Rooker recognised the need to give disabled people the right to make reasonable adaptions to rented leasehold properties, including to communal areas. That is the subject of Amendment

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  No. 64, tabled by the noble Baroness, Lady Darcy de Knayth. My noble friend stressed that solutions must be found.
  The provision is urgently needed. Inaccessible living conditions cause immense hardship that remains largely unseen but results in disabled people being excluded from everyday life in the outside world. The 2001–02 survey of English housing reported 18,000 disabled people living in unsuitable housing conditions because their landlords refused consent to essential adaptations. At stake here is the dignity and independence of a great number of people.
  The task force considered a right to adaptations to be,
  "a matter of equal opportunities in the most basic aspects of human life".
  Although it may be true that the Landlord and Tenant Act 1927 includes a general prohibition on landlords not to refuse consent unreasonably, it cannot be denied that the Act has proved completely inadequate in addressing the needs of disabled people, as was attested by numerous witnesses to the Joint Committee that included Shelter, the Disability Rights Commission, the Law Society and many others.
  There are pressing arguments for a need to change the law. First, the Landlord and Tenant Act—the LTA—is general in application and not framed in the context of disability anti-discrimination legislation. That is a serious problem, as we have no idea how much weight judges will attach to the access needs of disabled people, as against, say, any aesthetic, artistic or sentimental considerations put forward by a recalcitrant landlord. Decisions in other areas of land law suggest that very little weight will be given to the access needs of disabled people, and that they will be easily overridden. In Drury v McGarvie, for instance, it was held that badly constructed gates did not amount to an obstruction of a disabled person's right of way across farmland to their home, because they would not have constituted a "material inconvenience" for a,
  "person of average strength and agility",
  or, "the ordinary, able-bodied adult". Much use that is to the disabled person.
  Secondly, the LTA favours the landlord, as the onus is on the tenant to show that the landlord unreasonably withheld consent. The Law Society submitted that, in many cases, it has proved difficult to get legal evidence of that. Thirdly, it is currently unclear to landlords and tenants when it would be reasonable to refuse or grant consent to the making of alterations for disabled people, as neither the DRC nor anyone else has the power to issue statutory guidance. Fourthly, the DRC has no power to bring cases on behalf of disabled people under landlord and tenant law. It is clear from the absence of any reported case law compared to the extensive evidence of the problems that the present enforcement mechanism is entirely ineffective.
  It is clearly necessary to restate in disability rights legislation the rule that landlords cannot unreasonably refuse consent to adaptations, so that an effective anti- discrimination framework can be applied. Landlords would then be able to get clear guidance from the DRC on when it is reasonable or unreasonable to give
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  consent for access adaptation and what conditions they can insist on to protect their interests. Disabled people would have rights that are usable, accessible and effective.
  Let me clarify that nothing in my amendment requires the landlord to pay for the adaptions in question. The costs would be met by the disabled person or his or her local authority via, for example, disabled facilities grants. Equally, landlords can make their permission for adjustment conditional on a tenant's reinstatement of the property if it is reasonable to do so.
  7 p.m.
  While I listened with sympathy at Second Reading to the Minister's personal experiences of reinstating her parents' home after their deaths, I am sure that officials will be able to find a safeguard for such situations so as not to deprive disabled people of an effective right to adaption. It is also important to note that in most situations the reinstatement costs would not be great. In some cases, costs will be paid for from the deceased person's estate or would be partially or fully covered by any deposits. Moreover, in many of the cases that have been brought to my attention and that of the DRC, local authorities are offering to pay for the adaptions and pay for them to be removed if need be when the tenants die or move away.
  I also understand that some companies providing equipment such as stair lifts will routinely remove them free of charge when they are no longer needed. In any case, many adaptions will have increased the market value of a property and landlords will not always want to insist on reinstatement.
  Under the DDA, landlords are already prevented from unreasonably withholding consent to physical adaptions when their tenants are employers, educational bodies and service providers. Not to address the position of disabled tenants will not only leave a major inconsistency in the DDA, but also, more importantly, it would mean that thousands of disabled people would continue to lead diminished lives because of the barriers and obstacles imposed on their daily life at home.
  If we fail to amend the Bill, the result will be a law that appears to undervalue the importance of accessible housing. That, in my mind, would be a travesty of the Government's wider policy intentions. It is my strong hope that the Minister will be able to give a positive response and come back with something on Report. I beg to move.
  Lord Ashley of Stoke: The mind boggles at the idea of opposing this amendment. It is simply a duty not to withhold consent unreasonably to reasonable adaptations. How can one pick holes in that? It is impossible. My noble friend Lady Wilkins has made a very convincing case. One only has to read the amendment to be convinced that all the reasons she has given for having the change in disability legislation are very powerful. I am sure that my noble friend the Minister will be able to bring forward examples of how they can cope with these problems in different Acts and other parts of legislation.

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  The specific need now in this Bill is because it is specifically orientated to disabled people. Therefore, it is far more powerful than the sometimes ambiguous and meandering elements of other legislation. I should like to emphasise that only what is reasonable has to be done. That is the essence of the case. No one is making any demands for outrageous impositions on landlords, although some people would like to do that.
  I am heartened by the recent reaction of my noble friend Lord Rooker. When he was speaking on the then Housing Bill, he made kind noises and indicated that the Government are disposed in a very friendly fashion to move on issues of this kind. I am sure that my noble friend the Minister will do what she can on this amendment. I therefore strongly support my noble friend.
  Baroness Darcy de Knayth: As my name is also on this amendment, perhaps I may add a brief word of support to underline two of the points made by the noble Baroness, Lady Wilkins. First, not only tenants but landlords would benefit from guidance. It is important to stress that the landlord would very much benefit and would know when it is reasonable or unreasonable to give consent for access adaptations and what conditions he can insist on.
  Secondly, the major inconsistency that the noble Baroness, Lady Wilkins, mentioned, sits extremely uncomfortably within the DDA. As she said, landlords are already prevented from unreasonably withholding consent to physical alterations for physical access when their tenants are employers, under Section 16; service providers, under Section 27; or educational establishments, under Section 28W, which is interesting because it was inserted by Section 31 of the 2001 Act. I hope that we can follow that lead and add an amendment so that where the disabled person is a tenant the landlord will also be obliged.
  Lord Carter: When my noble friend moved the amendment, she commented on the evidence that we on the received Joint Committee, which was fairly strong. Paragraph 313 of our report states that the DRC submitted evidence that showed that 9 per cent of disabled tenants—approximately 18,000 people— living in unsuitable accommodation reported that necessary modifications were not made because a landlord had refused consent.
  I know that the Government are convinced that the Housing Acts 1980 and 1985 and the Landlord and Tenant Act 1927, which we have heard so much about, are sufficient. But the DRC also claims that there have been no cases under existing legislation—that is, under the 1927 Act and the two Housing Acts—on behalf of disabled tenants on this issue. It is by no means clear that judges will apply the appropriate antidiscrimination framework in cases under current law. What is reasonable—presumably under the 1927 Act—will not necessarily take into account the same considerations as under the DDA.
  That is a real problem. I know that the Government are convinced that there is enough protection, but all the evidences seems to suggest that there is not—there
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  is a conflict of evidence almost. My noble friend Lady Wilkins mentioned the use of the disabled facilities grant, for example. Could that be used if there is a problem with landlords and reinstatement, if what concerns the Government is the cost to the landlord? Perhaps those grants may be used for reinstatement. There is a real area here where there is a great deal of conflict of evidence between the organisations, the evidence that the Joint Committee received, and the view of the Government.
  Lord Addington: The arguments that the Government have employed so far are essentially about the rights of the landlord. The word "reasonableness" runs through this Bill. We have several examples here where we could say that it would be reasonable to insist that some mechanism should be in place to allow the landlord to make good—I do not know whether it is totally appropriate here—and restore the building to something like its original condition. There are many options over which this could be done, some of which have been explained. Avenues have been shown to us all.
  One of those must at least give a partial answer. We must be able to make some progress here. I hope that the Government will be able to say, "Yes, we think that we can make some progress. If we cannot address it in every situation, we can at least address it in some". There is a real problem, which must be addressed now or we will have to wait for a chance in the next Bill.
  Lord Skelmersdale: Like the noble Lord, Lord Ashley, I should like to congratulate both noble Baronesses on these amendments, which have been very sensibly grouped. Their intention is clearly to allow a disabled person full enjoyment at a rented dwelling that is not accessible for disabled living. Adaptation will be achieved by the potential lessee persuading the landlord or managing agent that he or she should allow relevant alterations to be made, but at the request of and paid for by the lessee.
  It is most likely that it would cover a case where an able-bodied person is in occupation and becomes disabled. After all, why should the disabled person have to move? There is, as I understand it, a gap in the law here. A QC, who I think has written by proxy to all Members of the Grand Committee, stated,
  "Even as between landlord and tenant there is no right for a tenant to enter on to a landlord's property—for example, communal areas in a block of flats—and carry out work and improvement or adaptation. Where the disabled resident is a tenant and the lease contains a provision that the tenant may carry out improvements with the landlord's consent, the usual obligation not to withhold such consent unreasonably does not"—
  I repeat, not—
  "apply to any improvement or adaptation to the common parts, nor is there presently any freestanding right of a disabled person to secure improvement or adaptation to property outside of their own home which may be obstructing access to it".
  As the noble Lord, Lord Addington, has just said, this part of the Bill is littered with the words "reasonable", "reasonably", and so on. I understand that the provision whereby a landlord cannot withhold his consent "unreasonably" applies to the dwelling and not the common parts. That really should be put right.

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  It should be in this Act, which deals with disabled people's rights—in this case the right to access their rented accommodation—rather than a housing Bill. I gather that the Government are creeping towards a conclusion on that matter, but doubtless the Minister will produce the doctrine of unright time and say that further thought must be given.
  Like one of the noble Baronesses, I know that the noble Lord, Lord Rooker, made very sympathetic remarks in the previous Session's Housing Bill. I trust that the noble Baroness will go further today, especially as there is a continuous thread running through this proposal. The task force, the DRC and the Joint Committee have all said that they support it—it is time that the Government do too. There is a problem and we should recognise it.
  There is a small niggle that occurred to me. It is all very well the disabled person paying for adaptations, but why should a landlord be landed in a situation where he either has to pay for the alteration to be taken out at the end of the tenancy—a point made by the Minister at Second Reading—or be almost forced to let to disabled people for ever more?
  It is all very well for the DRC, which strongly support the amendment, to say, "Well, the restoration will be paid for from the tenant's estate". But there are occasions when the estate is not big enough to cover even the funeral, let alone the removal of adaptations in this case. As I said, it is a small niggle, but none the less the niggle persists.
  Lord Oakeshott of Seagrove Bay: We strongly support the principle of this amendment on this side. It is the key loose end in all this, on which we should focus. It will be important to make clear what is, and what is not reasonable for a landlord to require in terms of reinstatement if necessary. The noble Baroness, Lady Wilkins, made a very good point. If we are talking about a stair lift, where the installer guarantees to remove it free of charge when it is no longer needed, clearly in that situation it would be unreasonable for the landlord to require reinstatement. In some other situations, it might not be. But let us focus on those detailed points, rather than saying that it is all too difficult. It will be possible, but we will need to set out in detail what is and is not reasonable. I support the amendment.
  Baroness Hollis of Heigham: This is a very interesting debate. I appreciate that my noble friend Lady Wilkins was able to let me have sight of her main concerns beforehand, which was helpful. It allowed us to seek to have a better-informed answer than might otherwise be the case.
  I share with your Lordships the concern that this is one of the toughest areas that we seek to engage with in the Bill. For two-thirds of his speech, the noble Lord, Lord Skelmersdale, was clearly supporting the amendment. For the last third of his speech, he did a 180 degree turn. It was not just a trivial, niggling point, or even a loose end: it was much bigger than that. It
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  brought out very clearly the conflict between the landlord's rights and resources and the tenant's rights and needs. There can be situations—and perhaps 1 am more struck by those situations than other Members of the Committee are—when they are in straight conflict and when there is, therefore, no obvious way in which to deal with the matter as the law currently stands.
  7.15 p.m.
  Let me enlarge on that. None of us would dispute the raw, brutal fact outlined by my noble friend that 3.2 million disabled people live in rented accommodation, and 380,000 of those are private sector tenants. That of course makes the point that something like eight-tenths or three-quarters and perhaps more than that of provision for disabled people is in the social rented sector, where, to the best of my knowledge, the problems that we are talking about do not apply.
  We are dealing essentially with the problem of tenants in the private rented sector. I am now talking not about common parts but about internal adaption. Some 63,000 of those tenants require especially adapted accommodation, but only just over half say that their accommodation is suitable. I agree with the noble Lord, Lord Skelmersdale, that those tenants are likely to have become disabled while living in that accommodation, because if they had arrived with a disability you would hope and expect that the local authority would meet their needs.
  The analogies to the railways issue are obvious. We are dealing with housing stock, nearly half of which was bought more than 50 years ago. I have invented that figure, but it is probably not far wrong. Obviously, it would take a long time for the building regulations ensuring that new-built housing is fully accessible to come through, for the majority of the housing stock in the public and private sectors. Most of that stock was constructed before the 1960s. In the private sector, in my experience—although my city may be unusual in this—a lot of private rented property is Victorian terraced property that may have been inherited from someone. That sort of property is certainly not easily made accessible for disabled people.
  It will take time, but the property rental sector is a different story entirely from the rail industry, which is run by huge businesses with substantial public funding. There are big providers of rented housing in the social sector, when there is proper investment, but 40 per cent of private landlords have only one property, often a modest Victorian house that they have inherited and which may be worth £60,000 to £80,000 in the north of England. Many exist on relatively small margins—or, in the case of some of the smallest. landlords, with no margin at all, not even putting in the cost of their labour.
  The question of cost is a real one. That does not mean that we cannot make progress. In 1996, the DDA made it unlawful for landlords in any way to discriminate against disabled people in the way they let or manage premises. That took matters a significant

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  step forward, by introducing for the first time the concept of a reasonable adjustment into the relationship between landlords and disabled tenants. That means, for example, that landlords have to consider putting correspondence in large print or the terms of the lease in Braille or on tape. Landlords may, for the first time, have to provide auxiliary aid and services, such as a portable ramp or a clip-on receiver that vibrates when the doorbell is pressed to ensure that a disabled person can enjoy their premises. But a landlord will not be required, under the Bill as it stands, to take steps that would result in the removal or alteration of a physical feature of the building. That is what the amendment seeks to do.
  We recognise the importance of disabled people being able to make adaptations to their own home. The disabled facilities grant, on which my noble friend pressed me, is a mandatory entitlement for disabled people to pay for adaptations so that they can maintain a level of independence in their own home. The eligible work could cover access to living space, cooking, bedrooms, washing and toilet facilities; it could be used for ramps, door-widening, stair lifts and level-access showers. It could be used for major adaptions from floor lifts to building extensions to incorporate a downstairs bedroom or bathroom.
  The maximum grant is £25,000, but the average is around £6,000. Government funds have increased from £57 million in 1997 to £120 million for the year 2006–07. But even with the availability of grants—and Members of the Committee may accept that we have gone quite a long way by virtually doubling those grants in cash terms—a landlord still has to give permission for an adaption to be made. Amendment No. 61 would ensure that consent to adaption should not be unreasonably withheld.
  We do not disagree on policy terms, but when we discussed the matter with the taskforce, I do not believe that the taskforce was aware of existing rights for tenants in existing legislation. The Landlord and Tenant Act 1927, the Housing Acts 1980 and 1985 and the Housing (Scotland) Act 2001 all provide tenants with that right in explicit terms. My noble friend Lady Wilkins said that the 1927 Act favours the landlord. Well, as with most legislation, it is for complainants to show that they have a case for the defendants to answer. That does not mean that the 1927 Act favours the landlord, but it does mean that the defendant is in the same position as other defendants under the law.
  One of the key concerns that has been put to us is that there are real issues, not only about unreasonably withholding consent, but about whether that is enough. No one has addressed that issue today, and it may require much further work and thought. For example, what if the adaption required was both significant and specific to particular kinds of disability? Let us take the example of an inaccessible bathroom in a Victorian terraced house, where the bathroom is built on downstairs. Let us say that the tenant has become disabled, for whatever reason, in his or her 60s or 70s, uses a wheelchair and needs a
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  walk-in shower. There is no doubt that a landlord seeking to re-let after that tenant has vacated that property, for whatever reason, may want and need to reinstate a bathroom, if the property were to be let to a family with young children, for example. Who will pay for that? The cost is substantial—probably as much as doing the original work, maybe even more.
  My noble friend referred to the example of a stair lift, and said that a company might do it for free. They might, but while the going charge is less than £200 to take out a stair lift, the cost of replastering, repapering and redecorating, as well as putting in a new carpet— certainly, we had to cut the carpet when a stair lift was put in—could amount to £800 or nearly £1,000 in total. Who pays? Even something as modest as a small ramp that is equivalent to two steps might cost £500 to install. On the estimates that I have been given, it could take £200 to £400 to remove it.
  Lord Addington: I hope that the Minister will not be too annoyed by my intervention. However, the point that both my noble friend and I have made is that surely some form of contract could be made readily available and making good could be put into the contract.
  Baroness Hollis of Heigham: The noble Lord misunderstands my point. It is easy enough—forgive me for saying "easy enough", as I do not want to sound casual about the matter—but it is relatively straightforward to get the installation paid for, whether through a disabled facilities grant, through a charity or because the disabled person's children decide to help, as so often happens in family cases. But who pays for the reinstatement? That is not a loose end or a niggling point.
  It is fine if a tenant is leaving after a few years and is young and healthy, has a job and has finance, and the cost was part of the original deposit or a contract. But who pays for the reinstatement when someone has lived in a fiat in the private rented sector for many years and has become disabled in relatively old age— when they may not even have the capital to pay for their funeral, as someone quite rightly pointed out? Would it be the landlord, whose only property it is, who may be a pensioner with a very modest income over and beyond that pension and the rent coming in? We need to think about that. Unless landlords can be confident that they will not be disadvantaged in future letting or can meet the costs, all that will happen is that they will find some way in which to avoid letting to a disabled person. That we cannot want.
  Lord Oakeshott of Seagrove Bay: The Minister is asking a fair question. I thought that we had made it clear that the tenant must pay; that is what we are saying. It clearly says here that it must not be at the cost of the landlord. Therefore, it will be reasonable, as is the straightforward and normal practice in the commercial property sector whereby, if a tenant makes an improvement, the tenant must reinstate at the end of lease. We accept on this side that the tenant must

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  pay. I wish she would address how we deal with that, rather than use it as an argument about the whole amendment.
  Baroness Hollis of Heigham: Will the tenant pay up front for possible reinstatements? If it falls at the point when the tenant leaves the property, and the tenant has died without leaving an estate, who then pays? I do not see how that can be reasonable.
  Lord Oakeshott of Seagrove Bay: It: might well be reasonable; that is why I invited her to look at the practicalities. It might well be reasonable to expect that in that situation. If we are dealing with a stair lift, that might not be reasonable, because you are dealing with the guarantee from the stair lift manufacturer. The only way we will get this sorted out is by looking at what situations it will be reasonable in and which it will not. However, we accept the principle that the landlord should not be out of pocket on the reinstatement. That is where we stand.
  Baroness Hollis of Heigham: If I can come back on that, very many tenants, if not the majority, have come through the disabled facilities grant. I will check the statistics on this. The disabled facilities grant is means tested. That means, almost by definition, that those tenants are not in a position to pay for the reinstatement. The money has come from the local authority on a means-tested basis. Therefore, a tenant who could, in the private rented sector, seek access to a disabled facilities grant would not have grounds for allowing that adaption to go ahead, because that would be proof that the person could not afford the reinstatement. Is that what the noble Lord is saying?
  Lord Carter: If there has been a facilities grant, could that be used as a reinstatement grant?
  Baroness Hollis of Heigham: My noble friend asks a pertinent question. At the moment, you can get a grant to put adaptions in. You cannot get a grant to take adaptions out. Understandably, authorities are more anxious at the moment to help finance adaptions rather than to remove them, even if the back stop of a reinstatement grant were to transform the attitudes of landlords, with the psychology of knowing that it might be met.
  It is certainly be something that might need to be looked at, as my noble friend has suggested. Unless those grants were matched by an equal facility, I cannot see how it then effectively applies in the circumstances outlined by the noble Lord, Lord Oakeshott. Without those grants in the first place, I cannot see how the disabled tenant can afford to make the adaptions, because otherwise they would not be eligible for a means- tested grant. We have not taken this much further down the road. A tenant who could afford those adaptions without going for a disabled facilities grant is for the most part, unless there are special reasons, not likely to be a renting tenant, certainly not an elderly renting tenant. They are already likely to have moved on into other accommodation.
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  I find the scenario that the noble Lord, Lord Oakeshott, suggests, where this could all be fixed up front deeply, deeply implausible. I wish that he were right, but I think it is deeply implausible from everything I know about local housing stock. I am not sure that we have yet got a way forward on this; it is difficult. My noble friend Lady Wilkins mentioned the example of the case Drury v McGarvie. I will spend a second on this, because it has been quoted extensively in correspondence, and it is a misunderstanding, or misreading, of the law. That case was about easements, not about renting premises. It was not brought under the Landlord and Tenant Act 1927, and the judgment made clear that the disabled couple would be able, if they wished, to alter the gate at their own expense. It would have been entirely reasonable for them to have done that. This seems to be exactly the result sought by the amendment. I do not think that there is any read- across, despite the quotation of my noble friend, to this situation. As to whether the 1927 Act is inadequate, we simply do not yet know how widely it is used and the extent to which it has been used. We are getting different advice on that.
  7.30 p.m.
  Several of my noble friends have quoted the remarks of my noble friends Lord Rooker and Lord Bassam when discussing the Housing Bill. Both noble Lords said that we needed to explore this question further. They said that the Office of the Deputy Prime Minister in particular needed to review the disabled facilities grant, which they were not satisfied was working appropriately. My noble friend Lord Rooker said:
  "As regards the decision that we are discussing, technically the 2004 has not started‖I presume that the Chancellor will announce the relevant decisions … A decision will be made later this year on whether or not the grant itself will remain mandatory. It is a fairly fundamental principle … the measure has specific effects with regard to disabled children".—[Official Report, 5/1/04; col. 4]
  Clearly, there is a discussion underway about the efficacy and effectiveness and remit of the disabled facilities grant. I am sure that my officials have heard the remarks made by my noble friend Lord Carter today.
  At the end of the day, we are saying that portable adaptions, for example, can reasonably be made, but there remains not just a loose end or a trivial problem, but a real problem about making physical adjustments to the premises with landlords who themselves have no significant financial resources and when the tenants are not in a position, as almost all of them in the private rented sector have the ability to guarantee a capacity, unlike commercial tenants, to be able to pay for that reinstatement.
  I do not know how you bridge the problem of the small landlord—40 percent of landlords have only one property—and the problem of the tenant, without some case. I do not believe that the amendment as posed addresses that issue in a way that accepts the legitimate concerns of both sides of the equation.

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  The discussion will rightly continue because ultimately tenants must be able to enjoy their home without finding the premises failing to enable them to live a full and proper life but perhaps reinforcing their disability. That is the last thing any of us would wish.
  Lord Ashley of Stoke: My noble friend made great play of the financial cost to landlords and rightly so. However, when assessing the kind of legislation we pass on this issue, we must bear clearly in mind that the easy phrase "unsuitable housing" means that disabled people are denied proper living conditions. The cost to them is misery and unhappiness. We should not focus only on financial costs but also on social costs.
  The Earl of Listowel: I listened with interest to the debate as a landlord and I want to clear up one issue. Surely, the landlord's position is protected if what is arranged is reasonable. If what is arranged must be reasonable, surely regulations cannot be so arranged to ensure that if the landlord is to be faced with significant costs of reinstatement, it is unreasonable for him to proceed.
  Lord Carter: It has been a curious debate and the Minister produced some powerful arguments. Curiously, the cost to the landlord was not mentioned by the Government when they rejected the recommendation. They stated that the tenant has enough protection. They stated:
  "We believe that this offers sufficient protection for disabled people who wish to make alterations to their rented accommodation".
  They quoted the Housing Acts of 1980 and 1985, the Housing (Scotland) Act 2001 and our old friend the Landlord and Tenant Act 1927. The Government's case was that they did not need to change the Bill because there was enough protection. The DRC submitted evidence that showed that 18,000 disabled tenants living in unsuitable accommodation reported that necessary modifications were not made because a landlord had refused consent. My noble friend said that they were looking for the cases, but the DRC stated that there have been no cases under existing legislation on behalf of disabled tenants on this issue. I presume that it meant the Landlord and Tenant Act, the Housing Acts and the rest of it.
  We therefore have the Government saying that tenants have enough protection under existing law and the DRC saying that there are 18,000 disabled tenants who do not have consent and that no cases have been brought under existing legislation. How is it that out of 18,000 cases, not one of them has brought a case under the 1927 Act? Is it because the Act does not apply?
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  This is not the last we have heard of this matter on this Bill.
  Baroness Wilkins: I thank all Members of the Committee for their contributions to the debate which, as generally agreed, will continue. I will not deal with individual contributions due to the time, but I want to stress a number of points.
  First, on the whole the adaptations that are being requested are small and will not incur the problems that the Minister spelt out. Clearly, it is essential that the Disability Rights Commission should be able to offer guidance to landlords and tenants so that they will know what is and what is not reasonable. I thank the noble Lord, Lord Oakeshott, for suggesting that provision could be made "up front". We are not asking for anything unreasonable, and provision can be made in order that the landlord's interests are taken into account and solutions must be found.
  The noble Earl, Lord Listowel, stressed that we are talking about what is reasonable. In the vast majority of cases, the local authority offer to pay for reinstatement and that could be part of the solution. When the premises are vacated, the local authority could make good to the landlord if the tenant is unable to do so. It is obviously an extremely difficult area and one which we must—
  Baroness Hollis of Heigham: I thank my noble friend for giving way. She said something which I thought was extraordinarily interesting; that local authorities give grants to remove certain equipment. During the past fortnight, I have tried hard with my officials to obtain evidence from the Local Government Association on this aspect because obviously it concerns me considerably. I could obtain none whatever about local authorities producing grants for such removal. If my noble friend or other organisations have information as to best practice, I would greatly like to have it. I apologise for interrupting.
  Baroness Wilkins: I have three cases from my own local authority. Hammersmith and Fulham, where the local home improvement officer has raised the issue with me. He has been trying to get landlords to agree to adaptations over a year and has offered to pay for reinstatement when equipment is removed, but still has got nowhere with them. I shall pass those to the Minister.
  We will obviously need further discussion on this matter, and I hope that the Minister and her officials will be free to do so before Report. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Davies of Oldham: This may be a convenient moment for the Committee to adjourn until Thursday 20 January at 3.15 p.m.
  The Committee adjourned at twenty minutes before eight o'clock.