§ 1 1.30 a.m.
§ The Earl of Longford
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(The Earl of Longford.)
§ On Question, Motion agreed to.
§ House in Commitee accordingly.
§ [The Lord Aberdare in the Chair.]
§ Clause 1 [Discrimination on grounds of disability]:
Baroness Darcy (de Knayth) moved Amendment No. 1:
Page 1, line 7, leave out ("No person shall") and insert ("It is unlawful for a person to")
§ The noble Baroness said: This is a simple amendment. Its purpose is not to change the meaning or the intention behind Clause 1, but to bring the wording into line with that used in the Sex Discrimination Act and the Race Relations Act. It is appropriate to use the same words here so that the clause, if amended as I suggest, would be clearer and, in a sense, neater. I hope the Minister will agree that this is a sensible amendment. I beg to move.
§ Lord Ennals
I want to do no more than support the noble Baroness. There is no significance except to bring the wording into line, as she has said, with the other two Acts which make it an offence to discriminate. At this stage I do no more than support the noble Baroness.
§ Lord Edmund-Davies
It has not only the virtue of being reconciled with other statutory provisions in relation to discrimination, but it more neatly links up, does it not, with Clause 8:A claim by any person that another person has committed an act of discrimination against him which is unlawful by virtue of section 1 may be made the subject of civil proceedings.".If this suggested amendment to Clause 1 were adopted it could lead to a substantial reduction in the wording of Clause 8. In other words, I have something like this in mind—thinking on my feet—It shall be unlawful for any person to discriminate".Then when we come to Clause 8 it could run on the lines of,A claim by any person in relation to a contravention of section 1",and so on. It would not only have the attraction of being compatible with and consistent with other statutory provisions, but it would also be neater.
§ Baroness Masham of Ilton
Would it not be better to have the word "unreasonably" added? It would be better if it stated,No person shall unreasonably discriminate against another person".I feel that we need helpful discrimination; for example, as the noble Lord, Lord Henderson of Brompton, has said, a special parking place for a disabled driver is helpful discrimination. This Bill is not clear enough. We need equal opportunities. If we have no helpful discrimination to help overcome disability and handicap our situation might become even more difficult than it is now. I hope the noble Earl and others will take note of this point because it is very worrying.
§ Lord Renton
What the noble Baroness, Lady Masham of Ilton, has just said seems to go to the very heart of the whole of the Bill. In the very nature of things some discrimination is inevitable in some cases, and in some instances, as the Bill later envisages, would be perfectly justified. Therefore it should be made clear at the very outset of the Bill, in Clause 1, that it is unreasonable discrimination that the noble Earl and those who support him on the Bill are trying to prevent. Although it might have been better if there had been an amendment to cover this, it is relevant to our consideration of Amendment No. 1. I should like to support what the noble Baroness, Lady Masham, said.
§ The Earl of Longford
May I say a word before the noble Lord winds up? I am sympathetic to the idea of including the word "unreasonable" at the beginning. I have discussed this with some of my advisers and I think it was felt that "discrimination" in itself suggests unreasonable conduct. I should prefer to see that in, but having expressed that degree of sympathy, before I hear what my noble friend Lord Ennals will say, I hope that point will be left over to the next stage.
§ Baroness Lockwood
While I sympathise very much with what the noble Baroness has in mind. I would point out that we are here considering what is unlawful. At a later point in the Bill we shall go on to define what is unlawful. If it is the intention of the Committee to include in the Bill some measure whereby there can be positive assistance to the disabled. I think it would be much better if that were taken under another clause. This is the clause which is saying that it is unlawful to discriminate on grounds of disability. It is important to establish that clearly at the outset in the Bill.
§ Lord Ennals
I do not disagree strongly with the point that has been made by the noble Baroness, Lady Masham of Ilton, although I agree with my noble friend Lady Lockwood. If the Committee is prepared to look at Clause 5(1)(c), it will be seen that that refers particularly to "reasonable or unreasonable" discrimination. We shall have to recognise, and shall conic later, to discrimination which is perfectly reasonable. It makes sense if we look also at Clause 9(1)(c)(ii) to find that the requirement isnot reasonable in the circumstances of the case".This will certainly he referred to later. If it is the will of the Committee that we should insert this in the first clause, 1 certainly should not want to see the Committee divided against it. The more we are united the happier I shall be.
§ Baroness Masham of Ilton
I should like to ask the noble Baroness, Lady Lockwood, who has so much experience—probably more than any other person in the House—on equal opportunities, whether she would not agree that "equal opportunities" would have been less emotive and more acceptable to members of the public who are frightened of disability, rather than "discrimination", which is frightening in itself?
§ Baroness Lockwood
Yes, but I think there are two purposes in the Bill. One is to eliminate what the Bill sill define as "unlawful discrimination". There are other provisions in the Bill which go on to promote equal opportunities for the disabled. In my experience it is important to have both those aspects included in the Bill.
Baroness Darcy (de knayth)
I should like to thank noble Lords for their support, particularly the noble Baroness, Lady Lockwood. Her experience is very valuable. I should like to reiterate what the noble Lord, Lord Ennals, has said in reply to my noble friend Lady Masham of Ilton that there are provisions in Clauses 5 and 9 where the concept of "reasonable" and "unreasonable" is written in. The point is that it is unlawful to discriminate. If conduct is "reasonable" 972 then it does not constitute discrimination. Therefore it is better to have these as separate points.
I agree with the noble Lord, Lord Renton, that it is good to have "discrimination" defined at the outset. I should like to see a clause on discrimination early in the Bill, but it is important to keep the two concepts separate. I believe that the Minister's silence means that he is not opposed to this amendment, so I hope your Lordships will agree to it when the Question is put.
§ On Question, amendment agreed to.
§ The Chairman of Committees (Lord Aberdare)
I have to point out that if Amendment No. 2 is agreed to. I cannot call Amendment No. 3.
Lord Finials moved Amendment No. 2:
Page 1, line 8 leave out ("physical, mental or sensory").
§ The noble Lord said: May I, on behalf on the noble Baroness, Lady Darcy (de Knayth), and of the noble Earl, Lord Longford, briefly move the second amendment which is also standing in my name. I would simply point out that it is really paving the way to Clause 9, on which I wish to speak at rather greater length. I am a little disappointed, although one has to accept the ruling of the Chair, that the noble Lord, Lord Renton, may not be able to move his amendment No. 3, but I have no doubt that he will find his opportunity of using the same argument. By this amendment we take out the word "mental"; although at a little later stage I want to emphasise the importance of the fact that if we are going to make it an offence to discriminate against people we should not leave it not an offence to discriminate against people on grounds of their mental handicap.
§ The Chairman of Committees
Is the noble Lord interrupting or is he making a speech; because I have not yet put the Question. I shall do so now; Page 1, line 8, leave out "physical, mental or sensory".
§ Lord Renton
I apologise for having interrupted quite wrongly, I trust that I may have your Lordships' permission to refer to Amendment No. 3 while we are discussing Amendment No. 2: Amendment No. 3, Page 1, line 8, leave out ("mental"), Otherwise, the point which is covered by Amendment No. 3 might go by default.
§ Lord Pitt of Hampstead
I am not happy about this. The rest of the clause does not make sense if the words in the amendment are removed. Can anybody enlighten me?
§ Lord Ennals
May I answer the noble Lord? I sought in my very brief moving of this amendment to say that it is simply a paving amendment to have a more effective means of defining the amendment to page 1, line 9. The noble Lord, when he sees that that replaces "physical, mental or sensory", will see that it will make absolute sense. I would say to the noble Lord and to the Committee that if they passed the present amendment and defeated Amendment No. 4 it would leave the first paragraph absolutely nonsensical.
§ Lord Renton
May I say that, for reasons that will be apparent, I support Amendment No. 2 which has been moved by the noble Lord, Lord Ennals, but without prejudice to one's attitude on his later amendments. I made it clear at Second Reading that, although I am president of MENCAP, I was speaking for myself in saying that the Bill was not suitable for the protection of the interests of the mentally ill and handicapped. Indeed, I felt (and still feel; and this is, again, a personal opinion) that it could cause great disappointment and distress to the mentally handicapped. I will not trouble your Lordships with the arguments which I used at Second Reading but I would stress that, by the time the mentally handicapped have gone through the legal procedures which would be involved in asserting their rights, even with the best will in the world on the part of all concerned a great deal of delay will have taken place.
Imagine a mentally handicapped person who, we will say, is excluded from an hotel or a hoarding house and then that person (or his or her parents) may decide that there should be legal proceedings taken in accordance with the later provision of the Bill. What will happen? I would ask your Lordships to hear with me while I quickly outline what would happen. An approach would be made to a solicitor who would write a solicitor's letter, no doubt with the implication that if the answer is not satisfactory proceedings will be commenced in the county court—because that is what the Bill envisages, although the High Court is not excluded. Then 14 days, at least, would be given for the reply; and, in order to enable inquiries to be made, it might be much longer. So we will assume that the reply, when it comes, is not satisfactory and then a writ is issued.
Then all those preliminary proceedings, (interlocutory proceedings as they are called in the law) would take place which generally last some months and then, eventually, the case is disputed and is set down for trial. Again, with the best will in the world, it might he nearly a year before the trial takes place. At the trial, the first contest will be on the facts. They may be heavily disputed. Then there will be arguments on the law as to whether the particular act of alleged unreasonable discrimination comes within the terms of the Bill; and when we come to consider some of the later clauses we may find that that will give rise to a very great deal of legal argument. It may be that some trade association is supporting the defendant in treating it as a test case and, whichever way the judge decides it, there may be an appeal to the Court of Appeal from the county court or the High Court. That could mean many more months' delay.
Meanwhile, the mentally handicapped person would have the anxiety of waiting. It is had enough for normal people to have to wait for the outcome of litigation. We all know that; and I trust that most of us are responsible members of the Bar, so that, far from trying to create litigation, we would advise our clients of the disadvantages which inevitably (with the best will in the world) flow from it. And ours is the best legal system in the world.
I ask your Lordships to consider, to ponder carefully whether the method proposed by the Bill for protecting the interests of the mentally handicapped is better than to continue to develop the goodwill in the 974 minds of the public which is growing every year and which is not counter-productive, as could well be the inclusion of the mentally handicapped and, indeed, the mentally ill in this Bill. For that reason, a purely temporary reason, I support Amendment No. 2, moved by the noble Lord, Lord Ennals. If that is not carried, I shall move Amendment No. 3.
§ Lord Ennals
I had not intended to rise again but I think it would be unfortunate if at a very early stage of this extremely important Bill one side of an argument is presented by a noble Lord for whom I have a deep personal admiration, and who may have either the advantage or disadvantage of being a barrister, to say that this is not how things work. He knows that this is not how things work in the field of allegations of discrimination on grounds of sexual equality. The vast majority do not go to court at all. The law is simply a hack-up mechanism for conciliation—and conciliation usually works.
That is also the case as far as allegations of discrimination on grounds of race, colour or creed. In this particular case, I may tell the noble Lord that in South Australia—where there is already legislation on which this Bill is substantially based—all the cases that they have dealt with in their first nine months, with one exception, have been solved by conciliation: 30 cases, 29 solved by conciliation and only one where conciliation failed in the High Court. I think that noble Lords will be misled if they think that the purpose (let alone the outcome) of the Bill was to lead to very intensive litigation. It is designed to lead to very positive conciliation which in most cases and certainly in our society—which is a very fair society—is likely almost always to succeed.
§ Lord Renton
If I may briefly deal with that point, conciliation is in itself a somewhat vague concept, and would be in these circumstances. The Bill gives specific rights to people to litigate as a parallel remedy to conciliation by the commission. Perhaps I may say that the Management Committee of MENCAP, which met last week when I could not be there, was very doubtful about the work of the commission; and it is upon the existence of the commission that conciliation would depend. Conciliation is all right, if we understand it, for the most glaring and flagrant cases but there is a great twilight area in which conciliation, as we know from the other examples which the noble Lord has given—the Race Relations Commission and the Equal Opportunities Commission—is not the answer. Therefore I do think we should consider the principal right which the Bill gives to people: that is the right to litigate.
§ The Earl of Longford
Perhaps I may say just a word in reply to the noble Lord. I hesitate to set myself up against the noble Lord on the question of MENCAP. I was chairman many years ago and am still a vice-president, though of course that is very small beer compared with a president. On the other hand, neither of us was present when they last discussed this. I received a communication, which I believe the noble Lord has seen, which was in some ways rather cryptic. They said that they hoped to see discrimination outlawed and certainly made no reference in their letter to me about leaving out mental handicap.
§ Baroness Masham of Ilton
Am I not right in saying that the South Australian Act is called the Equal Opportunities for the Handicapped Act and does not use the word "discrimination"? Again, the noble Earl, Lord Longford, has just referred to "discrimination" without saying "unreasonable discrimination". That is so important that I think each time the word "discrimination" appears in the Bill it should be preceded by the word "unreasonable" so as to make it "unreasonable discrimination".
§ The Earl of Longford
I express my sympathy for that point of view. Perhaps we might look at that, although perhaps not carrying it through to the extent of putting the word "unreasonable" before every single word "discrimination". However, I think this point does deserve careful consideration before the next stage.
§ Lord Ennals
I can confirm to the noble Baroness and to the noble Lord that the actual heading of the Bill—which is why I said I did not disagree strongly with the noble Baroness—is Disablement (Prohibition of Unjustifiable Discrimination) Bill.
§ On Question, amendment agreed to.
§ 11.54 a.m.
§ Lord Ennals moved Amendment No. 4:
Page 1, line 9, at end insert—
("( ) In this Act "disability" means—
§ The noble Lord said: I beg to move the amendment standing in my name. This is a very important amendment and, as I explained to your Lordships when I moved the earlier paying amendment, it is the substantive one and goes to the very heart of the Bill. If your Lordships will permit me, I will take a few minutes in developing it because I think this is perhaps the main issue on which the Committee will wish to concentrate.
These amendments seek to define with greater clarity what we mean by "disability". Taken with Clause 5, to which there are also linked amendments in respect ofdefinitions—that is, Amendment No. 6 in my name and Amendment No. 7 in the name of the noble Lord, Lord Renton—and Clause 9, which defines the meaning of "discrimination" for the purposes of the Act, I believe these form the nub of Part I of my noble friend's Bill.
Amendment No.6: Page 3, line 1, leave out paragraph (b).
As the Bill stands at present, without the previous amendment and the amendment we are now debating, the definition of disability was:
physical, mental and sensory disability".
Clause 5(1)(b) empowers the Secretary of State to set down in regulations:
the persons and their disabilities to which this Act shall apply providing always that they shall include people with physical, sensory, communication and mental disabilities including mental illness and mental handicap".
§ As a number of your Lordships are aware, the Royal Association for Disablement and Rehabilitation was 976 unhappy with the Bill as it stands at present, for various reasons. That is why we have sought to meet their concern and have introduced an amendment on their suggestion.
§ First, using different wording in the two sections is likely to cause confusion, and the relationship between Clause 5 and Clause 1 is unclear. Secondly, we do not believe that it is necessary to leave the definition of "disability" to regulations. If we are going to pass an Act it is in the principal legislation that the definition of disability should be given. It therefore seems preferable for the definition to be included in primary legislation.
§ Thirdly, the Bill as drafted does not include discrimination on the grounds of impairment which does not cause disability. I should like to pause for a moment, because this deals principally with facial disfigurement where, perhaps as a result a fire or a terrible accident in which there has been surgery, someone's face is unattractive to look at. The fact of their being unattractive to look at is extremely unfortunate for them but there is no reason why they should not do some important jobs. Perhaps one would not choose them as receptionists and one can think of a number of other cases where "reasonable" or "unreasonable" might come in. But, so far as they are concerned, it is a form of impairment and therefore a form of disability.
§ It was made very clear during the Second Reading of Mr. Bob Wareing's Bill, which was identical with mine and with the noble Earl's Bill, that a definition of "disability" was needed to clarify the intentions of the Bill. RADAR, the Royal Association for Disablement and Rehabilitation, endorses this view, and, in seeking a definition, we have looked at definitions that already exist in similar legislation in other countries. We came up with the conclusion, which was endorsed by the noble Earl, Lord Longford, that the definition in the South Australian Handicapped Persons (Equal Opportunity) Act of 1981 seemed to be the most sensible.
§ This Bill, as your Lordships will realise, is largely based on the report by the Committee on Restriction Against Disabled People—that is, the CORAD report—which was prepared by a very distinguished group of people led by Mr. Peter Large, MBE, himself disabled and a man who in many different ways has been a dedicated and convinced spokesman for the needs of disabled people. Most of the people were themselves disabled and I believe that their report is a very authoritative one. I wish a copy was available for each of your Lordships to read. Their work was assisted by Ministers and officials of both Labour and Conservative Governments.
§ No one in your Lordships' Committee will doubt the tremendous disadvantages suffered by disabled people or the extent to which their needs have been increasingly met by society, as society has become more aware of their disadvantage. The Chronically Sick and Disabled Persons Act 1970, which was introduced by Mr. Alf Morris and which this Bill seeks to amend, was a landmark in society's recognition of the needs of disabled people. Much, but not nearly enough, has been done in terms of access and cash benefits, not so much to compensate disabled people for their disability as to enable them increasingly to 977 play an equal part in our society, or as near to equal as their disability permits.
§ I emphasise the last phrase because it would be folly to assume that disabled people could ever, by legislation or in other ways, be enabled to do things which their disability prevents them from doing. That is why I referred earlier and now refer again to Clause 9(2), which is an essential part of the Bill. Unless one saw that, one would be opposed to the Bill. I should be opposed to it myself. Obviously someone who is deaf could not be an effective telephonist and someone who has a leg missing could not claim that he was discriminated against when he applied to be a member of a football team or a waiter. Then there is the idea of a blind policeman. One can think ofcountless examples, though it is amazing how disabled people manage to compensate for their disabilities; and there are present in this House today a number of disabled people who have compensated in a quite extraordinary way.
§ But there is a great deal of quite unjustifiable discrimination and we felt it was necessary in this Bill, at an early stage, to define what we meant by "disability". That is what the Bill tries to do. It is a means for society, as represented by Parliament, to say, "Not only is it wrong and unlawful to discriminate against people because of their sex, their colour or their race, but it is also wrong and unlawful to discriminate against people because they have the misfortune to be disabled". The arnendment defining "disability" for the purpose of this Bill was drafted by RADAR itself and we are much indebted to them and to other organisations of disabled people for their help in this and other amendments.
May I refer to the amendment of the noble Lord, Lord Renton, if that is not out of order—your Lordships will tell me if it is, as I am a new boy—because he has mentioned the issue contained in it. To a considerable extent my noble friend Lord Longford has dealt with the proposal to leave out the word "mental" in Clause 1, but it is still found in the amendment that I am proposing:
(c) the malfunctioning of any part of the body or mind".
The noble Lord, Lord Renton, and others who may share his view, would agree that if this House sends the Bill to another place—as clearly it will wish to do, because there was no dissenting voice on the Second Reading and no one here would wish not to send the sense of a Bill to which no objection had been raised (maybe there was a verbal objection, but the Bill was agreed to without dissent)—it would be quite wrong that mentally handicapped people, and people who have had a mental illness from which they may now have recovered or which may have left them disabled, should suffer. Someone who is a schizophrenic may he disabled in terms of the jobs he can do.
§ But this Bill does not deal just with jobs, as Clause 5 very well shows. It deals with services, with housing and with so many other aspects of life. It would seem very wrong indeed—and I am seeking to anticipate what the noble Lord may say—if this House were to declare that it was wrong to discriminate on grounds of housing, of entertainment or of public places, and an offence to say "We are not prepared to admit someone into that house or that public place because he is disabled or disfigured", but that it was not an offence 978 for someone in a hotel to say "We are not prepared to have those people, because they are mentally handicapped". There is an extraordinary lack of logic from the noble Lord, Lord Renton, which I find very surprising. I am not in the least surprised that his own colleagues in MENCAP find themselves in disagreement with his own interpretation.
§ I hope, therefore, that this amendment will be passed. It is essential, if we take it with other amendments to the Bill. It is perhaps the most essential part of it, because, together with later definitions of what is "discrimination", this is a definition of people who might he discriminated against and against whom that discrimination would be unlawful according to the amendments that we have already passed. I beg to move.
§ Lord Renton
May I first say that I have some sympathy with the method of drafting which brings definitions to the front of the Bill. We do that with statutory instruments, but for some reason the draftsmen have always resisted doing it in Bills, and Ministers who are responsible for drafting have gone along with it, quite wrongly. But here we have a definition of "disability" coming on early and, to that extent, I think that the noble Lord has performed a service in inviting your Lordships to consider the possibility of having it in.
Having said that, I would ask the noble Lord to consider whether or not his definition is too broadly drawn. If, for example, we look at paragraph (a),the total or partial loss of any function of the body or mind".that includes any kind of ailment or disability from which an of us may be suffering. Excessive smokers, for example, may suffer from lung cancer, but even without that they may have bad smokers' coughs which could be very disturbing in some circumstances. Sometimes people with bad smokers' coughs cough all night, and in a boarding house with rather thin walls it could cause rather a nuisance to the people next door. I do not need to elaborate on that, but the paragraph is very widely drawn and I would ask the noble Lord to consider whether it should be more narrowly or more specifically drawn. Paragraph (b) is very clear and one would go along with that. Then there is paragraph (c)the malfunctioning or disfigurement of any part of the body or mind".Should any malfunctioning of any part of the body give rise to the rather elaborate procedure for conciliation through the commission, to the procedure for an action for damages which I described? Incidentally, in doing so I failed to mention the subject of having to apply for a legal aid certificate, which can also take quite a long time. One wonders whether that paragraph also is too widely drawn. I think that one could go along with paragraph (d),the malformation or disfigurement of any part of the body".It would be terrible for any of us with a squint to be discriminated against for any reason at all. As the noble Lord referred to my colleagues on MENCAP, with whom I am in disagreement, I should point out that at their meeting last week they did not take legal advice. Their decision cannot he regarded as 979 unanimous, because although I made my views clear before the meeting, I did not agree with it. Therefore, it cannot be said to be a unanimous view of the management committee. In any event, the governing body of MENCAP is the national council—over which I have often presided, and so has the noble Lord in the past. It used to be called the national executive in those days. But it has not yet had an opportunity of considering this, so I hope that the noble Lord will not mind my just mentioning those qualifications.
§ Lord Henderson of Brompton
I wonder whether I may follow the noble Lord, Lord Renton, if only to agree with the first part of what he said, as I had the honour to serve under him in the committee on the preparation of legislation where we strongly recommended that definition clauses should come at the outset of Bills. So to that extent I must congratulate the noble Lord, Lord Ennals, on what he has done and support the noble Lord, Lord Renton.
In addition, I myself am extremely unhappy about the definition clause altogether. On Second Reading (when I was not a Member of the House, but I have carefully looked at the report of the debate) the noble Lord, Lord Rea, who is a doctor, said, at col. 437:it is extremely difficult to decide who is and who is not disabled.—[Official Report, 16/12/83.]In a sense, we are all disabled. It may well be true that we are all sick in one way or another, physically or mentally. How do you quantify this sickness? How do you define it for the purposes of unlawful discrimination, whether reasonable or not? To my mind, the difficulties of definition in legislation are so great that for that reason alone I cannot support the Bill.
I do not need to give any further illustrations such as those which the noble Lord, Lord Renton, has given. I would only say that there are a very great many kinds of disability which are invisible but which are real, both physical and mental. I have the greatest possible sympathy with the view put forward by the noble Lord, Lord Ennals, about those who are grossly disfigured and discriminated against. Any kind of discrimination of that sort is disgusting and should be eliminated, but I do not believe that legislation is the right way in which to eliminate that kind of discrimination. That must be done by education, not by the force of law. For many reasons I disagree with this amendment in particular and with the Bill as a whole.
In conclusion, may I say that I much supported the line taken by the noble Lord, Lord Houghton of Sowerby, on Second Reading. Not enough is known about the extent of discrimination for legislation to be brought forward at this stage. It is much better to have a thorough examination of its extent. I am told that only some 18 to 20 cases have been brought to attention so far. There may well be hidden discrimination which we do not know about. There is so much that we do not know about that this is premature legislation. The noble Lord, Lord Houghton, suggested reference to a Select Committee or something of that kind. I should prefer the Committee—I hang these arguments on the definition clause—until it knows the extent of this problem and can decide the extent of the application of this Bill to those who are seriously disabled, not to proceed further.
§ 12.13 p.m.
The Earl of Snowdon
When the City of London held a ceremony honouring, rightly, those who died in the struggle for the rights of the Falklanders to go on living under the British flag and enjoying British freedom I read in the newspapers that certain servicemen, disabled in action, who wanted to watch the ceremony were deemed a security risk and advised to stay at home and watch it on television. It was evidently announced that there was no point in including those blinded for life while serving our country, "because they could not see anything, anyway".
In a sense, everything I have to say can be thought of as a comment on those facts. We respect the dead and we are right to do so. Indeed, it is not fanciful to think of death as the ultimate disability; yet those who are disabled—in their limbs, their sight or their minds—have to contend daily and hourly with the lack of the simplest understanding, let alone sympathy. A publican refuses to serve disabled customers. He explains his refusal aloud, with the words, "People like them shouldn't be allowed out". A cinema manager refuses entry to a woman in a wheelchair. She challenges his right to do so and receives the reply, "People like you should stay indoors". Let us not comfort ourselves with the convenient fiction that in any society there will be brutal and insensitive people, and that doubtless these were among them. The truth is that such things happen regularly, frequently and all over the country, and that the people who behave in that fashion are not monsters but ordinary human beings who regard their disabled human fellows with—I am sorry to have to say, but I must—contempt. "People like them"; "People like you"; "Does he take sugar?" It may be that for disabled people such wounding words are even worse than the discrimination itself. Again, let us not deceive ourselves: it is indeed discrimination that we are talking about.
A disabled art student, fully qualified, is refused a place at an art school because, and only because, of her disability. A policewoman, injured, ironically, while displaying conspicious bravery in the course of her duties, is turned away from a charity event because—and only because—she is in a wheelchair. A blind woman is refused entry to a supermarket because—and only because—she has her guide-dog with her and no dogs are admitted. Will anyone say that that was unfortunate, but of course you cannot have dogs in supermarkets? Let them say it to Sainsbury's who welcome blind shoppers with their dogs and also supply special trolleys for disabled people. Even a priest refuses to marry a man in a wheelchair who is paralysed. These are just a few examples of downright discrimination that we have all read about recently.
Imagine for a moment w hat an outcry there would rightly be if the discrimination practised against disabled people were to be offered to people of another colour or religion because—and only because—of that colour or that religion—for, of course, that kind of discrimination is banned by law. If there were as much concern and understanding throughout the country as is shown by noble Lords in this House, there would be no need for legislation; but I fear there sadly is not. It 981 is a pity—a great and tragic pity—that disabled people should need a law to protect them from discrimination, from the denial of their most elementary rights to live, as best they can, a normal life. Yes, it is a pity that it should be needed; but, as I see it, it undoubtedly is needed. And it is needed at every level of society and in every part of our national life. Why should not architects, engineers and town planners be obliged to take into account the most elementary needs of disabled people? Why should those in charge of offices, places of entertainment, shops, banks and other public and semi-public areas be allowed to refuse entry—sometimes hiding behind the smoke-screen of fire regulations—to citizens who have already been discriminated against by birth and condition, or accident or disease, and who are now experiencing the full, bitter, literal truth of the old cliché about "adding insult to injury"?
We all know that 1981 was the International Year of Disabled People. It was ushered in with high hopes—I shared those hopes—that it would bring an end not to the suffering of disabled people from their disabilities but at least to the extra suffering they experience at the hands of their more fortunate fellow-citizens. Alas! the year came and went with little more than the expression of pious aspirations. Pious aspirations are, unfortunately, of little practical use to disabled people who do not ask to have more than their fellows but who quietly ask only to have as much. As much what? As much opportunity as you and I and our children have to work, to be educated, to enjoy our holidays and leisure time, not as a charitable handout from well-meaning people, not as a favour from a society that would much rather they hid themselves from sight so as not to disturb our own more pleasant lives with their embarrassing presence, but as a right equal to the rights enjoyed without question by their neighbours, who have, and should be eternally thankful to have, the full use of their bodies and minds.
My main concern is for the ordinary man or woman in the street who is not in a position of power nor privilege and has little money to spend. They cannot send for the manager and make a fuss, even if they wish to. They just want to be treated as equal, first-class citizens—not as a favour, not out of gracious sympathy, nor as a condescending gesture, as an exception, but as of their right.
Few thinking men and women welcome new legislation, particularly legislation which makes more rules for more people to abide by; but I hope that few thinking men and women, if they stop to think about this problem, will believe that such legislation is unnecessary. Of course I know that legislation does not in itself change minds or hearts or attitudes.
Even when such laws are enforced, disabled people will have a long and hard road to travel to the goal of true equality. Perhaps they will never quite get there, but may I remind your Lordships of the words of Martin Luther King when he had to face that argument in the field of racial equality. He said:Morality cannot be legislated, but behaviour can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless".Disabled people in Britain do not demand to be loved for their disabilities; they ask only not to suffer additionally for them. They do not demand sympathy; 982 they ask only for rights denied to them. They do not reproach their unthinking fellow citizens; they ask only that their unthinking fellow citizens should start to think. Legislation cannot itself bring to an end the suffering of disabled people but it will be a huge step forward towards that noble aim. My Lords, may I suggest that we resolve to make that step?
§ 12.21 p.m.
§ Lord Howard of Henderskelfe
I had not intended to speak to this amendment, but in view of the breadth of discussion which has been engendered by it—and, With the greatest of respect to the noble Earl who sits in front of me, we heard a Second Reading speech on the amendment which defines disability—I believe that this matter ought to be looked at again. It is very broadly drawn.
It so happens that for nearly 40 years I have drawn what is not a very large 40 per cent. disability pension for a war wound. I have never regarded myself in the commonly accepted sense of the word as disabled. I have diabetes and I suppose that may be regarded as a disability. The amendment covers such an enormous field that there is almost nobody who could not be included under this definition. To place, simply because they fall within this very broad definition, the full weight of the law behind people who delight in litigation and who are not truly being discriminated against seems to me to be a proposal which the promoters of this Bill should consider again. I hope, too, that they will look again at the people to whom this Bill should be truly directed.
There are of course hard-hearted people around and of course there are people who behave badly—but there are far more bureaucrats who find it convenient to behave badly. Whatever the noble Earl, Lord Snowdon, in front of me may have said about the people who use the convenient excuse of fire regulations, it is true that the very worst of all when it comes to discrimination—particularly against disabled people in wheelchairs—are fire officers. They are the people we want to attack; the bureaucrats with all their regulations. We want to get at them, and not the people exercising their ordinary day to day business.
I therefore appeal to the promoters of this amendment to look again before the next stage of the Bill at the width of its definition and particularly at its application to the mentally handicapped. Their problems are very often of a wholly different nature from those who are physically handicapped, who are handicapped facially, or who are handicapped in other ways. That is a totally different ball game and it is one that commands the deepest thought. I hope that the organisation of the noble Lord, Lord Renton, when its full management committee meets, will give its deepest thought to that aspect.
The Earl of Halshury
I have been listening attentively to the arguments which have been put forward. In the hope of making a helpful suggestion to the noble Lord, Lord Ennals, perhaps I may comment that under (c) and (d) the breadth could to some extent be eliminated if the concept of incorrigible malfunctioning or incorrigible malformation or 983 disfigurement is included. That is something which could be done at Report stage if the amendment is passed in its present form.
For example, a squint is corrigible by the wearing of spectacles, and diabetes is corrigible by the taking of insulin. Some concept along those lines may help to tighten the definition a little and make this particular amendment acceptable to the Committee.
§ Lord Tordoff
I fail to understand why people are so averse to the clause being drawn widely. We are talking about discrimination. I should think it unfortunate if people were discriminated against for having a squint. That is very unlikely to happen, but I do not see why this clause cannot be drawn as widely as possible. It is discrimination that we are trying to outlaw—not squints.
§ Baroness Lockwood
I have some sympathy with noble Lords who have said that the clause would be drawn rather widely. I wonder whether we might be able to tighten up the amendment to some extent at Report stage. In a Bill, it is not possible to define either discrimination in its totality or to define disability. While I am not suggesting to the noble Lord, Lord Renton—who would be most concerned if he thought I was suggesting such a thing—that there will be a lot of case law under this particular Act, there will be some case law. I should hope that such case law will establish the interpretation which the courts place upon certain clauses. In that way, it will be possible for us all to understand just what "discrimination" means.
Perhaps I may draw a parallel with the Sex Discrimination Act. Although—as the noble Lord, Lord Henderson of Brompton, has said—we had a very powerful Select Committee of your Lordships' House and a Select Committee in another place, and although their reports were very important in identifying areas of sex discrimination, it was not until the Act was operating that we began really to understand the ramifications of sex discrimination. I believe that the same will apply to this Bill. I would ask that we do not try to dot every "i" and cross every "t", because we can do some of that when the Act becomes operational.
§ Lord Ennals
Having moved this amendment, I wish to express my deep thanks for the way in which it has been debated. I feel it would not be unfair to welcome especially the powerful intervention made by the noble Earl, Lord Snowdon, who has made a very great contribution to the needs of disabled people. Some of the points which have been made ought to be considered again. I admire the silence of the Government and I hope that they remain silent for the rest of the day; I am sure that the noble Lord the Minister will not misunderstand me, but it does repose therefore with those who sit on this Front Bench to take over the role of those who sit on the Front Bench opposite. The whole purpose of this Committee stage is to ensure that at the end of the day, or the week, or the month, we send to another place a Bill that satisfies as many noble Lords and noble Baronesses as possible.
I did think that the noble Lord, Lord Renton, perhaps entered into the realm of fantasy when he 984 suggested that it was a disability to have a smoker's cough. I suppose that the whole question of self-inflicted disability is one that the noble Lord might wish us to consider, but I am not going very far down that line. But if I look both at (a),the total or partial loss of any function of the body or mind".and (b)the loss of a limb or part of a limb".then I can see that it may be drawn very widely. When it comes to (c),the malfunctioning of any part of the body or mind".I was impressed by the noble Lord, Lord Howard of Henderskelfe, when he admitted his 40 per cent. war disability pension. Let me admit that I have a 100 per cent. war disability pension and I should resent being discriminated against on grounds of any of those particular causes. But this aspect is creating a sense of concern in this Committee, even among a number of noble Lords, whether on one side or the other, who have a squint—I do not know whether a political squint or a real squint. But in fact I think we ought to have a second look at this. I have in front of me a number of other very valid definitions. The United Nations Declaration on the Rights of Disabled Persons adopted on 9th December, 1975 gave its own definition, which was somewhat different from that which is contained here. It seems to me—and I have sought the permission of the promoter of the Bill, the noble Earl, Lord Longford—that we should have a look before Report stage at this particular definition in order that we may meet the concerns quite rightly expressed by noble Lords who are as much against discrimination, and in many cases for legislation, as he is or I am. So on behalf of my noble friend may I say, without wishing so to dilute this that it is meaningless, that we will look at some of the words again and come back with a new draft at Report.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 1, as amended, shall stand part of the Bill?
§ Baroness Lane-Fox
Everyone here undoubtedly wants to find the most effective way of improving the lot of all disabled people. Indeed, we all abhor the idea or the kind of discrimination we are told is enacted against them, or may I say us. Surely we are all agreed on that: that we dislike discrimination—in fact we hate it—as was so clearly described in that splendid speech of the noble Earl, Lord Snowdon, a splendidly idealistic speech I would say. Where we tend to differ is about the hest way to deal with discrimination.
Clause 2 aims to set up a commission, a quango, call it what you will, with the duty to investigate and eliminate the circumstances of such discrimination. Is this truly likely for one minute to catch the real offenders? There are those who generously discriminate in our favour, and it is often a question of the healthy and generous attitude of mind of other persons which determines this. If a transgressor is brought to 985 book by the commission, is it likely that he or she will change his or her attitude, at least in more than a tiny minority of cases? It is likely, I believe, that to set up a commission will cost two or three million pounds, and to me that sounds like an awful lot of money to spend just to bring a fraction of the public to heel—money, I may add, from which we really need a great deal, from resources which are scarce.
§ Baroness Trumpington
I ask the noble Baroness whether she is speaking on Clause 2 or on the Question that Clause 1 stands part?
§ Baroness Trumpington
We have not actually finished with Clause 1. I do not like interrupting my noble friend, but will she desist at the moment and start again later?
§ The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Glenarthur)
I am sorry to disappoint the noble Lord, Lord Ennals, but as I have sat mutely on the Front Bench for some time perhaps this is an appropriate moment for me to intervene briefly. I made it very clear during Second Reading of this Bill that the Government do not accept the need for a Bill of this kind and do not propose to give it any sustenance at any further stage. But while fully sharing the abhorrence which was so powerfully expressed by the noble Earl, Lord Snowdon, that there is some deplorable discrimination, we do not believe that there is sufficient evidence of genuine discrimination against disabled people to warrant the establishment of a complex and expensive regulatory machine which this Bill seeks to provide. None of the proposed changes to the Bill have altered that view. Clearly, of course, I respect your Lordships' wish to give further consideration to the text of the Bill. I have listened and will continue to listen with interest to what is said today. However, in view of the Government's position on the Bill as a whole, which I have stated as fairly and frankly as I can, I do not propose to comment one way or other on the individual amendments.
§ Lord Pitt of Hampstead
I did not intend to intervene, but I have been listening to speeches here this morning which remind me very much of the period we went through before we got the first Race Relations Act. I remember a lot of the arguments being made about the need to educate rather than to legislate, and also that we did not have clear enough evidence of discrimination to act on it. We seem to be travelling along that road again on this question of dealing with disability. I may, therefore, remind your Lordships of some of the consequences of legislating against discrimination on the grounds of race.
986 When I was chairman of the Campaign against Racial Discrimination and I talked with people who were representing the shops, they said that coloured people could not be employed in the shops because the customers would not like it. Well, the Race Relations Act was passed and, as your Lordships know, when you do your shopping the shops all have black people serving and we do not hear any complaints from the customers. I also remember—the one that I enjoyed most—the banks telling us that they did not employ black people in the banks because any person who works in a hank ought to be able to become a manager and they did not think the community had reached a stage when they would accept a black bank manager. I am sure many of your Lordships go into banks where you see blacks employed. It may well be that they have concluded that the community has reached a stage where it will accept black hank managers. The truth is that education is of the utmost importance. Legislation is part of that education. It is by enabling people to see that people who have disabilities are able without any problem to play their full part in society that you will get a relaxation of the attitude. That will play a major part in education as it does in other fields.
Therefore, while it may well be sensible for this amendment, No. 4, for example, to be tightened up, and while it may well be that we do not need so elaborate machinery in Clause 2, what we do need is this declaration that, in the view of society, discrimination against anybody who is disabled on the grounds of his disablement is unlawful and unacceptable. That is what is needed and that is what we want legislation for. Then there is the question of how best to carry it out, and that is where Clause 2 comes in and I do not wish to rush that. The question is, is it best to have the commission which, in fact, does the educating as well as other things, because that is where the commission will come in. Therefore, I hope that the Government will not put obstacles in the way of our legislating successfully on this matter, because it is of the greatest value to the people who are disabled that it should be illegal for anyone unreasonably to discriminate against them.
§ 12.40 p.m.
§ Lord Stallard
I shall be exceedingly brief, if only to support what my noble friend said about education and legislation. This is not a Bill about whether it should be education or legislation. It is not one or the other. My noble friend put that adequately and clearly. The legislation is part of the educative process, and the measures contained in this Bill must be seen as part of that process. All of us engaged in this debate will be against discrimination, and as my noble friend rightly says, that is what the Bill is about. All my adult life I have been involved with the educative process on the question of disablement and mental health. There is now a need for legislation to support that educative process, not to combat it. Both must go together. We must have legislation if we are to make the educative process mean what it ought to mean.
Baroness Darcy (de Knayth)
May I say a few words in favour of this clause. I was extremely disappointed to hear the Minister, but delighted that the noble Lord, Lord Pitt of Hampstead, gave us the benefit of his experience. We are extremely lucky to have both the 987 noble Baroness, Lady Lockwood, and the noble Lord, Lord Pitt, with us today and to have their experience. I feel very strongly that law and education should go hand in hand. We are not talking about either/or, as the noble Lord, Lord Stallard, said. At present, if someone is reluctant to do the right thing and says, "Why shouldn't I go on doing this?" all one can say is "It's not very nice, is it?". However, if one can point to the law and say that it is wrong and against the law, one has a good chance of educating the person pretty rapidly. So many of the examples of discrimination that I have been given are ones that could not have been sorted out by education alone. As regards conciliation, we must remember that one of the jobs of the commission will be to conciliate, and it is extremely difficult to conciliate without the backing of the law, otherwise one is just pleading for better treatment.
One last point is very important because I do not think anyone has made it previously. It concerns future legislation. If discrimination becomes unlawful in this Bill then whenever future legislation is being drafted those who are drafting it will have to say, "How will this affect the disabled? Can we do this without discriminating against them?" It is often difficult and expensive to put things right later. Therefore, if we can ensure that the interests of the disabled are considered whenever new laws are being drafted we will probably save time, energy and possibly a good deal of money.
§ The Earl of Longford
I feel that after the Minister has been kind enough to intervene it would be only appropriate for the promoter to thank him at least for speaking so briefly, and I gather he is not intending to say anything more. He did not disappoint me in what he said because he made plain previously what his attitude was. Therefore, I do not express my disappointment. I am not going to attempt to reply because we are not dealing with the amendment, but I hope that no one will suppose that because we have said we will look at the wording that there is any retreat on the main aspect. The Bill, as my noble friend Lord Ennals said, was given an unopposed Second Reading. Therefore, the House must have decided in favour of the principle of this Bill. Therefore we could not begin to accept anything that involved wrecking the Bill. I say that because I do not want to raise a lot of Use hopes that we are weakening. As my noble friend Lord Ennals said, that is very much to the point. There are a lot of possible definitions, and it would be ridiculous for us to pretend that all wisdom has been delivered to our particular group. Perhaps those who do not agree with much of the Bill may want to come and talk about the actual terminology. So we ought to be open-minded on the terminology.
The Lord Chairman may have in mind one point. By withdrawing the amendment it seems to me that we have got into a little bit of a problem area. I imagined that when we said we would look at it again that that could be accepted by the Committee and that we could go forward, but without the amendment—
§ The Chairman of Committees
I cannot accept that at the moment. The question we are debating now is whether Clause 1 shall stand part of the Bill.
§ The Earl of Longford
I was merely pointing out that before we leave Clause 1 we may have got into a little bit of a muddle. Perhaps the noble Lord will bear that in mind.
§ Clause 1, as amended, agreed to.
§ Clause 2 [Appointments and duties of Disablement Commission.]
§ On Question, Whether Clause 2 shall stand part of the Bill?
§ Baroness Lane-Fox
I apologise for my final intervention. I apologise to the promoter of the Bill and certainly apologise for any time wasted. May I go briskly on to Clause 2, which aims to set up a commission—call it what you will—with the duty to eliminate and investigate circumstances of such discrimination. Is it truly likely for one moment to catch the real offenders? I know I have said this before, but I want to stress that. It seems to me that there are those who generously discriminate in our favour, and it is often a question of the healthy and generous attitude of mind of the other persons which determines this. If a transgressor is brought to book by the commission, is it likely that that will change his or her attitude at least more than in a tiny minority of cases? I believe that to set up a commission will cost £2 million or £3 million and that seems to be an awful lot of money to spend just to bring a fraction of the public to heel. That is money, I should add, which we have begged from scarce resources for other most important assistance areas for disabled people.
I know that this is a very emotive subject. Some of us have gone out to work for our living and know the difficulties and obstacles that have to be overcome in order to do this. Although it is no joke to realise that your presence is a nuisance to other workers who do not necessarily include you in their privileges it would not be any balm—certainly it would not have been to me—to be told that one is being discriminated against and that the quango will look into all one's little troubles—whether it be that people will not open the doors or windows for you or take you out to tea with them.
Some disabled people complain that police, officials, taxi-drivers, and porters, discriminate against them. Well, if we are in wheelchairs, I for one realise that other people can have cricky backs, hernias, heart problems and lots of other things. Just to touch our proposition threatens their own situation. I consider that in that case they are more than justified in taking cover when they see us approaching. That is not the sort of thing I would have thought ought to go before a commission, but from what I can read of the Bill it looks as though it would. Questions of employment difficulties should be dealt with by DACs and if the disabled are not dealt with properly then we should agitate until they get better treatment. As for accessibility, we have the new national accessibility committee which I think and believe really will make a difference to that front.
989 I found it rather shocking that with all the kind help and potential opportunities offered to disabled people, particularly since IYDP, the public are to be dealt this very expensive snub of a commission. It is to be set up on the assumption that very many disabled people understand it and want it. I believe it is very doubtful if very many disabled people realise that to be effective the commission generally will depend on legislation at national or local level.
To my mind it is a psychological howler to tell a disabled person that he is being discriminated against, thereby probably removing the flimsy threads on which his or her ego rests and probably sowing new seeds of bitterness. There could be little that is more destructive and harmful to a person's frame of mind, upon which so much of the power to cope with disability depends.
It is never easy to speak the unpopular line, and that is what I am trying to do today. It is very much nicer to recommend everyone to sit back and pay for a commission which will solve the problems. Alas, I am not enough of a hypocrite to go along with that. No doubt there are others who are more highly qualified to hold views; but I can claim to have been working with and for disabled people of all kinds for the past 45 years. It is my view that cases can be much better dealt with by immediate help through existing channels than by noises from a costly commission.
For six years I broadcast a regular programme on local radio to give news and information for disabled listeners. I found that in very many of the cases referred to me people wanted—and took—advice and assistance rather than to construct great cases for a commission. So often it is friendly help and not more bureaucracy and officialdom that people want.
In my view, the setting up of a commission would be derogatory to the cause of disabled people. It would make them more segregated and further remove them from the integration which we have sought. It could well lose friends and helpers for the disability cause and hard-gained popularity and constructive sympathy. Even if our views about the methods are different, we all want to find the best way to direct our efforts really to get the advance that we want. We believe that we could do something that is truly relevant through the existing schemes which are a real help to the many individuals whose future we care about. There is no lack of a framework to receive our combined efforts to make things work better, given help from the departments, and help which I believe we should receive. Knowing how many excellent schemes receive Government funding, I am conscious that to spend money unwisely on the cause of disability is against the interests of those who are most affected. For these reasons, I ask that Clause 2 shall not stand part of the Bill.
§ 12.52 p.m.
§ Baroness Lockwood
I am sorry that the noble Baroness, Lady Lane-Fox, has taken this approach to Clause 2. I appreciate just how much she has done in the past to assist the disabled, and so on this question I do not like to be on a different side of the argument. I speak not as one who has been deeply involved in the Campaign for the Disabled, although I myself suffer 990 from a disability. I must draw a parallel with what has happened with the Equal Opportunities Commission.
The very heart of Clause 2 is stated in subsection (1)(a):to work towards the elimination of discrimination against disabled people and to promote the integration of disabled people into society.Those two functions are being given to one body, and this body will have the opportunity to assist individuals to fight against discrimination in their particular circumstances; but the commission will also have the opportunity to draw from individual cases examples of discrimination which very often are hidden in the system of our society and which we do not recognise.
I think that this is where such a body has an advantage over other organisations that may be working in the field. It will look at and analyse unlawful discrimination and at the same time work to promote—in this case—the integration of the disabled into our society. It will, therefore, have a positive approach to the problem as well. In this sense it will have the opportunity to change attitudes.
The noble Baroness, Lady Lane-Fox, said that it is likely that the commission's work will affect only a fraction of the public—it will bring only a fraction of the public to hand. I think that its work will be much wider than that; it will be to identify what is discrimination and, by so identifying, to affect policies.
I again draw a parallel with the Equal Opportunities Commission. When it was set up in 1975 all that the employer and trade union organisations wanted to do was to avoid unlawfully discriminating. They said, "Tell us what to do in order that we do not break the law?" I must confess that the educationists were in that category, too. But after the commission had been functioning for four or five years, employers and educationists were saying, "Tell us what to do to promote equality? How can we improve our policies?" These have been policies which have gone across the board. The question would be, "How can we integrate the disabled into our workforce and help them to become full and effective members?"
The work of the commission would cover a very wide field indeed. It would give help and assistance to individuals, either advising them how to process their complaints or taking up with the appropriate bodies complaints on behalf of individuals. The Equal Opportunities Commission has been criticised as being ineffective simply because it has not produced as many cases through the courts as some people thought it would. But what it has been able to do on numerous occasions is to prevent cases from going to court and to stop the discrimination at the very outset. It could not have done that had it not had the opportunity of using the law as well, if that was necessary. If it had not been able to invoke the force of the law, it would not have been such an effective body in promoting equal opportunity policies.
The noble Baroness, Lady Lane-Fox, mentioned the amount of money that having such a commission would entail. In the last annual report of the Equal Opportunities Commission, which referred to 1982, its expenditure was about £3 million. When one considers the total income of this country, £3 million is a very small amount to pay. On Second Reading the House was told that the amount of money spent on the 991 campaign to publicise the need for seat-belts and to educate people to wear them was £7.8 million, but with very little effect. But immediately we had an Act of Parliament which said that it was unlawful to drive without wearing a seat-belt we found that 99 per cent. of the population of the country observed the law. We are not normally a law-breaking community. People want to observe the law. But very often people do not know what discrimination means; and an important part of the commission's work would be to bring to the attention of the public the ramifications of discrimination.
I wish to say one final thing. I think that this country has a very good record with regard to sex discrimination compared with other countries in the European Community. Our European colleagues agree that the reason why we have this record and reputation is that we have a commission that has an overall responsibility for eliminating discrimination and promoting equality of opportunity. Therefore on the basis of my experience as the chairman of a quango or a commission—and I do not see why a nongovernmental organisation should be called a quango as though it were a term of abuse—I believe that if we are to eliminate discrimination of this kind it is absolutely essential that we have a commission charged with the responsibility for so doing.
§ Lord Houghton of Sowerby
I expressed serious misgivings about the Bill on Second Reading and I have been greatly worried about it ever since. I do not think that we are going about the Bill the right way to achieve the purpose that so many of us have in mind. Quite frankly, I feel embarrassed at having to participate in proceedings which I believe are almost futile from the legislative point of view.
This Bill was introduced in another place and failed to make progress in unsatisfactory and indeed controversial circumstances. It was introduced here very speedily after that event and it received an unopposed Second Reading. Nearly all the bad Bills that I remember have been those which got on to the statute book not because people were for them, but because many people were afraid to vote against them. Here we are feeling that we are in support of the moral purpose behind the Bill, but realising its grave imperfections as a piece of draft legislation from the point of view not only of principle in one or two respects, but also of administration generally.
The intervention of the noble Lord, Lord Glenarthur, made it clear that we were not going to receive the Government's help and co-operation, or even advice, in the further stages of the Bill. I do not quarrel with that decision, though I regret it. But it seems that the Government, too, must hold the view that we are not doing the cause which we have at heart as much good as we should.
I recall, as I did on Second Reading, that, in a reform of this kind—of profound importance and great complexity, where the moral issues are clear and definite, where public opinion is being marshalled behind them, but where the expression of them in the statute law and in the course of administration presents many complexities—we must proceed in an orderly and rational manner. Some causes are ill-served by the way their sponsors handle them, and I 992 believe that we want from the sponsors of this Bill a realistic approach to where we are at this moment. If we continue the discussion on the Bill, it is inevitable that general questions of where we are going and whether we are using the time of your Lordships' House and of the Committee profitably will arise on different occasions. Clause 9, for example, is a dreadfully difficult clause upon which there could be an enormous amount of discussion because of the tortuous nature of much of its language and the obscurity of the precise principle that it seeks to establish. So we are not by any means through with the Bill merely by going from clause to clause, since it raises many difficult issues on the way.
On a previous occasion—and I have mentioned this before—when the sex discrimination issue ran into difficulty in another place, in a Private Member's Bill, as did this Bill recently in another place, your Lordships' House wisely gave a Second Reading to a similar Bill on sex discrimination and referred it to a Select Committee for examination. In my view that was the turning point in the progress of legislation against discrimination on grounds of sex. This House performed its traditional role of taking a draft Bill and examining it in detail, calling evidence from all the interests and the sources of advice and wisdom in the hope of being able to present to your Lordships' House not the sense of a Bill, but a workmanlike piece of legislation which satisfied the standards of this House as a revisionist Chamber and are responsible for considered legislation.
When the House of Commons again took up that subject, it had the benefit, in its own Select Committee, of all the work that had been done in your Lordships' House, and from then on the cause of legislator against sex discrimination made unimpeded progress. I think that something of that kind could have helped this Bill had we taken the right decision at the end of the Second Reading. I had hoped that it would be referred to a Select Committee, but I made inquiries about it and I was given to understand that there were difficulties about mounting a Select Committee on the Bill during the current Session. Well, it may be that the Bill will make much better progress if it is carefully examined by a Select Committee in the next Session, but I cannot believe that it will make any progress at the present time.
I cannot agree with my noble friend Lord Ennals that we should send the sense of the Bill to another place. We do not send the sense of Bills to another place. We send Bills to another place—Bills that have been made sense of; and in those circumstances it will not help to send this Bill to another place. If the other place wanted the message, it got it on the passing of this Bill on Second Reading without a Division. That was the message to give to another place, which after all, had declined to give a Second Reading to the Bill when it had the opportunity to do so. That was the message not only to another place, but to the Government, too; and surely it is the Government's help that we require in order to place on the statute hook a Bill of this importance and complexity. It is unthinkable that we can legislate with the Government sitting on the Front Bench virtually mute and saying merely, "It's nothing to do with us. We can't provide any facilities for its progress through Parliament".
993 So I hope that the sponsors of the Bill will really consider what we should do now. How can we get through the Committee stage of this Bill this day? How shall we ever get through it properly unless we can seek evidence and have much better opportunity and a great deal of time to go into its complex detail? Therefore, if the Committee divides on the Question that Clause 2 shall stand part, I shall vote against it because I think that it is the least objectionable clause upon which to register my view that the Bill ought not to make further progress in the present conditions.
I believe that the cause is in our hearts and minds all the time. We want to see something done about it. But this is not the time to complete our examination of this complex problem. We want a little more time. We want closer examination of all the implications and problems of administration. There is provision for that in the procedures of your Lordships' House, and I think that we ought to embark upon that course and not continue with what I regard as an unrewarding exercise, possibly causing much misapprehension among the public outside, raising hopes that we cannot fulfil, and not justifying to ourselves the procedures that we are being asked to follow.
§ 1.8 p.m.
§ The Earl of Longford
I feel that I must reply to the noble Lord, Lord I Houghton, before we go any further. I think that it ought to be plain to everybody—and I think that it is plain to the noble Lord, Lord Houghton—that what is proposed would really amount to a vote against the Bill on Second Reading; it is against the principle of the Bill. I do not think that the noble Lord mentioned Clause 2 other than incidentally. He was not dealing with the proposal of the noble Baroness, Lady Lane-Fox, which I must say a few words about in a moment. He was dealing with the Bill. He was, if I may say so, making the same speech as he made on Second Reading. I was stupid enough to interrupt his speech then, but I did not interrupt him again today. However, it was the same speech, and of course he is entitled to take that view very strongly.
But that is opposing the principle of the Bill; there is no doubt about that. It is for noble Lords to say whether the House of Lords would come out of it very well if your Lordships, having given the Bill an unopposed Second Reading, voted it down the next time round. I cannot imagine that that would be in accordance with the traditions of your Lordships' House; however, that is for others to say.
I should like to turn to the speech of the noble Baroness, Lady Lane-Fox, and if I do not reply to it at all fully, it will be because it was dealt with so very effectively by the noble Baroness, Lady Lockwood. The noble Baroness, Lady Lane-Fox, has made no secret of her dislike of the Bill. This is a wrecking proposal and, if agreed to, it will wreck the Bill. Therefore, the technicalities of the commission hardly come into it. It would be impossible for anyone responsible for the Bill to accept the proposal put forward by the noble Baroness. It may well be that she will want to divide the Committee and then we shall have to see what happens. However, the proposal defeats the Bill. No wording is inspired, and perhaps 994 somebody could think of some slight reformulation of' the functions or the composition of the commission. However, so far as this proposal is concerned, no one who has any belief in what we are trying to achieve could possibly support it.
§ Lord Renton
With deep respect to the noble Earl, I do not think that he is right in saving that the elimination of Clause 2 would mean that there was nothing left in the Bill. There would still he the right of people to sue in the county court or the High Court on the grounds of discrimination. There would still be the whole of Part II which places heavy burdens upon local authorities which have been expressed as costing £30 million.
However, we should all heed the words of the noble Lord, Lord Houghton of Sowerby, who speaks with tremendous authority, perhaps as much as any of us, of the workings of the public service. He speaks as, at one stage, head of a civil service union and chairman of the Parliamentary Labour Party, and with all the political experience that he has had. He has spoken clearly and strongly against the setting up of a commission.
As regards what I am about to say, I can at least say that I am not in disagreement with the management committee of MENCAP, because in the letter which Mr. Rix has sent to the noble Earl, and to which the noble Earl has already referred, he said that some members of the management committee had doubts about the effectiveness of a commission. That is well understood. If it be the fact, as my noble friend Lord Glenarthur told us in his reply to the Second Reading debate, that a commission would cost approximately £3 million, then I say that we at MENCAP and other voluntary bodies as well, could much better do with some of that money for the purposes which we wish to pursue—for example, getting people out of these long-stay hospitals for the mentally handicapped, many of them children and young people who ought not to be there. But it costs money to get them into the community, which is what we are trying to do. That is only one example of the way in which the money could he better spent. However, let us examine the clause.
If we look at subsection 1(a) we find that, among other things, the commission has:to promote the integration of disabled people into society".Here I speak with the full authority of MENCAP, because I presided over a meeting of the national council when we were considering the integration of mentally handicapped children into the education system. We were unanimously against it. I pointed that out when the Education Act 1982 was going through the House—the Act which dealt with "special needs". Your Lordships and the Government eventually accepted that, so far as mentally handicapped children were concerned, they are better not integrated. Yet his paragraph would require the commission—because the Bill applies to education as well as to other matters—to integrate them. Therefore, we would have a statutory conflict, a conflict within the will of Parliament.
Subsection 1(b) says:to carry out general investigations with a view to determining whether this Act is being complied with and to make recommendations".995 My noble friend Lady Lane-Fox, with whose speech I entirely agreed, has pointed out that a voluntary body representing the various organisations dealing with disability could perform that function perfectly well and advise the Government, and in doing so save vast amounts of public money.
We then come to paragraph (c) which deals with individual complaints. I briefly mentioned this in reply to an earlier amendment, but I did not mention it on Second Reading. Surely the investigation of individual complaints under this Act, where it seems appropriate to conciliate in relation to such complaints, would in practice enable only the flagrant and obvious complaints to be dealth with. They can be dealt with perfectly well without establishing a new quango. Mr. Rix did a marvellous job at Teignmouth last summer as regards the flagrant complaints which were voiced there. It did not require the intervention of any Government body. All it required was just him and a bit of publicity and the determination of the hotel keeper concerned to stick to his guns and allow the mentally handicapped people to stay in his hotel. That was enough; surely we do not need a quango to do that?
§ The Earl of Longford
I think that it is plain—is it not?—although none of these matters is absolutely plain, that Mr. Rix is in favour of a Bill along these lines.
§ Lord Renton
Mr. Rix has written a letter in, I think, rather guarded terms to the noble Earl, to which he and I have already referred. As I said earlier, the management committee, although the most important body, in a way, in MENCAP, is not the top body. The top body is the national council which has not yet had a chance to formulate policy on this point. Mr. Rix does marvellous work for us and for the mentally handicapped.
If we turn over the page we come to paragraph (d). Under that paragraph we find that the commission will have:to keep under review the working of this Act".As has been rightly pointed out, an important part of the working of the Act would be the commission's own work under Clauses 2 and 7 which deal with procedures as to complaints. So they would therefore be reviewing their own efforts. I suppose that it is better than nothing, but it is not very usual—is it?—to ask a public body to review its own efforts. Such a body reports to Parliament and we should review its efforts. That is the best way of doing it. I agree that somewhere there is mention of a report to Parliament.
We then come to subsection (4) which gives rise to very great difficulty. It says:At least one half of the total number of members of the Commission shall be people who are themselves disabled and whose various disabilities are those to which the Act applies".I entirely agree that the physically disabled should be represented on the commission, as they are increasingly on various public and advisory bodies. I fully agree with that. But it is not realistic or sensible to expect mentally handicapped people to take these difficult decisions. As for the mentally ill, I think that they too in many cases would be in a great difficulty. 996 But the Bill applies equally to the mentally handicapped and the mentally ill as it does to the physically disabled of various kinds. So in my view subsection (4) also creates difficulties. I entirely agree with the noble Lord, Lord Houghton, and with my noble friend Lady Lane-Fox that this clause should not stand part of the Bill.
§ Lord Ennals
I shall be very brief because it is important that we reach a decision on this matter in order to make progress. I thought that to most of the arguments the noble Baroness, Lady Lockwood, and my noble friend Lord Longford gave very satisfactory answers. To remove this clause from the Bill would wreck the Bill, because we would simply declare something to be illegal, define the people concerned and the types of discrimination, but not have a commission to take some positive action, which is surely what most Members of your Lordships' Committee would want to see. The noble Lord emphasised the elimination of discrimination to promote the integration of disabled people into society. I do not believe for a moment that the majority of disabled people do not want to be treated as ordinary members of society, so far as it is possible for them to be so treated. Therefore, a good deal needs to be done in terms of access to entertainment and public places, and the rest.
Equally, I believe that the carrying out of general investigations on behalf of disabled people is an extremely important task. We have to ask ourselves, who are these people who are being proposed? I think that some point is raised by the noble Lord, Lord Renton, in suggesting that perhaps mentally handicapped people would not be appropriate, but I doubt whether the Secretary of State would actually make those appointments. After all, in his wisdom he appoints all of them, and I believe that he would consult with the organisations concerned.
I should be very surprised if any Secretary of State did not consult with the organisations representing the groups which are covered here in order to choose a commission that is balanced, wise and comprised of people with proven ability. Their task, in a smaller way—smaller because the numbers are smaller—is similar to that of the Equal Opportunities Commission and the Commission, for Racial Equality. To take away the commission would really be to take away the heart of the Bill. I know that some people want to take away the whole Bill. Bearing in mind that this House without any opposition in votes, has already given this Bill a Second Reading, I think that a decision should be taken now in order that we may proceed.
§ Baroness Masham of Ilton
I should like to make a few remarks. At a very early age, when I was a child in the middle of the war, my mother ran a London canteen for servicemen at one of the London stations. On one occasion two air force people came in with very disfigured faces and none of the people would serve them. They were frightened and called for my mother who went and served them. Afterwards she told me their story, and I have always remembered that there are people who are discriminated against. Today we have heard the noble Earl, Lord Snowdon, speaking about modern-day discrimination.
997 Both the noble Lord, Lord Renton, and the noble Baroness, Lady Lane-Fox have pushed and pushed to get mentally handicapped people out into the community. I serve on a regional health authority and we are worried that some regional health authorities and districts may not have the time adequately to plan for the wellbeing of these handicapped people. I believe that the Government will be very unwise if they do not set up a commission to look, to gather information and to sort out the problems of the disabled, for the problems are so varied and wide. My goodness! we all need to be educated. I am educated every day when I open my mailbag of letters from disabled people and read of their problems.
On Wednesday I returned from France to London Airport and I found that the lavatory, which had been specially built and adapted for disabled people, had been changed so that no person in a wheelchair could get near it. New rails had been placed on either side and banged down into the floor, so that you were stopped from getting anywhere near the lavatory. That is not following BS.5810. Therefore, circumstances change from day to day.
I was very interested in what the noble Lord, Lord Houghton of Sowerby, said; and I agree with what he said. I think that this needs to be planned very carefully. But I also agree with what the noble Baroness, Lady Lockwood, said. I believe that we should vote on the principle. I think that we should have the Government behind us, and it is very worrying if they sit mute in another place. We cannot do without our Members of Parliament behind us. If we take a vote on this, I hope it will be on the principle of whether or not there should be a commission. I agree with what the noble Lord, Lord Renton, said (and he was answered by the noble Lord, Lord Ennals) about subsection (4) because I believe that a mentally ill or mentally handicapped person—
§ The Earl of Longford
In order to avoid misunderstanding, may I say that I also agree with what the noble Lord, Lord Renton, said on subsection (4).
§ Baroness Masham of Ilton
Yes, and that can be improved. I think that we must vote on the principle, but I believe that the Government will be very unwise if they do not set up some body which will learn of these changing problems. We now have multitudes of handicapped people coming into a community which is perhaps not ready to receive them, and that community needs to learn and be educated. As the noble Lord, Lord Pitt, has said, perhaps legislation will help to educate them. I want to do what is best for the disabled and I also want to do what is acceptable to those people in the country.
§ Lord Howard of Henderskelfe
There may possibly be a way forward here. We have heard the wise advice of the noble Lord, Lord Houghton, as to what should have happened to this Bill after its unopposed Second Reading. I was not here for that Second Reading. I suspect that many people did not wish to divide the House, because if one opposes any measure directed towards the alleviation of the problems and the 998 difficulties—undoubted that they are—of people who are disabled in one way or another, one is thought of as hard-headed, brutal and beastly. Not many people like to be thought of in that way.
In the past, to some degree I have been associated with this matter, in that I had the honour to be one of the vice-presidents of the noble Earl, Lord Snowdon, during his presidency of the International Year of Disabled People. I have taken a close personal interest in this. Although I cannot officially describe the noble Baroness who spoke first as a friend, because I do not actually sit on the same side of the House as she does, I have known her all my life and I know with what vigour she has pursued the cause of her fellow handicapped—handicapped in all kinds of degrees and in all kinds of different ways. I believe that it is that work, and particularly what happened during the International Year of Disabled People which has resulted in considerable steps forward.
I know that it has helped me, as chairman of the BBC, to tight battles, which I did not always win, with the fire officers to try to get more people in wheelchairs into studios. Initially we could not get any in at all because we were told that they were a frightful danger and could not be got out if there was a fire. I asked when there was last a tire in a studio which could possibly have endangered any disabled person, and nobody could produce any evidence of any such fire. I shall not continue with such anecdotal evidence. However, as I said earlier, we need battles on draft by-laws, on fire regulations and on building regulations. Those are not battles which are necessarily best fought by a commission. They may well best be fought be persuading Ministers in the department to take on their own civil servants head-on. They sometimes win too, as past Ministers in this House will know, and they sometimes actually get what they want.
I believe that what has happened in the last three years is important. We have seen a very considerable step forward in the provision for the disabled because people have been made more alive to the problems and to what is needed. That has perhaps been most obvious in the case of the provision for those who are confined to wheelchairs, and I would tell your Lordships that, in fact, to provide such facilities can be of benefit to the person providing them.
My house is open to the public and I provide one of those chairlifts, and in each lavatory we have a special lavatory for the disabled, although I regret to say that it is unisex—we cannot afford to have one for each sex. The number of disabled visitors to the house has very considerably increased since we installed those facilities. I do not say that we have made a profit on it—I have never computed a figure—but it has certainly been of great benefit to me as well as to the disabled people. I should like to see further evidence, at a time of rapid advance in the provision of facilities for disabled people, of what has been done. I should certainly like to see, if it were at all possible, the course which the noble Lord, Lord Houghton, suggested pursued as the correct course in this matter.
The Earl of Halsbury
I have listened to this debate with my head being pulled one way and my heart being pulled the other. From the standpoint of tactics 999 and generalship, I believe that the advice of the noble Lord, Lord Houghton, is right. I hope that the noble Earl will take it, and bring the Bill forward in the next Session with the object of sending it to a Select Committee of the House. For that reason, I shall follow the noble Baroness. Lady Lane-Fox.
§ 1.31 p.m.
§ On Question, Whether Clause 2 shall stand part of the Bill?
§ Their Lordships divided: Contents. 49; Not-Contents, 43.
|DIVISION NO. 1|
|Amherst, E.||Lockwood, B.|
|Attlee, E.||Longford, E.|
|Beaumont of Whitley, L.||Lovell-Davis, L|
|Beswick, L.||Masham of Ilton, B.|
|Brockway, L.||Napier and Ettrick, L.|
|Collison, L.||Oram, L.|
|Cooper of Stockton Heath, L.||Peart, L.|
|Crowther-Hunt, L.||Phillips, B.|
|Darey (de Knayth), B.||Pitt of Hampstead, L.|
|Donaldson of Kingsbridge, L.||Ponsonby of Shulbrede. L|
|Elwyn-Jones, E.||Ross of Marnock, L.|
|Ennals, L. [Teller.]||Sefton of Garston, L.|
|Fitt, L.||Snowdon, E.|
|Gaitskell, B.||Stallard, L.|
|Galpern, L.||Stamp, L.|
|Graham of Edmonton, L.||Stoddart of Swindon, E.|
|Hale, L.||Stone, L.|
|Hanworth, V.||Taylor of Blackburn, L.|
|Hayter, L.||Tordoff, L|
|Jeger, B.||Underhill, L. [Teller.]|
|Jenkins of Putney, L.||Wallace of Coslany, L|
|John-Mackie, L.||Wigoder, L.|
|Kearton, L.||Wilson of Rievaulx, L.|
|Kilmarnock, L.||Winterbottom, L.|
|Llewelyn-Davies of Hastoe, B.|
|Airey of Abingdon, B.||Lane-Fox, B.|
|Alexander of Tunis, E.||Lauderdale, E.|
|Belhaven and Stenton, L.||Lawrence, L.|
|Cork and Orrery, E.||Long, V.|
|Cottesloe, L.||Lucas of Chilworth, L.|
|Craigavon, V.||Lyell, L.|
|De Freyne, L.||Mancroft, L.|
|Denham, L.||Margadale, L.|
|Dilhorne, V.||Marley, L.|
|Elton, L.||Merrivale, L.|
|Enniskillen, E.||Nugent of Guildford, L.|
|Gainford, L.||O'Brien of Lothbury, L.|
|Glasgow, E.||Portland, D.|
|Halsbury, E.||Rankeillour, L.|
|Harvey of Prestbury, L.||Renton, E.|
|Henderson of Brompton, L.[Teller.]||Romney, E.|
|Hornsby-Smith, B.||Skelmersdale, L.|
|Houghton of Sowerby, L.||Trumpington, B.|
|Howard of Henderskelfe, L. [Teller]||Vaux of Harrowden, L.|
|Killearn, L.||Windlesham, L.|
§ Resolved in the affirmative, and Clause 2 agreed to accordingly.
§ Clause 3 agreed to.
§ Clause 4 [Recommendations Commission]:
§ 1.39 p.m.
The Earl of Longford moved Amendment No. 5:
Page 2, line 34, leave out ("notwithstanding the provisions of section 9(2) ")
§ The noble Earl said: I hope that this will be accepted as a nominal change. If anyone looks at Clause 9, they will see that the Secretary of State has to pass prescribed regulations. All we say here is that that power is not to be ignored. If the noble Lord, Lord Renton, were here he might catch me out over this. He may not be here in time. I was just saying that in the absence of Lord Renton I was hoping that this might be accepted as a nominal change.
§ Lord Renton
May I say that I have the enormous pleasure of, for once, agreeing with the noble Earl? It is quite absurd that we should, within any statute, refer to other parts of the statute. It is mere surplusage to do so and, from the purely drafting point of view, whatever other motive the noble Earl may have had. I think he has done right to move this amendment.
§ On Question, amendment agreed to.
§ Clause 4, as amended, agreed to.
§ Clause 5 [Regulations of Secretary of State as to scope of Act]:
§ The Deputy Chairman of Committees (Lord Nugent of Guildford)
I should warn your Lordships that, if Amendment No. 6 is agreed to. Amendments Nos. 7, 8 and 9 cannot be called.
Lord Ennals had given notice of his intention to move Amendment No. 6:
Page 3, line 1, leave out paragraph (b)
§ The noble Lord said: I do not propose to move this amendment, simply because the amendment that I said we would look at and bring back at Report stage was a better definition than this. I think it is better that at least some definition remains in the Bill, so I shall not move the amendment standing in my name.
§ [Amendment No. 6 not moved.]
Lord Renton had given notice of his intention to move amendment No. 7:
Page 3, line 3, alter ("sensory") insert ("and").
§ The noble Lord said: In view of what has passed earlier and in view also of the carrying of Amendment No. 2 and the falling of Amendment No. 3, I do not think that it would be right for me to move Amendments Nos. 7, 8 or 9. Nevertheless I hope no one will misinterpret that. I reserve my position with regard to the mentally handicapped and the mentally ill. Therefore I do not move.
§ [Amendment No. 7 not moved.]
§ [Amendments Nos. 8 and 9 not moved.]
§ Clause 5 agreed to.
§ Clauses 6 and 7 agreed to.
§ Clause 8—[Court Proceedings]:
Earl Attlee moved Amendment No. 10:
Page 4, line 26, after ("hovercraft") insert ("which is registered in Great Britain").
The noble Earl said: this amendment is simply a clearing up amendment. The clause states:
A county court or sheriff court shall have jurisdiction to entertain proceedings under subsection (1) with respect to an act done on a ship, aircraft or hovercraft outside its district, including such an act done outside Great Britain".
§ An act done outside Great Britain—how can that be? How can we pass legislation on foreign flag carriers in international waters? Your Lordships may remember that recently there was quite a fuss in the newspapers because the United States of America had passed a law stating that if British companies bought "hi-tech." equipment and installed it in the United Kingdom, before they could move that equipment from one office to another they had to obtain the permission of the State Department of the United States; which is obviously wrong.
§ When I was a sailor for five years, if I went to New York I would be asked on arrival whether it was my intention to overthrow the Government of the United States. I was quite happy to reply, "No". But if I had been asked that same question when I reached my home port of Liverpool, I would have been exceptionally annoyed because I do not think that any foreign country has any right to tell me in my own country what I can do. I do not believe that we in this country should tell foreign nationals what they can do on foreign flag-carrying vessels, aircraft and so on when they are outside our territorial waters. I beg to move.
§ Lord Renton
I should like to support the noble Earl, Lord Attlee, on this amendment, but before I speak to it I wonder whether I may say what a real pleasure it is to have him speaking here again in this House. We all enjoyed his maiden speech on Second Reading and we are thankful that that was not a finality. We hope that we shall have him speak again, especially on these matters. When I entered another place as long ago as 1945, I was approached by the Prime Minister of the day, the noble Earl's distinguished father, who came up to me in the Smoking Room one day and said: "I gather you were at Univ.", referring to the same college at Oxford that we were at. I thought how typical of that great man to refer to a young and humble Back-Bencher just arrived, when he was Prime Minister, and make contact with him in that way. I have never forgotten and I was always grateful.
Clause 80) is very widely drawn. I wonder whether Your Lordships appreciate quite how widely drawn it is. It means, as it stands, that if an act of discrimination takes place on any ship or aircraft, whatever its country of origin, under whatever flag it is registered and wherever in the world the act of discrimination takes place, the master of that ship or whoever on the ship was responsible for the alleged discrimination can, when that ship comes to our ports, be brought before our courts and sued for damages for an act of discrimination. The international implications of that seem to me to be hard to contemplate. I hope that the noble Earl, Lord Longford, will not only accept this amendment, but realise the whole implications of what is contained in subsection (4).
§ On Question, amendment agreed to.
§ Clause 8, as amended, agreed to.
§ Clause 9—[Meaning of "Discrimination"]:
§ Lord Stallard moved Amendment No. 11:
Page 5, line 7, leave out paragraph (d) and insert—
("(d) he imposes conditions that will adversely affect people with disabilities to an unreasonable extent.").
The noble Lord said: I, too, can be brief because much of the argument that would have taken place on this amendment has already taken place. My amendment seeks to insert the words on the Marshalled List with one slight alteration, because of a typographical error in the first line, where it says:
he imposes conditions that will adversely effect people".
To make that correct, it should read "affect".
§ As the paragraph was originally worded it attracted much criticism during the debate in another place and, as we have heard earlier this morning in this debate. If I have interpreted correctly the criticism both inside and outside your Lordships' House, it was that the wording of the amendments tended to imply too much positive discrimination in favour of the disabled: too much preferential treatment, it was felt, was being given to disabled people.
§ That is not the intention of the Bill or of the clause. It would be churlish to argue that a measure should not be introduced for the benefit of the population at large, if the disabled are not able to enjoy as much benefit from it as non-disabled people. This amendment seeks to correct that apparent churlishness of the clause as printed by introducing reasonableness—and this has been mentioned on many occasions in this morning's debate. This legislation, I would argue, does not give disabled people preferential treatment. What it is intended to do, and what it does, is to give them access to the law to secure equal treatment. I think there is a fairly subtle and important difference in the kind of approach and interpretation in the positive discrimination and affirmative action which may be required on occasion which would merely bring disabled people alongside the non-disabled persons. It would not give them an unfair advantage as far as non-disabled people are concerned. In my view, non-disabled people have nothing to fear. It seemed to me that there was this element creeping in, for some kind of reason, that they were afraid of this positive preferential treatment. I do not see it that way. I am certain that none of the organisations and individuals with whom I have discussed the Bill see it in that way, either.
§ I will give one example from an excellent document prepared by the Disablement Income Group who have worked extremely hard on this Bill—as they do on all similar measures; and we are grateful to them for their efforts. One of the examples they give is this. They say that if British Telecom, for instance, were to introduce charges for all directory inquiries and make no provision for blind people who depend upon the directory inquiry service to make full use of the telephone, everyone would have to pay. Sighted people can avoid this by looking up a number whereas blind people cannot. That is an excellent example of where this amendment would be relevant.
§ Another example from the same document says that the amendment would also get over the problem of the "No dogs" rule in flats or houses where this rule prevents blind people with guide dogs from living in those houses and flats. This amendment would get over this kind of difficulty. Those difficulties could not be handled under paragraphs (a), (b) and (c) of Clause 9 but paragraph (d) would put it right and, in my view, improve it. I hope that with those few words, together 1003 with the discussions that we have had, the amendment will commend itself to the Committee.
§ The Deputy Chairman of Committees
Amendment proposed: Page 5, line 7, leave out paragraph (d) and insert the words on the Marshalled List and the manuscript amendment substituting the word "affect" for the word "effect" in the first line.
§ 1.53 p.m.
Baroness Darcy (de Knayth)
I should like to support the amendment moved by the noble Lord, Lord Stallard. I did not like the existing paragraph from the moment I saw it. First, I find it very difficult to understand and, in the second part, it really did seem to be unacceptable because I did not see why the able-bodied person should not benefit from some schemes which would benefit the disabled less. One could probably argue that precisely because of their disability disabled people are always going to benefit slightly less to some extent from any scheme which is not specifically designed to benefit the disabled.
The amendment of the noble Lord would ensure that the disabled do not suffer unduly from any scheme; and I am glad that it incorporates the concept of reasonableness because I think that this is very important. Another example that subsection (d) would cover would be the pedestrianisation of large areas, say, shopping precincts. This is very important because shopping areas which have been fully pedestrianised are in a sense wonderful for those in wheelchairs and on sticks and crutches because they have nice flat surfaces and access is easy. But it is a disaster if there is no parking nearby and perhaps worse for those on crutches and sticks than for those in wheelchairs. This can quite easily be solved by making the culs-de-sac which have been created by the pedestrianised area into parking places for the orange badge holders. This will be covered by Lord Stallard's amendment. I support it.
§ On Question, amendment agreed to.
§ On Question, Whether Clause 9, as amended, shall stand part of the Bill?
§ Lord Renton
I had given notice of my intention to oppose this Question and my intention remains the same, in spite of the amendment just made which is undoubtedly an improvement. The basic trouble with Clause 9 is one which we come across very frequently in that it is an attempt to spell out all the hypothetical circumstances which might arise instead of leaving it to the court to decide in general terms whether or not there has been unreasonable discrimination. One could make a rather long technical speech about this, but I will spare your Lordships.
May I, however, refer to just some of the difficulties of interpretation that will arise undoubtedly if and when this clause were to come before the courts. In doing so, I must remind your Lordships of what I said earlier about the fact that litigation is not easy and involves controversy, delays, appeals and so on.
Let us consider some of the points. Look at subsection (1)(b) which reads—and one must use the word "if" to start off—Ifhe discriminates against him on the basis of a characteristic that appertains generally to persons who have such a disability"—1004 and I pause there. The court is going to have to receive evidence on characteristics which appertain generally to persons who have the particular kind of disability. Perhaps medical evidence will be called, psychological or psychiatric evidence. Besides the conflict of evidence, the court will have to reach a decision on the matter, a decision reconcilable in the conflict of evidence on the facts and a decision for which the best the court can do is to give a clear interpretation of this very imprecise term. Let us read on. It goes into further depths:or a presumed characteristic that is generally imputed to persons who have such a disability".Goodness me! If I were sitting judicially I should not like to have to receive evidence on that and reach a decision on it. What is a "presumed characteristic"?
§ The Earl of Longford
May I make a suggestion in a desire to show, I suppose, how intelligent I am! Let us take West Indians. Some West Indians find it rather hard to make themselves understood, the young ones particularly, by people who are not as bright as they ought to be. It could be thought if a young West Indian went for a job he would be turned down and they would say. "Oh no, I cannot take you. You can't make yourself understood. You are a West Indian". It might be quite untrue of him but it might be a label attached, unfairly, if you like, to all people who are West Indians.
§ Lord Renton
The noble Earl has lifted the curtain upon the most remarkable possibilities. In the first place, I did not understand that this Bill referred to linguistic disadvantages. If we are going to blind ourselves to linguistic disadvantages and say that every time somebody possesses one they must nevertheless be turned down for a job in which linguistic capacity or an ability to speak our own language is an essential, then, my goodness, there will be disappointments on the part of potential litigants.
§ The Earl of Longford
I did not mean it to apply directly in the case of this Bill. I was trying to lay the concept before the noble Lord.
§ Lord Renton
If I may with the deepest respect presume to say so to the noble Earl, if he wants to find examples to illustrate the application of the Bill, he should find an example which comes within the terms of it; and clearly the one which he has chosen does not do so. I say that with deep respect. 9(1)(b) says:a presumed characteristic that is generally imputed".Who is going to give evidence as to whether it is generally imputed? Is the court going to have to take judicial notice of it? Judicial notice is not easily extended. The courts are required to take judicial notice of many things—the rising of the sun, the phases of the moon, the tides and all sorts of things—but I do not think they could be required to take judicial notice of presumed characteristics that are generally imputed to persons who have a particular kind of disability.
However, the trouble does not end there, because we have to go to Clause (1)(c) to consider whether the person who discriminates has done so:by reason of the fact that he does not comply, or is not able to comply, with a requirement".1005 I agree that is not so difficult, and in view of the telling speech by the noble Earl, Lord Snowdon, which we all heard with immense admiration, if I may say so, that is the kind of thing which would not be so difficult. But that is in the majority of cases. There would be some cases where it would be a matter of intense discussion. Then we come to subsection (1)(c)(i) which says:the nature of the requirement is such that a substantially higher proportion of persons who do not have such a disability complies, or is able to comply, with the requirement than of those persons who have such a disability,".That raises three or four implications. I will not weary your Lordships with them because I have no desire to be legalistic. But this is a legalistic provision: and, in my submission, we would do better without it altogether. We would do better to leave the question of reasonableness for the courts to decide and not attempt to cover every hypothetical circumstance with these words which will lead to difficulties of interpretation.
Then we come to subsection (2). There is something here to which I must invite your Lordships' attention, because it saysThe Secretary of State may from time to time prescribe by regulations the action or inaction in areas covered by this Act that may he deemed not to constitute discrimination on grounds of disability; notwithstanding the provisions of subsection (1) of this section.That in effect enables the Secretary of State to create lists of exemptions from the terms of the rest of Clause 9; and it is not until the Secretary of State has made that list of exemptions by regulations that people will really know where they stand. I think the courts will lean in this direction once regulations have been made. They will almost certainly say that anything not exempted must, prima facie, be presumed discriminatory. I maybe wrong about that—it is open to legal argument—but at least that is an interpretation which may well be put upon it sometimes by the courts.
One cannot deal fully with the need for Clause 9 without referring to Clause 10, because Clause 10 in effect amplifies Clause 9 and they really stand together. If, as I hope your Lordships will agree, Clause 9 should not stand part of the Bill, it would follow that Clause 10 could not stand part of the Bill.
A very strange thing arises of the timing of the coming into force of Clause 9 and Clause 10. If your Lordships will refer to Clause 19, which is the one that brings various clauses of the Bill into operation, you will see that Clause 9 is to come into force under subsection (3)(b) of Clause 19 after six months. But Clause 10 (which is a remaining one) is to come into force within two months: that is before Clause 9. So we have to assume that Clause 9 in any event will not come into force until the Secretary of State has made regulations under Clause 10 which will create exemptions to Clause 9. I am hoping I am making this clear enough in the simplest terms that I can.
One of the difficulties about Clause 10 which will be of great importance, and could in effect almost nullify the effect of Clause 9, is that Clause 10 coming into force by regulation is subject only to annulment in either House of Parliament and the negative procedure. We shall not be able to amend it. It will come into force automatically unless within 40 days a Prayer is moved in either House to prevent it from 1006 coming into force. There is a further source of confusion. It would be better if the regulations were subject to affirmative resolution, and we shall come to that later. I hope that I have said enough to point out that we should certainly do better without Clause 9.
§ Lord Ennals
I greatly admire the way in which the noble Lord has assiduously studied the Bill, which is exactly as it should be. Had he proposed in terms of amendments some of the comments that he has made, I might have had some sympathy with him and so, I believe, might my noble friend Lord Longford. But the proposal that the clause should be simply deleted is totally illogical and thoroughly unsatisfactory.
Earlier clauses have established that it is unlawful to discriminate against certain disabled people. First, a new offence has been created. Secondly, we have voted to set up a commission to investigate alleged acts of discrimination, as well as to do lots of other profitable things. Thirdly, we have given the Secretary of State powers as set out in Clause 6, and we have given him other powers which are set out in Clause 7. If your Lordships were then to fail to describe the meaning of "discrimination", it would leave the commission, which your Lordships have decided should be established, and the Secretary of State, with powers which they are obliged to use, without the guidance of Parliament on what is and what is not discrimination.
If the noble Lord feels that there are some parts of Clause 9 which should be worded in another way, then his method of approach at Report stage—with his legal abilities, which we all respect—is to come forward with an amendment. I wish that he had done so today, because that is the best way of acting at Committee stage. But to delete the clause would leave a yawning gap in the Bill. It would put an intolerable burden upon the commission and an utterly unfair burden upon the Secretary of State and. I add finally, upon the courts. I said "I add finally, upon the courts", because we must have legislation which defines discrimination and which the courts can properly interpret. But I lay much more emphasis on the other work that will not be done before the courts. That is why I say that we must have a fair definition and I hope that the noble Lord will apply his very active mind and come along at Report stage. But I could not for a moment—and I know that this applies to my noble friend—accept the proposal that the clause should be deleted. It would make nonsense of the Bill.
§ Lord Renton
I am grateful to the noble Lord for his opening remarks. I did not do quite as well as he was kind enough to say, because I should have said in relation to Clause 10 that it is not merely exemptions that can he made under Clause 10, as they can under subsection (2) of Clause 9, but it is such modifications as are necessary that can be made. That leaves us somewhat in the dark. What modifications? Who will decide whether they are requisite? So the combination of these two clauses is very confusion at the moment.
The noble Lord, Lord Houghton, both on Second Reading and later today, as well as other noble Lords, has said that Clause 9 simply will not do as it stands. My solution would be to do what I did altogether, but, as a compromise with the view put forward by the noble Lord, Lord Ennals, I should have been prepared.
1007 if somebody else had drafted it—because I do not hold myself out as being competent to do so—to find a compendious way which would lead the courts in simple terms to the matter which really has to be decided, which is unreasonable circumstances whenever they arise; perhaps with some qualification, but certainly not in these terms, which give rise to endless complicated issues. It would not he fair to the disabled to leave Clause 9 as it is, and, rather than run the risk of that happening, I suggest that your Lordships should leave it out.
§ 2.14 p.m.
§ On Question, Whether Clause 9, as amended, shall stand part of the Bill?
§ Their Lordships divided: Contents, 40; Not-Contents, 33.
|DIVISION NO. 2|
|Ampthill, L.||Jeger, B.|
|Attlee, E.||Kearton, L.|
|Beaumont of Whitley, L.||Kilmarnock, L.|
|Beswick, L.||Lawrence, L.|
|Boothby, L.||Llewelyn-Davies of Hastoe, B|
|Brockway, L.||Lockwood, B.|
|Collison, L.||Longford, E.|
|Cooper of Stockton Heath, L.||Masham of Ilton, B.|
|Cottesloe, L.||Phillips, B.|
|Crowther-Hunt, L.||Pitt of Hampstead, L.|
|Darcy (de Knayth), B.||Ponsonby of Shulbrede, L.|
|Elwyn-Jones, L.||Sefton of Garston, L.|
|Ennals, L. [Teller.]||Snowdon, E.|
|Gaitskell, B.||Stallard, L. [Teller.]|
|Graham of Edmonton, L.||Stodddart of Swindon, L.|
|Grimond, L.||Stone, L.|
|Hale, L.||Taylor of Blackburn, L.|
|Hanworth, V.||Underhill, L.|
|Hatch of Lusby, L.||Wallace of Coslany, L.|
|Howie of Troon, L.||Wigoder, L.|
|Alexander of Tunis, E.||Long, V.|
|Cork and Orrery, E. [Teller.]||Lucas of Chilworth, L.|
|Craigavon, V.||Mancroft, L.|
|De Freyne, L.||Marley, L.|
|Denham, L.||Merrivale, L.|
|Elton, L.||Napier and Ettrick, L.|
|Enniskillen, E.||O'Brien of Lothbury, L.|
|Halsbury, E.||Portland, D.|
|Harvey of Prestbury, L.||Rankeillour, L.|
|Hornsby-Smith, B.||Renton, L.|
|Houghton of Sowerby, L.||Romney, E.|
|Howard of Henderskelfe, L. [Teller.]||Segal, L.|
|Killearn, L.||Stamp, L.|
|Kinnaird, L.||Trumpington, B.|
|Lane-Fox, B.||Vaux of Harrowden, L.|
|Lauderdale, L.||Westbury, L.|
§ Resolved in the affirmative, and Clause 9, as amended, agreed to accordingly.
§ 2.23 p.m.
§ On Question, Whether Clause 10 shall stand part of the Bill?
§ Lord Renton
To ease your Lordships' minds, I do not intend to divide the Committee on this "clause stand part" motion, but I should like to ask the noble Earl whether he will explain Clause 10; it would help 1008 very much. What modifications does he have in mind when he says in Clause 10:Section 9 of this Act relating to discrimination … is to be read as applying equally to anyone discriminated against on the grounds of disability".That is plain enough so far, but the later words require explanation:and for that purpose shall have effect with such modifications as are requisite".These modifications seem to be clasped out of the air and I am not quite sure how they are to be brought about. I do not understand, and it is not stated, who will decide whether they are requisite. I feel that this clause does need more explanation in order to answer those points.
§ Lord Ennals
This is a difficult concept and it was inserted in order to be fair, because if one has legislation which says that it is an offence to discriminate against someone who is disabled on the grounds that we have already defined in the Bill, someone else may feel, as a result of a disabled person not being discriminated against, that they have been discriminated against. We are in fact dealing with negative discrimination, and this is, in a sense, to legalise positive discrimination in favour of disabled people, even though others might in consequence be discriminated against. I. personally—I can speak only personally on this, and in any case it is Private Member's Bill—do not feel very deeply about this clause. I would not go into the Division Lobby and I am glad, therefore, that the noble Lord is not going to press it to a Division. I will ask my noble friend whether he will look at it again before we come to Report. I think this is a confusing concept, and we do not want to add any confusion to the Bill.
§ The Earl of Longford
May I just say that I shall be pleased to look at it again. At the moment I stand firm on it, but I am perfectly ready to look at it again.
Baroness Darcy (de Knayth)
I feel quite strongly that this clause, should stand part of the Bill. It is very important that the able-bodied also come into it; as Section 2 of the Sex Discrimination Act applied to men, so this would make the Act apply to the non-disabled. It would also, I think, apply to families of disabled people. Say an able-bodied family with a handicapped child was refused accommodation on the grounds of that child's handicap, it would be the able-bodied parents who would need this section. A person who is at risk from an inherited disease but who has not actually manifested any of the signs of that disease might be discriminated against on those grounds, although he would not qualify as disabled at that time. I know nobody else is really with me on this matter, but I feel strongly that the clause should stand part.
§ Lord Renton
The noble Baroness, Lady Darcy (de Knayth), has mentioned circumstances with which I am familiar, because in a large block of flats in Westminster we had a flat on which there was a lease in which it was written that "no person of unsound mind shall be admitted," but we regularly took our mentally handicapped daughter there. Nothing ever happened, and I knew it would not happen, because she had no behaviour problem. If the landlords had 1009 tried to turn us out I would have obtained relief against forfeiture of the lease from the court. So, quite frankly, that does not present a problem in practice with our courts, with their very equitable jurisdiction.
§ Lord Ennals
May I ask the noble Lord this question? If he were not a noble Lord, or even, as he was before, a Member of the House of Commons, but maybe a modest person less able to speak with great clarity and perhaps even loudly on occasions—though I have never heard the noble Lord speak loudly—does he not think that there should be such a provision for ordinary human beings?
§ Lord Renton
No, I think the noble Lord dishonours the people of our country when he says so. I have never heard of a clause like that being enforced, although it is right that there should be such a clause because there are people, both mentally ill and mentally handicapped people, who can create a frightful disturbance in a block of flats. It is right that the landlords should have that up their sleeve. But it was obviously too widely drawn in that case.
I think the fear which the noble Lord has expressed is an unfounded one in practice, and I speak from very long experience of practice. II I may use what I regard as the now operative word in this Bill, may I say that the noble Lord, Lord Ennals, and the noble Earl have both been reasonable in their attitude to my comments on this clause. I am living in hope that their reasonableness will survive.
§ Clause 10 agreed to.
§ Clause 11 [Regulations]:
§ On Question, Whether Clause 11 shall stand part of the Bill?
§ Lord Renton
I do not intend to detain your Lordships further but I said earlier that it is not good enough for the regulations under this Bill, which are of vast importance and many of them can be made, to be merely subject to annulment by the negative procedure. After all, let us consider the various places in the Bill where the Secretary of State can make regulations. Indeed, he can make regulations which will enable the law to be altered, and altered substantially. To have that merely the subject of a negative resolution is not good enough, and I hope that between now and Report the noble Earl will consider amending the Bill so that regulations are subject to an affirmative resolution.
§ Clause 11 agreed to.
§ Clause 12 [Amendments to section 1 of the 1970 Act]:
Lord Stallard moved Amendment No. 12:
Leave out Clause 12 and insert the following new clause:
§ ("Amendments to section 1 of the 1970 Act.
§ 12.—(1) In section 1(1) of the Chronically Sick and Disabled Persons Act 1970 after the words "within their area and- there shall be inserted the words "so far as reasonably practicable, of the identity of such persons and".1010
(2) At the end of section 1(1) of that Act there shall be added the following words—
and shall inform every such person of the facilities and services available to him".
(3) At the end of section 1(1) of that Act there shall be added the following new subsections:—
(1A) It shall be the duty of every local authority which finds it is not practicable to provide within its area the special therapy, rehabilitative or educational facilities that are required to meet the needs of the disabled persons residing in its area:
(1B) Where it is not practicable for a local authority to provide in its area the special therapy, rehabilitative or educational facilities in its area or where a local authority is unable to secure the use of such facilities as provided for in subsection (1A) above it shall be the duty of the local authority to promote in conjunction with other local and statutory authorities or bodies and with voluntary organisations concerned with the interest of the disabled person requiring the use of such facilities to serve the needs of disabled persons who reside in the area of the local authority and in an area or areas which are conveniently associated.
(1C)(i) If a disabled person or the parent of a disabled person under the age of 18 years asks the local authority to arrange for an assessment to be made of the disabled person's needs the local authority shall within 6 months of the date of the request comply with the request unless it is in their opinion unreasonable.
(ii) Assessments under this sub-section shall be made in accordance with guidelines to be laid down in Regulations to be made by the Secretary of State on the ways in which identification and assessment of disabled persons shall be undertaken.
(1D)(i) Every local authority shall make arrangements for a disabled person or his parent to appeal if after making an assessment of the special needs of a disabled person under this section the local authority decides that it is not required to provide or arrange for the use of the special facilities required by this section.
(ii) A local authority shall inform the disabled person or his parent in writing of its decision and the reasons for its decision and of his rights to refer it to an appeal committee.
(iii) An appeal by virtue of this subsection shall be to an appeal committee appointed by the local authority which shall be constituted in accordance with guidelines to be laid down in Regulations to be made by the Secretary of State.
§ (4) Subsection (2)(b) of section 1 of that Act shall be omitted.").
§ The noble Lord said: Although this is a fairly long amendment on the Marshalled List it is a re-written version of the existing clause to improve the drafting of it without necessarily altering the sense so that the wording is tidied up to make it more acceptable, in Parliamentary draftsmanship terms.
§ It is on the sense of the clause that I wish to say a few words. The first part of the new clause amends Section 1 of the Chronically Sick and Disabled Persons Act 1970, so that "so far as reasonably practicable" local authorities will identify disabled persons in their area and find out more information about the disabled population in their area. We know that many of the better local authorities already do this. Indeed, the amendment brings the law of England, Scotland and Wales into line with existing Northern Ireland legislation. Therefore, the machinery already exists in both those instances for the gathering of information on disabled people. What is wrong at the moment is that it is not adequately utilised in most cases and that is what we attempt to correct in the first part of the 1011 amendment. I believe it was Professor Townsend who once said—I am paraphrasing his words—that we have a very subtle and elaborate form of discrimination against the disabled in this country; we do not even count them. That is about right. This part of the amendment seeks to put that right in order to get local authorities to implement this necessary identification of the disabled and their needs.
The proposed changes in that respect have been criticised on the basis of cost, as everything is. We could argue from now until doomsday about the social cost, when cost is necessary and what is or is not necessary. I have not seen any scientific reply to this argument about cost. I was in the Chamber in another place recently when the Minister replied to a Question about cost. He was asked how he estimated the cost of £30 million to conduct these surveys on the part of local authorities. He was asked how he arrived at that figure. He said:
The answer … is that the basis of the calculation was that it cost £750,000 to conduct such surveys for 1.5 million people in Northern Ireland. By a simple arithmetical process we calculated roughly what it would cost for … Great Britain".—[Official Report, Commons. 31/1/84; col. 122.]
None of us, certainly not from the kind of discussion we have had this morning, would accept that as a scientific analysis of the cost of a survey. Nor do we accept it.
§ There are other surveys that put the cost as low as £4 million, so there is a great discrepancy between the Minister's simple arithmetic and the much more complicated and scientific approach carried out by voluntary organisations and others who work in this field with their realistic estimates of between £3 million and £4 million. So we ought not to put too much store on the Government spokesman's estimated cost for this survey.
§ The second part of the suggested new clause would extend the existing responsibility of the local authority to inform disabled people as to what services it provides to include services provided by all other organisations. It is not good enough for the local authority to say only what services it provides. We want it to say what services are available in the area generally, whether provided by voluntary organisations, and so on. We want to include that provision.
§ The suggested new subsection (1A) is aimed particularly at the problems faced by minority handicappped groups. I pay tribute to the National Association for Deaf-Blind and Rubella Handicapped, which has done much of the work in drawing attention to the problems faced by a minority group. There are also the spastics, and many other groups. Noble Lords can probably think of other examples. But the National Association for Deaf-Blind and Rubella Handicapped has been exceedingly helpful in bringing the problem to our attention.
§ Because of the small number of young adults involved in this particular case, it may not be justified to insist that the local authority provides services in the area. There may be only three, four or five, or even just one, in a particular minority group. We therefore ask for national or regional planning to take care of the 1012 needs of the smaller minority groups. Having identified the group, and informed its members of the facilities that are available, we have to make sure that they are available. That involves national and regional planning and the setting up of special provisions. Rather than leaving the voluntary organisations to deal with these problems, we feel that it should be written into the Bill that local authorities and the Government have a responsibility to provide facilities, and, in the case of local authorities, to fund the people identified as needing these facilities, wherever they may be. It should provide the finance for the one or two youngsters in the area to be sent to the nearest facility, wherever that may be.
§ The final difficulty that might arise in the interpretation of the clause is the problem of assessment of the disabled person. We are indebted to RADAR, which has been mentioned a number of times today. It has a code of guidance in relation to assessment procedures which the best of the local authorities already follow. One proposed new subsection in the amendment would seek to legalise the code of practice in order to improve overall standards or to bring all authorities up to a good standard.
§ New subsection (1D) recognises the fact that, by itself, the code of practice may not be sufficient, and it would introduce an appeals procedure. That is something that is lacking in many of the provisions for the disabled. They have nowhere to go to appeal against a decision. Again, the National Association for Deaf-Blind and Rubella Handicapped suggests that an appeals procedure could be on lines similar to those laid down in the Education Act 1981. Your Lordships will be conversant with that provision, so I shall not go into it in detail. It seems to me to be an excellent basis on which to found the appeals procedure.
§ I hope that this new clause and the explanations which I have tried, however inadequately, to give, will commend themselves to your Lordships. The voluntary organisations and local authorities involved have welcomed the proposals in the new clause, and I hope that in the same spirit the new clause will be welcomed by your Lordships' Committee. I beg to move.
§ On Question, amendment agreed to.
§ Clause 13 agreed to.
§ 2.40 p.m.
§ Clause 14 [Local Authority charges for services]:
The Earl of Longford moved Amendment No. 13:
Page 7, line 31, leave out ("Without prejudice to") and insert ("Notwithstanding").
§ The noble Earl said: This is a technical amendment. I beg to move.
§ On Question, amendment agreed to.
§ The noble Earl said: This, too, is a technical amendment. I beg to move.
§ On Question, amendment agreed to.
§ Clause 14, as amended, agreed to.1013
§ Clause 15 [Composition of Social Security Advisory Committee]:
§ On Question, Whether Clause 15 shall stand part of the Bill?
§ Earl Attlee
I oppose the Motion, That Clause 15 shall stand part of the Bill, because word for word it is contained in paragraph 3(1) and (2) of Schedule 3 to the Social Security Act 1971.
§ Clause 15 disagreed to.
§ Clause 16 agreed to.
Earl Attlee moved Amendment No. 15:
After Clause 16, insert the following new clause:—
§ ("Hospital accommodation.
.—After section 17(1) of the Chronically Sick and Disabled Persons Act 1970, there shall be inserted the following subsection:—
(1A) so far as is practical, a person of whatever age suffering from a condition of chronic illness or disability shall not be cared for in the same hospital as patients suffering from mental illness which manifests itself in bouts of shouting or screaming or other noise so as to cause distress, inconvenience or annoyance to other patients not so afflicted and to inflict undue burden and stress on nursing staff, where necessary and specialised facilities and staff specifically trained for such duties are not readily available".")
§ The noble Earl said: I apologise for the drafting defects in this amendment, but this is the first time that I have tried to draft an amendment. Basically, Section 17 of the Chronically Sick and Disabled Persons Act 1970 separates young patients from older ones, and though it does not state how old the younger people are, it states that older people are those who are aged 65 or over or who are suffering from the effects of premature ageing. I do not know why it was decided to separate the young from the old, though I should imagine that it was because the requirements of the young are different from those of the old. One can imagine that the young people probably like loud music and watching television, while the old people want a quieter life and are not really interested in music.
§ The trouble is that at the moment there is no law which separates certain patients who are in-patients in hospitals from other kinds of patients. I am referring specifically to some patients who have a disability which causes them to scream usually very loudly and for prolonged periods. I would not swear to this, but I believe that what these people suffer from is called either senile dementia or premature senile dementia. If even only one patient who suffers from this unfortunate malaise is put in with a whole lot of other patients who may be in hospital only because of some physical disability, such as muscular dystrophy, that one patient can disrupt the whole hospital.
§ My amendment is merely to get these unfortunate people moved to a hospital where they are better able to be looked after by the nursing staff. I know of one particular case of a girl who screams for two hours on end while she is being bathed and dressed. The result is that the patients themselves are upset, and when the nursing staff return to look after the ordinary patients, the nursing sisters' hands are shaking and their nerves are shot to shreds. This does not seem to me to be right. Therefore, if my amendment is accepted, people with this type of disease would go to a special hospital.
§ It may sound as though I am being cruel and thoughtless, but I am given to understand that such 1014 people have very short memories, so short in fact that if such a person were to go out one day—and going out is a great thing for them—and one asked him the following day if he had enjoyed himself, he would say, "What do you mean?". One says, "Well, you went out yesterday" and he would say "Oh, did I?" So if these people are taken away from one environment and put into another, I honestly do not think they will miss the first one at all. Therefore, I beg to move.
§ Baroness Masham of Ilton
It is very sad that this amendment had had to be put forward, because surely this is a bad management matter at district hospital level. Someone who shouts and screams should be put into a side ward so that he or she does not disturb the other patients. There are some problem patients, such as those unfortunate people who suffer head injuries and nobody quite knows which hospital to put them in. The big problem is when some hospitals do not have enough room to make a private place. I hope that as this is a health matter the Minister will speak to the amendment.
§ Earl Attlee
If I may refer back to what the noble Baroness has said, I should like to point out that in the hospital to which I was referring all the patients are in separate rooms and, so far as I know, there are not any big wards, although there may be some. But the person who has these screaming fits is in a private room. If these rooms were well soundproofed it would be all right, but they are not soundproofed and the girl's screams can be heard throughout the hospital. But I, too, would welcome comment by the noble Minister.
§ On Question, amendment negatived.
§ Clauses 17 and 18 agreed to.
§ Clause 19 [Short title, extent and commencement]:
§ 2.48 p.m.
Baroness Darcy (de Knayth) moved Amendments
Nos. 16 and 17 together:
Page 9, line 7, leave out ("9").
Page 9, line 7, leave out ("and 16") and insert ("16 and 17").
§ The noble Baroness said: With the leave of the Committee, I beg to move Amendments Nos. 16 and 17 together. They are extremely simple, almost drafting amendments because they are to correct an error. It always should have read "17", and not "9" at the beginning. It was never intended that Section 9 should come into force six months after the date on which the Act is passed as it stands at the moment, because that would make Section 1, outlawing discrimination, come into force a good four months before the definition of discrimination, which would plainly be ridiculous. Section 17 applies to Scotland and it was always intended that this should come into force six months after, to give a hit more time to Scotland. I beg to move.
§ On Question, amendments agreed to.
§ Clause 19, as amended, agreed to.
§ House resumed: Bill reported with the amendments.