HL Deb 22 March 1984 vol 449 cc1425-33

7.14 p.m.

Report received.

Clause 1 [Discrimination on grounds of disability]:

The Earl of Longford moved Amendment No. 1: Page 1, line 7, after ("discriminate") insert ("unreasonably").

The noble Earl said: My Lords, I hope that this amendment meets the points that were raised at our last meeting, particularly by the noble Baroness, Lady Masham of Ilton, who is not here, and the noble Lord, Lord Renton. After all the hard work that the noble Lord, Lord Renton, has put in on the Bill, I find it very pleasant to be able to meet him on one point to which I know he attaches importance.

On the last occasion the noble Lord, Lord Renton, at col. 970 of Hansard on Friday, 24th February, said: 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". We are meeting the noble Lord on that point by including the word "unreasonably". Whereas at present Clause 1 says that: It is unlawful for a person to discriminate against another person on the grounds of disability", if this amendment is carried it will read: It is unlawful for a person to discriminate unreasonably against another person on the grounds of disability". I expressed a certain sympathy with this last time, but I was aware then that there were some people who would say that discrimination itself is unreasonable and that therefore it is weakening the idea of discrimination if we include this word. However, having looked it up in the dictionary I am sure that discrimination itself does not involve unfairness—at least according to the dictionary.

If we take the phrase "to discriminate against", there are various meanings in the dictionary, but the one I quote is: to make an adverse distinction with regard to". So discrimination means making an adverse distinction, but it does not necessarily mean, on the face of it, making an unfair or unreasonable distinction. Therefore, without more ado I am happy to propose that the word "unreasonably" be included. I beg to move.

Lord Renton

My Lords, I should like to say that I think that the noble Earl has been wise to table this amendment, and I hope that your Lordships will accept it. My own experience in a long life has been that discrimination in favour of people is a much more frequent occurrence than discrimination against them. So this matter did most certainly require clarification, and the noble Earl's amendment provides it.

May I say while I am on my feet that I have tabled no amendments for the Report stage, partly because I wanted to see how the noble Earl's amendments went but also because in the reality of things one knows that this Bill will not get on to the statute book, and I happen to be somewhat preoccupied with other legislation.

Baroness Darcy (de Knayth)

My Lords, I am not completely happy with the amendment, mainly because it allows the idea of reasonable discrimination; but I know that, as the noble Earl, Lord Longford, has said, at Committee stage a great many people were very worried, including, as the noble Earl mentioned, my noble friend Lady Masham, who I am afraid cannot be here today because she has a very important meeting.

But if your Lordships will allow me, I should like to refer also to my amendment to Clause 9—namely, Amendment No. 7—which I feel would be essential if the noble Earl's amendment is accepted. Amendment No. 7: Clause 9, page 4, line 29, after ("discriminates") insert ("unreasonably"). My Amendment No. 7 would make the definition of discrimination in Clause 9 apply to unreasonable discrimination. I think that the noble Earl and I are agreed that the behaviour outlined in Clause 9 is what we are seeking to make unlawful, whatever it may be called. Indeed, it is not really very important what it is called. What is very important is that Clause 1 and Clause 9 should use the same words.

I should like to draw a parallel to illustrate what I mean, and I hope it is an exact parallel. Let us suppose that we want to stop people shouting and seriously disturbing other people, and so we decide that 70 decibels is a noise that is as loud as people can reasonably bear and, therefore, we define "shouting" as anything above 70 decibels. However, we then say that it is unlawful to shout loudly. If "shouting" is anything over 70 decibels, then presumably "shouting loudly" must start at a higher pitch. So not all levels of noise contained in the definition would be unlawful, although that was the intention. That is my fear as regards this Bill. If we state that unreasonable discrimination is unlawful, and then define, under "discrimination", the behaviour that we are trying to outlaw, it is possible that not everything contained in the definition will be unlawful, although that was what was intended. I hope that I have not made your Lordships more muddled than you were already.

I have had to go into this matter at length because this is the Report stage, and I cannot speak again to the noble Earl's amendment. I look forward to hearing what he has to say and how he feels about my amendment. If he has no objection to my amendment, then I shall not object to his amendment because I appreciate the reasons for which it has been put forward. However, I submit that we should not have one amendment without the other.

The Earl of Longford

My Lords, am I allowed to speak twice at the Report stage?

The Deputy Speaker (Lord Nugent of Guildford)

Yes, my Lords, with the leave of the House.

The Earl of Longford

My Lords, I have no objection to the suggestion of the noble Baroness. If at some later point, when this Bill is drawing even nearer to the statute book than is expected by the noble Lord, Lord Renton, some lawyer comes along and says that we must have another look, then we shall have to have another look. But at the moment I am happy with this.

On Question, amendment agreed to.

Lord Ennals moved Amendment No. 2: Page 1, line 9, leave out ("relates") and insert ("applies").

The noble Lord said: My Lords, this is entirely a technical amendment and merely brings the wording in Clause 1 into line with the rest of the Bill. It had been the intention to do so at Committee stage but we failed to do so. After saying that I would then have sat down had not the noble Lord, Lord Renton, made his comment that it is not really worth while putting down amendments because this is the end of the Bill. I just want to say that I do not think that we in this House should ever take that assumption at all.

We are in this House, I would submit to noble Lords, seeking to act as legislators. The other place did not reject the Bill. It did not have a Second Reading but it was not rejected on Second Reading. Opportunities may occur in another place. Our task is to hand it on to another place, and if another place does not accept it, to have ready to present here again a Bill in as good a form as it can be. If I agreed with the noble Lord I would not have taken the trouble, together with my noble friend and the noble Baroness, to move even a technical amendment. I beg to move.

On Question, amendment agreed to.

Lord Ennals moved Amendment No. 3:

Page 1, line 9, at end insert— ("() In this Act "disability" means—

  1. (a) any restriction or lack of ability to perform an activity in the manner or within the range considered normal, such restriction or lack of ability being on account of any psychological, physiological or anatomical structure or function; or
  2. (b) any severe disfigurement.").

The noble Lord said: My Lords, noble Lords who are here will remember that in Committee I sought to introduce on behalf of my noble friend a definition of "disability". I argued that it was good to have it early in the Bill, and that it was a better and more clearly defined form of words than appears in Clause 5(1)(b). The wording that I sought to move then came in for some considerable criticism from the noble Lord, Lord Renton, although he generously said at col. 978 of Hansard on 24th February that he had some sympathy, with the method of drafting which brings definitions to the front of the Bill". This is why I thought it was right to come back with a new definition.

The definition that was debated at Committee stage was criticised not only by the noble Lord, Lord Renton, but by the noble Lord, Lord Henderson of Brompton. I said then, when withdrawing it, that my noble friend and I would consider the question again and come back. We feel strongly, and in this RADAR—the Royal Association for Disability and Rehabilitation—also feels that there needs to be in the Bill a clear definition of "disability". If there is no definition the adjudicating authorities will interpret the term "disability" according to its normal usage, which is simply loss of function.

Clearly the definition was under strong criticism. The purpose of Report and Committee stages is to try to make improvements and to meet the arguments presented. The noble Lord, Lord Renton, at col. 978, said: 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' ". He thought that was too broad. He also criticised the paragraph (c) which had been proposed: the malfunctioning or disfigurement of any part of the body or mind". So I thought that we had to start again.

My noble friend Lord Longford and I went and had a look, and consulted with the Disablement Income Group, and with its secretary, Peter Large, who was of course the chairman of CORAD, which is the basis of this Bill, and so we have tried again. The definition which is now tabled in the name of my noble friend together with that of the noble Baroness is in fact the definition of the international classification of impairments, disabilities and handicaps adopted by the World Health Organisation in 1980. The first part of the wording is taken directly from their definition of impairment and disability.

The words "severe disfigurement" were not included in that definition, but it was the general view of those who spoke in the Committee that severe disfigurement should be included, and I think no one will want to go back on that. If a person lacks ability to perform some activity then he, or she, cannot be deemed to be discriminated against if they are turned down for a job because they lack this ability, provided always that the activity in question is strictly essential for the work in hand. Some people may otherwise find the definition confusing in the context of antidiscrimination legislation.

I hope that this simpler definition may commend itself to the noble Lord, Lord Renton. I wish it would commend itself to the Government, but I suspect that the noble Lord is going to maintain silence during his lunch and dinner break as he did before, so it is with pleasure that I beg to move this amendment.

The Lord Bishop of Norwich

My Lords, I should like to give general support for this amendment on two grounds. First, it is proper from these Benches that we should have a particular concern with all disadvantaged people, and in particular the chronically sick and disabled. I see the problem of the noble Lord, Lord Ennals, of Norwich, in trying to draw the definition so closely as in paragraph (a), and how easy it is for us to see the difficulty there in finding a specific method. But with the goodwill of the House this looks as though it is as good as we shall get if we are going to define closely, despite what the noble and learned Lord, Lord Simon of Glaisdale, was saying to us in the earlier debate about the difficulties of close definition.

The second reason why I should like to support this amendment is that if it brings us into line with other parts of Europe that is good. The third reason is because I am glad that the noble Lord, the noble Baroness, and the noble Earl have added "any severe disfigurement", because this is where isolation comes in so much. When people become isolated from their fellows because of their sensitivity concerning a severe disfigurement, then great distress is caused to them and it is our task to try to care for people like that.

I use one illustration, and with that I finish. I live in the city of Norwich, which the noble Lord has attached to his title—and rightly too, because he served the city of Norwich magnificently, and he and I have both been taught karate there, have we not? But that is another story. The noble Lord will know as an example that we have in Norwich the _Priscilla Bacon lodge, which cares for people mostly with cancer, and it is widely supported. It is a most caring and wonderful place, and probably one of the lights which shine in the dark area of cancer. There is nothing but tremendous support and encouragement for that. It is all part of our National Health Service although set up first and foremost by Cancer Relief.

On the other half of that same area of the old Colman Hospital is our Caroline House for chronically young sick. The difficulty we have in getting people concerned with, supporting, visiting, and being present at Caroline House—and they are all in the same compound—is so great that anything that your Lordships can do in this way to highlight the need of caring for chronically sick and disabled, particularly through this phrase "any severe disfigurement", and helping to continue to make them part of the whole community, as opposed to the danger of just laying them on one side, is good. I hope that in general terms, even if there are defects concerning paragraph (a), your Lordships will support this amendment.

Lord Renton

My Lords, may I first say, as I did before, that if a definition is to come it should come early in the Bill; and that is right. I find that this definition omits mental handicap and mental illness. Coupled with Amendment No. 6 this appears to be the deliberate intention of the noble Earl and the noble Lord, Lord Ennals. In view of what I said at Second Reading and Committee, I can but welcome that omission, if that is a thing that can be done.

Having said that, I wonder whether I may make one or two comments—

The Earl of Longford

My Lords, may I interrupt the noble Lord? I may have misunderstood him, but did he say that he is now under the impression that we are anxious to omit the mentally handicapped? That is not my intention.

7.30 p.m.

Lord Renton

My Lords, in that case, I am afraid that the noble Earl has done something that he did not intend, because in this definition there is no mention of mental handicap, mental impairment or mental illness. The nearest we get to it is "psychological … function", whatever that may be. Perhaps the noble Earl or the noble Lord, Lord Ennals, if he has leave of the House to reply to this short debate, could explain what "psychological function" means. One has to bear in mind that the first part of the paragraph down to the word "normal" after which the comma appears, is qualified by the second part of the paragraph. If I may, I will read it: Such restriction or lack of ability to perform an activity being on account of any psychological, physiological or anatomical structure or function". The word "mental" is not included in any of those three phrases. Clearly the result—which I must welcome in view of what I said about the difficulties of this concerning those suffering from mental handicap; I think the same applies in many cases to those suffering from mental illness—is that they would not be included in the Bill.

The drafting of this is something that I have not seen before. I find it unusual in the context of our legislative expressions. I strongly suspect that this result in our language has been achieved by an attempted translation from the French, in which so many of these continental documents and pieces of legislation are at first drafted. The French becomes the master form. Anything after that, even when put into our own famous language, is not the master form, but has to follow suit. I find the result strange. Therefore I could not commit myself to the drafting of this, although I see that a valiant effort has been made.

Lord Ennals

My Lords, with the leave of the House, I am grateful to the noble Lord, Lord Renton, for raising this matter. I want to emphasise the point made by my noble friend Lord Longford that there is no intention here, nor do I think the words so imply, to exclude the mentally handicapped from the Bill. If the noble Lord, Lord Renton, looks carefully he will see the words: the lack of ability to perform an activity in the manner or within the range considered normal". That is the first point.

The problem that mentally handicapped people face is precisely that. They are not able to perform an activity, in the manner or within the range in which people who are normal and not mentally handicapped are able to operate. In that definition there is no reason to say that this excludes the mentally handicapped. The question is: what is someone who is mentally handicapped?

The largest group of mentally handicapped are, I suppose those with Down's syndrome. One might find that they would be covered by all three terms, certainly by "physiological" and "anatomical" structure or function. There is a clear medical reason, a clearly-defined condition of Down's syndrome, which the noble Lord will know far better than I, which is a structural problem. We need not go into the details of that but I think no court considering these words—and I hope, as I said at Committee stage, that none of these issues will come before the court but we have to be prepared for them—would decide that that definition would exclude the mentally handicapped.

The question arises whether it would exclude the mentally ill. Let us, for example, take schizophrenia. If such a mental illness makes these people unable to perform, an activity in the manner or within the range considered normal", and if within that definition a schizophrenic is unable to perform certain functions because of his condition, maybe the defective chemical balance within the system would allow him to be included. Psychological reasons might include certain other categories of mental illness. I do not accept, as the noble Lord suggested, that the wording, either deliberately or in fact, excludes the mentally handicapped or the mentally ill.

On Question, amendment agreed to.

Clause 2 [Appointment and duties of Disablement Commission]:

Baroness Darcy (de Knayth) moved Amendment No. 4: Page 2, line 14, leave out from ("disabled") to end of line 15.

The noble Baroness said: My Lords, this amendment is moved because we feel that the words we are seeking to leave out are totally unnecessary. We are striking out the words, and whose various disabilities are those to which the Act applies. I think they are tautologous and I beg to move.

On Question, amendment agreed to.

The Earl of Longford moved Amendment No. 5: Page 2, line 15, at end insert ("or people who are qualified to represent such disabled people.")

The noble Earl said: My Lords, I move this amendment with less confidence than I had on the other amendments. I do not think that it is perfect in its present form, and it is not easy to get it right. I think the noble Baroness may have a suggestion which may persuade me to bring in a proposal on her lines at the next stage.

I had better explain the difficulty. I am assuming, if the noble Lord, Lord Renton, will allow me to do so, that the Bill covers the mentally ill and the mentally handicapped. It was drawn up on that assumption. If by way of some legal advice we are told that that is not so, even at the last stage we might have to include some other words. But taking it as it is intended to cover the mentally ill and the mentally handicapped, we are faced with the problem of whether we can seriously propose that some of the mentally ill and the mentally handicapped should serve on the commission. It is obvious that the mentally handicapped would not themselves be able to serve on the commission. It is almost as obvious that the mentally ill could not serve, though that may be argued at some length.

On the other hand, it is perfectly obvious that the physically handicapped can, and should be allowed to, serve on the commission; and so some slightly complex formula has to be found. I am not happy about my suggestion because I am saying it makes good sense that half the members of the commission should be disabled or people qualified to represent disabled persons. If there were 12 people on the commission, it might mean that six were disabled or were qualified to represent them. That could mean that all six were qualified to represent them or were members of the estimable societies which have been referred to. In other words, under this phrasing it would be possible that there would be no disabled people on the commission. I feel that slightly different words are necessary. It may be that the noble Baroness would care to unfold her own idea, which sounded to me to be a good one, and if the House thinks fit, I could bring it up at Third Reading.

Baroness Darcy (de Knayth)

My Lords, I was very worried when I first saw this amendment, and then I realised that the noble Earl, Lord Longford, was probably trying to meet the noble Lord, Lord Renton, who had been worried about the question of the mentally handicapped and the mentally ill being represented on the commission. Actually, I think that it is perhaps a bit much to ask that half of the total number on the commission should themselves be disabled. I think that that half should be composed of at least two disabled people and some qualified to represent them. I have a suggestion as to a provision which if perhaps, I may read it out, the noble Earl will consider whether it would be a good idea to bring it forward at Third Reading. It would read: At least one-half the total number of members of the Commission shall consist of two or more people who are themselves disabled and other people qualified to represent such disabled people whose various disabilities are those with which the Act complies". I think that the words, whose various disabilities are those with which the Act complies could be left out, as we left them out earlier on.

Lord Ennals

My Lords, I would have difficulty even with the words that have been proposed by the noble Baroness. We could then find ourselves in a situation with a commission of 12 and with only two disabled people on it. I do not think that that is enough. If she decides to have four, then two of the group would represent the mentally handicapped. I should be happy with that, though we cannot do that at this stage. That is clear. It would have to be a Third Reading amendment, and I hope that the combined brilliance of noble Baronesses and noble Lords can then come up with an appropriate amendment.

Lord Renton

My Lords, with respect, I think the noble Earl has got this right.

The Earl of Longford

My Lords, it would seem to me the best course would be to withdraw the amendment, giving notice that I shall be bringing forward an amendment analogous to this one, if not an improvement on it, at the next stage.

Amendment, by leave, withdrawn.

Clause 5 [Regulations of Secretary of State as to scope of Act]:

Lord Ennals moved Amendment No. 6: Page 3, line I, leave out paragraph (b).

The noble Lord said: My Lords, this is a very simple amendment. This particular definition was retained at Committee stage, though I had an amendment on the Marshalled List to delete it. But I left it in so that there could be a definition. Now that we have agreed, early on in the debate, on a new definition, it clearly would be confusing to retain the second definition. I beg to move.

On Question, amendment agreed to.

Clause 9 [Meaning of "discrimination"):

The Baroness Darcy (de Knayth) moved Amendment No. 7:

[Printed earlier: col. 1426.]

On Question, amendment agreed to.

[Amendment No. 8 not moved.]

Lord Ennals moved Amendment No. 9: Page 5, line 9, leave out subsection (2).

The noble Lord said: My Lords, now that we have added the word, "unreasonable" before "discrimination" in Clause I, there would seem to be no need to have this kind of let-out subsection. With both the word, "unreasonable" and this subsection in the Bill, there would be too many opportunities for acts of discrimination to be allowed to remain lawful. If it is thought essential to retain the subsection—and I hope that it will not be—then we could think of another form of words. I believe that the subsection now, together with the special powers of the Secretary of State, is not required and that it would excessively weaken the Bill in the light of the amendments already approved in the course of tonight's debate. I beg to move.

Lord Renton

My Lords, I am sure that this is right, but I have to confess that the business moves so much faster than does my mind that I did not understand why it was that Amendment No. 7, in the name of the noble Baroness, Lady Darcy (de Knayth), was not agreed to. Perhaps it is too late for me to complain about this, but I think that it was a very good amendment and should have been agreed to.

Baroness Darcy (de Knayth)

My Lords, I had already spoken to Amendment No. 7 on Amendment No. 1. The Question was put and it was agreed to.

On Question, amendment agreed to.

Baroness Trumpington

My Lords, I beg to move that the House do now adjourn during pleasure until 8.10 p.m.

Moved accordingly and, on Question, Motion agreed to.

[The sitting was suspended from 7.45 until 8.10 p.m.]