HL Deb 01 July 1992 vol 538 cc846-51

8.8 p.m.

Baroness Lockwood

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.—(Baroness Lockwood.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (The Viscount of Oxfuird) in the Chair.]

Clause 1 [Interpretation]:

Baroness Lockwood moved Amendment No. 1: Page 2, line 26, leave out ("reasonable") and insert ("justifiable").

The noble Baroness said: As with all the amendments before the Committee this evening, Amendment No. 1 is a tidying-up amendment. It brings the Bill into line with the race and sex discrimination legislation which already operates in this country.

A number of references to the need for the amendment have already been made both in your Lordships' House and going back to 31st January 1992, when the Minister in another place, Mr. Nicholas Scott, suggested that, the requirement on an alleged discriminator to show that a requirement is reasonable is a less stringent test than that which exists in the sex and race discrimination legislation, where it must be shown to be justifiable".—(0fficial Report, Commons, 31/1/92; col. 1253.)

Amendment No. 1 introduces that higher test of "justifiable". The alleged discriminator will have to show under the amended clause that a requirement is justifiable and not just reasonable. There is a considerable amount of case law which indicates that a reasonable interpretation of "justifiable" has been made by the courts. I beg to move.

Lord Campbell of Alloway

I support the amendment. As the noble Baroness has said, it certainly reflects the case law position and there is no reason for a lesser test than the accepted test of "justifiable".

Lord Auckland

As my name is down on the list, I rise to support the amendment. Another point to be made is that in so much legislation "reasonable" appears as a rather ineffective word. I believe "justifiable" puts the onus on the organisation concerned to make the thing work. The adjective "justifiable" strengthens the Bill in that it gives some incentive to make the proposal work and therefore is well worthy of support.

The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley)

I rise to say that I do not intend to intervene tonight on any of the amendments. I did say at an earlier stage that we did not feel the Bill was necessary, but we made it clear that we were not unsympathetic to the ideas behind it. I also accept that on an earlier Bill my right honourable friend the Minister of State responsible for the disabled pointed in another place to the need for some amendment. That was one of the suggestions he made at Second Reading. However, having made it clear that we cannot offer our support to the Bill and that this is not merely a question of drafting, I do not think it would serve any particular purpose if I spoke to each amendment. Doing so might imply that we felt that the Bill could be made acceptable to us by amendment. Nevertheless, I have no intention of opposing this or any other amendment moved tonight.

Lord Rochester

It may seem a little superfluous for me to speak in view of what the Minister has just said, but from these Benches I would nevertheless like to offer my support to the amendment. It seems to me that now the House has accepted the principle that there should be legislation to curb discrimination against disabled people it is important that loose ends should be tied up and that, where possible, as the noble Baroness has said, legislation on these lines should coincide as far as possible with similar Bills on race and sex discrimination. That is the purpose of the amendment and in passing it the Committee will ensure that if and when the Bill goes before another place it has a better chance of being accepted.

Lord Rix

I rise to support this and all the other amendments and indeed the passage of the Bill, which I hope will receive some support from the Government in due course.

Perhaps I may ask a question supplementary to a Written Question put to the noble Lord, Lord Henley. A short time ago I asked for an estimate of the costs of implementing the provisions of the Civil Rights (Disabled Persons) Bill. I received a very courteous response but it was made clear that the department considered that there were considerable costs arising from the obligations imposed on providers of services and public buildings as well as on employers in addition to the costs of a disablement commission. I cannot help wondering whether it is those costs which ensure that the Government maintain a benevolent neutrality in this matter and cannot support the Bill.

Baroness Lockwood

I thank the Minister for his intervention and I understand what he has said. I also thank other noble Lords for the support they have given to the amendment. I beg to move.

On Question, amendment agreed to.

Clause 1, as amended, agreed to.

Clauses 2 and 3 agreed to.

8.15 p.m.

Clause 4 [Medical examinations]:

Baroness Lockwood moved Amendment No. 2: Page 4, line 29, leave out ("employee") and insert ("applicant").

The noble Baroness said: I beg to move Amendment No. 2. The amendment is designed merely to correct a drafting error. The clause should read "applicant" and not "employee".

Lord Campbell of Alloway

I am a little worried about the amendment. Although as proposed the insertion of the word "applicant" marries with "applicant" in line 6 on page 4, does one wish to excise the employee totally from this? Ought not the amendment to read "applicant for employment" or "an employee"? I do not see why it should not be so. In its present form I would not be prepared to support the amendment without further explanation.

Baroness Lockwood

An applicant could be an employee applying for a different post. As the noble Lord understands, the whole tenor of the clause is to ensure that the imposition of a medical examination is concerned with job-related functions and not just medical examinations per se. I was happy that this particular amendment should relate to an applicant rather than employee but I will certainly have a look at it. Perhaps I may have a word with the noble Lord later. I beg to move.

On Question, amendment agreed to.

Clause 4, as amended, agreed to.

Clauses 5 to 9 agreed to.

Baroness Lockwood moved Amendment No. 3: Before Clause 10, insert the following new clause: ("Enforcement of Part II .—(1) A complaint by any person ("the complainant") that another person ("the respondent") has committed an act of discrimination against the complainant which is unlawful by virtue of Part II may be presented to an industrial tribunal. (2) Where an industrial tribunal finds that a complaint presented to it under subsection (l) above is well founded the tribunal shall make such of the following orders as it considers just and equitable—

  1. (a) an order declaring the rights of the complainant and the respondent in relation to the act to which the complaint relates;
  2. (b) an order requiring the respondent to pay to the complainant compensation of an amount corresponding to any damages he could have been ordered by a county court or by a sheriff court to pay to the complainant if the complaint had fallen to be dealt with under section 10;
  3. (c) an order that the respondent take within a specified period action appearing to the tribunal to be practicable and necessary for the purpose of obviating or reducing the adverse effect on the complainant of any act of discrimination to which the complaint relates.
(3) An order made by an industrial tribunal under subsection (2) (a), (b) or (c) shall, for the purposes of enforcement proceedings, be treated in all respects as a judgment of a county court and shall be enforceable as such in all respects.").

The noble Baroness said: I beg to move Amendment No. 3. This amendment is rather different from the others, in that it inserts a new clause. It is an amendment which was anticipated by a number of noble Lords during an earlier stage of the Bill. New subsections 10(1) and (2) would make industrial tribunals the forum in which unjustifiable discrimination in employment matters would be adjudicated upon. Again, the amendment would bring the Bill into line with race and sex discrimination legislation. Indeed, subsection 10(1) is derived from Section 63(1) of the Sex Discrimination Act.

Subsection (2) is also derived from Section 65(1) of the Sex Discrimination Act, but it strengthens the provision. There are two differences here. The first is that subsection (2) (c) gives the industrial tribunal the power to make an order rather than a recommendation which is the position under both the sex and the race discrimination legislation at present. Under this legislation the stage of an order is reached only following non-compliance with the industrial tribunal's recommendation. This amendment would make it immediately applicable.

Secondly, the words "and necessary" have been added to clarify the role of the tribunal. Given that we are suggesting that the tribunal should have power to make an order rather than just a recommendation at the stage of adjudication, it seems right that such an order should be restricted to actions which are not only particular but also necessary. Therefore the amendment would have that effect. Subsection (3) is different in that it is new. Again, it is based on the experience of the Equal Opportunities Commission and was put forward by that body in its attempt to strengthen the Sex Discrimination Act. Where there is a refusal, failure or delay by a respondent to pay the compensation awarded by the tribunal, the procedures for enforcement necessitate fresh proceedings to be brought in the county court. It is a cumbersome procedure and in my view it needs to be strengthened and simplified. That is what this amendment seeks to do. I beg to move.

Lord Campbell of Alloway

There are serious objections to this amendment. It seeks to amend a series of statutes and in particular the statute which confers jurisdiction on the industrial tribunal. That is not the only serious objection. It affects the statute which confers jurisdiction on the county court and the equal opportunities and discrimination legislation. I suggest to the noble Baroness that it is wholly inappropriate to seek to bring these changes about in this way.

Lord Rochester

At Second Reading I said that I was delighted that the noble Baroness, Lady Lockwood, proposed to move an amendment of this kind. I took that view simply because the noble Viscount, Lord Ullswater—whom I am glad to see in his place—well knows that in the employment field the normal practice is for appellants to go before an industrial tribunal in the first instance rather than a court. The noble Baroness, Lady Lockwood, has been as good as her word and I am glad to support her. I am far from being as expert in industrial law as the noble Lord, Lord Campbell of Alloway. It may well be that in this complex field there are deficiencies in this amendment. Even if there are deficiencies I suggest that they should not influence our attitude unduly for it is the underlying principle that we are now debating at Committee stage. If the amendment is defective in any way that can be remedied at a later stage. It may be that the noble Baroness will again wish to talk with people like the noble Lord, Lord Campbell, if the need arises before the next stage. Meanwhile, I very much hope that the underlying principle will be accepted this evening by the Committee.

Baroness Lockwood

I am sorry that I did not know that the noble Lord, Lord Campbell of Alloway, planned to raise this point otherwise I would have been very happy to have discussed it with him. I recognise that there are perhaps some doubts as to whether the amendment should go as far as it does as regards the county court. At Second Reading I raised the matter as did the noble Lord, Lord Rochester. It had also been raised on an earlier occasion. I believe that it was pretty clear that we would seek to bring in the industrial tribunal to deal with the employment question. I hope that that is a principle that the Committee will accept. That being so, I hope that the amendment will be accepted this evening. However, I shall be happy to discuss with the noble Lord any possible consequential amendment that he might suggest.

On Question, amendment agreed to.

Clause 10 [Proceedings]:

Baroness Lockwood moved Amendment No. 4: Page 6, line 14, leave out ("Parts II or") and insert ("Part").

The noble Baroness said: In a way this amendment is consequential on the previous amendment which was to introduce the industrial tribunal for employment matters instead of the county court. That means that employment matters will be dealt with through one forum and goods, facilities and services will be dealt with through another; namely, the forum of the county court. The first amendment is therefore consequential. The second clarifies the existing subsection (2) as printed in the Bill at the present time. It makes clear that the county court can grant the same remedies as are available in the High Court, but with certain exceptions. I beg to move.

On Question, amendment agreed to.

Baroness Lockwood moved Amendment No. 5: Page 6, line 21, at end insert: (" ; but all such remedies shall be obtainable in such proceedings as, apart from this subsection, would be obtainable in the High Court or the Court of Session, as the case may be.").

The noble Baroness said: I apologise to the Committee. In moving Amendment No. 4 I should have said that I was also speaking to Amendment No. 5. I beg to move.

On Question, amendment agreed to.

Clause 10, as amended, agreed to.

Clause 11 agreed to.

Baroness Lockwood moved Amendment No. 6: After Clause 11, insert the following new clause: ("Application to Crown etc . This Act applies—

  1. (a) to an act done by or for the purposes of a Minister of the Crown or government department; or
  2. (b) to an act done on behalf of the Crown by a statutory body, or a person holding a statutory office,
as it applies to an act done by a private person or body.").

The noble Baroness said: Again, this is a new clause. It will bring the Bill into line with similar anti-discrimination legislation on the part of the Race Relations Act and the Sex Discrimination Act. The amendment seeks to apply that legislation to acts that are done by or on behalf of the Crown. There is a slight addition to the provisions that exist in the sex discrimination legislation in that our amendment adds the words "or … a statutory body". The phrase "statutory body" has been included to reflect the importance of discrimination by bodies other than private persons. I beg to move.

On Question, amendment agreed to.

Clause 12 agreed to.

Schedule agreed to.

House resumed: Bill reported with amendments.