Lords Sitting of 18 July 1995

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of St. Albans.

Pollution Levels
Lord Dean of Beswick Lord Dean of Beswick asked Her Majesty's Government:
Whether they are aware of the high pollution readings in Manchester and elsewhere, and what steps they intend to take to reduce these figures.
Lord Lucas: My Lords, improving air quality across the whole country is one of the Government's environmental priorities. Proposals for a national programme are contained in the Environment Bill. These implement the proposals the Government published earlier this year in Air Quality: Meeting the Challenge. Although some short-term peaks in pollution levels have been observed in Manchester, air quality there is comparable to other major cities in the United Kingdom.
Lord Dean of Beswick: My Lords, I am grateful to the Minister for that detailed Answer, and naturally welcome the new legislation. However, may I ask whether the Minister is aware that under Sir Robert Thomas, who led the council in the 1960s, Manchester became the first smoke free city of the major cities in this country, but it is now threatened by far more menacing pollution created by the monster called the motor car? Can the Minister give us an undertaking that if the working party that has been set up in Manchester to deal with this problem produces recommendations that cost money the Government will look at this matter sympathetically, as they have done in the case of the City of Westminster, bearing in mind that that will save money in terms of health resources? Manchester and other major cities are being seriously threatened by this pollution and time is not on their side. The Government must assist these cities and enable them to deal with this problem.
Lord Lucas: My Lords, of course we will look at any such proposals sympathetically. Manchester is a great city and deserves to have better air quality than it has. However, the noble Lord will understand that I cannot make promises about expenditure any more than his own Front Bench can.
Lord Ezra: My Lords, I turn from the City of Manchester to the City of Westminster. Is the noble Lord aware that Westminster City Council notifies interested parties weekly of pollution levels, but what it fails to state is what is being done about them? In addition to information about where pollution levels might lie at any time of day, could we not also be told in such communications, which may or may not lie within the control of government, what action is being taken when pollution levels are too high?
Lord Lucas: My Lords, pollution problems of this sort are essentially local in nature and usually depend on the weather. It is therefore best, I believe, for local councils to be in charge of making sure that local people have the information they need. When we have episodes of severe pollution we help councils with advice on what they should advise people to do, in terms mostly of using motor vehicles less because, as the noble Lord, Lord Dean, said, they are the primary cause of the great peaks in pollution which occur at times of calm weather in the winter. So far as information is concerned, the noble Lord will be pleased to know that there is a nationwide hotline available on pollution which is widely used. There is even now a page on the world wide web.
Lord Dixon-Smith: My Lords, does my noble friend agree that as with traffic congestion, it is always someone else's car or truck that is causing the pollution and never one's own? However, the more serious point is that our economy is now so transport dependent because it is a sophisticated and developed economy that, while there are dangers in atmospheric pollution, we might create even greater dangers if we rushed, without proper consideration, to stop it. Does my noble friend agree with that point?
Lord Lucas: My Lords, the Government believe that a sustained programme of improvement towards the achievement of long-term goals is the right way to control atmospheric air pollution. We are doing a great deal in this country and across Europe to reduce the pollution from motor vehicles over the long term, and the denationalisation of the railways should also play its part.
Lord Taylor of Gryfe: My Lords, I was glad to hear the comment about the denationalisation of railways. Is the noble Lord aware that services have been seriously disrupted by the uncertainties arising from this ridiculous piece of legislation? Is he aware that trains getting into King's Cross from the North yesterday were on average three hours late, and that on the eve of a national strike? Does he agree therefore that to get more traffic onto the railways should be a top priority in order to relieve the pollution arising from the use of the motor car? Can he look again at the privatisation proposals and their effect on that public transport system?
Lord Lucas: My Lords, I agree with the noble Lord in almost everything he said. It is important that we use railways more. The way to achieve that is to make railways such that they provide what people want. As we have demonstrated many times in other industries, the best way to do that is through privatisation.
Lord Williams of Elvel: My Lords, is the noble Lord aware that we agree with the Government's view that the main problem in pollution in Manchester and other cities is the motor car? Is the noble Lord further aware that encouragement of the car economy has been a matter of government policy for the past 16 years, and indeed was proclaimed by the previous Prime Minister, Mrs. Thatcher as she then was, as being the liberation

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of the individual? Will he therefore tell us whether government policy is now reversed on this matter and in what sense?
Lord Lucas: No my Lords, it is not reversed at all. Of course we are concerned to provide people with the transport that they want. Most people want to travel by car. Most human activities have consequences and side effects which are undesirable. We intend to minimise them.
Lord Williams of Elvel: My Lords, can the Minister tell me how the air quality measures that the Government are passing, which are shortly to receive Royal Assent, will deal with the alleged continuation of that policy for the car economy? There is a clear difference.
Lord Lucas: My Lords, so far as concerns transport, the policies are clearly directed towards making individual vehicles cleaner and more efficient than they are now so that they pollute less, and to providing alternative forms of transport and social urban structures such that people need to use cars less than they do at the moment. The choice whether to use cars in particular circumstances is and will remain an individual choice unrestricted by government.
Lord Renton: My Lords, is not the need to encourage use of the railways and diminish that of motor cars a strong argument in favour of restoring the motorail services?
Lord Lucas: My Lords, we are drifting a little way from Manchester.
Lord Ewing of Kirkford: My Lords, if Members of your Lordships' House and Members of another place complain so vehemently about use of the motor car, can the Minister say whether the Government are considering ending the mileage allowance for Members of another place and of your Lordships' House.
Lord Lucas: My Lords, I would not dare say any such thing.

Avebury World Heritage Site
2.46 p.m.
Lord Kennet Lord Kennet asked Her Majesty's Government:
What action they will take to remove the metalled surface which has been laid on the Ridgeway within the Avebury World Heritage Site, and to ensure that all motor vehicles except agricultural ones are banned from the Ridgeway west of the Thames.
Lord Lucas: My Lords, the Government may only intervene on these matters at the request of the Countryside Commission. The Ridgeway is a local highway and direct responsibility lies with the relevant local highway and traffic authorities. We would nevertheless expect them to take due account of the designation of Avebury as a world heritage site in exercising their responsibilities.
Lord Kennet: My Lords, is the noble Lord aware that the Ridgeway is the most spectacular of the neolithic roads left in England and that for 5,000 years people have been walking along it? Is he aware that it is now being churned up by vehicles designed specifically to be able to be driven off the roads? Does he share the opinion of his opposite number in the other place who said yesterday that the Government were aware of the groundswell of opinion that legislation in this matter was inadequate and that we need to put it right?
Lord Lucas: My Lords, I do not think that he went quite that far. He said that we are aware that public opinion is in the process of changing on this matter and that we are very conscious of the need to keep in touch with the way people feel about it. This is very much a matter of dispute between one type of user of these highways and other types of user. These are matters which to our mind are best dealt with locally by local consultation and local decision except where damage is occurring. In that event, local authorities have the powers to deal with the matter and to prohibit vehicular traffic if that is appropriate.
Lord Renfrew of Kaimsthorn: My Lords, can my noble friend confirm that the Countryside Commission has in the past commissioned professional reports to predict the environmental and heritage impact of such works; for example, the admirable collaboration with English Heritage in respect of Hadrian's Wall? Can he explain why the Countryside Commission failed to do so in this case? Will his department be so good as to encourage the Countryside Commission to commission such reports in future before undertaking works in such highly sensitive areas as the Avebury World Heritage Site?
Lord Lucas: My Lords, to be fair, it was not the Countryside Commission's fault. Wiltshire County Council undertook the works without consulting the commission. I do not believe that it will do that again.
Baroness Seear: My Lords, will the noble Lord reconsider his statement that this is a local matter? The Ridgeway is a trailer for the whole of the country. You might as well say that Stonehenge is only a pile of old stones as say that the Ridgeway is no more than a local road.
Lord Lucas: My Lords, the Ridgeway is many things, but it is also a local road.
Lord Marlesford: My Lords, does not my noble friend agree that the Ridgeway is far more than a local bridleway? It is a major national asset. As there are thousands of acres of tarmac and concrete reserved for motor vehicles, do the Government really feel that it is appropriate for a small number of people who want to use the Ridgeway, not to transport themselves but for fun, to largely destroy significant parts of the Ridgeway?
Is the Minister aware that under Section 22 of the Road Traffic Regulation Act 1984 the Government have reserve powers to declare traffic regulation orders for such long distance routes as the Ridgeway? Will he urgently consider the matter again? I know from my time several years ago on the Countryside Commission

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that there is a tremendous feeling among all those concerned with rural England that such activity must be stopped.
Lord Lucas: My Lords, as I am sure my noble friend is aware, as recently as 1992 there was a public inquiry on the subject of traffic management on the Ridgeway. It concluded that no additional measures were justified. The Countryside Commission has not approached us to say that it wishes us to review that position. Until that happens, and certainly in view of the fact that the inquiry was so recent, we believe that the matter is essentially a local one.
The Earl of Carnarvon: My Lords, before asking my question, I must declare an interest in that I own and manage race horses working alongside the Ridgeway. Will the Minister confirm that there is a code of conduct for use of the Ridgeway? Is that code enforced in the winter months?
Lord Lucas: My Lords, it is a voluntary code of conduct and cannot therefore be enforced. However, as I am sure the noble Earl is aware, most of the damage to green lanes and similar tracks occurs from farm vehicles. If we can persuade farmers to do better than at present, most of the problems should disappear. There are local areas where recreational vehicles cause a problem. In general, county councils have dealt with those matters expeditiously.
Lord Skelmersdale: My Lords, a study of the Countryside Commission, which I believe took place some eight years ago, discovered that the average tourist moves less than half a mile from his car. Does that study still carry weight? If so, is the answer to the Avebury Ring to move car parks further away?
Lord Lucas: My Lords, that is an interesting suggestion.
Lord Williams of Elvel: My Lords, the noble Lord did not reply to the question asked by the noble Lord, Lord Marlesford, about the powers that Government have. Do the Government have powers under the Road Traffic Regulation Act 1984 to impose the restrictions which the noble Lord, Lord Marlesford, implies? If the answer is yes, it stops being a local matter and becomes a government matter.
Lord Lucas: My Lords, yes, I believe that the noble Lord is right. However, as I said in my initial Answer, it depends on the Country Commission requesting us to intervene. We had exactly this situation at the end of the public inquiry in 1992. The inspector recommended that there should be no additional restrictions, against the background of the Government having proposed that there should be. The Government accepted the inspector's recommendations. We cannot continue reviewing matters every three years.
Viscount Mersey: My Lords, is my noble friend aware that I walked the Ridgeway some four years ago when it was in very good condition? It stands to reason that the damage to the Ridgeway is extremely recent. Therefore, the fears of the noble Lord, Lord Kennet, are real and should be urgently addressed.
Lord Lucas: My Lords, there is damage to localised parts of the Ridgeway. However, most of the Ridgeway is in good condition to this day.

Piracy: International Measures
2.58 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
What progress has been made in international co-operation designed to reduce piracy in the seas of South-East Asia and the Far East.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, the International Maritime Organisation (IMO) is the competent international body that considers maritime safety. At a meeting at the IMO in May, the Indonesian delegation announced further measures in tackling the problem of attacks on shipping in their waters, including an increase in sea patrols, made jointly with Singapore police. IMO officials have also raised the problems with the Chinese authorities.
Lord Campbell of Croy: My Lords, I am grateful to my noble friend for her reply. It is my impression that the situation has improved since the last occasion on which I raised the subject in the House. May I ask whether British authorities have considered two disquieting incidents this year, when ships with valuable cargoes were hijacked while on lawful voyages by the crews of Chinese patrol boats, apparently acting as privateers? As the pretext of prevention of smuggling was palpably bogus, were not those Chinese sailors guilty of piracy?
Baroness Chalker of Wallasey: My Lords, under the Law of the Sea Convention, acts of piracy committed by a government ship whose crew has mutinied and taken control of the ship are, in the words of the convention,
"assimilated to acts committed by a private ship".
We are not aware that this happened in the case that my noble friend cites. However, there is absolutely no doubt that there are occasions when boats are stopped by persons who look like officials, indeed may be officials, their cargoes snaffled, the boats held in some far off port, and no one hears any more about it. That is a problem on which the IMO is working very hard at present.
Lord Molloy: My Lords, is any strict action being taken by those countries concerning unofficial ships pretending to be members of those countries? Will there be a conference, perhaps headed by our nation, the nations which the noble Baroness mentioned, the British Commonwealth of Nations and the United States of America, to bring about a forceful end to this cruel piracy?
Baroness Chalker of Wallasey: My Lords, I do not know whether there is need for a further conference. In 1993 the United Kingdom took part in an IMO experts group with Singapore, Indonesia and the Philippines. They visited South-East Asia. The United Kingdom was one of the main players behind the IMO resolution on

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piracy which followed. The joint patrols which now take place are a result of that initiative. If there is need for further action, we shall certainly take it. We continue to support the co-ordination of international action against piracy.
Lord Hylton: My Lords, serious as the threat of piracy undoubtedly is, is there not an even greater risk to peace from conflicting claims to the Spratly Islands and their oil and fishery resources? Will the Government take steps to refer those conflicts and disputes to the International Court of Justice?
Baroness Chalker of Wallasey: My Lords, the issue of the Spratly Islands is a long way from piracy and the International Maritime Organisation. However, it is important that we understand that islands in dispute, whether in the China Sea or anywhere else in the world, should go to international bodies to have those disputes resolved peaceably. That is an approach that we have always supported.
Lord Clinton-Davis: My Lords, we support the fact that the International Maritime Organisation is the appropriate organisation to deal with these issues. However, can the Minister indicate how many British ships during the past 12 months have been subjected to piracy of this kind?
Is the noble Baroness also aware that the union dealing with officers, NUMAST, has been making representations to the Government over many years for effective action to be taken? Do any of the nations involved in carrying cargoes in that area permit their seafarers to carry arms?
Baroness Chalker of Wallasey: My Lords, certainly the IMO and the International Maritime Bureau's regional piracy centre in Kuala Lumpur report that attacks against shipping worldwide decreased in 1994 from a peak in 1992. The IMB has suggested that within those figures incidents both in South-East Asia and off the coast of Brazil have increased. Therefore we are seeking all ways of achieving the effective action which NUMAST requests. Certainly there is no sense in which we are prepared to let the matter slip. At the IMO meeting in May, it was agreed that the IMO should produce summary lists of attacks on a monthly basis rather than quarterly, and that those should be followed up promptly.
Lord Clinton-Davis: My Lords, the Minister did not answer the final part of my question. Is she aware that any of the advanced maritime nations permit their seafarers to be armed in order to resist acts of piracy?
Baroness Chalker of Wallasey: My Lords, I am not aware which nations permit their seafarers to be armed and which do not. However, it is well known that a number of nations probably do not permit their seafarers to carry arms, but whose seafarers do.
Lord Geddes: My Lords, is my noble friend aware that for those who live in Asia or who sail in Asian waters, the term "Far East" is regarded as derogatory? Indeed, from their point of view we live in the Far West.
Baroness Chalker of Wallasey: My Lords, I hope that I have said on each occasion "South-East Asia". In no way do I intend to be derogatory; I only wish demographically to be a little more correct than I might otherwise be.
Lord Greenway: My Lords, while recognising that the Question refers specifically to the East, has there not been a disturbing increase in incidents of piracy in Somalia and around the Horn of Africa recently? As the noble Baroness mentioned Brazil, could we learn something from the action taken by the Government of Brazil as a result of representations made by international shipping bodies? The government have set up a security committee which over the past few months has had marked success in reducing incidents of piracy.
Baroness Chalker of Wallasey: My Lords, I believe that the noble Lord is right. Where the acts of piracy have taken place, either on the high seas or in or just off the port of a country, as in Brazil, at the time that happened it reflected the generally poor security in nearby areas. However, when security overall in a country has improved, we see an improvement, as in the security in Brazil which the noble Lord mentioned.

Nigeria
3.1 p.m.
Viscount Waverley Viscount Waverley asked Her Majesty's Government:
Whether they have yet received a copy of the final report of the national constitutional conference in Nigeria, and what is their reaction to its contents.
Baroness Chalker of Wallasey: My Lords, a copy of the final report of the national constitutional conference and draft constitution was received by the British High Commission in Abuja on 14th July and will be placed in the Libraries of both Houses. Its contents are a matter for the Nigerian people. However, I regret that the Nigerian authorities have yet to respond positively and rapidly with a credible timetable for a transition to civilian democratic rule.
Viscount Waverley: My Lords, I am grateful to the Minister for that far-ranging reply. What measures might be implemented, should the Nigerian authorities not adhere more closely to the Harare principles? Would there be a Commonwealth consensus? What is the reaction to today's reports of possible retaliatory measures against UK subsidiary companies—I understand Shell and BP have been targeted—for perceived government meddling in Nigeria's internal affairs?
Baroness Chalker of Wallasey: My Lords, as both the former Foreign Secretary and I have made clear on many occasions, the Harare principles adopted at the 1991 Commonwealth Heads of Government Conference on respect for human rights and for democratic rule are principles which are still good and to which all members of the Commonwealth seek to aspire.
What the Commonwealth will do at the Heads of Government meeting in Auckland I cannot foretell. However, we have made it absolutely clear that we share

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the widespread concern across the Commonwealth about continued military governments, wherever they occur. If the principles of the Harare Declaration are not put into practice, it is difficult to see how any single country could play a full role in the Commonwealth until it puts its house in order.
As regards the oil companies, I understand that the Nigerian oil minister summoned local representatives of BP and Shell to inform them of the Nigerian Government's displeasure about Her Majesty's Government's recent statements on the political situation in Nigeria. The oil companies have informed us about it and the contacts took place last week. I am not quite sure why the Nigerian authorities chose to communicate their concerns through private companies. Political and diplomatic channels would have been more appropriate. However, many of the matters about which they complained were comments in the press which were quite a variation on what had actually been said.
Lord Callaghan of Cardiff: My Lords, I accept that this is a matter for the Nigerian people. However, how can opponents of the regime express their view when they are arrested by a corrupt regime, imprisoned on false evidence and there is no voice for the opposition? Is it not a matter for the Commonwealth to discuss at its forthcoming meeting? Perhaps the British Government may consider suggesting to the meeting that the head of the military regime, who has shown himself to be a complete tyrant, should be excluded from the next meeting.
Baroness Chalker of Wallasey: My Lords, as the noble Lord knows, we are deeply concerned about the deteriorating situation in Nigeria. He is absolutely right that people who are denied a voice in the political scene are bound to have a real problem. I suppose that the announcement on 27th June that the formation of political parties is now legal is a step forward. However, we were all dismayed to find that any further announcement on a political future for Nigeria has been postponed until 1st October.
We agree with the noble Lord that it is a matter for the Commonwealth. I am quite certain from the representations which have been made, both to us on a bilateral basis and to the Commonwealth Secretary-General, that the matter will be discussed at Auckland. I sincerely hope that there will be progress before then and also that the rumours that have been reaching us about what might happen to the 40 people found guilty by a military tribunal will be found to be without foundation. If those now detained were to be subject to summary justice or capital sentences, it would be incomprehensible and totally without justification. I am sure that the Commonwealth would then respond in the only way it can. At present, our efforts are to ensure that no one is summarily executed and that civilian democratic rule is restored in Nigeria.
Lord Astor of Hever: My Lords, what assistance, such as help in preparing an electoral register, might be forthcoming if the Nigerians work out an election timetable?
Baroness Chalker of Wallasey: My Lords, we have received no request for help in drawing up an electoral register. If there were such a request we would be prepared to look at ways in which we might help, once a credible process of transition was engaged in. We have helped other nations and are fully prepared to help Nigeria. But the country must go down the path of restoring civilian democratic rule.
Lord Thomson of Monifieth: My Lords, following the answer given by the noble Baroness to the noble Lord, Lord Callaghan, has her attention been drawn to the report in the Daily Telegraph today? It indicates that General Shehu Yar'Adua and 13 other officers have been sentenced to death and that General Obasanjo and 10 other civilians and military men have been gaoled for life. Can the Minister give the House any information about that?
Baroness Chalker of Wallasey: My Lords, I have indeed read the reports in the press today. I can only say that we know no more than is contained in the reports. We have had no collateral on the matter. It is well known that there is widespread concern throughout the Commonwealth, the European Union and across the world because there is no way in which a country as big and important as Nigeria has been, with a population of well over 100 million, can continue in this way. The people of Nigeria are suffering. The reputation of Nigeria—indeed, of Africa—is suffering. The sooner that is understood by the military regime in Abuja, the sooner the country can set matters going in the right direction.

Business
Lord Strathclyde: My Lords, at a convenient moment after 4.15 p.m., my noble friend Lord Mackay of Ardbrecknish will, with the leave of the House, repeat a Statement that is to be made in another place on Barings. This will be followed by my noble friend Lady Blatch, who will, again with the leave of the House, repeat a Statement on the Government's response to the first report of the Committee on Standards in Public Life.

Disability Discrimination Bill
3.8 p.m.
Report received.
Clause 1 [Meaning of "disability" and "disabled person"]:
[Amendments Nos. 1 and 2 not moved.]
Schedule 1 [Provisions Supplementing Section 1]:
[Amendments Nos. 3 to 7 not moved.]
Baroness Gardner of Parkes Baroness Gardner of Parkes moved Amendment No. 8:
Page 47, line 15, at end insert (", HIV disease").
The noble Baroness said: My Lords, this is rather a surprise. I was concerned that we might not arrive at my amendment before supper time, so I am quite pleased.
This amendment is almost self-explanatory. We discussed this matter in considerable detail in Committee. Sufferers from HIV disease are the most

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discriminated against among those who have any adverse medical condition. The inclusion of this term in the list of progressive conditions in the schedule would signal to employers that the Government are not prepared to tolerate the unreasonable and often very ill-informed attitude that people have towards sufferers.
I should also like to take up various points that were made by the noble Lord, Lord Mackay, in Committee. He was concerned that, were this amendment relating to HIV disease to be accepted, people could, and would, put forward a case for almost every other disease to be included. I point out to him that no other amendment relating to any other type of condition has been put forward. This is the only one where such a condition has been specified, either in Committee or on Report. That is evidence that the situation is quite unique and that the condition should be included in the schedule.
Accepting this amendment now would be in line with the declaration that the Government signed at the December 1994 paris AIDS Summit. I wonder, also, how they chose the three conditions that they did choose without considering HIV. It is very serious and very important; it should be considered. This addition to the Bill would be a recognition of the true medical situation in relation to this progressive condition. It would do a great deal to offset some of the almost hysterical, and very often inaccurate, reporting on this illness, so distressing to sufferers and to relatives and others who dearly love them and who have to suffer alongside them what is almost invariably—some people say entirely invariably—a terminal condition. It is not always terminal because people die of other related illnesses before AIDS itself. This matter should not be taken lightly. I hope that the noble Lord realises how seriously the House feels. This is an issue of great importance. I beg to move the amendment.
Lord Rea: My Lords, I personally, wearing my medical hat, strongly support this amendment. I hope very much that the Minister will be able to agree to it.
Lord Kilmarnock: My Lords, I, too, support the amendment, to which my name is attached. I hope very much that it will be acceptable to the Minister, especially as it excludes what the noble Lord described in Committee on 13th June as a latent condition with no symptoms as yet. That is what I believe caused him the most concern on the last occasion. The noble Baroness's new wording solves that difficulty. Also, as the noble Baroness mentioned, the amendment is in the spirit of the commitment made by the Government at the Paris AIDS Summit on 1st December 1994, at which all signatories solemnly declared,
"our determination to ensure that all persons living with HIV/AIDS are able to realize the full and equal enjoyment of their fundamental rights and freedoms",
as well as,
"our determination to fight against poverty, stigmatization and discrimination"—
the last being particularly the subject of this Bill. All signatories also undertook in their national policies to,
"protect and promote the rights of individuals, in particular those living with or most vulnerable to HIV/AIDS, through the legal and social environment".
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Those are the undertakings that the Government accepted. They may not like the style of that type of continental declaration, but that is what they put their name to, in the person of Mrs. Bottomley.
There is also an important domestic point. I did not realise that this would be the first amendment discussed, the previous batch of amendments not being moved. Therefore I am afraid that I did not hear the noble Baroness's opening remarks. She may have made this point. If the Government want to police this Bill merely through an advisory council rather than through a commission with teeth, it is even more important that it should be made clear on the face of the Bill, both to those likely to be affected and to their advisers, what rights and remedies are available to them in the normal courts and tribunals of the land.
There are in addition important employment points to be considered. They were made notably by the noble Baroness, Lady Jay, and to some extent by me in Committee. Although, as the noble Lord said on 13th June, this is not a general anti-discrimination Bill, it is certainly an employment discrimination Bill, at any rate in this part. We do not want young people to be thrown on to benefits when it is quite unnecessary for long periods during the progression of their disease. On all those grounds, I find it hard to see how the noble Lord can resist the noble Baroness's redraft of her amendment. I look forward very much to hearing his reply.
3.15 p.m.
Baroness Masham of Ilton: My Lords, I was meant to have my name added to this amendment. I support it. There are many progressive conditions, such as Parkinson's disease and motor neurone disease, which are other good examples. But HIV is different.
Last Sunday in church, in the bidding prayers, was one that asked for special understanding and compassion for those who had HIV and AIDS. There seems to be something that encourages discrimination against those who have HIV. One of my fellow health authority members on the FHSA, for instance, just cannot understand what HIV means, and the devastation and loneliness that it can bring if the needs of those who have HIV are not understood. I hope that the Government will include this amendment on the face of the Bill. We should continue to do all that we can to make society understand the continuing need for education in respect of these most complicated and life threatening viruses. When this matter is not heard about, people—especially the young—think that the problem has gone away. It is very dangerous. I hope that the Government will understand this.
Lord Addington: My Lords, briefly, we on these Benches support this amendment. It is sensible and most appropriate.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, like other noble Lords who have spoken, I come to this amendment quickly, and with some surprise. The debate was much shorter than I expected.

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I think my noble friend knows that I have some sympathy with the need to reassure people who have symptomatic HIV that their condition is covered by the definition in the Bill. I hoped that I had made it clear in Committee that we agree that current medical opinion recognises that HIV is a progressive condition. I said then that if courts or tribunals took a view contrary to medical opinion, then we would put the position beyond doubt through regulations. I believe that at the time my noble friend expressed some disquiet about that and indicated to me that she did not think that I was going far enough—indeed, she has done so on a number of occasions since the Committee stage.
I had intended to offer reassurance to my noble friend and other noble Lords who have spoken that we would make regulations to make clear that HIV is a progressive condition, that we would consult to see just how the regulations should be framed and that we should bring forward those regulations from the beginning. But I know from conversations that I have had with my noble friend and the speeches that I have just heard that some noble Lords would not feel that that was a sufficiently certain course of action and would prefer something on the face of the Bill where, in paragraph 8 we indicate three examples of a progressive condition; namely, cancer, multiple sclerosis or muscular dystrophy.
I have listened with some care to that argument over the past few weeks and to the speeches this afternoon. I am not entirely sure whether or not it was their brevity which helped to convince me, but I think that I now accept the argument that it would perhaps be right to put this matter on the face of the Bill in the place that I have just mentioned—paragraph 8—as one example of a progressive condition. I should underline the fact that the list is a list of examples. It is not meant in any way to be a complete list. There are other conditions, some mentioned by the noble Baroness, Lady Masham, which would also come under the heading of "progressive condition" and will be dealt with.
There is a fairly marginal difference between putting something on the face of the Bill and making the same provision in regulations, but I appreciate that that marginal difference is very important to those people who have HIV and those who work with those who have it. I am not entirely certain whether I can accept the words "HIV disease" as defining clearly the change from simply having HIV in the bloodstream diagnosed by a medical test and in fact beginning to see some symptoms.
I should like to consider further with the draftsman exactly what the best form of words might be in order to indicate this crossover position. When I have done so and he has come up with an exact term so that we mean what we all want to say, I shall bring forward a suitable amendment on Third Reading. Third Reading of the Bill will not take place until the spillover, so there is time for it. It is the speed with which we reached this amendment that slightly threw me off balance. I am still trying to work out the consequence of such speedy action. I do not suppose that it will allow me to get home early this evening!
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I come back to the serious point that I am making to my noble friend. I hope that she will feel that my assurance to come forward at Third Reading with an amendment properly worded, in order to do exactly what she and other noble Lords have asked, will enable her to withdraw her amendment. I hope that she will accept that I have agreed to her argument in its entirety and that I can completely satisfy her when we come to Third Reading.
Baroness Gardner of Parkes: My Lords, I am absolutely delighted to hear that. I shall wait with interest to see what emerges. Some years ago when, on a similar occasion, the amendment came forward, the draftsman had simply altered a capital "T' to a small "t" or vice versa. I shall wait to see what happens.
The Bill makes quite clear that one must have one's day-to-day activities affected. It cannot simply be that one has had a positive test. My noble friend need not be concerned on that point. I am very grateful to him. The point made by the noble Lord, Lord Kilmarnock, who is chairman of the All-Party Aids Group, that ordinary people will use this Act if there is no commission—I support the noble Lord in that view—makes it particularly important to have it. I am most grateful to my noble friend. I shall not delay the House any longer. I thank him and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 [Past disabilities]:
[Amendment No. 9 not moved.]
Schedule 2 [Past Disabilities]:
The Minister of State, Department for Education and Employment (Lord Henley)The Minister of State, Department for Education and Employment (Lord Henley) moved Amendment No. 10:
Page 47, line 32, leave out paragraphs 3 and 4.
The noble Lord said: My Lords, in moving this amendment I shall also speak to government Amendments Nos. 11, 21 to 23, 34, 39, 65 to 67, 69, 71, 75 to 77 and 80. I shall also speak to a number of other amendments tabled in the name of the noble Baroness, Lady Hollis, and other noble Lords.
Clause 6 as presently drafted has come under criticism for allowing too much discretion to employers to treat disabled people less favourably and for being too complex, particularly in the formulation of its relationship to Clauses 5 and 7. Noble Lords and Members in another place have themselves raised concerns. The fact that the justifications would be subject to an employer's opinion, albeit one which must be shown to have been reasonably held, has caused concern. The use of the undefined and perhaps vague word "unsuitable" has also led to adverse comment.
We listened carefully to the points raised by Members in another place and noble Lords on all sides of the House. It has become clear that Clause 6 as presently drafted does not meet the requirements for which it is intended. To address those issues, Clauses 5 and 6 have been redrafted to reduce the complexity and provide a simpler and clearer test for reasons which would justify less favourable treatment. The amendments considerably simplify this part of the Bill, including removing an entire clause. Amendments to Part III are

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not so substantial. Because of the importance of those clauses, I feel that I must be clear about the implications of the changes. I beg the indulgence of the House while I explain the position at some little length.
Amendment No. 23 substitutes for a fixed list of specific justifications a principle that can be applied much more easily in the wide and varied range of circumstances that can arise in the field of employment. Less favourable treatment of a disabled person would thus be justified if the reason for it were both material to the circumstances and substantial. It is clear that the set of conditions in Clause 6(4) is too limited to cope with every set of employment circumstances. For example, issues may depend on the type of job, the type of disability and its effects, the nature of the position being taken and many other factors. For that reason we have found it immensely difficult to draft a satisfactory, exhaustive list. The new provisions will be easier to understand and operate.
We are keen to take a consistent approach in Part III of the Bill. Therefore, we have brought forward amendments to improve the wording of Clauses 14, 15 and 16 in relation to goods and services and Clauses 19 and 20 relating to premises. The approach that we now propose for the right of access differs from that proposed for the employment right.
Amendments Nos. 67, for goods and services, and 78, for premises, retain the concept of a reasonably held opinion and fixed list of justifications. We are satisfied that this continues to be right and relevant in the very different context.
Service providers often have to take very quick and perhaps less informed decisions when serving someone. So an opinion-based approach remains appropriate. Nevertheless, the proper degree of objectivity is imposed because the opinion must be shown to be reasonably held. We also propose to retain the key circumstances in which less favourable treatment is justified. We believe that it is possible under Part III to identify the key reasons which might justify less favourable treatment by service providers due to the more limited relationship between a customer and a service provider. Those are set out in Amendments Nos. 67 and 78, and are essentially the same as those presently contained in Clauses 15(3) and 20(2), although we have tightened the wording of subsection (4) (c) to refer to where treatment is "necessary" in order for the service provider to provide the service to members of the public rather than "reasonably necessary". We have taken account of the views of those who are concerned that service providers might be able unfairly to pass on the extra cost of service provision to disabled clients and customers. Let me be clear that service providers will not be able to pass on to disabled people the costs of complying with their duties.
Subsection (5) of Amendment No. 67 ensures that any increase in the costs of the goods or services resulting from compliance with a Clause 16 duty should be disregarded for the purposes of subsection (4) (e). With both approaches, there are regulation-making powers which could be used to clarify areas of difficulty that might arise.
Amendment No. 21 deals with the comparator for assessing whether treatment is "less favourable". In the Bill, discrimination occurs against a disabled person if, for a reason which relates to his disability, he is treated less favourably and the employer cannot justify the treatment. If an individual cannot demonstrate that he has been less favourably treated in some way, then there will have been no discrimination. However, it is important to define the test correctly to avoid confusion and unnecessary litigation.
Currently the comparison is with the treatment of a person who does not have the disability in question. For example, there may be two employees who cannot type—one because of arthritis and one (who is not disabled) because he has never been taught. Both would argue that he is not treating the disabled person less favourably than someone without that disability. He is treating all people who cannot type in the same way. That argument may well succeed and the person with arthritis would have no ground for complaint, even though the employment was refused for a reason relating to disability.
Amendment No. 21 would ensure that the comparison is made with people to whom the reason in question does not apply. It correctly reflects the need to show that the treatment was for a reason relating to the disability and not necessarily the mere fact of disability. Thus, if the employer is rejecting people who cannot type he will be treating more favourably those who can. The person with arthritis who did not get the job can show that he or she was treated less favourably than the person with typing abilities who did. The employer may well be able to justify that treatment—for example, if a disabled person was not adequately able to do the job, even taking account of any reasonable adjustment. But at least the disabled person would have to be given the consideration due under the Bill.
With regard to the right of access, Amendment No. 65 mirrors Amendment No. 21 in providing that the comparison in the definition of discrimination should be with,
"people to whom that reason does not apply".
The wording of Amendment No. 65 will provide a more objective definition of discrimination than the provision as presently drafted, which refers to,
"other members of the public".
The revised wording will make it clear that if a disabled person is refused service—for example, in a cafe—for a reason connected with his disability, where non-disabled people are happily served, that will be a prima facie case of discrimination unless the service provider can prove that the less favourable treatment was justified under subsection (4) of Amendment No. 67. The service provider could only refuse service if, for example, the presence of the disabled person effectively meant that other customers were not receiving the service that they had paid for. Service could be refused in that case under subsection (4) (c). Amendments Nos. 75 and 76 re-word in a similar manner the definition of discrimination in relation to premises.
Amendments Nos. 22 and 34 are consequential as a result of the re-draft of Clauses 5 and 6. Amendment No. 22 deletes the words, "under section 6". They would

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no longer be appropriate because Amendment No. 34 deletes Clause 6 as the issues of adjustment have been incorporated into the new Clause 5 resulting from Amendment No. 23. Amendments Nos. 66 and 69 mirror those for the purposes of the right of access to goods and services, as do Amendments Nos. 77 and 80 in relation to premises.
Amendment No. 39 is a consequential amendment which makes clear that the duty on employers to make adjustments is not self-standing. It is only relevant to determine whether an employer has discriminated against a disabled person. It transfers what is currently in Clause 5(3) to Clause 7. Amendment No. 71 replicates that change for the right of access. Amendments Nos. 10 and 11 are consequential and are needed because the provision to which they refer has been deleted by Amendments Nos. 21 and 23.
I believe that these amendments considerably improve and clarify the provisions of Parts II and III and I hope that I have the support of the House in moving them. I shall not address the other amendments of the noble Baroness, Lady Hollis, at this time. If she wishes to speak to them, when I wind up I shall address the various points that she and others raise. In the meantime, I beg to move.
3.30 p.m.
Baroness Turner of Camden: My Lords, I thank the Minister for his explanation of this long group of amendments and also thank the Government for what they have done. They have taken on board the arguments that we made in Committee and have thoroughly redrafted the sections of the Bill in order to meet our criticisms.
The only point arising in the three amendments standing in my name and that of my noble friend, to which the Minister referred, arises in Amendment No. 24 where we suggest that the employer should take advice as indicated in the code of practice as a basis for his opinion. Apart from that, the Government appear to have encompassed all the arguments we made in Committee and we are grateful that they have done so.
Lord Addington: My Lords, this great layer of government amendments has effectively dealt with the problems I raised in Amendments Nos. 26 and 28. I can only thank the Government and say that I hope that this atmosphere of co-operation will continue throughout the passage of the Bill.
Lord Henley: My Lords, as someone who came to this Bill rather late, I find it strange to be among such sweetness and light. I hope that I shall enjoy this stage and the later stage. I am also grateful to noble Lords for sparing my voice, which I fear may not last the evening.
Perhaps I can briefly address the point raised by the noble Baroness, Lady Turner, in her Amendment No. 24, which seeks to place a duty on the employer to take advice, as indicated in the code of practice, as a basis for his opinion. The effect would be that the employer would have to seek advice every time he made a decision which might or could result in less favourable treatment of a disabled person.
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We agree that employers ought to seek help and assistance, if they need to do so, when making a decision which may affect a disabled person. The duty under this clause may not be fulfilled unless the employer is knowledgeable, follows the code or seeks advice from a knowledgeable source on disability. However, where we differ is in regard to the need to make it compulsory in every case to seek advice, regardless of the necessity, before he can lawfully make that decision. That would be a bureaucratic requirement which takes no account of the many different avenues of advice that are available to employers through a number of different groups. For example, in some situations there may be no need to take specific advice, whether or not the code of practice suggests doing so, because the employer has adequate information available from another source. In any event, the code will not be an exhaustive manual on when to seek advice, on what and from whom, in all the various possible cases. Its job is to provide practical guidance. We are sure that it will prove helpful but it cannot cover every single circumstance. It would be wrong, therefore, to place such a requirement on the face of the Bill.
I hope the noble Baroness accepts that explanation and I commend the amendment to the House.
On Question, amendment agreed to.
Lord Henley Lord Henley moved Amendment No. 11:
Page 47, line 38, leave out paragraphs 7 and 8.
On Question, amendment agreed to.
Clause 3 [Guidance]:
[Amendments Nos. 12 and 13 not moved.]
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 14:
Page 2, line 21, leave out ("issued under this section").
The noble Lord said: My Lords, in moving Amendment No. 14, with the leave of the House I shall speak also to my Amendment No. 15. Clause 3 enables the Secretary of State to issue guidance about matters to be taken into account when determining whether an impairment has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities. The guidance which Clause 3 introduces is already subject to consultation before being issued by the Secretary of State. The consultations must be with people whom the Secretary of State considers appropriate.
Your Lordships will recall that some anxiety was expressed in this House by the noble Lord, Lord Lester, and my noble friend Lord Renton about the question of parliamentary scrutiny. As I said in Committee, the Government accept that there is a strong case for making the guidance under Clause 3 subject to the same parliamentary scrutiny as we have in Clause 38, which deals with the codes of practice on employment. I repeat what I said on that occasion: I am very conscious of the importance of the powers of Parliament, as are all Ministers; and we accept the point that Parliament must be given adequate opportunity to scrutinise the guidance.
We have chosen to apply the negative procedure. This is in line with the code of practice and the majority of the regulation-making powers. Noble Lords will recall

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that the Delegated Powers Scrutiny Committee regarded this procedure as appropriate for these regulation-making powers and I do not believe it is any less appropriate for the guidance under Clause 3. I very much hope that the amendments will be welcomed.
Noble Lords will notice that subsection (4) of Amendment No. 15 states:
"In preparing a draft of any guidance, the Secretary of State shall consult such persons as he considers appropriate".
I see that my amendment is grouped with an amendment in the name of the noble Baroness, Lady Hollis, which tries to set out the people whom the Secretary of State might consult. That amendment comes up on all occasions and at all times. I am not sure whether it will help the speed of proceedings if I indicate that my answer to this attempt to put on the face of the Bill a list of the people the Secretary of State might consult is the same as it has been to other attempts in other Bills to include such a requirement. Perhaps I may make it clear that when we go out to consultation we shall ensure that we take account of all the sectors which will be affected. We shall be consulting all those whom we believe have an interest. Where appropriate, that will include the CBI, business organisations, the TUC and others. Interestingly enough, over the past few days I have seen the beginnings of some of the consultation documents arising from the Pensions Act. I recall some of the discussions we had previously about who should be consulted. I can assure the noble Baroness that we seem to be consulting as wide a range of people as she requested me to consult on a number of occasions when she asked me to put such a requirement on the face of the Bill.
Baroness Hollis of Heigham: My Lords, why did not the noble Lord accept our amendment?
Lord Mackay of Ardbrecknish: My Lords, the point I make, and have made before, is that I believe it is unnecessary to start listing the organisations. On various occasions consultation may be on a different angle, and a different group of people or organisations may require to be consulted. It is much more important that the Secretary of State should be under a general obligation to consult those he thinks appropriate and whom he thinks are interested. There is the further point that the consultations are usually accompanied by some form of press release and anyone who has missed out is well able to come in and give us their views. In my years in government I have never found that people were, so to speak, backwards in coming forwards.
I hope that I have explained not only why I commend my amendment to the House but why on this occasion, as on every other occasion when this attempt is made, I do not think it wise to add to the Bill what the noble Baroness wishes to add.
The Deputy Speaker (Lord Ampthill): My Lords, I should remind the House that, as the noble Lord has spoken to Amendment No. 15, if it should be agreed to I shall be unable to call Amendment No. 16.
Lord McCarthy: My Lords, that is the problem, is it not? The noble Lord said that he likes it when we have brevity and that he likes it when we spring surprises.
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When we do that he is apt to agree with us. We agree with him that his amendments seem to be a significant advance on the previous position. We accept and welcome them. All I want to say about Amendment No. 16 is that it arose out of previous amendments moved in Committee and there are subsequent amendments which cover this ground. We shall be raising them then. Therefore, in that context, I shall not be moving Amendment No. 16.
3.45 p.m.
Lord Renton: My Lords, perhaps I may speak briefly to what my noble friend Lord Mackay of Ardbrecknish has said. First, we ought to feel indebted to him for having strengthened and clarified the position of Parliament in this matter. I expect it has dawned on noble Lords that in recent years we have entered a new phase in our legislation. For centuries we thought of primary and secondary legislation. We also knew that in the background there were departmental directives which did not require the consent of Parliament, or consultation with Parliament, or parliamentary approval of any kind, and did not have the force of law. Now we have entered this new and third phase of parliamentary consent. We have to give guidance. One wonders to what extent the guidance is more than just casual advice to those concerned and to what extent it is binding upon them. One has to read Amendment No. 15 in order to the best of one's capability to find out the answer to that vital question. The answer is contained, first, in subsection (7). I shall refer to subsection (9) in a moment.
Subsection (7) states:
"If, within the 40-day period, either House resolves not to approve the draft, the Secretary of State shall take no further steps in relation to the proposed guidance".
That gives Parliament a negative function—to disapprove the guidance if it does not think it is right. But it does not mean, from the positive point of view, that parliamentary approval is necessary in advance. It is a fine distinction, I know. Then we come to subsection (9), which states:
"The guidance shall come into force on such date as the Secretary of State may appoint by order".
The words "come into force" seem to suggest that the guidance has the force of law and that if the guidance is not obeyed those who fail to obey it will incur some kind of penalty, not necessarily a criminal penalty but will find themselves at a disadvantage of some kind. However, that does not seem to be the case.
I wonder whether my noble friend can clarify that point because I think it is constitutionally quite important. The subsection states:
"The guidance shall come into force".
That seems to give it something approaching the force of law and yet it cannot have the force of law unless there is a sanction to enforce it. We are entitled to be enlightened on that point.
Lord Campbell of Croy: My Lords, I spoke on this point during the first day of Committee on 13th June. I welcome the government amendment which my noble friend then indicated he would bring forward. I am a member of the Select Committee on the Scrutiny of

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Delegated Powers but I speak for myself in the House. The Select Committee's report on the Bill did not draw the attention of the House to this matter because it was not subordinate legislation—regulations—but guidance. This is a precedent, and a good one, because we have all noted that under the guise of guidance very significant matters as important as regulations—perhaps more so—could be issued without Parliament having any chance to discuss them or to throw them out.
In the Bill as originally drafted the guidance had to be laid before both Houses of Parliament but neither House could do anything if it disagreed with it. The negative procedure is appropriate, as I indicated when I spoke on this point on 13th June. My noble friend Lord Renton, who on that occasion moved an amendment proposing the affirmative procedure, also now agrees with that. I rise to speak simply because I believe that this is an important precedent for Bills on other subjects in the future. I am sure that the Government and others concerned will take note that guidance will be an important matter as well as subordinate legislation and regulations.
Lord Swinfen: My Lords, perhaps I may briefly express my support for the group of amendments and ask my noble friend the Minister whether he can advise the House on the following points. Should the guidance need to be altered at any time, will such an alteration have to come before both Houses of Parliament in the same way? What weight will the guidance, once approved by Parliament, have in a court of law or before a tribunal?
Lord Mackay of Ardbrecknish: My Lords, perhaps I may, first, thank your Lordships for the welcome given to my amendments. My noble friend Lord Renton made, if I may so describe it, a nice point when he asked me whether the use of the word "force" in Amendment No. 15 has some significance and whether that indicated that the guidance has a legal standing, together with the backing of legal sanctions. The use of the word "force" in that context does not imply legal sanctions and the rule of law indicated by my noble friend. If he turns to Clause 3(3) of the Bill—and the whole thing has to be read as one—he will see, as indeed will my noble friend Lord Swinfen, that it says:
"A tribunal or court determining, for any purpose of this Act, whether an impairment has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities, shall take into account any guidance issued under this section which appears to it to be relevant".
I believe that those words clearly show that the guidance is not intended to be binding on the courts and tribunals. Therefore, to that extent, it does not have the force of law. Nevertheless, courts and tribunals will have to take the guidance into account. I hope that that answers the point. In future, perhaps draftsman ought to find another word in case my noble friend has touched upon a serious point in that respect. However, I have no doubt that the draftsmen will read what my noble friend said about the use of the word "force" in the legislation.
As regards the question about revision, my noble friend Lord Swinfen will see that subsection (11) of Amendment No. 15 says:
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"The Secretary of State may—

(a) from time to time revise the whole or part of any guidance and re-issue it; [and]

(b) by order revoke any guidance".

Should the Secretary of State change the guidance, my noble friend asked whether he would have to come back to Parliament and go through the whole procedure again. Indeed, he can be assured that the Secretary of State would have to do so. I hope that those assurances will put my noble friends' minds at rest and that the House will accept my amendments.
On Question, amendment agreed to.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 15:
Page 2, line 23, leave out from beginning to end of line 26 and insert:
("(4) In preparing a draft of any guidance, the Secretary of State shall consult such persons as he considers appropriate.
(5)Where the Secretary of State proposes to issue any guidance, he shall publish a draft of it, consider any representations that are made to him about the draft and, if he thinks it appropriate, modify his proposals in the light of any of those representations.
(6)If the Secretary of State decides to proceed with any proposed guidance, he shall lay a draft of it before each House of Parliament.
(7)If, within the 40-day period, either House resolves not to approve the draft, the Secretary of State shall take no further steps in relation to the proposed guidance.
(8)If no such resolution is made within the 40-day period, the Secretary of State shall issue the guidance in the form of his draft.
(9)The guidance shall come into force on such date as the Secretary of State may appoint by order.
(10)Subsection (7) does not prevent a new draft of the proposed guidance from being laid before Parliament.
(11)The Secretary of State may—

(a) from time to time revise the whole or part of any guidance and re-issue it;

(b) by order revoke any guidance.

(12)In this section—
"40-day period", in relation to the draft of any proposed guidance, means—

(a) if the draft is laid before one House on a day later than the day on which it is laid before the other House, the period of 40 days beginning with the later of the two days, and

(b) in any other case, the period of 40 days beginning with the day on which the draft is laid before each House,

no account being taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than 4 days; and
"guidance" means guidance issued by the Secretary of State under this section and includes guidance which has been revised and re-issued.").
On Question, amendment agreed to.
[Amendment No. 16 not moved.]
Clause 4 [Discrimination against applicants and employees]:
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 17:
Page 2, line 29, at beginning insert ("Subject to section 8 below").
The noble Baroness said: My Lords, the amendment returns us to the issue that we discussed in Committee; namely, the exclusion of small firms from the operation

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of the Bill. I should like, therefore, to move Amendment No. 17, which is the paving amendment, and to speak also to the subsequent amendments in the group, especially Amendments Nos. 42 and 44 standing in the name of the noble Lord, Lord Swinfen.
The Bill makes it illegal for companies which employ over 20 people to discriminate unreasonably against disabled people. However, if a firm employs fewer than 20 people, it may discriminate whether or not it is reasonable for it to do so. The point of the amendments is to seek to bring more companies within the purview of the Act. Hence we warmly support the amendment tabled in the name of the noble Lord, Lord Swinfen, which would reduce the exemption of companies to those which employ 10 or fewer people; in other words, what most people would regard as small companies.
Why does this group of amendments matter? Small companies employ 35 per cent. of the working people in this country—17 per cent., if you exclude the self-employed. In much of the country, especially in rural areas in Scotland, in Wales and in Northern Ireland, there are no companies, or very few of them, which employ more than 20 people. If they are to be exempt from the Bill, it means that the legislation will not apply in much of the country. Therefore, huge parts of the country will not fall within the range of the Act. For example, it means that an employer with 18 staff would be able to place discriminatory adverts; he could refuse to interview a disabled person; and he could refuse to consider whether, by adjusting, say, the position of the office furniture, a disabled person might have the opportunity of becoming an effective employee. Do we really want that? Do we really find that acceptable?
However, if the same employer were to expand slightly and take on another two staff, thereby employing 20 people, he would immediately come within the framework of the Act. Why then do we have this cut-off point with the very high figure of 20 so that smaller firms that fall below it are exempt? It comes from the old quota system set up before the war whereby businesses employing more than 20 staff had to employ 3 per cent. disabled people. If one was going to employ 3 per cent., the figure of 20 made some sense; otherwise, one would be dealing with fractions of a person. However, that figure has been imported into legislation 50 years later without, I suggest, any of the justification that underpinned the old quota system.
Subsequent legislation in similar areas, whether it be on health and safety or on sex discrimination, has either had much lower figures or no figures at all for exemption. Certainly most surveys, including those from the Government's Employment Department, often assume that what is meant by "small companies" is 11 people—for example, 10 staff or fewer.
Why are the Government holding on to the figure of 20 as a cut-off point below which firms are exempt from the Act? First, the Government have argued the point on the burden of cost to small firms. I have to say that I do not think that that is true. The Government themselves expect that the average cost of physical adjustments to employ disabled people is around £200. That is not my
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figure or that of disabled people: it is the Government's figure. They believe that the average cost of adapting premises in a small firm to enable it to employ disabled people will, on average, be just £200.
Secondly, small companies, exactly like large ones, are protected from costs if they are unreasonable. If, for example, it would require a lift which was most expensive to make a firm's premises reasonably accessible for the disabled, that would be an unreasonable cost and no employer, whether large or small, need make it. Therefore, a small company is already protected, as indeed is a large one, from doing anything which is unreasonable given its circumstances. In other words, if the cost of employing a disabled person is unreasonable, the firm is not required to spend the money in order to do so.
Similarly, as we discussed in Committee, it is not true that employing disabled people entails unreasonably high costs in personnel terms; for example, as regards turnover or sickness. Indeed, all the evidence from disability organisations suggests that, on the contrary, disabled people have a better and steadier attendance at work than most able-bodied people. Certainly, their record is second to none.
Therefore, the first argument of cost used by the Government against reducing the threshold of exemption is, I suggest to your Lordships, not true. The physical cost—around £200 on average—and the personnel costs are, if anything, nil. The Government's second argument about why we should keep the figure of 20 is that small companies should not have to worry about the burden of regulation.
However, by definition the same small companies which are employing people are companies which market goods or services. They make and sell things. They manufacture goods or produce a service. Therefore, even if, as an employer, they are exempt from this law by virtue of the fact that they employ 18 people, they still have to conform to the law as a seller or provider of goods, services and products. Exempting small firms from the employment provisions does not mean that we are exempting them from the whole array of provisions, but only from one part. They will still have to take on the burden of responsibility of knowing what the legislation requires when it comes to marketing and making available their goods, services and products. Whether small companies like it or not, they still come within the purview of much of this legislation. Therefore, they will need to know the provisions of the legislation irrespective of whether we reduce the employment threshold. Indeed, it could be argued that employing disabled people could make a small company better able to adjust its goods, services and products to meet the needs of disabled people.
So, the first argument used by the Government was that of cost—I do not think that that is a valid argument—and their second argument was that small companies do not want the burden of this legislation. I have tried to suggest that, whether small companies like it or not, they come within the framework of the Bill as producers, manufacturers and suppliers of goods and services. The Government's third argument is that small companies do not want this legislation. I do not deny

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that small businesses are probably unenthusiastic about it. Indeed, there are a lot of things about which small businesses are unenthusiastic, including politicians. Small businesses would prefer not to be burdened by VAT. Small businesses would rather not have to seek planning consent if they want to extend their buildings. Very often, small businesses would prefer not to have to observe health and safety regulations. Very often, small businesses would rather not accord part-timers certain rights in terms of pensions and the like. That is understandable, but that does not mean that it is desirable or that we should support it.
Like all of us, any small business has a responsibility to the community. Equally, any small business can seek advice and guidance from a wealth of organisations, from chambers of commerce to local authorities and enterprise agencies. Small businesses may not be enthusiastic about the legislation, but they can certainly cope with it. In any case, the number of employees is no guide as to whether a company can or cannot afford to employ disabled people. Smaller companies such as legal practices or small information technology firms are well able to deal with the legislation and find disabled people attractive employees. Size has no relation to the value of a company, its turnover, profitability or the type of people that it should employ. Therefore, it is irrelevant to import the figure of 20 into this legislation.
What would be different if your Lordships accepted this amendment and those in the name of the noble Lord, Lord Swinfen? What would change? Well, genuinely small companies—that is, those employing fewer than 10 people, such as corner shops and small start-up businesses—would remain exempt. That would enable the latter to become established. However, we are saying that a company which employs more than 10 people—and certainly one which employs nearer 20—is an established business. There is no reason why it should not conform to the employment provisions of this Bill, just as it must conform to the provisions relating to goods and services. Any costs that are required to enable such a firm to employ disabled people must be reasonable. Under the Bill, no small company can be required to do anything that is unreasonable.
We are asking your Lordships to support an amendment to say that the small companies which it would be reasonable to exempt are those employing fewer than 10 people and that firms which employ more than that number should come within the framework of the Bill. That would allow disabled people across the country to exercise their rights as we would wish them to do. I beg to move.
4 p.m.
Lord Swinfen: My Lords, I thank the noble Baroness for so ably moving Amendment No. 17 and for speaking to the group of amendments. I shall therefore restrict my remarks to my amendments, Amendments Nos. 42 and 44, which, as the noble Baroness said, are designed to increase the number of firms covered by the Bill and the number of employees who will have protection against discrimination on the basis of disability.
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As the noble Baroness said, the Bill as drafted exempts firms with fewer than 20 employees. My two amendments would mean that only firms with fewer than 10 employees would be allowed to discriminate on the ground of disability when employing someone. The noble Baroness mentioned that 35 per cent. of our workforce work for firms with fewer than 20 employees. If the self-employed are excluded, the figure comes down to 17 per cent. If my amendment were accepted, that figure would be reduced further, to 11 per cent. It is, I understand, a fact that women are more likely to work in small firms and that the proportion of small firms is considerably higher in rural areas such as Northern Ireland, Scotland and parts of England. Disabled people in those areas and women who are disabled will thus receive less protection when looking for work if these amendments are not accepted.
The commonsense understanding of what constitutes a small firm is, I feel, closer to 10 than to 20 people. The chief argument put forward by the Government for the exclusion of so-called "small" employers is that they should not have to worry about the additional regulations involved. However, as has already been said, it is curious that the Government propose to exempt such employers only from Part II, not from Part III, of the Bill. If a firm providing a service will not be allowed to discriminate against a disabled person, why—unless it really is a small firm—should it be allowed to discriminate against disabled people when it comes to employment?
In many respects, the amendment is a compromise. A law which permits discrimination by some employers sends the wrong message to all employers. It suggests that disabled people are a burden which should be imposed only on those who can afford it. As the noble Baroness said, disabled people are generally considered extremely reliable by those who employ them. Their employers are often very reluctant to let them go when they move to another employer or retire. In the United States, firms with fewer than 15 employees are exempt, while I understand that in both New Zealand and Australia all employers were included in the legislation from the beginning and there were no exemptions on the grounds of the size of a firm. I strongly support the amendment.
Baroness O'Cathain: My Lords, my amendments, Amendments Nos. 46, 47 and 48, are grouped with Amendment No. 17 and it is appropriate to speak to them now. Although they do not deal specifically with the issue of 10 or 20 employees, they are tangential to it. I should add that I am not sure whether the wording of my amendments is correct, but perhaps that point could be considered later.
The Confederation of British Industry has been briefing me on this issue. It accepted from the start that 20 employees should be the cut-off point. Indeed, it is happy that the cut-off point is set at 10 rather than any other figure. The amendments seek to require the Secretary of State to undertake a review whenever he wishes to amend the cut-off figure of 20 employees—according to the Bill, it seems that the number can be moved downwards only—and not only after four years.

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We want a review because it is imperative that business is aware of the parameters within which it is operating. It cannot at one minute be 20, the next 15, and then, say, a year later, 10. We want a clear procedure to ensure that all relevant regulations are reviewed when any change which would affect small firms is contemplated. I hope that my noble friend will listen to these requests.
Lord Rix: My Lords, I support specifically Amendments Nos. 42 and 44 to which my name is attached, although I must admit that I do not feel entirely at ease with them as it is my strong view that no firm should be exempt from the legislation just on the basis of size. We all know of wealthy small firms and of larger ones which are struggling to keep going. Taken in isolation, the number of staff employed in a firm provides no satisfactory picture of its capacity to accommodate a disabled employee.
However, we must move forward. So I urge the Minister to look again at this issue. At the moment we are in danger of making detailed regulations, firms establishing their practices and procedures, and legal rulings being made on the basis of a threshold which is likely, as we have heard, to shift within five years. The amendment might help us to minimise the nonsense we are at risk of creating.
Lord Addington: My Lords, I support the amendments, especially Amendments Nos. 42 and 44. I see that my name is against Amendment No. 44 but not against 42. That is a mistake. I support both amendments. We are talking about the drawing of an arbitrary line. The noble Baroness was correct when she drew a historical precedent for the number of 20. As almost every speaker involved in this short debate has pointed out, the number of employees a firm has is no guarantee of its state.
The concept of reasonableness would surely be better than any figure, because if it is reasonable for a reasonably prosperous firm to make a small accommodation for a disabled person, that would make more sense than just saying that because a firm has X employees it is excluded or it must make some arrangements for disabled employees. There is a far stronger logic here. Reasonableness is already in the Bill.
I have never liked the idea of having an arbitrary line. In Committee I opposed the inclusion of the clause in the Bill. However, if the arbitrary line is to exist, it should be drawn at the lowest practical figure. If one has 10 employees, that would mean that the business is small. Whether businesses are rich or poor, are doing well and have good prospects, are factors we cannot bring into the Bill. At least we can ensure that the businesses are genuinely small. I hope that all Members of the House will support the amendments as they address the issue of ensuring that only the minimum number of firms are excluded from a concept which is based on reasonableness and fairness.
Lord Hamilton of Dalzell: My Lords, working at the coalface, so to speak, of those who are getting people with disabilities employed, I have to tell the House that
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the Bill is known as the magic wand syndrome. The technique of getting people employed is, first, to convince the disabled person that he is capable of doing the job. We employ educational psychologists who encourage disabled people to apply for advertised jobs and talk to firms to persuade them that they can usefully employ disabled people in their businesses. We then send the disabled person to the interview and ensure that all the equipment is provided to ensure that he or she can do the job.
There are many small firms which employ disabled people, and I fear that by regulating so that they cannot refuse to employ them or say that they think it is a bad idea, and using a foot-in-the-door technique to employ disabled people, will mean that the door will be shut firmly when one appears on the scene.
My great fear about the Bill is that it will produce less employment for disabled people than if the matter is left alone. So I support the Government's view that the line should be drawn at 20 people.
4.15 p.m.
Lord Campbell of Croy: My Lords, I spoke at earlier stages of the Bill on this subject, and I shall not repeat what I said then. I favour a reduction of the threshold of 20, but I understand also the reasons for that being done by stages because small firms have not been involved in this before. The National Federation of Self-Employed and Small Businesses vociferously supports their exclusion, but of course that is what one would expect. Nonetheless, its reasons are not just reasons of expense.
The Government made an amendment in Committee last month which, as I understand it, means that there will be a review five years after the coming into force of the Bill when enacted. The whole concept of reasonable adjustments, which is the basis of the Bill, would apply where a small firm had special circumstances or difficulties which would not be encountered by a large firm. Taking that into account, I believe that the reduction should take place in due course.
I favour the inclusion of smaller firms and a gradual reduction of the threshold. However, I should be grateful to have reassurance from the Government about their intentions, and that they do, with the amendment they made last month, intend, when it is practicable and does not cause great damage to individual firms, to lower the threshold by stages.
Lord Monson: My Lords, this is a wide-ranging group of amendments. I turn first to Amendment No. 30. I hope that the noble Baroness, Lady Hollis, will not think me in any way frivolous or nit-picking if I suggest that the wording of the amendment is a little ambiguous as well as far-reaching. She talks about "the future existence of the employer", which implies that only if the employer is so driven to despair by the provisions of the Bill that he contemplates jumping off the top of a 10-storey building will any exemption be made for him. The phrase "future existence" might well be replaced by the words "economic survival". But even that seems to me to go a little too far.

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After all, a small firm could be earning £15,000 a year gross before the employer draws any salary. If as a result of the Bill the gross profit before salary were reduced to £12,500, the employer would survive but he or she would still be obliged to endure considerable hardship.
I turn now to the amendments in the names of the noble Lords, Lord Swinfen, Lord Rix and Lord Addington. In Committee they moved an amendment which would have obliged the Secretary of State to reduce the minimum of 20 to a minimum of 10 within a period of years, and subsequently to a minimum of five within a further period of years. This amendment goes much further than that. It suggests that the number be reduced to 10 immediately.
It is unusual on Report to introduce an amendment which is more extreme than the amendment introduced in Committee. Normally one tries to reach a compromise on Report which will find favour with the House as a whole. I believe that the Government are right in sticking to their guns and insisting upon starting with a minimum of 20.
Lord Renton: My Lords, I find the difficulty with this subject is that generalisation is almost impossible. If we take Amendment No. 42, which I somewhat favour, my noble friends Lord Swinfen and Lord Rix want the threshold reduced from 20 to 10. In a wide range of industries that means a very small factory, but this provision refers to farming. At MENCAP we have taken the trouble in the past to train mentally handicapped people to look after animals. It has been a successful experiment over the years. They have gone into horticulture as well.
I happen to live near a farm of just over 2,000 acres which 40 years ago employed 10 men. Now it employs only four men. A farm with 20 men, which is what the Government have in mind, is a very big farm indeed these days. I am glad to say that it is the kind of farm, especially in the west country, on which one would find several mentally handicapped people employed looking after animals.
We do not want to reach the situation in which, with regard to such farms, we are putting the clock back. We do not want to reach the situation in which the farmer says, "Look here, I have a very big farm but I employ only 16 men". These days, that is an enormous farm. To say that such a person should not be required even to consider employing a mentally handicapped person seems to me to be most unfortunate.
The coming Recess is an opportunity for further thought. I hope that the Government will use the Recess, before Third Reading takes place in the overspill period, to take wide consultation on this matter, in particular with the National Farmers Union, the Country Landowners' Association and so forth. They may well find that the generalisation that they have in mind is a bit dangerous and that more particularisation may be necessary, much opposed as I am to too much detail in statutes.
Lord Henley: My Lords, I wish to begin with a point made by my noble friend Lord Campbell of Croy. He asked for confirmation that in due course the Government
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will reduce the threshold. Obviously, I cannot give my noble friend that assurance but I can say that we are committed to having a review after four or five years, as he knows full well. If the review is to be of any substance I cannot comment on its likely outcome, but obviously we will look at all the available options. If after such a review it is believed to be desirable to reduce the number we would be quite prepared so to do.
I shall deal with the amendments in order, beginning with Amendment No. 17, which was introduced by the noble Baroness, Lady Hollis. It would make Clause 4 subject to the provisions of Clause 8. The amendment is intended to be taken in conjunction with the substantive Amendment No. 41. The effect would be to make sure that the definition takes account of the intended Amendment No. 41.
That amendment at the very least introduces considerable uncertainty; uncertainty for the employer with fewer than 20 employees and uncertainty for disabled people. On the one hand, employers with fewer than 20 employees will have a duty not to discriminate against people with disabilities. On the other hand, they will not have to do anything to remedy any substantial disadvantage a disabled person may experience.
The clause as currently drafted is perfectly clear. It recognises that small firms would face particular difficulties in complying with this complex and innovative legislation and excludes them from the employment part of the Bill. As my noble friend Lord Mackay of Ardbrecknish noted during the Committee stage of the Bill, small firms would face two burdens if they were not exempted from this part of the Bill. The noble Baroness, Lady Hollis, based her argument on those two burdens. They were the cost burden and the burden of administering the Act, understanding it and keeping it in mind on the few occasions when they might need to recruit a disabled person. The noble Baroness's amendment fails to address the latter burden.
That said, there is nothing in the Bill that prevents small firms employing disabled people and we will be promoting the employment code of practice to small firms and encouraging them to comply.
I turn to Amendment No. 30, which would introduce a new justification making it possible for employers with fewer than 20 employees to treat a disabled person less favourably if to do otherwise would put their business at risk.
I believe that the noble Baroness is aware that Clause 8 of the Bill exempts employers with fewer than 20 employees from the employment part of the Bill. We have included this exemption for a good reason. Small firms would face particular difficulties in complying with what I have described as complex and innovative legislation. The noble Baroness spoke of that regulatory burden. I have to say that many small firms do not have specialist personnel who can deal with the adjustments that a particular disabled person might need, nor are they likely to have access to the expertise required to make and maintain such adjustments. Furthermore, it could be disproportionately expensive for small firms to comply with these requirements when they might only occasionally affect any given small firm.

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I accept that small firms are covered by Part III of the Bill, but I believe that they will have disabled customers much more often than disabled employees or disabled applicants for work. I believe that they would be able to remain familiar with Part III much more readily than they would with the complex parts of Part II. A disabled applicant might contact a small employer only on an average of every year or so. It would be very hard—unreasonably, we believe—for firms to remain sufficiently in touch with their duties under Part II in order to have a chance of avoiding a tribunal complaint. Moreover, the degree of reasonable adjustment needed for a disabled customer under Part III is likely to be less than that required for a disabled employee under Part II.
There is a great deal of difference between what a business might have to do to help a disabled customer who might spend no more than a few minutes in a shop and what might be expected by way of help for a disabled employee who might be working for many years for the employer.
I believe that this amendment sends quite the wrong message. The Bill as drafted strikes a proper balance by recognising the legitimate interest of disabled people and the reality of the problems faced by employers. The noble Baroness's amendment implies that the obligations in the Bill could be so onerous as to bring small firms to the brink of jeopardy. Further, it would imply that larger firms can actually be put in jeopardy because it provides no similar justification for them. The amendment is an example of somewhat outmoded thinking. It ignores the realities of the burdens that may be placed on businesses and gives no thought to the implications. The noble Baroness has not adequately addressed the question of whether the Bill sends the specific message to employers that the obligations in it may bring their businesses to the brink of failure.
In practice, of course, any damage to employment prospects would be caused long before this precarious state has been reached, when difficulties of the kind indicated in the amendment would mean the business had to stop expanding and taking on any new recruits, including disabled people.
In any event, the amendments passed earlier by the House to Clauses 5 and 6 allow employers to justify less favourable treatment if the reason is material to the circumstances of the particular case and substantial. I can think of no more substantial a reason than the business being put at risk. This would apply to a firm of any size. The noble Baroness's Amendment No. 30 is unnecessary even in the context of small firms being included in the employment provisions.
I turn to the amendments in the name of the noble Lords, Lord Swinfen, Lord Rix and Lord Addington. Amendments Nos. 42 and 44 ignore the burdens that the employment provisions of the Bill could place on small employers. The Bill already provides for a power to vary the threshold by regulation. That will enable us to ensure that any changes made, and their timing, take account both of experience gained in operating the new right and other relevant circumstances. Such circumstances could include, for example, economic conditions affecting small firms at the time. We would, of course, look
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carefully at any evidence that smaller firms were treating disabled people unfairly and would take that into account in the review which we are committed to undertake.
Lord Renton: My Lords, I thank my noble friend for giving way. I wish to make a point that is quite relevant. When making the regulations for exemption will it be possible to deal with one particular type of industry differently from another type of industry?
Lord Henley: My Lords, I do not know whether I can answer that point immediately. I would like to consider it, just as I would the general point that he asked us to consider during the summer; that is, whether we could look at other definitions of businesses which might allow for the point that my noble friend was addressing.
In relation to earlier proposed amendments to the clause I have argued about the disproportionate impact on very small companies. We accept that the concept of reasonable adjustment would take costs into account. But that does not take into account the amount of work that a given small employer would have to do to become familiar with the legislation which he or she might never, or very rarely, need to apply within that firm. It contains quite difficult concepts to protect disabled persons against discrimination—concepts which are unnecessary under sex and race legislation and therefore unfamiliar to employers. It would also be burdensome to investigate and decide on the appropriateness of the adjustments. Even in health and safety legislation, thresholds have been used to exclude small firms from provisions which are administratively onerous.
I accept that noble Lords have argued that they are still excluding small firms but are merely changing the starting point from 20 to 10. I believe that my noble friend Lord Swinfen talked about a common sense definition of a small firm having 10 employees rather than 20. There is a degree of subjective judgment about that. There are a number of different definitions of a small firm. My noble friend quoted the example of the Americans with Disabilities Act which now has a threshold of 15, although it was originally 25. The Department of Trade and Industry uses the figure of 200; the European Union uses 150; and the Companies Act, for some accountancy purposes, uses 50. The noble Lord, Lord Carter, may remember the Statutory Sick Pay Act of some five or six years ago. The definition that was eventually arrived at in that Act did not include the number of employees at all but was based on the size of the national insurance bill. Therefore, it is extremely difficult to get those matters right.
However, it is our clear view that the figure of 20 which we are used to in disability legislation—the Disabled Persons (Employment) Act 1944—is about right. Firms with more than 20 employees already have experience of that legislation. But the matter can be reviewed in years to come. Therefore, I hope that my noble friend will not press that amendment.
With Amendments Nos. 46 and 47 my noble friend Lady O'Cathain is hoping to ensure that before the Secretary of State seeks to change the threshold in Section 8 by order, she must hold a review, whether the

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order is to be made within the first four years of the operation of the section or at any later time. At the moment, the Bill ensures that a review would precede such an order before the fourth anniversary. It also ensures that a review is held immediately after the fourth anniversary if one has not been held beforehand. I believe that my noble friend has a point. It seems to me that the Government should always hold a review before deciding to change the threshold, and so if she will withdraw these amendments, I am prepared to consider the issues and return with any necessary amendment at Third Reading.
On Amendment No. 48, however, I am not sure that I can be quite so helpful. In the first part of the amendment, my noble friend is seeking to ensure that any review takes account of the effects of Part II of the Bill and regulations made under it—such as any on the duty of reasonable adjustment—on the employers who would be brought into coverage by Part II should the threshold he lowered. However, the second part of the amendment commits the Secretary of State to amending regulations to reflect the circumstances of such employers. The Government are not prepared to commit themselves to being obliged to change regulations when it is not clear who should judge it necessary to make changes and when we are not convinced that there would be circumstances that changes to regulations, because of the inclusion of smaller firms, would be necessary.
I can give my noble friend these assurances. It is inevitable that any decision on whether to make an order reducing the threshold will have to take due account of the effect this would have on the employers who would be brought into coverage. That must be an important factor in any decision of this kind. Secondly, if an order were to be made, it would also be appropriate to consider the effects of the current regulations and whether adaptations were required or provision for any special circumstances that might be thrown up by the extension of coverage. But it seems much more likely that we would wish to change—and much more helpfully so—the code of practice. This would obviously be reconsidered at the time if, as I say, we were to be convinced that it was appropriate to lower the threshold following a review. In the light of those assurances, I hope that my noble friend will withdrawn her amendments.
I hope that I have dealt with all the points raised principally by the noble Baroness, Lady Hollis, and other noble Lords and I hope that they will feel that on this occasion it is not necessary to press the amendments to a Division.
4.30 p.m.
Lord McCarthy: My Lords, I am trying to follow the Minister's argument. I think that he said that it is all right to impose the burden of non-employment requirements on small employers because they would have many disabled customers. However, it is not all right to impose the employment conditions on them because they might have few disabled employees. He went on to say at the same time that it is reasonable to impose the non-employment burdens because that
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would not cost much and it was not much bother, but if there are a lot of disabled customers, surely it would cost quite a lot and cause quite a lot of bother. He then went on to say that it is unreasonable to impose the burdens in relation to employment conditions because it would cost a lot and cause a great deal of bother, but he has said already that there would not be many disabled employees. How does he square all that?
Lord Henley: My Lords, the noble Lord's tortuous mind has rather confused matters. I was talking not so much about the cost but about the regulatory burden. The noble Lord will understand that a very small firm is unlikely to have available the specialist personnel team to deal with those matters. Therefore, the regulatory burden imposed by an Act of this sort in terms of employment would be very great. That would not be the case under Part III in relation to customers.
Baroness Hollis of Heigham: My Lords, first, I thank all noble Lords who took part in this short but important debate. The debate is dealing with how many people will be brought within the purview of the Act and how many disabled people will be debarred from its protection by virtue of the size of the company which they would wish to be employed by. That is the question.
The noble Baroness, Lady O'Cathain, speaking on behalf of the CBI, reminded us that its position is one of benevolent neutrality towards the amendments. I think that that would be a fair way of describing it. At earlier stages briefing from the CBI made it very clear that it did not feel that there should be any exclusion as such. Nevertheless, it is benevolently neutral towards the amendments.
The noble Lord, Lord Hamilton of Dalzell, preferred to rely on persuasion. I believe that that was the gist of his argument. I would prefer that, but we have had 50 years of persuasion and disabled people's rights have not been met adequately in the eyes of the Government. That is precisely why we have this Bill today. As the noble Lord said, good employers respond to persuasion but bad employers do not. That is why we have this legislative framework. The only question is who it should encompass.
The noble Lord, Lord Renton, was concerned that that legislative framework should not encompass those, for example, in the farming industry, where it might not be appropriate. He is absolutely right. But I happen to have sitting next to me my noble friend Lord Carter who knows far more about agriculture than I can ever hope to. He reminds me that for a farm to employ more than 10 people and therefore to come within the framework of the legislation—if the amendments of the noble Lord, Lord Swinfen, were to be accepted—it would have to have well over 3,000 acres, or more if it was arable. As a result, only a very tiny percentage of farms would be affected by the Act. Therefore, in practice, agriculture will not come within the framework of the Bill.
The Minister revisited two of the arguments which I tried, perhaps inadequately, to address when I moved the amendment. The first was as to cost, although to be fair the Minister did not challenge that Amendment No. 17, in conjunction with the amendment tabled by the

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noble Lord, Lord Swinfen, would represent costs to small firms. He did not challenge me on that. He accepted the government figure that the average cost for physical adaptations and so on is likely to be about £200. Moreover, personnel costs in terms of turnover, staying power within work and reliability, if anything, act in favour of disabled people, who have proved so often to be good employees. The Minister did not challenge that. In other words, he accepted that disabled people do not represent a financial or personnel cost to small firms. The Minister accepted that and did not challenge it.
What he did say was that employing disabled people would represent a regulatory, administrative burden to those who own, run or manage such small companies. I believe the Minister said twice that they did not employ specialist personnel because there were only 15 or 20 staff employed. That is true, but the other side of that is that precisely because the company is small and has 12 or 14 people, the manager or the employer will know what the job requires in detail and will know therefore whether the disabled person coming forward has the appropriate attributes for that job. Precisely because he is a "hands on" employer, he will have the expertise that in larger companies has to be seconded to some specialist outside. Therefore, he is likely to make a much better fit of the job and the disabled person than the larger companies would. I believe that the Minister has helped to make my point for me.
I return to the basic point. All employers, whatever their size, are not required to make any expenditure for disabled people that is unreasonable. No companies of whatever size are required to employ disabled people where their disability makes them less suitable for the job. In other words, any company with fewer than 20 staff—and if the House were minded to accept the amendment of the noble Lord, Lord Swinfen, any company with fewer than 10 staff—has that double protection already. It does not have to incur unreasonable costs and it does not have to employ a disabled person where that is unreasonable. If that is the case at present, they do not need the further protection of size as well. Size is irrelevant. We are merely excluding the corner firm.
Lord Hamilton of Dalzell: My Lords, will the noble Baroness give way? Is she not making my point, that if employers are protected so well by Clause 7, it is persuasion which has to make them employ people rather than this Act?
Baroness Hollis of Heigham: My Lords, I wish with all my heart that the noble Lord, Lord Hamilton of Dalzell, had history on his side. It is because he does not that, after years and years and years of discussion and debate, the Government—not we—have brought forward what is a good Bill which will give disabled people major rights in the fields of employment and of goods and services. However, unless we accept this amendment, large numbers of disabled people and large swathes of the country will be exempt from this Bill, and exempt unnecessarily because they are already protected by the structure of the Bill which states that
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no employer should incur unreasonable costs and no employer should employ a disabled person whose disability makes him less suitable for the job. Given that, I would suggest that size is not relevant and that we should bring the figure down to 10 so that more disabled people can enjoy the rights that I hope this Bill seeks to offer them. I wish to test the opinion of the House.
4.43 p.m.
On Question, Whether the said amendment (No. 17) shall be agreed to?
Their Lordships divided: Contents, 103; Not-Contents, 137.

Division No. 1

CONTENTS

Addington, L.

Jenkins of Hillhead, L.

Airedale, L.

Judd, L.

Annan, L.

Kennet, L.

Archer of Sandwell, L.

Kilbracken, L.

Barnett, L.

Kinloss, Ly.

Beaumont of Whitley, L.

Kirkhill, L.

Berkeley, L.

Lester of Herne Hill, L.

Broadbridge, L.

Lovell-Davis, L.

Brooks of Tremorfa, L.

McCarthy, L.

Bruce of Donington, L.

McIntosh of Haringey, L.

Cadman, L.

Mackie of Benshie, L.

Callaghan of Cardiff, L.

McNair, L.

Carmichael of Kelvingrove, L.

Mar and Kellie, E.

Carter, L. [Teller.]

Marsh, L.

Castle of Blackburn, B.

Masham of Ilton, B.

Chandos, V.

Mayhew, L.

Clifford of Chudleigh, L.

Merlyn-Rees, L.

Clinton-Davis, L.

Milner of Leeds, L.

Cocks of Hartcliffe, L.

Monkswell, L.

Craigavon, V.

Morris of Castle Morris, L.[Teller.]

Dahrendorf, L.

Darcy (de Knayth), B.

Nicol, B.

David, B.

Peston, L.

Dean of Beswick, L.

Prys-Davies, L.

Donaldson of Kingsbridge, L.

Rea, L.

Dormand of Easington, L.

Redesdale, L.

Dubs, L.

Richard, L.

Eatwell, L.

Rix, L.

Ewing of Kirkford, L.

Rodgers of Quarry Bank, L

Ezra, L.

Russell, E.

Falkland, V.

Sainsbury, L.

Farrington of Ribbleton, B.

St. Albans, Bp.

Geraint, L.

Sandwich, E.

Gladwin of Clee, L.

Seear, B.

Glenamara, L.

Simon, V.

Gould of Potternewton, B.

Stallard, L.

Gregson, L.

Stoddart of Swindon, L.

Grey, E.

Strabolgi, L.

Hamwee, B.

Swinfen, L.

Harris of Greenwich, L.

Taylor of Blackburn, L.

Haskel, L.

Taylor of Gryfe, L.

Hilton of Eggardon, B.

Thomas of Walliswood, B.

Hollick, L.

Thomson of Monifieth, L.

Hollis of Heigham, B.

Tonypandy, V.

Hooson, L.

Tope, L.

Howie of Troon, L.

Tordoff, L.

Hughes, L.

Turner of Camden, B.

Hylton, L.

White, B.

Hylton-Foster, B.

Wigoder, L.

Jay, L.

Williams of Elvel, L.

Jay of Paddington, B.

Williams of Mostyn, L.

Jeger, B.

Wise, L.

141

NOT-CONTENTS

Addison, V.

Hogg, B.

Ailsa, M.

Holderness, L.

Aldington, L.

Hood, V.

Alexander of Tunis, E.

Hothfield, L.

Ampthill, L.

Howe, E.

Astor of Hever, L.

Inchyra, L.

Balfour, E.

Inglewood, L.

Barber of Tewkesbury, L.

Ironside, L.

Bathurst, E.

King of Wartnaby, L.

Belhaven and Stenton, L.

Knights, L.

Beloff, L.

Knollys, V.

Blaker, L.

Lauderdale, E.

Blatch, B.

Leigh, L.

Bledisloe, V.

Lindsay, E.

Blyth, L.

Lloyd-George of Dwyfor, E.

Bolton, L.

Long, V. [Teller]

Borthwick, L.

Lucas, L.

Boyd-Carpenter, L.

Lucas of Chilworth, L.

Brabazon of Tara, L.

Lyell, L.

Braine of Wheatley, L.

McConnell, L.

Brougham and Vaux, L.

Mackay of Ardbrecknish, L.

Bruntisfield, L.

Macleod of Borve, B.

Burnham, L.

Manton, L.

Campbell of Alloway, L.

Marlesford, L.

Campbell of Croy, L.

Merrivale, L.

Carlisle of Bucklow, L.

Mersey, V.

Carnock, L.

Milverton, L.

Carr of Hadley, L.

Monson, L.

Chalker of Wallasey, B.

Mountevans, L.

Chelmsford, V.

Mowbray and Stourton, L.

Chesham, L. [Teller.]

Munster, E.

Clark of Kempston, L.

Murton of Lindisfarne, L.

Coleraine, L.

Nelson, E.

Coleridge, L.

Northesk, E.

Colnbrook, L.

O'Cathain, B.

Courtown, E.

Onslow, E.

Cranborne, V. [Lord Privy Seal.]

Orr-Ewing, L.

Oxfuird, V.

Cross, V.

Park of Monmouth, B.

Cumberlege, B.

Pearson of Rannoch, L.

Davidson, V.

Pender, L.

Dean of Harptree, L.

Peyton of Yeovil, L.

Pike, B.

Denman, L.

Pym, L.

Denton of Wakefield, B.

Quinton, L.

Dixon-Smith, L.

Rankeillour, L.

Dormer, L.

Rawlinson of Ewell, L.

Downshire, M.

Reay, L.

Dundonald, E.

Rees, L.

Elibank, L.

Renfrew of Kaimsthorn, L.

Elles, B.

Renton, L.

Faithfull, B.

Ridley, V.

Foley, L.

Rodger of Earlsferry, L.

Fraser of Carmyllie, L.

Saltoun of Abernethy, Ly.

Fraser of Kilmorack, L.

Sandford, L.

Gainsborough, E.

Sharples, B.

Gardner of Parkes, B.

Shaw of Northstead, L.

Geddes, L.

Slim, V.

Goold, L.

Soulsby of Swaffham Prior, L.

Goschen, V.

Stodart of Leaston, L.

Gray of Contin, L.

Strange, B.

Grimston of Westbury, L.

Sudeley, L.

Haig, E.

Thomas of Gwydir, L.

Hailsham of Saint Marylebone, L.

Thomas of Swynnerton, L.

Trumpington, B.

Hamilton of Dalzell, L.

Tugendhat, L.

Harding of Petherton, L.

Vaux of Harrowden, L.

Harmar-Nicholls, L.

Vivian, L.

Hayhoe, L.

Wyatt of Weeford, L.

Henley, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

Barings
4.51 p.m.
Lord Mackay of Ardbrecknish: My Lords, with the leave of the House I should like to repeat a Statement made earlier today in another place by my right honourable friend the Chancellor of the Exchequer. The Statement is as follows:
"With permission, I should like to make a Statement about the Board of Banking Supervision's inquiry into the collapse of Barings. I set up the inquiry in my Statement to the House on 27th February, and I have recently received this report from the Bank of England.
"Since receiving the report, I have had to consider very carefully the legal considerations relevant to publication. I am sure that it is right for Parliament to have this report in all its detail, so that its consideration of the Board of Banking Supervision's conclusions, and the lessons to be learned, can be properly informed. I have concluded that the balance of the public interest lies firmly in favour of publishing the full report. The report is being published without any deletions today, and copies are available in the Vote Office.
"I am very grateful to the board and the investigating team for the huge effort they have put into the report. They have done a thorough and speedy job.
"The report's main findings are that: the losses were incurred by unauthorised and concealed trading activities within Barings Futures Singapore; the true position was not noticed earlier because of serious failures of controls and managerial confusion within the Barings Group; and the true position had not been detected prior to the collapse by the external auditors, supervisors or regulators of Barings.
"The board was not able to gain access to all the information it would have liked. In particular, it was unable to determine Nick Leeson's motives, or whether he was acting alone, because of serious difficulties in obtaining information from Singapore. The obstacles were, I understand, legal ones, and there were some problems in providing the Singapore investigators with all the information which they in turn sought from London. However, it was clearly important to ensure as complete an exchange of information as possible, and I myself wrote twice to the Finance Minister in Singapore seeking his help in obtaining the co-operation of the authorities there. It is regrettable that there remained serious legal obstacles which prevented all the relevant documents being provided to the board.
"Leeson himself was invited to co-operate with the inquiry, but declined to do so. Through his solicitors, he has been informed of the conclusions the board have reached about his part in the collapse. His solicitors wrote to the board on 22nd June saying that the report's conclusions were inaccurate in various respects, but they did not provide any further details of his response.

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"The report describes how the concealment of the true nature of dealings in Singapore and the build-up of losses from unauthorised trading began almost as soon as Nick Leeson joined Barings Futures Singapore as general manager and head trader in 1992. By the end of 1993 the cumulative loss was over £20 million, and by the end of 1994 it was over £200 million. Losses leapt spectacularly in the first few weeks of 1995, and after the collapse on 26th February the cumulative loss was a staggering £827 million. Leeson successfully sought to conceal those huge losses throughout by a complex and systematic process of deception and false reporting.
"Such a massive unauthorised position could not have been established if there had been an effective system of management, financial and operating controls within Barings. The report details a great number of failings. I will give the House some examples.
"The money required to fund the losses came primarily from London. It was advanced to Singapore with no independent check on the validity of the requests or any attempt to reconcile them to any known trading position. If management in London had sought to examine the information from Singapore to support the requests for funds, it should have discovered that the information was meaningless.
"Barings management in London seem generally to have believed that the money being sent to Singapore was being lent to clients to facilitate their trading. However, the credit aspects of these advances were never formally reviewed or considered by the credit committee. Barings' management did not question why it was apparently lending over £300 million to clients to trade when it had collateral of only some £31 million from clients for those trades.
"The management of Barings did not question the extraordinarily high levels of apparent profitability of supposed arbitrage dealings in Singapore, which were regarded as being without risk. In the Board of Banking Supervision's view these profits should have been viewed as abnormal and questionable, and the extraordinary profitability reported in 1994 should have attracted the close and thorough attention of the management long before the collapse.
"Despite Leeson's efforts at concealment, some information on the account he used to hide his losses was available to London, but it was never analysed. No one within Barings accepted responsibility for Leeson's activities for the whole of 1994. Leeson's deception was made easier as he was not only a trader but also in charge of the so-called 'back office' which processed the paperwork associated with trading. In 1994 Barings' internal auditors recommended that as a trader he should not have this responsibility for the back office. Barings failed to implement this recommendation.
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"There were also serious and consistent failures and errors in its exposure reports to the Bank, and other reports to the Securities and Futures Authority, which made it less likely that they would be alerted to evidence of a problem.
"Coopers & Lybrand Singapore were the auditors for Barings Futures Singapore for 1994. In preparing those accounts, they expressed the view that the controls of BFS were satisfactory. This conclusion is not easy to reconcile with the lack of segregation of duties within the Singapore subsidiary which I have just described. For both 1993 and 1994, the auditors of the London operations were Coopers & Lybrand London. The report also raises doubts over the effectiveness of their testing of Barings' internal controls. The board considers that more thorough tests would have been likely to reveal the inadequate support for the funding requests from Singapore. However, the 1994 audit had not been fully completed, and it will never be known whether Coopers would have raised with management the important issues which had not apparently been identified or addressed by the time of the collapse.
"The independent members of the Board of Banking Supervision were separately asked by me to review the role of the UK regulators, particularly the Bank of England, in the events leading to the collapse. They were assisted in this inquiry by a team of accountants, lawyers and derivatives experts all drawn from outside the Bank of England. The board does not consider that the events leading up to the collapse point to the need for any fundamental change to the framework of regulation in the UK. But there is, it concludes, a need for improvements in the implementation of the existing arrangements.
"The board considers that the Bank of England reasonably placed reliance on local regulators of the overseas operations, and was also entitled to place reliance on the explanations of the management for the profitability of those operations and on the other information provided by Barings. Though the regulatory reports from Barings to regulators did contain information that was relevant to the collapse, they did not contain material information which could have alerted the regulators to the existence of the unauthorised positions that had been taken.
"The board identified a number of shortcomings in implementation by the Bank of England. It considers that an error of judgment was made in 1993 in giving Barings Brothers & Co an 'informal concession' in relation to the normal obligation of a bank to notify in advance exposures representing over 25 per cent. of its capital base. The time taken by the Bank of England to address the policy issues involved resulted in what the board judged to be an unacceptable delay of almost two years in reimposing the 25 per cent. limit. The Board of Banking Supervision was unable to determine whether or not this delay on the part of the Bank in imposing this limit was a contributing factor in Barings' collapse.
"The board also considers that the Bank of England displayed a lack of rigour in the analysis leading to the decision to permit Barings Securities Limited and

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Barings Brothers to be supervised on a joint, or so-called 'solo consolidation' basis, and in failing to review the decision. Solo consolidation of the two companies need not have resulted in a reduction in control over the advance of funds to the Singapore subsidiary, but in the case of Barings that was the practical effect.
"The report draws lessons for the management of banks like Barings, and for regulators and auditors. The Bank of England has accepted all of the recommendations relevant to it and I am placing copies of the Bank's detailed response in the Library of the House. The only other regulator for whom the Board of Banking Supervision draws lessons is the Securities and Futures Authority, which will respond once it has studied the report.
"The collapse of the Barings Group was clearly a very serious matter and caused damage to the reputation of the City of London. It has led to loss for a number of investors in Barings. However, the takeover by ING has stabilised the group and averted the prospect of far greater loss. Nothing has happened since my earlier Statement and there is nothing in the report to make me doubt my view that it would have been wrong to have used public funds to rescue Barings.
"Finally, I should like to remind the House of an important point. No regulatory system can provide a 100 per cent. guarantee against a bank failure, especially where there is a deliberate intention on the part of individual traders to conceal or deceive, combined with inadequate management controls. In cases such as this it is important that lessons are learnt quickly and promulgated widely so that all parties, including the management of other financial institutions, can learn from the unfortunate example. The speed and openness of the process is the best way to give confidence to the public and to the City. The Bank of England has already responded positively to the report. It is essential that management of all financial firms do the same".
My Lords, that concludes the Statement.
Lord Eatwell: My Lords, I am sure that we are all most grateful to the noble Lord, Lord Mackay of Ardbrecknish, for repeating that extraordinary Statement made by the Chancellor of the Exchequer in another place.
The collapse of the Barings Bank is the third major financial collapse in the past 10 years following Johnson Matthey and BCCI. As one financial collapse follows another, a persistent and fundamental question has been raised about the supervision of the British financial system and in particular about the role of the Bank of England as the body with overall financial responsibility for the financial stability of the system.
This question is raised by the Chancellor's Statement: Is the regulatory system of the UK adequate to meet the demands of an increasingly integrated, increasingly global, financial system in which the distinctions between banking and securities, and securities and insurance, have increasingly broken down? That was the
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question which the Barings' failure posed. That was the question which this report has again exposed and has again failed to answer.
The main issue raised by the report is the role of the Bank of England as principal regulator of Barings Bank. The questions are simple. What did the Bank of England know? When did it know it? And what did it do about it? What did the Bank know about the operations of Barings Bank? Is the Minister aware that the Singapore papers were publishing on a regular basis—monthly, prior to the collapse—tables indicating the market exposure of Barings on the Singapore Exchange? Will the Minister confirm that paragraph 13.36 of the report states, in relation to Barings' financial position:
"Queries were raised at a high level from reputable sources, and even included a query on 27 January 1995 from the Bank for International Settlements".
Why, then, did the collapse at the end of February come as a surprise to the Bank of England?
Is it not the case that over the past few years the structure of the financial system, both in Britain and throughout the world, has altered beyond recognition? Merchant banks in the City of London have been busy transforming themselves into the equivalents of American securities houses. Indeed, it was the solo consolidation of Barings, discussed by the Chancellor in his Statement—the combining of the capital base of the banking operation and the capital base of the securities house—which led to the collapse.
The report tells us that the Bank of England displayed a lack of rigour with respect to solo consolidation. Does the Minister consider that solo consolidation should be permitted at all even under the increased supervision proposed in the report? Does he not agree that the capitalisation of banking and securities operations should be kept separate?
An important aspect of the rapid changes in financial markets to which I have referred has been that regulatory procedures have become outdated. The principal regulator, the Bank of England, has traditionally had regulatory responsibility for banking and, as lender of last resort, for the integrity of the banking system. However, securities trading demands an entirely different approach. There is no longer a lender of last resort function. No such function is exercised, for example, by the United States SEC, and in principle there is no systemic risk.
In the case of Barings, the securities and futures authority had specific responsibility for the supervision of Barings securities operation in the UK alone—not overseas, not in Singapore—while the Bank of England, which has far less detailed expertise on securities matters, was responsible for the overall operations of Barings including the overseas securities operation.
That responsibility the bank clearly failed to exercise. Indeed, it is clear that the bank has been complacent and has been not a little gullible. Does the Minister recall that Mr. Eddie George, the Governor of the Bank of England, stated in the Observer on 24th July 1994:
"We now have an expert team monitoring derivatives who are getting even better every time they go in to see a firm. What they are reporting back from the most active players in the market is very reassuring. These people know what they are doing, whether it is at director level or the chaps on the desk"?

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Does the Minister further recall that Mr. Brian Quinn wrote in the Bank of England quarterly bulletin in August 1994:
"I believe both the market participants and the regulatory authorities have come a considerable way in identifying the capital needed for derivatives and all other instruments carrying market risk"?
No wonder the Bank did not know what was happening. It thought it knew already. But what has the report to say about the bank's complacency? In paragraph 13.58 we are told:
"The Bank regarded the controls in Barings as informal but effective".
The Chancellor's Statement says:
"The Bank … reasonably placed reliance on local regulators"—
regulators who, according to the Chancellor's Statement, are now refusing to co-operate with the British authorities. The report continues that the Bank,
"was … entitled to place reliance on the explanations given by management as to the profitability of these operations and on the other information provided by Barings to the Bank".
Paragraph 13.61 states:
"Had the Bank had a greater understanding of Barings' Far Eastern operations and a greater awareness of the degree of control of these operations as exercised by Barings in London it would have been better placed to supervise the consolidated group. There does not appear to have been any guideline or system in place within the Bank for determining whether the situation with regard to a member of the banking group for which the Bank was responsible for consolidated supervision was material such that it could affect the well-being of the bank".
Complacent and gullible, no guideline or system in place.
We might have expected that in those circumstances the internal inquiry by the Board of Banking Supervision would have recommended a fundamental and thorough review of the regulatory apparatus. However, in the section on lessons to be learned and recommendations the report states, in paragraph 14.35:
"We believe the Bank should explore ways of increasing its understanding of the non-banking businesses (particularly financial services businesses) undertaken by those banking groups for which it is responsible".
It should increase its understanding of the job that it is supposed to be doing. Paragraph 14.37 states:
"The Bank should ensure that it understands the key elements of the management and control structures of those banking groups where it is responsible for consolidated supervision".
In the face of a report which argues that the Bank of England should begin to try to understand the institutions which it is supposed to be regulating, it beggars belief that the Chancellor should accept the proposition, and I quote from his Statement,
"that the events leading up to the collapse [do not] point to the need for any fundamental change to the framework of regulation in the UK".
That is an astonishing statement. Does not the Minister understand that in accepting the advice of an internal committee of the Bank of England into the future of the Bank's own supervisory role the Government are further damaging the already tattered credibility of the British regulatory system? Will the Government now set up a proper independent review to consider what should be the structure of a modern supervisory system, suited to the
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effective and competitive supervision of a modern deregulated financial system? In the light of the increasing integration of banking and securities operations and the development of global markets, that review should consider whether the Bank should continue with its supervisory role or whether that role should pass to a new banking commission, better attuned to the supervisory demands of the modern world.
Is not such a review necessary after three significant and embarrassing failures? Should not the Government ensure that effective supervision and greater confidence for savers and investors underpin the integrity of the British financial system?
Turning briefly to another aspect of the report, does the Minister agree that one of the most distasteful aspects of the whole affair is that, while a large number of bondholders—many of them elderly—have lost virtually all their savings, the management of Barings who, as the report makes clear, share responsibility for those losses, have also shared in bonuses of nearly £100 million? Given that the report also specifies the major failings of the regulatory authorities in this matter, will the Government now undertake to indemnify those who lost money because of the Bank of England's lack of understanding of the markets it was supposed to be supervising?
I conclude by raising an important matter concerning the conduct of business in your Lordships' House. I received a copy of this 400-page report a little over an hour-and-a-half ago. I know that other noble Lords, with the exception of the Minister I suppose, have not seen it at all. There are in your Lordships' House unique understanding, expertise and skills in the complex financial matters covered in the Report, many of which I have not been able to consider at all in this brief reply. In the light of that fact, the Opposition has been pressing since last week to debate the report on this coming Friday, where there is ample time on the Order Paper, rather than wait until October. The Government have refused to countenance such a debate. Will the Minister reconsider the action in blocking the opportunity for your Lordships to comment on the report before it gathers dust? Will the Government give the opportunity for the House to debate the report on Friday?
Lord Ezra: My Lords, I too wish to express appreciation to the noble Lord for repeating the Statement. The noble Lord, Lord Eatwell, pointed out that there have in recent times been three significant banking crises. I consider that the Barings crisis is the worst of the three because it was at the heart of the City of London. It was the longest established merchant banking organisation in Britain. Of the other two, Johnson Matthey represented a bank which was a subsidiary of a firm which dealt mainly in trading precious metals. BCCI was a firm of enormous proportions but it largely traded abroad. This crisis hits at the heart of the City of London. It is fitting, therefore, that we should have this long and detailed report on it.
From what I have been able to read in the short time I have had the report in my hands, the analysis is extremely detailed and, I regret, highly critical of all

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involved. With the noble Lord, Lord Eatwell, I find that the recommendations and the lessons learnt do not seem to me to go nearly far enough.
Let us consider what is said about management. What should be done about management in other banking concerns? The first heading on page 252 is that:
"Management teams have the duty to understand fully the businesses they manage".
Did we really need a report of this size to comment in that way, over 200 years after the City of London established itself as the main financial centre in the world?
Let us look at the second main recommendation as regards management:
"Responsibility for each business activity has to be clearly established and communicated".
In other words, the management has to know what various business activities are being performed. The third recommendation is that there should be:
"Clear segregation of duties [in] … any effective control system".
The noble Lord, Lord Eatwell, has already referred to the limited nature of the proposals that are made about the supervisory role of the Bank of England. So I very much fear that, although this is an excellent report in analysis, what it comes out with at the end gives little reassurance to those—they represent everyone in this House, and indeed in the country—who fear that this might occur again.
I wish to ask the Minister whether, even in the light of the limited recommendations, there is to be a further report by the Board of Banking Supervision to find out whether the various banking institutions are taking the necessary actions. Furthermore, in regard to the Bank of England's supervisory role, the noble Lord, Lord Eatwell, is perfectly right to draw attention to the alternative possibilities. We should have a major debate on whether the supervisory role should remain with the Bank or should be transferred. I have an open mind on the subject, but if it is to remain with the Bank, the whole thing needs to be sharpened up a good deal more than is suggested in the report.
The third area of importance is co-operation with overseas supervisory bodies. As the noble Lord, Lord Eatwell, pointed out, the fact that the Singapore authorities were not prepared to co-operate in the inquiry does not bode well for the arrangements for co-ordination by the various authorities. Because of the global nature of financial operations in the world in which we live, unless there is much more effective co-operation with the various supervisory bodies, I do not suppose that we shall be able to avoid such crises occurring again.
I conclude by asking the Minister whether the report, which is good on analysis, is only the start of the story. Do we not need to take it a good deal further? Do we not need to be assured that when these and further measures are effectively taken, we avoid this kind of occurrence in the future?
Lord Mackay of Ardbrecknish: My Lords, I am grateful to both noble Lords for thanking me for repeating this Statement. I shall try to address some of the points that they raised, although I cannot promise to
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answer them all; this report is very detailed. Noble Lords who are interested can, I suspect, spend a few hours reading it, when they will perhaps receive a slightly broader view than that portrayed by the noble Lord, Lord Eatwell.
To reply first to the point raised by the noble Lord, Lord Ezra, as to what was happening in regard to the recommendations, so far as the Bank is concerned there are 17 recommendations for action by the Bank which have all been accepted. They include improving its understanding of the risks in the non-banking business in the groups for which it is responsible; various improvements to its internal guidelines; efforts to improve co-operation with other regulators; and other measures to improve its effectiveness. The board asked for—and the Bank indicated that it will provide—a report on the recommendations and what has been done about them by the end of the year. As I said in my Statement, I am absolutely certain that all the banks in the City and all the other financial institutions will read carefully what this report discovered about this incident in order to see whether there are any lessons to be learnt by them over the way that they control their operations.
Perhaps the major point raised by the noble Lord, Lord Eatwell, is the argument that he advanced, as did some others, in favour of separating the functions of banking supervision away from the Bank of England. There is nothing in this report that supports the need for that major change to the regulatory framework. What it points to is a failure of practice, not a failure of policy. The noble Lord, Lord Eatwell, will of course remember that Lord Justice Bingham concluded in his report on BCCI that there was nothing in the history of BCCI that argued against the Bank's dual role. The noble Lord will also be aware, and I remind him of it, that the Treasury and Civil Service Committee of another place, in its 1993 report into the role of the Bank, concluded that there was no overwhelming case for separating out banking supervision to a separate body; rather the balance of argument was in favour of maintaining the status quo.
The Treasury and Civil Service Committee is currently looking into derivatives and at the implications of the Barings collapse. I do not know whether it will revisit this issue, but that is what it said; and that is what Lord Justice Bingham said in previous investigations on this issue. I do not think that the noble Lord, Lord Eatwell, was quoting from the broad base of views on this matter, but from a rather narrower base, when he invited me to remember quotations from articles previously.
The Board of Banking Supervision was set up under the Banking Act 1987 to advise the Bank of England on the discharge of its supervisory responsibility. Apart from the Governor and one other Bank official, the other six members are all independent outsiders with considerable experience. They were appointed precisely to deal with and pursue thoroughly, under their powers in the Banking Act, the sorts of issue that arose in this incident.
The noble Lord, Lord Ezra, asked about Singapore and why there were problems in getting information from Singapore. One of the problems was that Barings

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Futures Singapore is in the hands of judicial managers in Singapore who have a similar role to UK administrators. An inquiry team sought a local court ruling to direct the managers to release information, but the court refused, principally because insufficient commercial benefit would, as they saw it, accrue to BFS. My right honourable friend the Chancellor wrote twice to the Singapore Minister of Finance seeking co-operation on information. Therefore the investigation team did not get all the information that it would have liked because of the legal difficulties, but the Singapore Government, after my right honourable friend had written, agreed with us on the need to co-operate so far as possible.
The noble Lord, Lord Eatwell, asked me about the bondholders and about the bonuses of those who left Barings as a result of this incident. So far as I understand, almost all of those who are criticised in this report have left Barings. Equally, my understanding is that they did not receive any of the bonuses about which the noble Lord asks.
On the general question of whether the Government or the Bank of England should stand behind shareholders and bondholders in these matters, there is no suggestion in the report that the Bank should do so. Of course, we very much regret the fact that people lost money in Barings. But the capital of any company is exposed to higher risks than ordinary creditors and will receive a return only after other creditors are paid. If the Bank or the Government were to stand behind all failed banks, this would lead to moral hazard. People could chase the highest returns, regardless of risk, knowing that someone else would pay the Bill if things went wrong. That would not be right.
I was asked why the Bank did not pick up the market rumours when others did. The Bank of International Settlements, one of the others quoted, has a substantial balance sheet which requires it to deal on a regular basis in all the world's major markets and with all the world's major banks. Therefore, it is not really surprising that its dealers picked up a rumour in talking to Tokyo business counterparts. Bank dealers have very many fewer regular links with the Far East, and they did not pick up that particular rumour.
On the question of solo consolidation, which is a tricky issue on its own, I was asked by the noble Lord if I thought that it should be ended. I believe that it is sometimes right for the Bank to regard very closely linked institutions as one. The report makes clear that solo consolidation was a problem only because it was combined with such inadequate internal controls and general misreporting. The point is not that we should rule out a potentially useful technique, but that we should ensure that it is employed only where appropriate. The Bank is reviewing its rules on that subject.
Another point concerned holding a debate on Friday. As noble Lords well know, that is not a matter for me but for the usual channels. It should be left to the usual channels to make these decisions.
5.27 p.m.
Lord Boyd-Carpenter: My Lords, I support the view of the noble Lord, Lord Eatwell, that it is very important that this matter should be debated by this House before we rise for the Recess. This House contains an enormous amount of expertise and knowledge on these subjects. The matter is obviously one of considerable urgency. The only extent to which I would perhaps differ from the noble Lord opposite is in so far as it might be better to defer our rising for the Recess and take the debate early next week. That would give rather more opportunity and time for those of us who are concerned about this matter—and there are many—to read and digest this report. There is no necessity, so far as I know, to rise on Friday. It is purely a matter of convenience. This House has always been prepared to subject questions of convenience to questions of real public duty. It seems to me that this House can do a great deal by debating this subject. I hope that my noble friend will not just pass us off with the usual formula about "the usual channels". Some of us have no undue confidence in the usual channels. We should have far more confidence in my noble friend the Minister were he to say that he would himself take steps to see that we have an opportunity to debate this subject.
The only other matter that I would raise with him is this. I did not understand from his Statement, although I endeavoured to follow it closely, whether he, the Government and the Treasury are satisfied that the steps so far taken are sufficient to prevent a similar early repetition of a ghastly episode of this sort.
Lord Mackay of Ardbrecknish: My Lords, as to my noble friend's last point, at the very end of my Statement I pointed out that in the real world no regulatory system can provide a 100 per cent. guarantee against a bank failure. Anybody who believes anything else lives in Cloud-cuckoo-land.
The lessons for the Bank, for the financial institutions and for other people involved in this issue are there in this report for them to read. The Bank certainly accepts the recommendations and has undertaken to give report accepting their adoption by the end of the year.
As to having a debate on Friday of next week or whenever, my noble friend has asked me that question quite often. He has seemed quite keen to shorten the Recess on a number of occasions. Yesterday it was about the Consolidated Fund and probably tomorrow it will be the Consolidated Fund again. I can only repeat, much as I should love to yield to the temptation and be his hero for the day, that these matters are better dealt with by the usual channels and I shall report the matter to my noble friend after this Statement.
Baroness Seear: My Lords, before the noble Lord sits down, perhaps I may say that we on these Benches would also very much like to see an early debate. It is not good enough to leave it until early October. Nor do we accept that the Government are in a position to decide that that should be done and so on this occasion to instruct the usual channels.
Lord Mackay of Ardbrecknish: My Lords, I have nothing to add to what I said. I believe that the usual channels are the appropriate way. It is a fairly hefty report to read and your Lordships may be the better for a few days in which to digest it before we even begin to think about debating it.
Lord Barnett: My Lords, my noble friend Lord Eatwell, in a devastating commentary this afternoon, covered most of the points. I do not want to repeat them.
However, as I am sure your Lordships generally will accept, we have heard an incredible Statement this afternoon. We have been told that there is no need for any fundamental change to the framework of regulation in the United Kingdom. That is hard to believe after just hearing the Statement, let alone reading the whole report. How can the Minister say that? He should not have repeated what the Chancellor said. He should be ashamed to repeat words of that description.
In his reply, the Minister said that there was nothing in the report which suggested that we should separate out the supervisory role from the Bank of England. Of course not—the report is from the Bank of England. Why should we expect the board to recommend that it should be separated out. He mentioned the 17 recommendations that have been accepted. I have not read the report. Does one of the recommendations cover the point made by my noble friend Lord Eatwell; namely, that the Bank would do better to understand its job? Is that one of the recommendations?
I should like answers to two basic questions. First, we have been told in the Statement this afternoon that what happened was a failure by Barings and above all by the Bank of England's lack of rigour. Despite that, it is proposed to leave the Bank of England in charge. Would the Minister kindly justify to us how he can propose to leave the Bank of England in charge when he has repeated all the criticisms made this afternoon?
Secondly, everything that the Minister said this afternoon implies alleged charges against a certain Mr. Nick Leeson. The charges imply an offence against Barings in London. Barings has lost the money—over £800 million. Barings in London lost that amount of money, we are told, through the efforts or lack of effort of Nick Leeson. Why do the Government refuse to bring him back and charge him in this country?
Lord Mackay of Ardbrecknish: My Lords, I do not need to remind the noble Lord that the independent members of the board were the ones who looked in particular at the role of the Bank. As I explained in my original answer, that is the role placed on it by the Banking Act. It was not the Bank of England but the independent members of the board who concluded that:
"The events leading to the collapse of Barings do not, in our view, of themselves point to the need for any fundamental change to the framework of regulation in the UK. There is, however, a need for improvements in the existing arrangements".
That is a serious point which has to be taken on board.
There is a distinction between the fundamental arrangements and the way in which they are operated in a practical way. The one needs to be improved and not the other. As I explained to the noble Lord, Lord
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Eatwell, Lord Justice Bingham came to the same conclusion, as did the Treasury and Civil Service Committee in another place.
The noble Lord asked me about Mr. Leeson and the fact that the board in this report certainly indicates his major role in the affair. When noble Lords have had a chance to read the report, they will see that that was indeed the trigger point. Not only according to the board did he do the trading but he went to a great deal of trouble to make sure that it was not found out by his superiors.
As for the question about him being brought to face criminal offences in Britain, that is a matter for the Serious Fraud Office. It has stated that there is presently no evidence available to it which could form the basis for an application for extradition from Germany. Mr. Leeson's activities—it seems a statement of the obvious—were carried out in Singapore and it is in Singapore that these matters will have to be addressed.
Lord Clark of Kempston: My Lords, does my noble friend agree that my right honourable friend the Chancellor, as soon as he could possibly do so, asked the Board of Banking Supervision to make a report? The report has come out with remarkable rapidity when one considers other reports which are requested and take months and sometimes years to appear. My noble friend will no doubt agree that the report shows a chaotic state of management in Barings, and not only in Barings; there is also criticism of the auditors, Coopers & Lybrand.
Those are serious accusations against two institutions, as far as the City of London is concerned. So far as concerns the Bank of England, from my cursory scan of the report, it seems to me that the cardinal error there lay in giving a concession that meant that if 25 per cent. of its capital base were exposed, it need not report it. That is a derogation of monitoring by the Bank of England. I understand that that informal concession was not given by a top executive in the Bank. I should have thought that such a concession should only have been made by the Governor, or certainly the Deputy Governor. I am sure that my noble friend will agree.
We must be careful that we do not jeopardise the confidence of the City of London. The City of London is a major plank in our economy so far as concerns invisibles. It does not do us any good to talk down the regulatory authorities and so on. I am absolutely convinced that the 17 recommendations will be implemented and, as my noble friend said, that all the other regulatory bodies will read the report with great interest and make absolutely certain that their monitoring is good.
We keep on having reviews. I feel that we want action. I urge my noble friend to take action on this report, particularly with regard to the 17 recommendations for the Bank of England.
Lord Mackay of Ardbrecknish: My Lords, I thank my noble friend for making those points. Perhaps I may start at the end of them. As I indicated, the 17 recommendations have been accepted by the Bank of England and it has issued a press statement today on that.

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In the report, the board says that it has asked the Bank to report back to it by the end of this year, saying what it has done about those recommendations. I hope that that helps my noble friend from that point of view.
My noble friend is right. One of the problems in the Bank was the matter of the advance of more than 25 per cent. of its capital to a single party. Clearly, that is a problem. It has been highlighted in the report. It is one of the issues that the Bank will have to address to ensure that there are no further breaches of the large exposures directive.
With regard to the auditors, it is fair to say that the report does not blame them for the collapse. However, it raises some significant questions about the effectiveness of their inquiries. I hope that professional bodies will pay close attention to the findings of the board in regard to auditors. It must be said that the board was not able to deal properly with issues relating to Coopers & Lybrand in Singapore because, as I said earlier, the company claimed client confidentiality and the Singapore court upheld that.
Lord Taylor of Gryfe: My Lords, first, I congratulate the Government on publishing this report in reasonable time. This is an extremely complex business. It covered international operations, which are difficult to follow. It required co-operation and information from a large number of sources and, unlike previous investigations on affairs in the City, this report was published in reasonable time. In other cases, such as those where the Serious Fraud Office were involved in City affairs, the inquiry sometimes took four or five years. The Government therefore should be congratulated on the expedition with which they have produced the report.
That is all I say in commendation of the report. I want to raise the question of the depositors and the people who lost money in this sad affair. After all, it is not a question of standing behind every bank that runs into difficulty. I would not expect the Government to assume that responsibility. But in this case, as is contained in the report, the Bank of England is responsible for a high degree of negligence and for that I assume the Government should bear some responsibility, it being their institution.
The other matter referred to is the case of the auditors. In the report the auditors are also deemed negligent. Is not there a case for a professional body to deal with auditors who are negligent—reputable firms as they are, as the bank too is a reputable firm? Also, as often happens in American courts, is not there a case for the people who lost money to sue the negligent individuals in order to recover some of that money?
Lord Mackay of Ardbrecknish: My Lords, I am grateful to the noble Lord, Lord Taylor of Gryfe, for his introductory points. He is absolutely right in saying that it is a complex report; it was produced speedily and my right honourable friend the Chancellor published it not only speedily, but in full. I am glad for the noble Lord's endorsement in that regard.
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The noble Lord returned to the question of the people who lost money. If in this case, somebody—let us say the Government—were to pay back that money in some way, I fear that that may be taken by everybody else as meaning that when a similar eventuality happened in the future, the Government could be pushed into being morally obliged to pay out that money. That would have the result that I mentioned in my original answer to the noble Lord, Lord Eatwell; that is, that people would go into high risk strategies without any regard for the consequences, safe in the knowledge that the Government could be relied upon or bullied into bailing them out if it went wrong. That is the first point I want to make.
When the noble Lord reads the whole report he will not be able to come to the conclusion that the Bank was principally responsible. He will see that the responsibilities for this whole affair were largely in Barings and its management, and the way that they dealt with the situation. Also, when he reads the board's view on the part Mr. Leeson played, he will see that that was the key. I do not want to quote at too great a length, but in paragraph 5.3 the report points out,
"It appears, therefore, that Leeson intended to use Account '88888'"—
which was the account into which he put the losses—
"for unauthorised activity from the outset"—
that is, from the time that he went to Singapore—
"and that the action noted above"—
that is, what he did in order to make sure that no information went from that account back to London—
"was designed to exclude the account from the books and records of Barings".
The noble Lord, Lord Taylor of Gryfe, is being a little unkind therefore—I understand that because he has not had the chance to read the whole report—when he tries to finger the blame entirely on the Bank of England.
Lord Monson: My Lords, the noble Lord, Lord Eatwell, and others drew our attention to the disgraceful state of affairs whereby the new owners of Barings paid many tens of millions of pounds by way of bonuses to already well-paid employees at Barings at the expense of loan note holders, many of whom are not well off. While I accept that the Government are not in a position to bale out the loan note holders, does not the noble Lord, Lord Mackay, agree that the action of the new owners will make it more difficult and more expensive for solid, respectable, well-run British companies to raise fixed interest capital in the future?
Lord Mackay of Ardbrecknish: My Lords, I said earlier that my understanding is that those who left Barings did not receive bonuses. The bonuses' point is covered by ING Barings and relates to those people who continue to work for that company. To whom the bonuses should be paid is a matter for the new owners. Around 4,000 people worked in parts of Barings that had nothing to do with this matter in Singapore and nothing to do with these events. They were running a successful UK bank, and it is not right that we should confuse their position with that of the events in Singapore and the inability of the senior management of Barings to monitor those events properly.

Nolan Report: Government Response
5.47 p.m.
The Minister of State, Home Office (Baroness Blotch): My Lords, with the leave of the House, I shall now repeat a Statement made in another place by the Chancellor of the Duchy of Lancaster. The Statement is as follows:
"With permission, Madam Speaker, I should like to make a Statement to the House on the Government's response to the first Report of the Committee on Standards in Public Life which is being presented to the House today as Cm 2931.
"My right honourable friend and distinguished predecessor, the Member for Wirral West, told the House on 18th May that the Government accepted the broad thrust of these recommendations. The response covers all the recommendations addressed to government: 45 of 55 recommendations in all.
"The Prime Minister has made it clear that he is determined to uphold the highest standards in public life. The response details the Government's plans for implementation and action in respect of all the 45 recommendations addressed to government. It also sets out further proposals for a new Civil Service code, and for a new introduction to Questions of Procedure for Ministers.
"We accept the Nolan Committee's recommendation that Ministers should be brought within the scope of the Advisory Committee on Business Appointments. The response emphasises the very great importance of continuing interchange between business and commercial life and ministerial office. We should do nothing to deter talented people with private sector experience from entering public life, and nothing which prevents those who have completed their ministerial career from applying that experience to the benefit of British industry and commerce.
"The Nolan Committee strongly supported that principle, and to translate it into action we shall draw up rules setting out specific criteria, to be administered by the Advisory Committee on Business Appointments, to establish the circumstances in which Ministers should be advised to delay a particular appointment, or make its acceptance subject to conditions. We intend to publish a text for consultation before introducing the rules from the start of the next Session of Parliament. We intend to have a debate on this and the White Paper as a whole in the spillover Session. We shall also consult to the same timetable on an extension of business appointments rules to Ministers' special advisers.
"On the registration of hospitality accepted by Ministers, our response builds on the arrangements for registration of Members' interests in this House and on the guidance already contained in Questions of Procedure that Ministers should not accept hospitality which would or might appear to place them under an obligation. In the words of the Select Committee on Members' Interests,
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'it is neither possible nor desirable to make a clear distinction between a Minister's conduct as a Minister and his conduct as a Member of Parliament'.
"We shall act quickly and positively on the Nolan Committee's recommendations concerning appointments and propriety in public bodies and the National Health Service, building on many of the continuing initiatives which the committee endorsed. In particular we shall appoint a new commissioner for public appointments to offer guidance, monitor and audit departmental appointment procedures. This post will be advertised in a matter of days.
"We shall extend the use of advisory panels, including an independent element, to advise on appointments to executive public bodies and the National Health Service. This has been successfully piloted in a number of areas. All departments will introduce their own arrangements as soon as practical to allow the new commissioner to influence the procedures introduced. We believe that at the outside this will require no more than 12 months.
"My honourable friend the Member for Orpington announced last month a review of the legal framework governing propriety and accountability in public bodies, and their arrangements for external audit. We intend to reach preliminary conclusions by the end of the year, well ahead of the timetable envisaged in the committee's report.
"We have accepted the recommendations of Lord Nolan's Committee that there should be opportunities under the Civil Service code for a civil servant to raise concerns about actions in which he or she is not personally involved, and for nominated officials to investigate concerns raised confidentially.
"Our consultation period on the Civil Service code will now be extended to mid-September to allow further opportunities for comment. We accept the Nolan Committee's recommendation that implementation need not then await a legislative opportunity, and our intention is to have the code in action before the end of the calendar year.
"I am confident that the action we have set out will show the House, and the country as a whole, our determination to take practical steps which will uphold and sustain the highest standards of propriety, while ensuring that men and women of talent and experience continue to contribute to our public life."
My Lords, that concludes the Statement.
5.52 p.m.
Lord McIntosh of Haringey: My Lords, the House will be grateful to the Minister for repeating the Statement just made in another place. The first thing that has to be said is that, in numerical terms, when one looks at the White Paper which accompanies the Statement, it is true that a very high proportion of the recommendations made by the Nolan Committee have been accepted by the Government. It is important to put that on the record first. However, we have to read a little further to understand the implications of the Government's approach to the issues raised by Nolan. I

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am afraid that when we read a little further the situation is by no means as satisfactory as it appears from the simple enumeration of recommendations and responses.
Perhaps I may take, first, the issue of Ministers and private sector jobs after Ministers leave office. The problem is well-known. It is well-known that it is a problem peculiar to this Government. I am not conscious that any significant number of remunerative posts have been offered to former Labour Cabinet Ministers on leaving office. It is a problem which is peculiar in that it has applied particularly to those Ministers who have taken an active part in the privatisation of public sector companies and have then proceeded, almost directly in many cases, onto the boards of those privatised companies after they have left office. We hope that that may be a finite problem which will not arise in the future. Both of them may be finite problems which will not arise in the future. But they are particular problems and their political implications should not be forgotten.
When we look at the Government's response to the problem of taking up business appointments after leaving office we find that, although the Government claim to accept the recommendation, they do not in fact accept the recommendation that there should be a minimum three-month gap. They are perfectly willing to accept that there should be a maximum two-year gap but there is no acceptance of the minimum three-month gap. I wonder whether the Minister can tell us why that should be the case?
We know that the Nolan Committee talked about advice to Ministers rather than prohibition on Ministers. However, the phrasing used in the Statement,
"circumstances in which Ministers should be advised to delay a particular appointment",
is a little weak in the circumstances. I wonder whether the Minister would care to comment on the implication of that statement.
We welcome the suggestion made by Nolan and accepted by the Government that these timetables and rules should apply to special advisers and that special advisers should to that extent be brought within the scope of the Civil Service. I do not think there is anything very much we would want to say about the registration of hospitality. Nolan found that that on the whole is acceptable. Nolan's detailed proposals about registration, although they have not been accepted by the Government, do not cause us particular concern.
Where we start to have greatest concern is about quangos—non-departmental government bodies. Here we are told not that there is a response now to the recommendations of Nolan, but that Mr. John Horam has set up a review of the legal framework governing propriety and accountability. While acknowledging the appointment of a commissioner for public appointments, why is it that the Nolan recommendation that the appointment should be outside the Cabinet has not been accepted? Indeed, the staff of the commissioner are to work within the Cabinet Office. That is a worrying consideration.
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When we come to appointments, all of the formal procedures proposed can very well be defended. But the formal procedures which we have had in the past have in effect been defended by Ministers over a number of years. We all know the reality. For a very large number of these appointments, departments and Ministers go round to the Whips' Office to get a suitable party candidate. What assurance do we have that the formal procedures that have been defended in the past and have clearly not worked will work in the future? What changes have taken place which give us that assurance?
We come to the propriety of the actions of the members of quangos. However many codes of conduct there may be, unless propriety is ensured by something much more comparable to the rules which apply to elected members of local authorities rather than to these appointed bodies, we shall not have very much confidence in them. Members of local authorities have been required by Parliament, following the Widdecombe Report, to obey very detailed rules on particular interests as opposed to general interests. I see no evidence in the Government's response—I do not see enough evidence in Nolan's analysis—of the need for non-elected members of quangos to be subject to at least the same rigour of rules as elected members of local authorities, including the threat of suspension and financial penalties, which do not seem to exist at the present time.
There is a good deal of reference in the Nolan Report to openness. There is some reflection of that in the Government's response. What does openness mean? It should mean that the activities of these bodies—the health authorities and so on—are as open as the activities of local government. In other words, except when there are particular issues of commercial confidence which need to be determined in private, non-departmental public bodies should conduct their activities in public in just the same way as local authorities. So far as I can see, there is no reference to that in the Government's response.
It is all very well, when talking about quangos, to speak about removing abuse of the system; but we must recognise that the system itself is an abuse. It is a fact that, even on the low estimates of Nolan, there are 9,000 appointments and £40 billion of public expenditure involved. Unless we are determined to bring those activities under democratic control, all of the codes of conduct and codes of standards will be of little value.
6 p.m.
Lord Rodgers of Quarry Bank: My Lords, we on these Benches also greatly welcome the Statement. It is a most important Statement but inevitably a short one. Just as the Statement in another place produced the promise of a debate in the final part of the current Session, we also feel very strongly about the matter and would like to have a debate on it. There is so much detail in fine print which we cannot possibly pursue today because there is important business before the House; and, indeed, another Statement has already been discussed. However, I hope that we shall have such a debate during the spill-over period. That would give us an opportunity to pursue a number of matters that we cannot discuss today.

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Naturally—and I make no complaint about it—such a Statement is selective. It is selective because of time and space but also because inevitably the Government want to put the best complexion on the decisions that they have made. I believe that it is for this House to scrutinise very carefully the White Paper itself against the Nolan Report. The Statement refers to a statement made in another place on 18th May that the Government accepted the broad thrust of the Nolan Report. It would help us this afternoon, and perhaps help to avoid further detailed questions, if the Minister could say, having accepted the broad thrust, where principally in the decisions set out in the White Paper the Government have actually departed from the Nolan Report.
There are one or two points to which I should like to refer. I do not pretend in any way that the Statement misleads the House, but I believe that inevitably the White Paper has rather more to say in its fine print than such a Statement. For example, Recommendation 14 is an acceptance of the need for the proper investigation of cases of "alleged impropriety affecting Ministers". In the White Paper there are also statements of the Government's position that they accept that recommendation. But, having discussed the problem and said that there is a range of alternative courses of action to be decided upon in each case, the White Paper does not spell out what those alternative courses might be. If not today, I hope in the debate that we may have in the spill-over period, the Minister will clarify the position more fully.
Again, there is reference in Recommendation 16 of the White Paper to the arrangements parallel to those of the Civil Service to which the noble Lord, Lord McIntosh, referred. The White Paper says:
"The Government accepts this recommendation, but believes there will be many circumstances in which the Advisory Committee will reasonably be able to recommend that the three month waiting period need not apply".
There are a good deal of parentheses in the document of acceptance of the recommendations of Nolan followed by a "but" or a "however". As I said, although we cannot pursue all such matters today, I believe that we need a recognition of that on the part of the Minister, together with a statement of where principally the White Paper departs from the report.
There is another matter to which I should like to refer; namely, Annex A which deals with the conduct and procedure of Ministers. In itself, it is a significant document; indeed, I would make the case for a separate debate upon it. It is perfectly true that years ago no such statements were published. In fact, there was a time when Ministers had no such guidance. However, I must have been one of many Ministers who was guided by such a document. I am bothered by the fact that there are now some significant changes in Annex A to the document. For example, the first of the principles is:
"Ministers must uphold the principle of collective responsibility".
Whether that is right or wrong, it is quite a different question to the conduct and procedure of Ministers. It is not something which might apply to all governments: it is a political process which we take for granted and which Prime Ministers often, rather unsuccessfully, try
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to enforce. However, I am not quarrelling with the thought—although I would be happy to discuss it—I am quarrelling only with why it is in the document.
Further, and more importantly, there is the introduction of the word "knowingly" into the paragraph in QPM which previously said:
"Ministers must not mislead Parliament".
Now the document is to say:
"Ministers must not knowingly mislead Parliament".
Perhaps the Minister will be able to say why I was able to live with the words,
"Ministers must not mislead Parliament",
but apparently she is unable to live, given the Prime Minister's decision on the matter, with the words "knowingly mislead Parliament".
Yet again, referring to Ministers, the annex says:
"Ministers should avoid accepting any gift or hospitality which might, or might reasonably appear to, compromise their judgement".
In my time the wording simply said, "or might appear". However, "reasonably appear" has now been introduced into the document.
I also note that another paragraph which said,
"Ministers must keep their party and ministerial roles separate",
has now been changed to read,
"Ministers must not use public resources for party political purposes. They must uphold the political impartiality of the Civil Service".
I am not saying that there is no case for change, but it seems to me that those changes soften the rules for the conduct and procedure of Ministers. It would be most helpful if the Minister in this House could spell out very briefly today why she believes that the Prime Minister is obliged to make those changes.
As the Statement says, and as the White Paper very fairly makes plain, the latter deals only with those recommendations of the Nolan Committee which concern Ministers and the Executive; it does not deal with the recommendation of Nolan affecting Members of Parliament. I have no complaint at all about that because, as the White Paper says, it is for the Government to respond on those matters which affect the Executive; but it is for Parliament—and by that I mean both Houses of Parliament—to respond on the other issues of Nolan.
When the moment comes, as in our consideration of the Government's Statement today, I hope that we do not allow ourselves to be distracted unknowingly in our debate on the White Paper into the thought that the public are mainly concerned about the matters dealt with by the White Paper. Of course the public are concerned—and rightly so—but people are more concerned with the conduct of Members of Parliament; and, indeed, although it is a matter for the House at a future date, with the matters being considered by the sub-committee under the noble and learned Lord, Lord Griffiths.
Therefore, virtuous though many of the recommendations are, and good though there may be in most of the Government's acceptance of them, let us not forget that the people outside look to us in the conduct of our affairs to ensure most of all that our standards of public life in this country are as high as they ought to be.
Baroness Blatch: My Lords, I am most grateful for the way in which both noble Lords have responded to the Statement. It was very constructive. I shall certainly pass on to my noble friends the request for a debate, possibly to match that in another place, to take place during the spill-over period. However, I say that without prejudice to the outcome.
I should like, first, to tell the noble Lord, Lord McIntosh, that I believe he was a little disingenuous in what he said. Secondly, perhaps I may preface all my responses to what both he and the noble Lord, Lord Rodgers of Quarry Bank, said. Before I respond, I should like to repeat something that the noble and learned Lord, Lord Nolan, said in the introduction to his report. He said:
"It was equally clear from a considerable body of this evidence that much of the public anxiety about standards of conduct in public life is based on perceptions and beliefs which are not supported by the facts. Taking the evidence as a whole, we believe that the great majority of men and women in British public life are honest and hard-working and observe high ethical standards".
The noble and learned Lord reached that conclusion after hearing evidence. It is important that we keep that in mind when referring to other points that have been raised.
The noble Lord, Lord McIntosh, was fairly scathing in his criticisms that although we had responded to 45 of the 55 recommendations, we had not done so wholeheartedly enough. He asked what assurances we can give about whether the procedures will be open and capable of clearing people's perceptions of those of us who operate in public life. The work of the commissioner and of the advisory committee on public appointments and the fact that departments will have to set up advisory bodies with an independent element will go a long way to clearing up some of the doubts in people's minds about how we operate publicly. The vast majority of people who take up public appointments in this country not only give generously of their time, energy and enthusiasm but mostly do so with great distinction and great integrity. We must remember that.
The noble Lord, Lord Rodgers of Quarry Bank, was concerned about the term "knowingly mislead". We shall, of course, debate the matter in much more detail when the time comes, but the use of the word "knowingly" here refers to wilfully or wantonly knowingly misleading the House. We in this House have a proud record. Those of us who sit on the Front Benches in this House may have gone through the pain of unwittingly misleading the House, but we have a tradition in this House of Ministers coming to the Dispatch Box to make amends for any statement in which they may have misled the House unwittingly. That is a very different matter from knowingly misleading either House. If we knowingly mislead the House, the culpability is ours personally. There is a real distinction to be made. We recognise that distinction in our suggestion that we alter the Questions of Procedure for Ministers in both Houses.
The noble Lord, Lord McIntosh of Haringey, asked why the Government have undertaken only to review the legal framework for propriety for quangos. He asked why there is to be no immediate action. The answer is that in Recommendation 45 the noble and learned Lord,
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Lord Nolan, stated that a review of those issues should be undertaken. That is what we have undertaken to do. As the noble Lord knows, this is a complex area and it is right that action on the legal framework should be viewed and reviewed carefully.
The noble Lord, Lord Rodgers of Quarry Bank, queried Recommendation 14 and said that there had not been a full response from the Government. I repeat that the Government accept Recommendation 14. The way allegations are dealt with will depend very much on the nature of the case. An investigation is not necessary in every case where impropriety is alleged. Examples are given. I refer to where allegations are malicious, trivial or can be dealt with promptly in a personal statement by the Minister concerned. In such cases, investigation is not needed. However, where the gravity or complexity of an alleged impropriety is such as to merit further internal or even external advice or investigation to establish the facts, the Government agree that there is a range of alternative courses of action to be decided in each case by the Prime Minister in the light of the circumstances. The Government agree also that it is important to uphold the principle that advice from civil servants to Ministers should not normally be made public.
The noble Lord, Lord McIntosh, also said that we have not accepted for all Ministers the three-month gap which applies before a Cabinet Minister can take up a post. Many appointments will not raise any issue of impropriety. Some Ministers may return to a family business or a previous profession, for example. Where no issues of improper advantage apply, a three-month gap would serve no purpose whatsoever. The advisory committee on business appointments will decide each case on its merits and advise the Minister accordingly.
The noble Lord, Lord Rodgers, referred to the amendments in Annex A. He said that they are not all amendments to Questions of Procedure for Ministers. They are amendments to principles suggested by the Nolan Committee, which readily accepted that the detailed drafting was a matter for the Prime Minister and the Government. The present Prime Minister, my right honourable friend, was the first to publish Questions of Procedure for Ministers. In the noble Lord's day, there could be no debate about the text because in those days it was regarded as confidential.
The noble Lord, Lord McIntosh, also referred to the activities of health authorities and said that they should be as open as those of local government. I believe that he was referring to quangos also. The noble and learned Lord, Lord Nolan, and his committee examined the issue of openness and recommended that executive NDPBs and NHS bodies should develop their own codes on openness and build on the Government's code of openness. We have accepted that. We have endorsed the committee's standard of best practice on openness, including on opening meetings to the public and making the minutes of such meetings available to the public. The noble Lord also referred to public appointments and questioned whether the commissioner would be independent of the Cabinet Office. I assure the House

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that the new commissioner will be an independent person who will be appointed as a Civil Service commissioner, as the Nolan Committee recommended.
The noble Lord, Lord McIntosh, also referred to the Government's response on the delaying of appointments. He asked why our response was not stronger. It is important that there is interchange between the public and private sectors. The rules need to reach a balance between that and providing safeguards to ensure that there is no impropriety in appointments. That is the whole point of opening up the procedure. Each case will be considered on its merits by the advisory committee on business appointments, which will advise Ministers directly. If the advisory committee thinks that a delay or behavioural condition is necessary, it will offer that advice. My understanding is that the advice will be made public.
6.15 p.m.
Lady Saltoun of Abernethy: My Lords, where a former Minister is advised not to take up a particular post for two years, is it the intention of the Government that his ministerial salary will be continued for that period?
Baroness Blatch: My Lords, it is not the intention of the Government that the salary will be continued. The recipient of such advice is not bound by it, but the advice will be made public if that person decides to take up the job. If the advisory committee advises that somebody should not take up a certain job for two years and must wait two years before doing so, one has to assume that, on the basis on which it came to that view, it would be improper for that person to take up that post and that it would therefore be proper for that person to take up a post elsewhere. The answer to the noble Lady's question is: no, the Government would not pay the salary in the meantime.
Lord Harris of Greenwich: My Lords, perhaps I may ask the Minister two questions. I refer first to the new commissioner for public appointments. The noble Baroness indicated—I think that I quote her correctly—that he or she will be an "independent person". We welcome that, but will any Minister of the Crown be associated directly or indirectly with that appointment? Will any Minister of the Crown be consulted before that person is appointed? We should be grateful if the Minister could answer that question.
Secondly, the Statement indicates that the consultation period for the new Civil Service code will be extended until the middle of September so that additional comments can be made. We do not have any difficulty with that, but when will a Statement be made by the Government on that new Civil Service code? Does the Minister recognise that many of the gravest concerns arising from the Nolan Report—and, incidentally, some arising apparently as a result of the investigation by Sir Richard Scott—bear directly on this issue? It is an issue of the highest importance. When will we have a Statement from the Government on that point?
Baroness Blatch: My Lords, I shall have to write to the noble Lord if I do not answer his first question correctly. My understanding is that, as I said in the
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Statement, the appointment will first be advertised publicly. My understanding is that the commissioner will be appointed in just the same way as the Civil Service commissioner. Therefore, the appointments panel will be involved and I have no doubt that there will be ministerial involvement also. Again, I shall write to the noble Lord on that point.
On the second point the noble Lord raises, first, as he has said, there will be an extension of the consultation period. A debate has been promised in another place. I shall take back to my noble friends and the usual channels the request for a debate in this House. The Government will consider their response in the light of that debate. I cannot say when they will respond. I think that the noble Lord will agree that my right honourable friend is anxious that we respond as quickly as possible to all the outstanding points. I have no doubt that he will do the same with this issue.
Lord Monkswell: My Lords, will the Minister clarify a couple of points for me? The first relates to Minister's knowingly misleading the House. I am a little worried about that. I have not been a Minister, but as I understand it, a great deal of what Ministers tell both Houses is the result of information they receive from their civil servants. If a Minister on taking up office says to his senior civil servants, "Always advise me what is in line with our policy, and do not tell me when I am misleading the House", effectively the responsibility is shuffled from the Minister onto the civil servants. What mechanism is there to enable the civil servant to say, "Look, it is not my responsibility. It is the Minister's"? If the Minister has not been told by the civil servant that he is misleading the House, he can get away from the problem by saying, "I did not knowingly mislead the House".
My second question relates to the concept of collective Cabinet responsibility. Again, I have not been in the Cabinet, but my understanding is that one could effectively describe it as a party political situation. My understanding is that Ministers are Ministers of the Crown. They are almost independent of people. They are effectively doing the Queen's business in a department of state. To think that they may be restrained from doing that business on behalf of the Queen because of some rule which is of a party political nature worries me a little. Will the Minister explain that side of things as well?
Baroness Blatch: My Lords, on the first point, the noble Lord over-simplifies the role of those who have to serve on the Front Bench. First, we are not totally mouthpieces for the lines given to us by our civil servants. Clearly we have to be advised because a great deal of what we do is technical. We will take advice, be bound by that advice and deliver that advice. There are occasions when we do not agree with that advice. There is now a proper procedure set down here relating to the area in which a Minister may take a policy decision. There is a proper procedure for when a Minister receives advice, considers the advice but comes to a different conclusion.

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There is now also a procedure for when a civil servant believes that a Minister is behaving improperly in any way, or even illegally, if one take a more extreme example. A procedure will be set down which will clarify the position to allow a civil servant to have a voice.
If in the course of answering questions—I am now answering a question well away from the brief on the Statement with which I started—I unwittingly mislead the House, I hope, as is the tradition of the House, that I would come back to the House and make amends. Sometimes we are cautious enough to preface what we say by saying, "I understand" or "If I mislead you, of course I shall write to you".
It would be a very different and much more serious matter were I knowingly to come to the Dispatch Box and mislead the House. That is why that behaviour is singled out as being a distinctive form of behaviour for a Minister. I believe that that is right.
On the other point, the noble Lord over-simplifies the whole issue of being a member of the Cabinet. Of course there will be spirited debate within Cabinet. I do not believe that there has been a British Government Cabinet in which there has not been lively, spirited debate and agreement and disagreement when subjects are being discussed. When a view is taken by the Cabinet, as a properly responsible member of the Cabinet it is entirely proper that collective responsibility is a condition of belonging to Cabinet. If one cannot accept Cabinet responsibility, the principled thing to do is to resign from Cabinet to make way for someone who will accept Cabinet responsibility.
Lord Burnham: My Lords, within the past 27 hours your Lordships have heard four Statements repeated from another place which have a strangely interlocking agent. In each case the interlocking agent has been the work of the media, specifically the work of the press, in giving rise to discussions and investigations into affairs which have required such investigations.
Yesterday a number of your Lordships expressed a wish to adopt the French system, which makes it much more difficult for the press and television to do their work. Had that been the case here, we would not have heard so much about any of the four Statements. The actions which led to Nolan would probably have not been made public, or not so many of them. It is ironic that all the Statements came together. It is the press which brought that about.
Only a few tributes were paid yesterday to the press for asking the questions that they have asked. There was a great deal of discussion about the invasion of personal privacy. It is that behaviour which everyone wishes to stop, and I have no argument with that. Were not the Government right yesterday to support the press and voluntary self-regulation of its affairs so that we were able to hear the Statement this afternoon and take action upon it?
Baroness Blatch: My Lords, my noble friend makes an interesting point. It is linked with the findings of the noble and learned Lord, Lord Nolan, who said that we are dealing more with perceptions and beliefs about people in public life than what is the case in fact: that
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most people in public life are honourable and people of integrity. It is often the press that perpetuates the perception and belief. We must do what we can to counter that. As my noble friend pointed out, we can address these matters, but I think that it is depressing that we have to spend so much time and energy countering what are only perceptions and beliefs and not facts.

Disability Discrimination Bill
6.28 p.m.
Consideration of amendments on Report resumed on Clause 4.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 18:
Page 3, line 10, at end insert ("and occupational pensions").
The noble Baroness said: My Lords, I shall speak also to Amendment No. 19. The amendments are grouped also with Amendments Nos. 31 and 32 in the name of the noble Earl, Lord Buckinghamshire. No doubt he will deal with them as he feels appropriate.
In Committee, I moved a series of amendments designed to ensure that disabled people were not discriminated against when it came to membership of occupational pension schemes. I pointed out that disabled pensioners had a lower average income than non-disabled pensioners; that the changes to the state pension scheme had disadvantaged disabled pensioners since they were more likely than the non-disabled to have to rely upon state provision and SERPS; and that since the Government's policy was against discrimination in employment, they should also be against discrimination in one of the major non-wage benefits, which is of course the provision of occupational pensions.
The Government have actively encouraged people to belong to private pension schemes rather than to the state scheme. We may have our doubts about that, in particular as regards the sale of personal pensions where the circumstances of the individual concerned are not appropriate. However, the fact remains that that is Government policy.
Therefore, in a Bill aiming to end discrimination against disabled people, it makes sense that there should be a clear commitment to ending discrimination as regards the membership of occupational pension schemes. In Committee the then Minister, the noble Lord, Lord Inglewood, seemed quite sympathetic. However, for various reasons he did not like my series of amendments. He said:
"I cannot support his amendment but we shall consider this matter further and I shall come back to the House on the point at Report".—[Official Report, 13/6/95; col. 1704.]
Here we are at Report. We have tabled another amendment (No. 19) which provides that regulations may make provision for:
"the elimination of discrimination against disabled persons in relation to terms of employment relating to membership of an occupational pension scheme, with such modification as may be prescribed".
In other words, we have tried to meet some of the objections raised by the Minister at that time. We hope that this time the Government will see the justice of what we are proposing and will come back either accepting what we say or, if they cannot, producing their own alternative at a later stage.
Clearly, at a time when pensions are on everybody's mind and when there is constant talk of the need to provide for the elderly in one way or another, it would be inappropriate that a Bill intending to outlaw discrimination against disabled people should leave your Lordships' House without the vital provision that we suggest in these two amendments. I beg to move.
6.30 p.m.
Lord Mackay of Ardbrecknish: My Lords, I am grateful to the noble Baroness for raising this important matter and I hope that she will find my response helpful.
Perhaps I may first deal with Amendment No. 18. The purpose of this amendment is to include occupational pensions within the defined meaning of "benefits" in Clause 4. As my noble friend Lord Inglewood made clear during the Committee stage, Clause 4 is drafted in the same terms as Section 4 of the Race Relations Act 1976. It has never been suggested that that Act has failed to cover entitlement to occupational pension benefits. It is easy to see why that is so. Clause 4 applies both to "terms of employment" and to "benefits", which is already widely defined. A person's entitlement to a pension from his employment will normally be a term of his contract, and even where it is not a term it is so plainly a benefit that I cannot believe that courts or tribunals would have the slightest difficulty on the point. I cannot agree to the amendment as it would throw doubt on the existing wording of the Race Relations Act, but I hope that this assurance will enable the noble Baroness to withdraw her amendment.
I turn to Amendment No. 19. It provides the power to make regulations to deal with the detailed issues which may arise regarding the application of Part II of the Bill to occupational pensions. Amendment No. 32 seeks to disapply Clause 6(5) in the case of discrimination relating to benefits in employment. It also disapplies the subsection in relation to occupational payments.
Your Lordships will be aware that Clause 6(5) enables regulations to be made to specify additional circumstances in which less favourable treatment is taken to be justified. It may be that the noble Baroness intends that the question of justification of less favourable treatment in pensions should be dealt with separately by regulations made under the new regulation-making power that she is proposing in Amendment No. 19. However, we must take great care to understand the possible effect of this Bill upon occupational pensions. We must accept that there will he cases in which less favourable treatment will occur for wholly justifiable reasons.
There might be two types of cases in which occupational benefits for a disabled person might justifiably be less than those for a non-disabled person working next to him. The first is that pensions are almost always linked to pay. If there is a justifiable
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difference in the pay received by the two workers—perhaps, for example, because the disability means that the disabled person has to work fewer hours—it must be right that the pension can also reflect that difference. I cannot believe that your Lordships will wish to require the employer to have to arrange for a full pension in such circumstances.
The second reason is that the disability might create actuarial risks which the employer or the pension fund should not have to take. For example, depending on the circumstances, we believe that an employer who takes on an employee who is terminally ill can be justified in refusing such a person cover under any scheme he operates for death-in-service benefits. The removal of any justification in the case of these benefits and payments would place quite unwarranted burdens on employers. For that reason, the Government cannot accept these two amendments. I hope that with that explanation of what we envisage, the noble Baroness will be able to withdraw her amendment.
Baroness Turner of Camden: My Lords, I thank the Minister for that explanation, although I do not entirely accept it. He may have a point as regards the first amendment. However, I would point out that under the Government's own legislation it is no longer possible to make the membership of a pension scheme a contractual obligation; it is wholly voluntary. We are talking about the right of access to pension schemes.
As regards the second amendment, I note what the Minister says about actuarial considerations and he may have a point. However, I do not believe that he has much of a point in regard to the disabled person who does not work the same number of hours or who receives a different amount of pay. We are not talking about people receiving exactly the same pension. Usually people who belong to pension schemes have a pension that is related to their pay. If they are receiving less pay because they do not work so many hours that is normally reflected in the pension. I see no difficulty with that.
That is why, as regards the actuarial point, we specified in our amendment that there should be regulation-making provision. If regulations were made it would be possible to deal with some of the points that were raised by the Minister in opposition to the amendments.
I am by no means satisfied that there should not be provision written into the Bill to cover access to occupational pension schemes. I believe that it is important that it should be clearly evident that disabled people may have access to occupational schemes. We suggested that regulations should be made in order to make provision for that. However, I do not intend to press the issue to a Division at this time. I shall think most carefully about what the Minister said. There may be an opportunity to raise the matter again on Third Reading when we resume after the Recess. I beg leave to withdraw the amendment.
Baroness Seear: My Lords, perhaps I may clarify a point that the Minister made. He said that it would be obvious that one would not give a pension to anyone who was terminally ill. What does he mean by "terminally ill"? If he means anyone who has a

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progressive illness that will ultimately lead to death he is including someone who may be ill for a very long time. Unless it is a short terminal illness I do not believe that we should have on the record of Hansard that it is taken absolutely for granted that because someone is terminally ill he will not be considered for a pension. HIV is a case in point. One could say that a person suffering from HIV is likely to die—of course, we are all more than likely to die—but such a person could be ill for a long time. Given that widows' pensions are connected to occupational pensions it is important that we should not write people off because they can be loosely described as "terminally ill".
Lord Mackay of Ardbrecknish: My Lords, this is the Report stage and I am not sure whether I am entitled to come back. However, I can understand the point which the noble Baroness makes. The simple fact is that if an employer is faced with someone who has a terminal illness and he is prepared to employ him there may be a difficulty in admitting him to a pension scheme which has death-in-service benefits. The reasons are obvious. The actuarial calculations would be extremely adverse in those cases. Here we are talking about cases in which there may be justification for what, on the face of it, looks like discrimination. I do not wish to become involved in arguments as regards death in five, 10 or 15 years. As the noble Baroness says, there is in any event an inevitability about it. If, when a person is taken on, he has a clear terminal illness which means that he will die before he reaches retirement age and will therefore trigger off death in-service benefits and the occupational pension scheme decides that that person cannot be accepted, that should be a reasonable defence against discrimination. That is the point that I was trying to make.
Baroness Seear: My Lords, I still think that it would be helpful if the record in Hansard could leave at least some doubt about the matter because death may take 15 or 20 years.
Baroness Turner of Camden: My Lords, as I said, I shall not press the amendment to a Division, although the noble Baroness, Lady Seear, has raised an extremely important matter. We have said that there should be regulations and I believe that account could be taken of actuarial considerations in those regulations. But in the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 19 not moved.]
6.45 p.m.
Lord McCarthy Lord McCarthy moved Amendment No. 20:
Page 3, line 10, at end insert:
("(4A) It is unlawful for an employer to advertise employment in such a way that the advertisement indicates, or might reasonably be understood to indicate, that an application would, or might be determined to any extent by reference to—

(a) the successful applicant not having any disability within the meaning of the Act; or

(b) the employer's reluctance to take any action of a kind mentioned in section 7.

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(4B) For the purpose of securing compliance with the provisions of sub-section (4A) above and the restriction of difficulties arising out of those provisions the National Disability Council shall be empowered under the terms of section 34(3) below to establish Local Conciliation Committees as and when required.
(4C) It shall be the duty of every such committee—

(a) to receive and consider any complaints of advertisements in contravention of subsection (4A) above;

(b) to make such inquiries as they think necessary with respect to the facts alleged in any such complaint; and

(c) where appropriate, to use their best endeavours by communication with the parties concerned or otherwise to secure the settlement of any difference between them, including, where appropriate, the withdrawal or reformulation of any advertisements which the committee considers is in breach of subsection (4A) above.

(4D) Proceedings in respect of any contraventions of this section shall be limited to those set out in this section.").
The noble Lord said: My Lords, this amendment aims to attack in a more effective way than is done on the face of the Bill the practice of discriminatory advertising. There is no doubt that that practice is as much a problem in the area of disability as it is in the area of race or sex. Discriminatory advertising—for example, statements such as, "only the fit need apply", or "candidates must not have a record of physical or mental instability", or "above average health is an advantage"—are all too common. That is accepted on the face of the Bill because Clause 12 introduces a remedy of a kind in order to try to deal with the practice of discriminatory advertising. We are saying that the method adopted to deal with that matter is weak and almost non-existent.
It is weak and it is difficult to improve it beyond a certain degree in the absence of an effective commission. We are not debating that this evening, but we shall debate it on Thursday. However, in a sense the amendment assumes that we shall be unsuccessful; it is a pessimistic amendment. If there is no commission to parallel the way in which discriminatory advertising is swept up in relation to race or sex, we ask whether anything more can be done in the Bill as it stands. The amendment suggests that something can be done. It draws on the example of other kinds of non-discriminatory legislation; for example, the race relations legislation of 1965 and 1968. In a sense, this amendment is a model of what was done to deal with discriminatory advertising at that time.
Therefore, the Bill admits that there is a discrimination problem. Clause 12 provides that where a complainant is seeking to show before a tribunal that he has been discriminated against, he can advert to an advertisement. He can say, "I have an advertisement here", and he can use that in presenting his case. It would be fair to say that that means that if a person can show an advertisement which is germane to the non-appointment of a disabled person, then that becomes a particularly coercive piece of evidence which changes the onus of proof. From that point, it is up to the employer to demonstrate that there is no discrimination, given the fact that there is that discriminatory advertisement.
That is very limited. A case would have to be established which connected the person to that advertisement before it would have any effect at all in

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any kind of tribunal activity. This amendment seeks to try to find a way to make that situation more effective. For example, the Sex Discrimination Act lists specific examples of the words which cannot be used in advertisements—salesgirl, postman, stewardess. The 1976 race relations legislation provides that you cannot say in an advertisement that you wish to appoint persons of a given race, colour, ethnic or national origin. There is nothing of that kind in this Bill.
I suppose that there is nothing of that kind because there is no commission. If phrases of that kind are used and there is a body like the EOC or the CRE which may take a wide variety of action—formal investigation, non-discrimination notices—then one can do something about discriminatory advertising.
Nevertheless, we believe that something could be done—that is the point of the amendment—if the approach adopted in race relations legislation of 1965 and 1966 is followed. At that time local conciliation committees were established which could investigate both specific and general complaints. They could bring together the parties and attempt to reach agreement or procure the withdrawal of an offending advertisement. Success or failure would be reported to the appropriate commission. It is thought generally that that procedure, although it lacked coercive force—it certainly lacked the coercive force of more recent legislation—went a long way towards cleaning up the problem of discriminatory advertising. It was rarely necessary to invoke the limited powers available in that period.
Therefore, this amendment builds on that model. It begins with a definition of what is a discriminatory advertisement, and we take that from Clause 12 of the Bill. Secondly, it gives the consultative council established under the Bill the power to set up conciliation committees to deal with allegations of discrimination. It makes it clear that although there can be conciliation, as there was in relation to the old race relations board, there is no coercive power as there was not in the 1965 Act. Therefore, we are asking for a provision which goes some way beyond the present Clause 12 in the absence of a commission. I beg to move.
Lord Addington: My Lords, I believe this is a sensible and reasonable amendment in that it seeks to bring together parties in order to discuss the problems. I hope that the Government will look favourably upon that approach to the problem.
Lord Monson: My Lords, if this amendment were accepted, would it apply to the armed services in the future? Would they not be able to advertise in future for fit, young recruits?
Lord Henley: My Lords, the noble Lord, Lord McCarthy, has explained how his amendment empowers the National Disability Council to set up local conciliation committees. He described them as similar to those set up under the 1965 race relations legislation to investigate and deal with job advertisements which are unlawful under the first part of the amendment.
Such advertisements would indicate either that the application could be determined by reference to the successful applicant not having a disability or that the employer was reluctant to make a reasonable judgment.
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During Committee stage we had a fairly extensive debate on the role of the National Disability Council. My noble friend explained at the time that it will be an advisory body charged with providing high level policy advice. It is not part of its role to investigate or police this legislation, nor would it be appropriate or necessary for it to be empowered to create the network of local committees that the noble Lord suggests.
Nor do the Government believe that the creation of yet another tier of bureaucracy is either necessary or desirable. The right organisations for dealing with complaints under Part II are ACAS and the industrial tribunals. But, perhaps more fundamentally, I do not believe this amendment would have the desired effect. Why should employers always risk a complaint to one of these local bodies even if they were perfectly justified in saying that people with particular disabilities need not apply? The requirement could be perfectly reasonable. The point made by the noble Lord, Lord Monson, is perfectly valid. Obviously it is open to people like the Armed Forces to make it quite clear that in looking for recruits they need fit and healthy young recruits. Under this amendment, it might be that an employer saying that fitness was necessary for a physical fitness instructor could find himself under investigation by a particular local committee, should that committee so wish.
Baroness Hollis of Heigham: My Lords, is this correct? The whole thrust of the Bill in terms of the armed services and the rest of it is that where a disability is relevant to the performance of that job the employer may not be required either to interview that person or to offer him a job or whatever. It is like the absurd case of someone entering a restaurant wearing sunglasses and being offered a menu in Braille. Is he therefore being discriminated against? That applies only if the condition is relevant, that person is unfavourably treated and it would have been reasonable for the employer to have acted differently. The Minister may be giving the House a false impression of what the law will do.
Lord Henley: My Lords, the noble Baroness has taken rather an odd example. I was drawing the attention of the House to the possibility that the local committee of the sort that the noble Lord, Lord McCarthy, might want to set up, in fits of gross over-enthusiasm, might wish to investigate cases that I do not think were appropriate. I do not think it would be right so to do.
Baroness Seear: My Lords, I used to sit on one of these committees under the old Race Relations Act. They were run entirely by voluntary people and there was nothing bureaucratic about them. They might have been regarded as rather amateur but certainly they brought people together to discuss the issues. They played a small part in the conciliation process. It was not a matter of arbitration but rather of conciliation on the part of local people acting on a voluntary basis. I believe that even the secretary was unpaid. Those committees worked rather well. They were not revolutionary and they did not achieve great results, but they offered useful advice.
Lord Henley: My Lords, I am most grateful to the noble Baroness. I daresay they need not be necessarily bureaucratic; I was saying they are unnecessary. I also have to say that in the case of an individual of the sort who put in the most grossly discriminatory sort of advertisement of the sort that we all thought was particularly awful, I have severe doubts as to whether he would actually take much notice of a committee of this sort. It seems very odd to create an offence, which is what this amendment does, without any sanction against that offence other than, as the noble Baroness puts it, a collection of rather worthy souls, unpaid and voluntary, going round saying, "Can we have a chat"? The sort of person who will put in the sort of advertisement that the noble Baroness and others are talking about is the sort of person who, as it were, would put up two fingers to such an approach.
Baroness Seear: My Lords, I do not think I was worthy or the sort of person who wanted to go round having a chat. I remember that my particular conciliation body was chaired by an extremely well known industrialist on whom the noble Lord himself would, and I daresay has, relied on many occasions.
Lord Henley: My Lords, I daresay that might be the case. What I am saying is that for an amendment of this sort to create an offence without an appropriate sanction seems an odd way to go about things. I think the sort of people who would be likely to be grossly in breach of the sort of offence that the noble Lord is creating are not the sort of people who would respond particularly well to such an approach.
Let me turn to our own approach and explain that. Obviously I share with the noble Lord and both noble Baronesses a desire to end discriminatory and unfair advertising. I am pleased to note that the amendment leaves in place our approach under Clause 12, and I hope that the noble Lord does at least recognise its value. I believe that perhaps his amendment is supposed to be "belt and braces", but I believe that on this occasion our braces are perfectly adequate.
We are opposed to advertisements which blatantly suggest that disabled persons will be discriminated against. We are not aware, however, that such advertisements exist in the sort of numbers that the noble Lord implied. We would also be opposed to advertising which might tend to put off disabled applicants, whether intentionally or not, who might be able to do the advertised job. The Government's approach is the best way to ensure that employers take more care to ensure that advertisements give a fair description of what is genuinely required for the job. If a disabled person who meets the advertised requirements is refused the job, the employer will be at risk of tribunal proceedings, carrying the real sanction of an award of compensation.
We have heard that the amendment seeks to bring the Disability Discrimination Bill into line with other anti-discrimination legislation. But this fails to take into account the very real differences between disability on the one hand and race and sex on the other. In all but the very rarest of cases a person's race or sex does not affect his or her ability to do a job. I believe that cannot
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be said of disability and I hope that the noble Lord recognises that. There might well be legitimate reasons why an employer will want to mention certain health requirements in a job advertisement. I mentioned the physical fitness instructor. There are obviously other less obvious ones. There is obviously the case of the Army, mentioned by the noble Lord, Lord Monson. An amendment of this sort is an unnecessary and unreasonable restriction on employers and I think will demotivate disabled people who may think they have a chance of getting a job for which they are not suitable.
The noble Lord also said that the only way in which the Government's clause could be of any use to disabled people is if they actually apply to a tribunal. This is not the end of the matter, however. It will be made clear to employers in the code of practice that one consequence of not taking care to ensure that their advertisements reflect justifiable job requirements is that a tribunal claim against them could well be successful if a disabled person is turned down who could do the job despite what the advertisement says about health requirements. In considering advertisements, employers will be well advised to consider the duty of reasonable adjustment in identifying health requirements which might be overcome by such an adjustment. No employer wants to trigger a tribunal complaint unnecessarily. The Government's approach will effectively put a stop to any blatant discrimination—if it exists—and will also be effective in making job advertisements fair to all employers and disabled people. As I have explained, I believe our approach in Clause 12 is the right one—
Lord Rix: My Lords, I am grateful to the noble Lord for giving way. I wish to refer to a question which arose at the previous stage of the Bill. The noble Lord, Lord Inglewood, stated:
"A firm of below 20 employees is not subject to Part 11 of the Bill and hence will not be covered by Clause 11".—[Official Report, 27/6/95; col. 678.]
I believe that Clause 11 is now Clause 12. I understand that the smaller firms are not covered by this clause which the Government have put forward. It seems to me strange that this cannot be so. We can perhaps agree that firms with 20 employees or fewer will not be subject to the full rigours of this Bill as regards employment, but surely an anti-discriminatory clause could be included somewhere in the Bill, or in regulations, which states that an employer with 20 or fewer employees could not produce an advertisement which was discriminatory and indeed derogatory towards disabled people. It seems that that is possible.
I must apologise to your Lordships' House for only having found anecdotal evidence on this matter so far, but I know that such advertisements have appeared in the past, even in the theatrical world. We want to make sure that they do not appear in the future. Can the Government extend Clause 12 in some way to cover the smaller employers as well as the larger ones? Otherwise discriminatory advertisements could appear.
Lord Henley: My Lords, if the noble Lord has evidence of that kind I should be more than happy to look at it and consider it in due course. However, I do not think that there is a case for extending Clause 12 to

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firms of fewer than 20 employees, for the very reasons that we gave for exempting such firms from Part II generally. As I said, if the noble Lord wishes to put evidence to me I am always prepared to consider these matters. However, I have not seen any great evidence of abuse in this field and a vast number of discriminatory advertisements of that kind.
I believe that our approach is about the right one. I believe that it provides the right balance between the need to prevent employers from discouraging disabled people in a discriminatory manner and the need to ensure that employers are able to advise potential applicants of the genuine physical and mental requirements of a specific job. On that basis, I hope that the noble Lord will feel able to withdraw his amendment on this occasion.
7 p.m.
Lord McCarthy: My Lords, the noble Lord says that he has no evidence of this being a problem. With the best will in the world, and without wishing to be personal, I remind the noble Lord that he has come to this Bill rather late and somewhat recently. If the noble Lord had read almost any of the considered evidence submitted by the various interested bodies which have made representations to us on this side of the House, and I am sure to noble Lords on that side of the House, he would know that their correspondence is full of examples of discriminatory advertising. It is standard form, just as it was standard form in relation to sex and race before the legislation in those areas. To come here today and say that there is no evidence of it and no concern about it frankly will not do.
I turn first to the remarks of the noble Lord, Lord Monson. As I understand it, under Clause 56(7) the armed services are specifically excluded from the Bill. As I recall, in Committee we on this side of the House sought to have them included. Therefore, the noble Lord's arguments do not have a great deal of force. Anyway, even if they were included, as we said at the time, there are always the provisions in Clause 6 of the Bill which set out the circumstances in which less favourable treatment is justified. Clause 6(4) sets out the kind of circumstances in which an employer requires people who are not disabled, such as the armed services. Those exceptions mean that there would have been no difficulties from the point of view of the armed services if we had been successful in Committee in having the armed services included in the Bill. Therefore, I do not believe that we need to bother with those arguments.
I turn to what the Minister said. As the Minister said, most of what he said has been said before. That is quite true. This is a consultative committee. It has no power. That is what we are trying to change. He said that the Government do not like quangos. We know that, but they have set one up. All we are trying to do is to add a little to the functions of that quango.
The Minister said that he did not like my definition of what should be contained in an advertisement for it to be unfair and discriminatory. I lifted the definition from Clause 12(1) (e) (i) and (ii) of the Bill, because I thought that if I had a different definition of
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discriminatory advertising I might be in trouble. Therefore, I have used the Government's own definition.
Therefore, the only argument which the Government have, which was answered by the noble Baroness, Lady Seear, from her past experience, is that if this were done nobody would go to the conciliation committees. The Government say that British employers who discriminate through their advertisements would not go. Most employers discriminate because they do not know that they cannot discriminate, and when it is pointed out to them they say, "I am terribly sorry, I did not realise we could not say that". The Government say that they would not listen to the wise words of the conciliation committee. I have to tell the noble Lord again that that is exactly what was said in 1965. It was said, "They won't go". But they did go. Very rarely did employers not go to the conciliation committees of the Race Relations Board and refuse to consider what was suggested. I would not go so far as to say that the whole problem of discriminatory advertising was settled. That was one of the reasons why we had to have another race relations Bill. However, it made a considerable impact.
Some people would not go to the conciliation committees, but some would. Some people would listen. They would listen more than this Government will listen. We may think about the matter again and bring it back at Third Reading but, in view of the time of night, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 [Meaning of "discrimination"]:
Lord Henley Lord Henley moved Amendments Nos. 21 to 23:
Page 3, line 20, leave out from beginning to ("cannot"), in line 21 and insert ("to whom that reason does not or would not apply; and
(b) he").
Page 3, line 22, leave out ("under section 6").
Page 3, line 23, leave out subsections (2) and (3) and insert:
("(2) For the purposes of this Part, an employer also discriminates against a disabled person if—

(a) he fails to comply with a section 7 duty imposed on him in relation to the disabled person; and

(b) he cannot show that his failure to comply with that duty is justified.

(3) Subject to subsection (5), for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.
(4) For the purposes of subsection (2), failure to comply with a section 7 duty is justified if, but only if, the reason for the failure is both material to the circumstances of the particular case and substantial.
(5) If, in a case falling within subsection (1), the employer is under a section 7 duty in relation to the disabled person but fails to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with the section 7 duty.
(6) Regulations may make provision, for purposes of this section, as to circumstances in which—

(a) treatment is to be taken to be justified;

(b) failure to comply with a section 7 duty is to be taken to be justified;

(c) treatment is to be taken not to be justified;

(d) failure to comply with a section 7 duty is to be taken not to be justified.

(7) In this section "section 7 duty" means any duty imposed by or under section 7.").
The noble Lord said: My Lords, I spoke to Amendments Nos. 21 to 23 with Amendment No. 10. I beg to move the amendments en bloc.
On Question, amendments agreed to.
Clause 6 [Circumstances in which less favourable treatment is justified]:
[Amendments Nos. 24 to 32 not moved.]
Baroness O'Cathain Baroness O'Cathain moved Amendment No. 33:
Page 4, line 21, at end insert:
("( ) In preparing a draft of any regulations under this section, the Secretary of State shall consult such organisations representing the interests of employers and of disabled persons and such other persons as he considers appropriate.
( ) Where the Secretary of State proposes to issue regulations, he shall publish a draft of them, consider any representations that are made to him about the draft and, if he thinks it appropriate, modify his proposals in the light of any of those representations.").
The noble Baroness said: My Lords, Amendment No. 33 is grouped with Amendments Nos. 40, 68, 72 and 79. All the amendments follow the same pattern. They all seek to achieve consultation on a consistent basis.
The Government now recognise specific consultation on three areas in the Bill, namely, in Clause 52 regarding fees for public service vehicles, in Clause 3 on guidance, and in Clause 38 concerning the issue of codes of practice. However, there are five areas where there is no such commitment. That results in inconsistency.
There is no commitment to consultation in Part II relating to employment. That is dealt with in Amendment No. 33, which relates to circumstances in which less favourable treatment is justified. The amendment, proposed by the CBI, seeks a specific requirement for consultation when the Secretary of State drafts and issues regulations which amplify or change the circumstances in which less favourable treatment may be justified.
Similarly, Amendment No. 40 also relates to Part H concerning employment. The pattern is the same. The amendment seeks a requirement for the Secretary of State to consult organisations representative of employers and of disabled persons when making regulations.
Amendment No. 68 relates to the regulation-making powers under existing Clause 15(4) which outlines the circumstances in which less favourable treatment may be justified. Amendment No. 72 is concerned with consultation, particularly in view of the fact that the main impact of the legislation will be through secondary legislation and additional burdens will fall on employers and business.
Finally, Amendment No. 79 relates to the regulation-making power in Clause 20(3) and amplifies the circumstances in which less favourable treatment may be justified in discrimination in other areas. That relates to Part III of the Bill. It relates specifically to discrimination in relation to premises.
Any attempt to diminish this demand for consistency of approach to consultation could he reinforced by the failure to afford proper consultation in the new government amendments. I beg to move.
Lord McCarthy: My Lords, we are pleased to support the amendments. The noble Baroness put them down either very late last night or early this morning. By the time I got round to them it was too late to amend them. That is why I want to say what I shall say in a moment, because although. we support the amendments we would want to add to them. How will the noble Baroness feel if her amendment is successful? How do the Government feel about the amendment? Amendment No. 33 states:
"In preparing a draft of any regulations under this section, the Secretary of State shall consult such organisations representing the interests of employers and of disabled persons and such other persons as he considers appropriate".
Why should not the amendment include "employers and employees"? I request an answer to the question. The point was made in Committee by the noble Baroness, Lady Seear. That seems to me reasonable, useful and balanced. Amendment No. 16 inserts such a provision on the face of the Bill. However, if noble Lords can remember that far back this afternoon, that amendment was swept away by the success of the Government's previous amendment. We did not move Amendment No. 16, so we are bringing that discussion in now.
If one is to specify on the face of the Bill who should be entitled to consultation so that they know—that right would be on the face of the Bill—surely it is reasonable that we should not only include employers but representatives, and organisations of employees—trade unions, professional associations or other such bodies. After all, this Bill is half an employment Bill. Those people know what workers are likely to feel about the legislation and whether they are likely to resist some of the provisions. Those persons should be able to help and should be in favour of the intentions and aims of the Bill. That is why we should like such a provision in the Bill. We wish to know what noble Lords think about it.
Lord Campbell of Croy: My Lords, on a point of procedure, in moving Amendment No. 33 and speaking to the other amendments my noble friend has had the opportunity to put forward ideas and principles which she considers should be in the Bill. However, I assume that she will accept the proposal by the Government to leave out Clause 6. We discussed that in previous amendments. Therefore, the provisions of Amendment No. 33 would not remain. Is my noble friend proposing that something along the lines that she has put forward should be inserted in the replacements that the Government will put forward? Will such a provision be moved again at Third Reading? Alternatively, is she happy with what the Government propose to insert instead of Clause 6?
7.15 p.m.
Lord Swinfen: My Lords, I too should like to support the group of amendments. They are extremely sensible. It is quite obvious that there will be considerable variety in the kind of disability that people have who seek employment with regard to the equipment which has to be used, premises, the working practices, and so on. Therefore, very considerable consultation needs to take place. I am very glad that my noble friend has brought the provisions forward.

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I should have thought that the suggestion made by the noble Lord, Lord McCarthy, was not necessary, and that employees would be covered by the words,
"and such other persons as he considers appropriate".
However, I was rather concerned by the noble Lord's comment towards the end of his remarks. He intimated that some workers might be liable to resist the employment of disabled people. Yes, there will be some workers who would wish to resist the employment of disabled people, possibly through fear or prejudice. However, I should not have thought that in a Bill of this kind he would wish to put in any provision that would endanger disabled people and might possibly lead to discrimination against them. I am sure that the noble Lord did not mean that he was advocating any form of discrimination. However, I was rather worried by the words he used.
Lord McCarthy: My Lords, perhaps the noble Lord will allow me to explain. We know from the race, sex and disability aspect—the noble Lord knows better than I do—that there is resistance. I am saying that trade unions help to overcome that resistance. That is why they should be referred to on the face of the Bill.
Lord Addington: My Lords, I had noted the deletion of Clause 6 regarding the amendment moved by the noble Baroness. The basic principle of co-operation and exchange of information is one of the most important factors regarding removing discrimination. Such a provision will help.
I suggest that employer and employee organisations have an equally strong part to play. The simple fact is that they often bring forward individual concerns. I shall not waste time discussing the correct form of words. It is simply that those groups or bodies must find some input into the process.
I shall be interested to hear what the Minister says about the noble Baroness's amendment. The general thrust of her amendment is essential. If such a provision is not in the Bill we shall court more trouble and very soon find ourselves with another Bill.
Lord Henley: My Lords, perhaps I may briefly deal with the Clause 6 point. Until we reach Amendment No. 35, Clause 6 will still be in the Bill. Therefore, it is quite right and proper for my noble friend to move her amendment. Of course, I am hoping that the House will agree to Amendment No. 34 as it has already been discussed with Amendment No. 10, which has been accepted by the House. As to my noble friend's attitude after Clause 6 is removed, that is a matter for her, as is the matter as to whether the wording of a specific amendment ought to be changed to include the word "employees" as well as "employers".
I wish to speak briefly as to why we do not think these amendments are necessary, and to reassure the House that we have a genuine commitment to consult as widely as possible. I can assure her that we shall do so. It does not mean that it is right to place an obligation to consult on the face of the Bill. The same people and organisations do not always have similar interests in all of the powers. Indeed, one use of a power might be of
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particular interest to some organisations and another use of the same power of interest to entirely different organisations.
This might be the case, for example, where reasonable adjustments are concerned as some may be quite narrowly focused and be of concern to particular types of employer or particular sectors of industry or owners of particular types of buildings. We cannot cover everyone in this way. The use of the words,
"organisations representing the interests of employers and of disabled persons"
seek to identify the key interests. However, this may not involve the right interests when the powers—
Baroness Seear: My Lords, the noble really cannot get away with saying that those words obviously identify the main interests. Employees are a very real interest. If we wish the provision to work we have to get the employees on our side. It is quite untrue to think that there are not prejudiced people among employees. Employees have exactly the same proportion of saints and sinners as every other group in the community. They include people who are extremely prejudiced. If people are involved in introducing disabled people, they will accept them. If disabled people are imposed on them, they will not—and I speak from experience.
Lord Henley: My Lords, I think that the noble Baroness slightly over-reacts. I have given the assurance that all appropriate people would be consulted. What I sought to say was that I do not believe that it is necessary to identify such a list on the face of the Bill. I believe that it identifies the key interests; one could add employees as well. However, I seek to argue that it is not necessary to have the provision on the face of the Bill. Does the noble Lord wish to intervene?
Lord McCarthy: My Lords, the noble Lord keeps saying that it should not be on the face of the Bill. He never gives any reason why it should not be on the face of the Bill.
Lord Henley: My Lords, has the noble Lord not been listening to me? I was going to explain why it was not appropriate to list all those who should be consulted when on certain occasions there might be one group of interest which is relevant to consult, on other occasions it might be the whole gamut set out on the face of the Bill, and on other occasions it might be a much smaller group. It would not be right to impose a duty under the Bill to consult every body, every group or every interest on every occasion.
I have given a commitment and I have been trying to make it clear that it is entirely right and sensible to make that commitment to a practical, wide-ranging, timely consultation exercise before we use the powers. But the regulations—
Lord McCarthy: My Lords, can the noble Lord not see the difference? It is a difference between rights and privileges. If the name of a group is on the Bill, it is consulted, it knows it is consulted and it prepares itself for that consultation. No one says that because there are names in the Bill the Government cannot consult other people whose names are not in it. But if we wish to put

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the names of groups in the Bill, at least those people will know that they will be consulted. Otherwise it is entirely at the discretion of Ministers.
Lord Henley: No, my Lords. Again the noble Lord has not listened to me. I shall go on to explain it. I have said that there will also be occasions when it is not necessary to consult individual people. The regulations will exist far into the future and I do not believe that they should hind us to consult on occasions when it is not necessary to do so. For example, let us say that we are consolidating the regulations. That is a purely technical act which the noble Lord will understand. Does he suggest, as the amendments do, that we must go out and consult all the relevant interests merely for an act of consolidation? That is what the amendments say.
Lord McCarthy: My Lords, the Minister knows perfectly well that a consolidation Act is entirely different. If he wishes to bring forward amendments saying, "but not a consolidation Act", he can, if he wants to be silly.
Lord Henley: No, my Lords, if we are consolidating regulations, under the amendments we would have to do that. There would also be occasions when we only need to make or amend regulations covering a narrow area, say of reasonable adjustment. I believe that it would then be right to consult purely those who are appropriate. They may not necessarily be organisations representing employers as a whole, they may be organisations representing one group: the financial sector, the heritage sector or whatever it is. It would be wrong to impose a burden on the Government or those whom we consult of an unnecessary exercise. Remember, there is a burden on those whom we consult.
I am clear that we will consult and I can give that assurance to my noble friend. We shall consult in the most appropriate way for whatever regulations are under consideration. In the light of that commitment, I hope that my noble friend will feel able to withdraw her amendment despite the various obscurities suggested by the noble Lord opposite.
Baroness O'Cathain: My Lords, I thank the Minister for his reaction to my amendments. I am puzzled and slightly worried about the way the debate has gone. The Opposition obviously wish to consult employees, and that is a valid point. However, the point I make in moving the amendment is the lack of consistency. For the sake of neatness, we should be consistent on the face of the Bill because in some areas the wording is "consult" and the wording is specific about who is consulted, whereas in others it is not specific.
I absolutely accept that the Minister will consult. With everything that has been said on Second Reading and throughout the Committee stage, every time consultation has been brought up and again this evening there is the commitment to consult. I cannot understand why, if the Government have made that commitment—and I believe them—they still think it is better to have a Bill which is inconsistent on its face. Whereas in three specific areas there is consultation with named organisations or their representatives, in other areas, they are not prepared to do that.
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It is a difficult problem. I do not wish to press the amendment to a Division tonight. I shall reconsider it and will almost certainly come back to it on Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Henley Lord Henley moved Amendment No. 34:
Leave out Clause 6.
The noble Lord said: My Lords, I spoke to Amendment No. 34 with Amendment No. 10. I beg to move.
On Question, amendment agreed to.
Clause 7 [Duty of employer to make adjustments]:
Lord Henley Lord Henley moved Amendment No. 35:
Page 4, line 24, at end insert ("occupied by the employer").
The noble Lord said: My Lords, in speaking to Amendment No. 35, I wish to speak also to Amendment No. 38.
Amendment No. 35 is necessary in order to make it clear that the duty of employers to make reasonable adjustments where any physical feature of premises causes substantial disadvantage to a disabled person in comparison with those who are not disabled refers only to an employer's own premises. It clarifies that employers are not under a duty to make reasonable adjustments in respect of, for example, features of the disabled person's private house. It would also not apply to some other employer's premises in the case, say, of a travelling salesman or to the disabled person's private home in the case of a homeworker.
It may help at this point, to mention the issue of employers who are in rented property and the implications for the duty of reasonable adjustment. The status of terms and covenants in leases is an important matter. There must be a question as to whether or not covenants in leases are relevant to reasonable adjustment. We believe they are and we believe that there should be a limit on the extent to which covenants can prevent reasonable adjustments being made. Otherwise employers in leased buildings would be absolved from the need to make any adjustments—however reasonable—that were in any way in breach of the covenant. We will be giving this matter our careful consideration and making our position clear on this at Third Reading, when we shall table any necessary amendments.
Turning to Amendment No. 38, as noble Lords are no doubt aware, it is the Government's view that the duty on an employer to make an adjustment should provide a fair balance between what we can legitimately ask of employers and the needs of disabled people.
We have listened carefully to the concerns raised in another place and by employers and consider that it would be helpful to list the key criteria for "reasonableness" on the face of the Bill. We believe that the principal factors which should be taken into account in determining whether it is reasonable for an employer to take a step are as follows, in no particular order of priority: the first is the extent to which the step would prevent the effect in question. For example, if the only adjustments possible could make no more than a small

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improvement to the output of someone who was significantly under-productive, then they might not be reasonable if they were costly or disruptive.
The second is the extent to which it is practicable for the employer to take the step. For example, it might not be reasonable for an employer needing an employee urgently to have to wait for an adjustment to be made to allow a disabled person to be employed. That is more likely to be the case with smaller employers but could apply to larger ones. Also, an adjustment would not be reasonable if it is impossible because the employer would be in breach of health and safety or fire laws were it to be made.
Thirdly, there is the cost to the employer of taking the step. Cost includes use of staff and other resources and disruption, as well as direct money costs. We have always said that many adjustments will involve little or no cost to the employer. But some clearly do and it is obviously right that that should be taken into account.
Fourthly, there is the extent of the employer's resources. Although the size of a business is not necessarily an indication of the resources available, it is more reasonable for an employer with considerable resources to make an adjustment with a significant cost than for an employer with few resources. Also, it would not normally be reasonable for an employer to spend fewer resources on retaining a disabled person than on recruiting a replacement.
Finally, there is the availability to the employer of financial or other assistance with respect to taking the step. A step is not unreasonable if the availability of help from an outside organisation or from the disabled person would compensate for the factors that would have made it unreasonable. For example, it might be unreasonable on grounds of costs for a particular employer to provide a laptop computer with a Braille keyboard. However, if a suitable one could be loaned or borrowed when needed, for example under the access to work scheme, or if the individual has a suitable one he could provide, then the employer could not successfully claim that provision of the laptop was unreasonable because of the cost.
The code of practice would, of course, give further examples and guidance on the question of reasonableness. I hope that the House will be reassured by the criteria which this amendment proposes to set out on the face of the Bill. I beg to move.
Lord Carter: My Lords, it is interesting to see the way in which the Government have presented the amendment, because it relates to one which I moved in Committee about reasonableness on the part of public authorities. I was interested in the point which the Minister made about the covenants in property agreements by which the landlord, presumably, would not unreasonably be able to prevent an employer who was a tenant asking for improvements to the building to enable access.
The reason I raise the point is that I have a case in mind in which I am involved at the moment. It is of a company which employs disabled people and it has taken on an office in which a condition of the lease was that the landlord should provide a ramp for wheelchairs.
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The landlord wishes to do so, but in order to do so the ramp has to be on the pavement, on the public highway. The highway authority has resisted that at the moment for various technical reasons with which I shall not bore the House.
I moved a probing amendment on the basis that a public authority should not be unreasonable in its attitude towards the provision of disabled access. The answer that I believe the Minister gave was that in the example that I gave the Town and Country Planning Act would take precedence over this Act and it could be pleaded in aid if it had been said that it would not be right to provide the access, namely a ramp for wheelchairs, even if it seemed to be reasonable to do so. I believe that the Minister said that the Government are considering this matter in the terms of the regulations that they may draft. They may have to think extremely carefully about the relationship between the employer tenant, the landlord and the public authority if the disabled access has to be provided on land that is owned by the public authority.
7.30 p.m.
Lord Henley: My Lords, I note the point that the noble Lord makes. His first point on covenants was in a sense something that I was flagging up. It is a problem that we perceive. It is wider than one thinks when one considers the number of employers who are in leased accommodation. I wanted merely to flag it up and say that we shall return to it at Third Reading.
Perhaps I may also examine the question of the three-way relationship between the landlord, the tenant and the local planning authority which might be in a position, either as the landowner or purely as the planning authority, whereby it might also have an interest. I accept that there could be complicated relationships. It might be better to pursue that by means of correspondence if it is felt that something is needed either by way of regulations or further amendment, along with amendments relating to covenants, at Third Reading. I am prepared to consider that, and I am grateful for the opportunity that the noble Lord has given me of flagging that up as well. I beg to move.
On Question, amendment agreed to.
The Earl of Courtown: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, perhaps I may suggest that Report stage begin again not before 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Criminal Appeal Bill
7.31 p.m.
Baroness Blatch: My Lords, I beg to move that the Commons reasons be now considered.
Moved, That the Commons reasons be now considered.—(Baroness Blatch.)
Lord Simon of Glaisdale: My Lords, before the voices are collected, I should like to ask a question of which I gave notice to the Leader of the House and the

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Chief Whip; namely, why was so important and controversial an issue as that which forced a decision this evening put down for a discussion and decision during the dinner hour?
The matter is important and controversial because it concerns the sentence of murder. It concerns the number of years that a convicted person shall serve in prison. It concerns the openness of the judicial proceedings, the judicial process which has some effect on the term that the convicted man shall spend in prison: shall that be open or shall it, in the words of the Lord Chief Justice, be secretive?
This House passed by a substantial majority an amendment that will fall for discussion very shortly. Only yesterday the Government's supporters in another place were whipped to reverse the decision of this House. So there is an additional issue that is controversial and important; namely, the standing of this House in the legislative process. I shall not deal with the merit of the amendment to which I referred. That will be dealt with by my noble and learned friend Lord Ackner shortly. That amendment was carried against government opposition. The Contents for the amendment were 142 and the Not-Contents were 126. Those 126 included what is called the payroll vote. So it was an amazingly substantial majority for this House. That can come about only if a substantial number of Conservative supporters vote for the amendment against the Government, as they did in this case, and an even more substantial number abstain, as they did in this case, and if the Cross-Benchers vote overwhelmingly for the amendment, as they did. Why was an issue so important intrinsically in relation to your Lordships' role in the constitution put down in this extraordinary way in the dinner hour?
What has happened does not stand alone. Noble Lords will remember that during the passage of the Criminal Justice Bill an amendment was carried that was proposed by a former Home Secretary, the noble Lord, Lord Can of Hadley, resisted by the Government, carried by a fair majority, but immediately reversed by the same office that was so assiduous last night. My general question is: why was so controversial and important an issue put down for discussion in this way in the dinner hour?
However, I also have two specific questions to ask. The first relates to my noble and learned friend Lord Ackner. It was his amendment, after all, that was carried. Why was he not told of the Government's intention to reverse the decision last night? Why was he not asked for his views as to the taking of this business in the dinner hour? Why indeed was he not consulted at all? Why was he not thereby given an opportunity to summon those who had been alerted—those who had voted for the amendment at Report stage? One would have thought that that was elementary fairness in the parliamentary process.
My second specific question relates to what are called the usual channels. I assumed that they must have been consulted about the business being taken now. Why were they not told about the Government's intention last night? On Friday evening they were in complete
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ignorance of what was proposed, as I found when I made inquiries. Why were they not told? When Winston Churchill appointed Patrick Buchan-Hepburn (who came to this House as Lord Hailes) as his Chief Whip in 1951, the Prime Minister said to him: "Your first loyalty is to me, but your second loyalty is to William Whiteley", who was the Opposition Chief Whip. How far is that spirit still honoured?
The last matter to which I wanted to refer is an article that appeared in the newspaper a couple of years ago or thereabouts. It stated that senior Tories were urging the Government to change the business management in your Lordships' House in view of a series of humiliating amendments carried against the Government. There were two very curious things about that article. The first was the word "Tories". Is it not odd that senior Tories should feel that a single chamber government, a single chamber legislation where that single chamber is subject to government whipping vigorously, is sufficient for the legislative process? Is it not curious that senior Tories, as they were described, should reject your Lordships' place in the legislation?
Subsequently, I asked the present Leader of the House about that matter. I asked him whether he regarded it as humiliating that amendments were carried against government Bills in your Lordships' House or whether he regarded that as a perfectly normal legislative process and part of your Lordships' legislative function. First, he replied that that question was rather like being asked, "When did you stop beating your wife?", but of course it was not like that at all. He finally came round to accepting that it is indeed part of your Lordships' function, prerogative and responsibility to carry amendments to government Bills when they seem to your Lordships to be justified. That is very much in question this evening.
Except in passing, I have not touched on the substance of the amendment, important though it is, because of far more importance is your Lordships' role in the legislative process: whether your Lordships will accept constant marginalisation in the constitution and accept being subordinated at every turn to the apparent need to carry government legislation through at all costs.
I have asked one general question and two specific ones. I am sorry that neither the Leader of the House nor the Chief Whip is present but we are well content to have those questions answered by the noble Baroness.
Lord McIntosh of Haringey: My Lords, in honour I ought to respond before the Minister closes this short debate. I feel that I should say to the noble and learned Lord, Lord Simon of Glaisdale, that the proposal was put to me that the consideration of Commons reasons should be taken today in the dinner hour and I agreed to it. To that extent I acted on behalf of my noble friend Lord Graham as the "usual channels". If that involved lack of consultation with anybody else—whether it was the noble and learned Lord, Lord Simon, or indeed the noble and learned Lord, Lord Ackner, who, as it turns out, is the leading player in the substantive debate—I apologise to them in so far as I was concerned.
Lord Simon of Glaisdale: My Lords, perhaps the noble Lord will allow me to intervene. I am very much obliged to him. When he was asked to agree to the

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discussion of this matter in the dinner hour today, was he told that it was the Government's intention to reverse last night the decision to which your Lordships had come?
Lord McIntosh of Haringey: No, my Lords, but I was informed of that by letter from the Home Secretary—a copy of the letter to the noble and learned Lord, Lord Ackner—subsequent to my agreement. I do not know whether that is a substantive consideration, hut, in so far as I had a role in this matter, I apologise to those who had not been consulted.
However, I defend the judgment that I made. It is not for any lack of support for the noble and learned Lord, Lord Ackner, or for the amendment which was carried in the House, which, as he knows, we supported wholeheartedly with a very substantial body of troops. Nor was it because I feel that the issue is not important. Even though it applies to a relatively small number of people, it is an important addition to the Bill and ought not to have been overturned in the other place.
I made that judgment and accepted the proposal put to me by the Government Whips' Office because I do feel that the second consideration of an issue by the other place ought to be final. I am very much opposed to continued resistance by this House after that.
7.45 p.m.
Lord Simon of Glaisdale: My Lords, I am sorry again to interrupt the noble Lord. Surely that was not a second consideration. It was the first consideration. The matter had not been before the other place before last night.
Lord McIntosh of Haringey: My Lords, I accept that the noble and learned Lord is literally correct. But, in the end, the other place is the elected Chamber. It had an opportunity to consider the issue. It was debated last night and it was rejected. That may be called by emotional words such as "subordination" but I believe that the elected Chamber is primary and that there would have to be exceptional circumstances for us to overturn the judgment of an elected Chamber.
I speak for myself. Some of my noble friends may disagree with me on occasion—good luck to them. On this occasion, I apologise for any discourtesy in which I have been involved, but I do not regret the judgment that I made in accepting the suggestion that was put to me.
Lord Ackner: My Lords, before the noble Lord sits down, may I ask him whether he accepted the dinner hour faute de mieux and, in particular, was he offered prime time at all for this debate?
Lord McIntosh of Haringey: No, my Lords, this was the time that was offered. I was conscious, without it being said, that we are in the last week before the House rises for the Recess.
Lord Rodgers of Quarry Bank: My Lords, I thought for one moment that we were having two separate debates: one about the timing of this debate and the other about the substance of the matter. As I understand it, we have a single debate. The timing may be relevant
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to it but we are dealing with the substance of the matter. Forgive me if I am wrong. In that case, I ask for guidance on the precise Motion that we are debating at this moment.
The noble Lord, Lord McIntosh, went beyond the question of timing into an expression of view about the role of this House. If that is appropriate to the question of timing, I should like to pursue the matter. But it would be very helpful to have guidance if we are to conduct our proceedings in an orderly way.
Lord McIntosh of Haringey: My Lords, as I was referred to, perhaps I may explain my position. My reference to the role of this House was in relation to the complaint which the noble and learned Lord, Lord Simon, made about the timing. I was not, other than in a passing reference, referring to the substance of the issue which will be before the House when the Motion which is now before the House—namely, that Commons reasons be now considered—is resolved.
Lord Graham of Edmonton: My Lords, I should like to try to be helpful, as the only "usual channel" in his place, which is an accident of the moment.
Today is a very good time to raise the difficulties of business managers in trying to accommodate the will of the House. Today is also a very important day for those involved in the Disability Discrimination Bill. Against the background that the House wants to cease its business at about 10 o'clock, noble Lords proceeded to table many amendments which, if given justice, will take it beyond that time. In addition, the House and the Opposition decided to take two Statements, which took out two hours of the day. That, of course, was unknown before the event came along.
All I can say is that at this time of the year, timing is extremely difficult. For instance, in a debate this afternoon a demand was made that further time be found to discuss that issue before the House rises on Friday. That proposal will no doubt be supported by many people. So the difficulties of a business manager in this situation are well understood.
I am privy to being advised by my Front Bench colleague on what he believes to be reasonable in all the circumstances. But the noble and learned Lords, Lord Simon and Lord Ackner, have a point. They played a crucial part in the business now coming back to us from the Commons. When timetabling is considered, perhaps in the future an occasion may be found to advise them of the timetable intention, above and beyond the published Whip. Last Thursday it was known that the debate would be held today and held in the dinner hour. Some consideration should be given to these matters by the House, perhaps in the Procedure Committee.
Lord Rodgers of Quarry Bank: My Lords, as always, the noble Lord, Lord Graham, is reasonable. However, I am glad that he accepts that there is a problem before the House. I associate myself with the remarks of the noble and learned Lord, Lord Simon of Glaisdale. It is most unfortunate that we are discussing this important constitutional matter at this time of the evening. I should have thought that there would have been some flexibility in the parliamentary timetable;

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first, when it became clear that the Government intended to reject the amendment of the noble and learned Lord, Lord Ackner; and, secondly, when it became plain that we would be taking two important Statements today.
The other point I make, whether or not it is acceptable to the Government, is that this is not the end of the parliamentary Session. There will be a spillover Session. If the Government felt that it was reasonable to give this House a more full opportunity at a better time to discuss this matter, it could have been done in October, before the end of this parliamentary Session.
Baroness Blatch: My Lords, I hope all noble Lords agree that this is an important Bill and that there is anxiety on all Benches to see it on the statute book. Perhaps I may say also that in another place, as the elected Chamber—that is important—they are entirely within their rights to consider amendments passed in this place and to come to a view about them. In fact, this they have done. Not only have they done that, but also they accepted all other amendments passed in this House except this one. This is the one that they rejected.
That meant that there was only one issue to be debated, and my right honourable friend the Home Secretary wrote to the noble and learned Lord, Lord Ackner, on 14th July saying,
"The purpose of this letter is to let you know that I will be seeking to reverse that amendment at Commons Consideration of Lords amendments on Monday 17th July".
Perhaps I may say too that this business appeared on the Order Paper on Thursday of last week, so that we all understood that the Commons were considering our amendments. We cannot and must not, and will rue the day that we ever do, take for granted what will happen in another place. They are free spirits. They can take a view about amendments. We are a revising Chamber. That is our role. We asked the Members in another place to take a view. They have done so and we are now considering their consideration of our amendments.
I understand also that the Government's business managers spoke to the noble and learned Lord, Lord Ackner, the noble Lord, Lord McIntosh, and a representative for the Liberal Democrats before the business appeared on the Order Paper and there was agreement to this matter being discussed in the dinner hour. I believe therefore that warning was given. We should never take the House of Commons for granted; it is an elected Chamber. And my right honourable friend took the precaution of writing to the noble and learned Lord informing him of his intention to invite the Commons to disagree with this amendment.
On Question, Motion agreed to.

Criminal Appeal Bill
  MOTIONS MOVED ON CONSIDERATION OF COMMONS REASONS
  [The page and line refer to Bill 81 as first printed by the Lords]

  LORDS AMENDMENT
  1 After Clause 2, insert the following new clause:
  Recommendation in case of life sentence for murder
  (". After section 11 of the 1968 Act insert—
  "Appeal against recommendation in case of life sentence for murder.
  11A.—(1) Where under section 1(2) of the Murder (Abolition of Death Penalty) Act 1965 a court has made a recommendation to the Secretary of State as to the minimum period which should elapse before he orders the release on licence of a person convicted of murder, the person may appeal to the Court of Appeal against the recommendation.
  (2) Subject to subsection (3) below, an appeal under this section lies only with the leave of the Court of Appeal.
  (3) If the court which made the recommendation grants a certificate that the case is fit for appeal under this section, an appeal under this section lies without the leave of the Court of Appeal.
  (4) On an appeal under this section the Court of Appeal, if they consider that a different recommendation should be made, may—

  (a) quash the recommendation; and

  (b) in place of it declare the period which they recommend to the Secretary of State as the minimum period which should elapse before he orders the appellant's release on licence."")

  The Commons disagreed to this amendment for the following reason:
  1A Because the Commons consider that a right of appeal against recommendations as to the minimum period which should elapse before the Secretary of State orders the release on licence of persons convicted of murder is unnecessary and could result in anomalies.
  Lord Ackner 1B Lord Ackner to move, That this House do insist on their Amendment No. 1, to which the Commons have disagreed for their reason numbered 1A.
  Lord Ackner: My Lords, I beg to move that the House do insist on their Amendment No. 1, to which the Commons have disagreed for the reason numbered 1A. With the leave of the House I shall speak also to my Motion numbered 46B.
  I should tell the House immediately that I fully appreciate that to ask those in another place to think for a second time is a bold step to take; that we should be careful before embarking upon it. But not too careful. I have thought long about whether it is justified in this situation and concluded that it is, reminding myself, first, that tomorrow we consider the Criminal Injuries Compensation Bill at Second Reading.
  I moved an amendment to the Commons amendment nine months ago and failed. The Commons amendment was to delete our amendment to the Criminal Justice Bill, which required there to be brought into effect Section 171 of the Criminal Justice Act 1988, designed to put on a statutory basis the criminal compensation scheme which had existed for some 30 years. It was that amendment which I lost. I lost it so that the Home Secretary could carry out that which he had done in a manner which had been condemned by this House as unconstitutional and an abuse of Parliament. But much more important; it was condemned as being grossly unfair.
  Our failure to ask the House to think a second time would have resulted in that grossly unfair action taken by the Home Secretary being now in force, with the result that large numbers of people seriously and grievously injured would have received around one-tenth of the compensation to which they were

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  entitled before the Home Secretary decided, without consultation with either Chamber, to bring in a tariff scheme designed essentially to save money.
  But for the courage and the initiative of a number of trade unions who took judicial review proceedings, that would have been the result of our failing to ask the other place to think again. It was only because the Court of Appeal and subsequently the House of Lords found that the Minister had acted unlawfully in what he did in regard to that tariff scheme, that we now have the advantage of there being put before the House the new Bill which clearly concedes the gross injustice which the Home Secretary was intent on perpetrating. In the new Bill those who are seriously injured will no longer take the burden of saving money for the Exchequer. Questions involving loss of earnings, medical treatment and in regard to necessary alterations to their homes to enable them to live with comfort will be taken into account.
  That was one reason why I decided that this was a proper case in which to ask that Members in another place think again. In reminding myself of what took place in the debate on 25th October I noticed these words of my noble and learned friend Lord Simon of Glaisdale. He said:
  "It has been said a number of times in your Lordships' House today that we are a revising Chamber. That is true. However, that does not mean merely a Chamber making suggestions which the Government are able to brush aside, and that we shall then run away with our tail between our legs. We are a revising Chamber and not a suggesting Chamber".—[Official Report, 25/10/94; col. 505.]
  I also reminded myself of what was stated very recently on the Third Reading of this Bill, again by my noble and learned friend Lord Simon. He said:
  "It would be extraordinarily foolish if the Government encouraged the other place, using their Whip, to challenge your Lordships' view carried so strongly in numbers".
  He further said:
  "I can conceive of no reason why your Lordships should change their view after such cogent argument and after such consideration".—[Official Report, 3/7/95; col. 954.]
  Those views were supported by my noble and learned friend Lord Hailsham of Saint Marylebone, when he said:
  "It is extreme folly on the part of the Government to disregard professional opinion to this extent".—[col. 954.]
  He went on to say:
  "I believe that the Government should approach the judiciary with a greater degree of respect than they have shown in this case. I do not think I have ever known such unanimity to be expressed from the noble and learned Benches as has been expressed in these two debates".—[col. 955.]
  Your Lordships may remember that the stimulus for this amendment was the case of Queen v. Leaney. In that case Leaney was convicted of murder. The trial judge made a recommendation that he should serve at least 20 years in order to satisfy the demands of retribution and deterrence. Leaney appealed on the basis that that was an excessive recommendation. He satisfied the Court of Appeal (Criminal Division) that it was excessive but the court concluded that it had no power to intervene in any way because the recommendation by the trial judge was not a sentence or order within the meaning of the relevant Act. However, the Lord Chief
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  Justice who presided said that he thought this was a matter which should receive Parliament's urgent attention.
  Your Lordships will recall that when the matter was first raised by me by way of an amendment at the Committee stage of the Bill I informed the House that Leaney had put in an application for leave to appeal to the Judicial Committee of your Lordships' House and that as that application was still pending it was not possible for any sitting Law Lord to take part in the debate because he might be involved in hearing the application and, if the application was successful, hearing the subsequent appeal. I said that for that reason I did not divide the Committee on that occasion but would do so when the matter returned on Report, by which time I hoped that the position in regard to Leaney would be determined one way or another. It was determined in the interval. His application was rejected.
  The result was that nine retired Law Lords voted for the amendment and eight sitting Law Lords, if one includes the Lord Chief Justice under that title, also voted in favour of the amendment. That is 17 Law Lords. I include in that number the former Master of the Rolls. There were no judges, past or present, who voted against the amendment, except, of course, my noble and learned friend the Lord Chancellor. Not only did those judges vote in favour but the Lord Chief Justice, in addressing the House, said:
  "The amendment certainly has the support of every judge with whom I have discussed it".—[Official Report, 26/6/95; col. 538]
  The Lord Chief Justice, in a memorable address to the House at the Report stage, said:
  "The amendment assumes that the mandatory life sentence for murder remains. Its aim is to administer the operation of that mandatory life sentence more fairly, more effectively and more openly".—[Official Report, 26/6/95; col. 537.]
  I propose to address your Lordships under those three headings. With regard to "more fairly", it would involve the same procedure being gone through by the same judges in relation to life sentences imposed in non-murder cases—the discretionary life sentence. It would involve the trial judge hearing mitigation before he made a recommendation. It would involve the trial judge giving his reasons for his decision with regard to the recommended period to be served as a minimum. It would enable, with leave, the prisoner to appeal to the Court of Appeal. It would enable the Court of Appeal to hear his representations, to know the reasons given by the trial judge; and itself then to give a decision with regard to the merits of the appeal. The Court of Appeal (Criminal Division) would be presided over by the Lord Chief Justice.
  As to "more effectively", the noble and learned Lord the Lord Chief Justice said this with regard to the part he plays at present:
  "And may I make it clear that when I give my views under the present convention I have very little information. I have not been at the trial, I do not have the benefit of hearing representations and I have only a brief report from the trial judge".—[Official Report, 26/6/95; col. 538.]
  So his function would be much more effective. The paucity of the part he plays was confirmed by his predecessor, my noble and learned friend Lord Lane, and by the former Lord Chief Justice of Northern

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  Ireland, the noble and learned Lord, Lord Lowry. Thus "more effectively" is clearly made out. I should add, under "more effectively", that by this procedure—this point was made by the Lord Chief Justice—guidelines in regard to these recommendations would be laid down by the Court of Appeal so that judges would know openly what are the criteria that they should apply, and consistency would thus be better achieved.
  "More openly" was the noble and learned Lord's third point. Although it is disclosed ultimately to the prisoner, what goes on now takes place behind the scenes with confidential letters being written to the Home Secretary. The noble Baroness, Lady Blatch, conceded that there was a case for wider or broader transparency. On Report, my noble and learned friend Lord Lowry said:
  "I suggest that openness in the administration of justice is one of the main foundations of public confidence".—[Official Report, 26/6/95; col. 546.]
  The odd situation is that the Minister in the other place yesterday, when commenting upon openness which would result from the new procedure, said:
  "The issue of openness was dwelt upon by the hon. Gentleman and the right hon. Member for Berwick-upon-Tweed (Mr. Beith). I do not believe that the amendment has anything to do with that".—[Official Report, Commons, 17/7/95; col. 1361.]
  In the letter which the Minister was kind enough to write to me informing me that he was taking such action, he said:
  "I would just add that I regard the present arrangements as both sensible and effective".
  As I have quoted the views of lawyers, perhaps I may invite your Lordships to consider the observations which were made by the noble Lord, Lord Windlesham, who is a former Minister of State at the Home Office and former Leader of this House. He said on Report:
  "How is that fixed term set? It is set by recommendation of the trial judge, subject to review, as we have just heard from the noble and learned Lord, Lord Taylor, by the Lord Chief Justice who has little more new information available to him. Indeed, all he can rely on is the fact that he sees a number of such cases. Therefore, he can introduce an element of consistency if he feels that the recommendation is out of line. There is very little else that he can do. Then his minimum term to be served is decided in private by a Minister who has not seen the defendant, who is not aware of the particularities of the case, and who may have other, possibly political, considerations in mind".—[Official Report, 26/6/95; col. 542.]
  Why has there been such resistance throughout to what has been properly characterised as a modest improvement in the just determination of such issues? I have indicated all along that it is Executive convenience—the Executive convenience of saving potential embarrassment. If the Court of Appeal lays down guidelines which are publicised, and the Court of Appeal says in a given case after hearing argument and considering the views of the trial judge what should be the appropriate tariff, as it is called, part of the sentence, then, because all would be in public, the Home Secretary would have great difficulty in justifying any major departure from the decision as to what is the right punishment.
  That view was corroborated by the reaction of the Government to a suggestion of a further amendment which I made purely as a result of the noble Lord, Lord
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  Monson, inquiring what could be done if the trial judge's recommendation was an under-recommendation. I looked into the matter and discovered that the Attorney-General (whose function it is to interfere where sentences are excessively lenient) would have no power in a recommendation because it was not a sentence or an order. Consequently, I drafted the necessary amendment.
  As your Lordships will recall, the amendment was moved on Third Reading and was strenuously resisted by the Government. The strenuousness of the resistance was made clear by a letter which was sent to me by the noble Baroness and from which I quoted on Report (in Hansard at col. 949). The letter said:
  "Extending the power of reference in the way you propose would also have potentially serious implications for the workload of the Attorney-General. We could not extend the power without very careful consideration with him and a careful weighing of the merits of such an addition to his role".
  Since 1991, four years ago, the Attorney-General has had the power in law to intervene in every recommendation made in life sentences in non-murder cases. That is because they are orders and, therefore, he has the authority to intervene: same type of sentence, sentence for life, and same judges imposing the sentence. All it needed—and, as I told the House, this I carried out—was a simple telephone call to the Registrar of the Court of Appeal Criminal Division, Master McKenzie, with the query, "How many times has the Attorney-General intervened in the past four years?" Back came the answer, none.
  Why that anxiety to ensure that the Attorney-General did not come on to the scene? The amendment drafted by the Government to improve my amendment provided that the Court of Appeal Criminal Division on an appeal should have the power to put up a recommendation, it being pointed out that it would be wrong for a recommendation to go out publicly which was an invalid one. Why that anxiety? It was for the self-same reason of potential embarrassment. If the Attorney-General is involved, that might of course pre-empt what the Minister for good political reasons may wish to do. The Attorney-General goes before the Court of Criminal Appeal and says to the court that he considers that a proper recommendation is "X" and the Court of Appeal Criminal Division accepts it. Of course, that makes it very difficult for the Home Secretary to intervene in any markedly different way. That is the reason.
  Again, one should refer to what the noble Lord, Lord Windlesham, said on Report:
  "For many years it was highly unusual for the Home Secretary not to accept, or to vary, the judicial tariff. But that practice began to change some years ago and now we know, through Answers to parliamentary Questions and judicial reviews in the courts, that the Home Secretary may, and quite frequently does, alter the tariff if he feels that circumstances justify it".—[Official Report, 26/6/95; col. 542.]
  As I pointed out, one has the demands of justice versus the demands of Executive convenience. It is for that reason and where there is that sort of clash that one has the quite unusual situation where, in my respectful submission to the House, we are wholly justified in exercising the power which this House undoubtedly has of asking Members of another place to think again. I invite your Lordships to stand firm. I beg to move.
  Moved, That this House do insist on their Amendment No. 1B, to which the Commons have disagreed for their reason numbered 1A.—(Lord Ackner.)
  Lord Simon of Glaisdale: My Lords, there is no need to go over the merits of the matter. They have been cogently argued by my noble and learned friend. I desire to make only two points. First, if your Lordships had stood firm on this issue, there is no doubt in my mind that the Government would have given way, because, if they had not done so, they would have lost the Bill for the Session.
  Secondly, the noble Lord, Lord McIntosh, took up a perfectly consistent attitude constitutionally, consistent with what he has said before and what he believes. It may not be altogether consistent with the constitutional ideas that are being peddled by some of his colleagues, but I think that he recognises that. However, what I found pathetic was that the noble Baroness, a Tory Minister of State, should appear to be adopting the theory of single Chamber government—and that of a Chamber tightly under the control of the Government, any government, exercising its powers through the Whips and through the constituency associations.
  Having said that, there is the question of whether my noble and learned friend should carry his Motion to a Division. That is a matter for him, but I have been conscious that outside the Chamber are quite a number of fresh-faced strangers, windswept and seemingly straight from the brushwood. It would be idle, I think—although it would be attractive—to compare those who have listened to the debate with those who appear in the Division Lobby. My noble and learned friend may well feel that it would be a stultifying exercise, particularly in view of the fact that there are a number of amendments to an important Bill which are still awaiting consideration by your Lordships.
  Lord McIntosh of Haringey: My Lords, two issues are before us. The first is the merit of the original amendment which was moved and carried by the noble and learned Lord, Lord Ackner, and the second is the question: what shall we do about it? On the first issue, I am unequivocally in support of the noble and learned Lord. Indeed, I encouraged my noble friends to support him in the Division Lobby and we were pleased when he was successful—though not, I must say with due personal respect to both noble and learned Lords, because it was supported by all of the learned judges. I think that the House must make decisions on legislative matters on their merits as we see them, even those of us who are not lawyers—indeed, perhaps especially those of us who are not lawyers. If I find myself in total opposition to 17 present and retired noble and learned Lords, that will not cause me to lose a moment's sleep. It is not the argument from authority which is important.
  The noble and learned Lord's argument with which I agreed was one of political judgment. It seemed to us that in this Bill, of which we thoroughly approve and which we want to see on the statute book—indeed, we want to see it on the statute book before the end of this week—is a defect which, because of the peculiarity of the passage of the Bill which abolished capital
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  punishment in 1965, put the mandatory life sentence for murder on a different footing from other sentences. It seemed to us wrong that those who are convicted of murder and given a mandatory life sentence should be denied the right to appeal which is available to all other convicted prisoners. It was on that basis and on that basis alone that we supported the noble and learned Lord both in argument and in the Division Lobby. There is nothing between us on the issue.
  Now we come to the question of what we should do about it. I acknowledge the force of what the noble and learned Lord, Lord Simon, said to me half an hour ago. He said that we were not faced with a situation where the House of Commons had made a judgment with which we disagreed and on which the other House reaffirmed its judgment. The noble and learned Lord was right to say that because the amendment was introduced for the first time in this House. Therefore, the House of Commons considered it only once. I acknowledge that there could be circumstances under which the fact that the amendment was considered on only one occasion could justify us saying to the Commons, "Please think again". That is not the normal circumstance and I would not normally agree with such a view because, as I said earlier, I believe in the supremacy of the elected Chamber. I am not terribly impressed by arguments about the subordination of this House. I take a minimalist view of the responsibilities, if not of the honour, of this House. So, I acknowledge that this case is different from that which commonly arises.
  However, having said that and having said that under certain circumstances this might be an occasion when I would wish to go against the expressed view of the House of Commons, I do not think that this is such an occasion. I believe that the merits of this Bill so greatly outweigh what is an important but second-order defect that it would be in the interests of best political judgment of any party and any part of Parliament that the Bill should go through. In those circumstances, I agree with the advice which the noble and learned Lord, Lord Simon, gave to his noble and learned friend. Much as we support the latter on the merits of the issue and much as we admire his tenacity in bringing it forward again, I think that it would be a pity if he sought the opinion of the House on it.
  Lord Rodgers of Quarry Bank: My Lords, the Minister said that the House of Commons was entirely within its rights to reject a Lords amendment. One cannot disagree with that. However, it is entirely within the rights of this House to continue to pursue the matter in the way that has been considered.
  I do not agree with the use of language of the noble Lord, Lord McIntosh, when he referred to the "supremacy" of the other place. That is not my understanding of the constitution of this country. We have parallel and different responsibilities. Although the elected House is in a special position, there is no reason why this House should not use its powers when they exist.
  I shall say nothing about the substance of the matter, which was referred to on Second Reading, discussed in Committee, carried on Report and discussed again

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  tonight. I do not think that there is any doubt about the will of the House on that matter. For that reason, I am sorry that the Government chose to reverse in the other place the position that was adopted here.
  I should like to make two further points about the occasion and the appropriateness of the proceedings. First, this is not a narrow party issue. I rather agreed with the noble Lord, Lord McIntosh, when he said that 17 Law Lords would not always persuade him of the rightness of a cause. However, it was not only 17 Law Lords, but over 100 other Members of this House on all sides—
  Lord McIntosh of Haringey: My Lords, if the noble Lord will allow me, I said that I was persuaded of the rightness of the cause.
  Lord Rodgers of Quarry Bank: My Lords, I did not deny that the noble Lord was persuaded of the rightness of the cause. I understood him to say that 17 Law Lords would not necessarily persuade him because of their weight and stature. That is what I was agreeing with. However, the vote went very much wider than that and I think that that is the first reason why we should consider carefully whether the matter should be pressed further.
  The second is this: I see the Government Chief Whip on the Front Bench. From time to time he loses votes by bad management, if I may say so, and occasionally by bad luck. There are occasionally ambushes in this place. We all play games from time to time. But this was not an ambush; this was not bad luck; it was not, with respect to the Chief Whip, bad management; it was a proper expression of the view of the House. That is why a great deal more force should be attached to it than if it were in that other category.
  There are times when the House should stretch its convictions to the extent of its powers. If the noble and learned Lord, Lord Ackner, chooses to do so, we on these Benches will be with him.
  8.30 p.m.
  Baroness Blatch: My Lords, this amendment relates to a clause which was inserted into the Bill at Report stage. As the House will recall, the clause was added by a majority of 16 against the Government's advice. I can assure the House that my right honourable friend the Home Secretary and I have considered very carefully indeed the arguments which were advanced in this House by the noble and learned Lord, Lord Ackner, and other noble Lords who spoke in favour of the clause. I have to say that we continue to believe that the new clause is unnecessary and indeed, as has been said at other stages of the Bill, could give rise to anomalies of its own.
  Where I do agree with the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Rodgers of Quarry Bank, is that it is of course possible for the House to send back this amendment to another place to ask it to think again, but, like the noble Lord, Lord McIntosh of Haringey, I hope that the House will not choose to do that.
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  My right honourable friend the Home Secretary explained why the Government reached that conclusion in the other place last night. I should like to explain briefly why the Government do not feel able to accept the proposal put forward by the noble and learned Lord, Lord Ackner.
  The clause in question relates to the mandatory life sentence for murder. As the House knows, it is open to the trial judge, when passing sentence, to make a recommendation to the Secretary of State as to the minimum period of imprisonment to be served. The judge is not obliged to do so and in practice formal recommendations are made only in a minority of cases. The new clause would provide a right of appeal against a recommendation made in open court.
  At Report stage the noble and learned Lord, Lord Ackner, argued that a right of appeal was necessary to rectify an anomaly as between discretionary and mandatory life sentences. In the case of discretionary life sentences, the judge is required to specify the "relevant part", which is the minimum period of imprisonment the prisoner must serve. There is a right of appeal against the judge's order as to the relevant part, but there is no right of appeal against a formal recommendation in mandatory life sentence cases.
  The reason for that apparent anomaly is straightforward. In the case of discretionary life sentence cases, my right honourable friend the Home Secretary has no part to play in setting the tariff. He has no power to modify the trial judge's order as to the relevant part. It is therefore necessary that there should be a right of appeal, otherwise the judge's order would go without challenge.
  On the other hand, a formal recommendation in mandatory life sentence cases is just that—a recommendation. The role of the judiciary in relation to the tariff in mandatory life sentence cases is advisory only: the decision on tariff is taken by my right honourable friend the Home Secretary.
  Since the trial judge's recommendation is only advisory, and in no way binding on my right honourable friend, I can see no reason why there should be a right of appeal against it. It is only one part of the tariff setting process, and it does not constitute the final decision. That is wholly different from the effect of the relevant part in discretionary life sentence cases. The perceived anomaly does not therefore exist.
  Much of the discussion about the right of appeal proposed by the noble and learned Lord, Lord Ackner, has focused on the question of openness. It is claimed that if recommendations were made in open court, with a right of appeal against them, that would provide greater transparency than the present procedures.
  I should like to clarify one issue. As I said at Report stage, it is entirely a matter for the judiciary whether or not to make recommendations in open court. Judges already have discretion to do so, and the Government would have no objection if recommendations were made in open court as a matter of course in mandatory life sentence cases. If the noble and learned Lord, Lord Taylor, thinks it appropriate to issue guidance on that point, that is entirely a matter for him. In short, if judges

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  consider that greater openness would be achieved by making recommendations in open court, they are free to do so. No change in the law is required.
  As regards the procedures for setting the "tariff' in mandatory life sentence cases, I should point out that these procedures were thoroughly overhauled in 1993 to reflect the judgment of this House in its judicial capacity in the case of Doody. I believe that the present arrangements are anything but secretive, and I should like to take a moment to explain them.
  In every case where an offender is convicted of murder, the trial judge completes a detailed report on the background to the case. Whether or not he had made a formal recommendation in open court, the judge sets out his advice on the minimum period which should be served for retribution and deterrence. This report goes first to the Lord Chief Justice, who adds his own comments.
  The whole of that report, apart from opinions about future risk, is disclosed to the prisoner together with any other relevant papers, such as details of previous convictions, which will be put to Ministers in due course. That means that in practice the prisoner sees everything that is relevant to the setting of the tariff.
  The prisoner is given the opportunity to make any representations he or she wishes on the judicial recommendations and the other contents of the report. It is, however, made clear to the prisoner that the judicial views are advisory and the tariff will be set by the Secretary of State. The prisoner's representations, along with the judicial report, are then submitted to my right honourable friend, who makes the decision on tariff. That is communicated to the prisoner.
  If, after considering the judicial advice and the prisoner's representations, my right honourable friend decides that a higher tariff is required for deterrence and retribution than was recommended by the trial judge, the prisoner is given detailed reasons for that decision. And those reasons are, of course, open to scrutiny by the courts by way of judicial review.
  To summarise, the prisoner is aware of the judicial view and has the opportunity to make representations. He or she is then told of the tariff set. If there is any departure from the judicial advice, he or she is given detailed reasons. Once the prisoner has been informed of the tariff, we are prepared to disclose both the tariff and the judicial recommendation in individual cases to anyone who asks. The process cannot be described as secretive; it could hardly be more open.
  Perhaps I may give the statistics, because they are revealing. Of the 130 tariffs set from 1994 through to February 1995, 89 were set in line with the trial judge's recommendation; 32 were set in line with the Lord Chief Justice's recommendation where his recommendation was different from that of the trial judge; six were set between the two judicial recommendations (the trial judge and the Lord Chief Justice) and only three were set higher than either judicial recommendation. Of the 140 tariffs set between 1994 and approximately April of this year, in 86 cases the Lord Chief Justice's recommendation was broadly in line with that of the trial judge; in 34 cases the Lord Chief Justice's recommendation was higher than that of the trial
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  Judge—that is, approximately 25 per cent. of the cases where the Lord Chief Justice took a different view—and in 20 cases the Lord Chief Justice's recommendation was lower than that of the trial judge (approximately 14 per cent. of the cases).
  It seems to me that the present procedures are fair, open and sensible. They ensure that proper weight is accorded to the advice of the trial judge, who has heard all the evidence, and that of the Lord Chief Justice, who can bring his wider experience to bear either to confirm the trial judge's advice or, as has been the case, to offer a different view. The prisoner has every opportunity to make informed representations before a decision is taken on tariff. And the final decision rests with my right honourable friend the Secretary of State, who has been entrusted with that responsibility by Parliament as the guardian of the public interest.
  The noble and learned Lord, Lord Ackner, referred to the criminal injuries compensation scheme and the Government's proposals which were found to be unlawful. There is nothing unlawful, unfair or unreasonable about the arrangements for setting the tariff in life sentence cases. Indeed, the present arrangements were drawn up following the judgment of the House in the Doody case, and are fully in line with that judgment. They have also been scrutinised by the European Court of Human Rights and not found to be in any way in breach of our international obligations.
  As I said, we regard the present procedures as fair, sensible and effective. We do not consider that they would be improved by the right of appeal proposed by the noble and learned Lord, Lord Ackner, against what is only a piece of advice at the start of the process. The arrangements for setting the tariff in mandatory life sentence cases were substantially overhauled. They are working well. They ensure that proper weight is attached to judicial recommendations on tariff but recognise that the final decision rests with my right honourable friend the Home Secretary. Perhaps most importantly, they appear to command public confidence in this highly sensitive and controversial area of criminal law.
  I believe that it would be wrong to disturb these arrangements by introducing a new appellate procedure into one aspect, and not the most significant part, of the tariff-setting process. For those reasons, I hope that your Lordships will agree that the case for the right of appeal proposed by the noble and learned Lord, Lord Ackner, has not been made out.
  Lord Ackner: My Lords, during the course of the debate on Report the noble Baroness stated that the Home Secretary takes very seriously the views expressed by the noble and learned Lord the Lord Chief Justice. The noble and learned Lord the Lord Chief Justice, supported by his predecessor and by the former Chief Justice of Northern Ireland, has said that he cannot currently contribute anything of great significance when it comes to expressing his view because he does not have the material.
  If the Home Secretary takes very seriously the views of the Lord Chief Justice, why on earth does not he want those views to be wiser and better informed so that when

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  he receives them he has better material on which to make his decision? That would the result of an appellate provision. As I have indicated, the Lord Chief Justice will have heard the reasons of the trial judge; he will have heard mitigation advanced before the Court of Appeal; and he will have had the advantage of discussing the matter with his two brothers on the Court of Appeal.
  The noble and learned Lord the Lord Chief Justice confirms that that will be a far more efficient process. Why is it being rejected? There seems to be no sensible reason. The Minister says that it is all working very well but the stimulus for coming to your Lordships was a case that did not work well. It was the case of Leaney where there was an over-recommendation which the court could do nothing about. In future, it will be apparent that there will be no question of being able to get an over-estimate or an under-estimate dealt with because there is no right of appeal and therefore no leave will be given.
  The anxiety about the Court of Appeal is worrying because the noble Baroness says, "Of course, the trial judge can do it. We don't mind if he does it regularly. We have no objection to that". But, if it is to be done regularly, why the resistance to improving the nature of his decision by adding to its quality by process of a potential review on appeal? No answer has been given to that question.
  Perhaps I may comment on the remark made in answer to my reference to the strong judicial support which was particularly emphasised by my noble and learned friend Lord Hailsham. I am not concerned with the weight and the status of the Law Lords. I am concerned with the subject matter of the debate. The subject matter of the debate was justice. When that number of judges from your Lordships' House comes here and says what is the just and proper procedure they are addressing your Lordships as experts. That is the significance; the unanimity of experts and an unusual turnout of experts.
  I have noticed among my brother Law Lords no great enthusiasm to take part in the activities in this Chamber. It involves a great deal of extra work out of, so to speak, office hours. In fact, I intervened some years back only because my noble and learned friend Lord Brightman chided me because there were constant debates on sentencing and no judge ever turned up to give the view of the judiciary, to answer some of the criticism and to provide the explanations. Therefore, it is not a question of weight and status.
  As regards the tactics of bringing this matter back, I have clearly been out-manoeuvered. I did not understand the coded message in the forthcoming business for Tuesday—that is, today. It reads:
  "Criminal Appeal Bill: Consideration of any message which may be brought from the Commons".
  That is why I telephoned the Whips' Office to discover what was going on. I was told that there would be an application or an amendment would be moved in the Commons. I asked what it was and I was told that the Whips' Office then did not know. I asked whether it
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  was a secret and I was told that they did not think so. I said, "Well, perhaps I could be informed". Thus I learnt what might be involved.
  On Friday came the letter. It gave me no opportunity to inform Cross-Benchers at our Cross-Benchers meeting on Thursday of this subject in which they were interested. I understand that it gave the Opposition and the Liberal Democrat Party no opportunity to put out a whip to discuss the matter. Which day is chosen? Tuesday, which is scheduled for a train strike. That is a happy situation in which to expect people to be here at 8.30 p.m. And when? It is during the dinner hour. Right from the outset I appreciated that the possibility of getting sufficient steam behind the Motion was doubtful, but at least I thought it right for the House to hear criticisms of what has been done and the meritlessness of what has occurred in another place.
  I do not propose to drag people away from the terraces, where they are enjoying themselves, or from the dining rooms, where they are happy enough to be eating, in order to establish that the score of your Lordships who are present in the Chamber will be swamped by those who come in anxiously inquiring what it is all about and which way they should go. In those circumstances, I ask your Lordships' leave to withdraw my Motion.
  Motion, by leave, withdrawn.
  Baroness Blatch: My Lords, I beg to move that the House do not insist on their Amendment No. 1 to which the Commons have disagreed for the reason numbered 1A.
  Moved, That the House do not insist on their Amendment No. 1 to which the Commons have disagreed for the reason numbered 1A.—(Baroness Blatch.)
  On Question, Motion agreed to.

  LORDS AMENDMENT
  46 Schedule 2, page 24, line 25, at end insert:
  ("( ) In section 18 (initiating procedure), in subsection (2), at the end insert "or, in the case of a recommendation, from the date of the declaration of the recommendation".
  ( ) In section 22 (right of appellant to be present), in subsection (3), after "on a person" insert ", or declare a period which they recommend as the minimum period which should elapse before the Secretary of State orders a person's release on licence,".")
  The Commons disagreed to this amendment for the following reason:
  46A Because it is an amendment consequential on the Lords amendment proposed after Clause 2, to which the Commons have disagreed.
  Baroness Blatch: My Lords, I beg to move that the House do not insist on their Amendment No. 46 to which the Commons have disagreed for the reason numbered 46A.
  Moved, That the House do not insist on their Amendment No. 46 to which the Commons have disagreed for the reason numbered 46A.—(Baroness Blotch.)
  On Question, Motion agreed to.

Disability Discrimination Bill
8.50 p.m.
Consideration of amendments on Report resumed on Clause 7.
Baroness Masham of Ilton Baroness Masham of Ilton moved Amendment No. 36:
Page 5, line 6, at end insert:
("( ) providing dedicated parking facilities;
( ) providing assistance for him to move from his parked vehicle to his place of work.").
The noble Baroness said: My Lords, I moved this amendment in Committee and it received much welcome support from all sides of the House. We are now discussing together Amendments Nos. 36 and 37. I should be happy if the Government would accept either of these amendments or bring forward a government amendment at the next stage if they could accept the spirit of what the amendment seeks to achieve.
Many people throughout the country cannot use public transport but can drive cars and do valuable work. I have known three university lecturers, a spinal injuries welfare officer and someone who directed Birmingham's airport who all used wheelchairs. Those injuries came mainly from motoring and sporting accidents, but there are many other reasons for severe disability. Many of those people are young.
These amendments would remind employers that there may be a need to provide a parking space and some assistance. Surely it is better to have as many taxpayers as possible. In Committee, the noble Baroness, Lady O'Cathain, said that it might not be possible for someone working in Oxford Street to park a car. Unless there was a car park, the disabled person might well have to travel by taxi. One must be practical about such matters. But I think that the noble Baroness gave a good example of how disabled people can be limited in their choice of employment because they face so many problems.
RADAR (the Royal Association for Disability and Rehabilitation), which supports the amendments, has sent me an example of an inner London local authority which has no parking facilities for disabled people, members of the public or employees at any of its public service points. Miss P. used a wheelchair. She waited 12 months to be allocated a parking space, which she says was awarded out of the good will of her manager as the local authority had no corporate policy on parking for disabled people. The officers responsible for accommodation strategy had no guidance regarding the provision of such facilities. Therefore, the car parking needs of disabled employees are not taken into account when office accommodation is sought or existing office facilities are refurbished.
Miss P. was pleased to secure accessible parking facilities. However, many of her colleagues have not been so fortunate and continue to fight for their rights to have full access to their workplace. Miss P. stated that most disabled employees have to compete with their non-disabled colleagues for a parking space and often have to park a considerable distance from their office. For them just getting to work from their car may be
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exhausting and may result in their being late for work. Such disruption could be avoided if the local authority adopted a policy of providing parking spaces for disabled people.
If you live in London or a town which has taxis which accommodate disabled people, it may be possible to get to work without a car. But that is not possible if you live, for example, in North Yorkshire and have to drive many miles to a town for a job. It may be that you have to drive to York or Northallerton from the Yorkshire Dales. People living in rural Norfolk, Cumbria or Caithness will have the same difficulties.
As president of the Spinal Injuries Association, I meet hundreds of people who have broken their backs and necks. Many of them have years of useful work to give. This proposed measure may just help some of them. It will not cost the Government anything, but it might help to alert employers to some of the needs of severely disabled people. It might give encouragement to people who are looking for a job if they think that that one need has not been forgotten.
The amendments add parking facilities and assistance to a long list. I hope that your Lordships will accept one of the amendments; it does not really matter which one. I beg to move.
Baroness Darcy (de Knayth): My Lords, I warmly support this amendment and also Amendment No. 37 tabled by the noble Baroness, Lady Hollis, and the noble Lord, Lord McCarthy. In some ways, I prefer the words of Amendment No. 37 except for the words, "within existing car parks". There may be steps between an existing car park and the place of work or there may be no existing car park. We need to encourage employers to consider whether it may be possible to create a suitable parking space near a building.
As my noble friend said, parking and assistance in reaching the place of work are often the only help required by people with spinal injuries. We are only seeking to add to a list of matters to put in the minds of employers so they do not feel that, having been asked to consider quite a long list, they are then asked to do even more.
In Committee the noble Lord, Lord Inglewood, spoke of an ever-increasing list of examples. The noble Baroness, Lady O'Cathain, says the more examples one includes, the more people will think, "Oh my goodness", and will ask themselves whether it is worth being an employer. That is more likely to happen if employers are asked to provide parking and help when those facilities are not on the original list of matters for consideration.
If this amendment is accepted, it may be logical for the paragraphs to become paragraphs (b) and (c) because paragraph (a) deals with adjustment to premises, (b) and (c) would deal with arrival at and getting into the premises, and then we should deal with possible adjustments within the workplace. I hope that the Minister will accept this entirely acceptable and practical amendment.
Lord Renton: My Lords, I support the principle behind these two amendments. Amendment No. 37 has the most to commend it because it assumes that at the

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place of work there is already a car park. In many places of work there would be no car park in any event. But where there is a car park, I suggest that we should consider requiring an employer to provide parking spaces for his disabled employees among the other parking spaces.
Lord Swinfen: My Lords, I support the principle behind the amendments but I do not think that either of them is satisfactory. Amendment No. 37 is better than Amendment No. 36, but if you are talking about "existing car parks" and you happen to work in Victoria Street, under this amendment the employer may have to purchase space in a car park elsewhere. I should prefer those who are moving the amendment to take it away and to table a similar amendment on Third Reading—after all, it is only an example; it is not compulsory—which makes it quite clear that the car parking space should be within the premises of the employer.
The first amendment does not specify at all where the car parking space should be—in the clouds perhaps. The second amendment refers to "existing car parks". As I say, if someone is working in an office block in London which does not have its own car parking space, an employer may have to pay to a large car parking firm a considerable amount of money every year because car parking in London and other large cities is expensive. As I said, if it is within the premises of the employer, these would be admirable amendments.
9 p.m.
Lord McCarthy: My Lords, if I may be allowed to do so, I would like to move Amendment No. 37. As I understood the noble Baroness, Lady Masham, was moving Amendment No. 36 and speaking to Amendment No. 37, I shall move Amendment No. 37 and speak to Amendment No. 36.
Lord Swinfen: My Lords, the noble Lord cannot move another amendment while one is already being discussed. He can speak to it but not move it.
Lord McCarthy: My Lords, I thought that was what I said. I thought these amendments were grouped, and I intend to continue. The fact is quite simple. These two amendments are there because of the attitude of the Government. The second one is certainly there because of the attitude of the Government. I do not think that anyone—certainly not myself or my noble friend—would say that our Amendment No. 37 is better than Amendment No. 36. However, there is a slight possibility that it might find favour with the Government. If the noble Lord, Lord Swinfen, has, as it were, an Amendment No. 38 up his sleeve which we could bring back at Third Reading and that found support from the Government I am quite sure that we could agree on it. However, the fact is that the Government did not accept Amendment No. 36 when, in precisely these terms, it was moved in Committee. The Government replied in the person of the noble Lord, Lord Inglewood, who, unfortunately for us, has now departed to the National Lottery and the RSC. Therefore, we cannot ask him about this matter; we have to ask the noble Lord, Lord Henley, who has come to
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us, I suppose, to deal with the lottery, the RSC and this amendment! The noble Lord, Lord Inglewood, said, at col. 1732 of the Official Report,
"Let me say right at the beginning that I have considerable sympathy with the intention behind this amendment"—
that is to say, Amendment No. 36—
"as indeed I think everyone who has spoken on this amendment in the Chamber this evening has".
We know that the Government tend to say such things and then they say something that is not quite so welcome. The noble Lord, Lord Inglewood, continued:
"However, the amendment, as drafted—"
this is the basis of my amendment—
"can be interpreted as being wide-ranging. For example, where an employer has existing car parking facilities for his employees it might well be reasonable—"
this is what we are trying to do in Amendment No. 37—
"depending on the circumstances, that he should, under the duty in Clause 6, have to allocate a dedicated car parking place to a disabled employee who finds it very difficult or impossible to use public transport".
In that respect, if that was all the amendment sought to do, the Government might accept it. The noble Lord, Lord Inglewood, added:
"Although I can see that there would be circumstances when it might be a reasonable adjustment to help a disabled person from a parked vehicle, I am much less clear about the scope of the second example"—
that is, the second limb of the amendment. The noble Lord continued:
"What sort of steps is it intended the employer may have to take in providing assistance for a disabled employee to move from his parked vehicle to his place of work? Does this mean that an employer has to make arrangements to meet a disabled employee who parks his car two miles away and then provide assistance for him? More fundamentally, I suspect that a person who needs this kind of assistance may have very serious mobility problems which could also require other forms of assistance, making this a minor aspect and therefore not a good example to single out".—[Official Report, 13/6/95; col. 1732.]
In trying to take account of the objections of the Government we decided that we would attempt to meet them. In my amendment I tried to meet the criticisms of the Government, first, in the case where there is no car park. In that case, there is no responsibility in this regard. Secondly, the Government asked how much assistance the measure implies has to be given. We have said that a reasonable degree of assistance should be given, as in Amendment No. 37. If the Government would like to say that, having thought about the matter, they are prepared to back Amendment No. 36, that is all right. If they wish to back Amendment No. 37, that is also all right; but for goodness sake I hope the Government will say something a little more constructive on this extremely important issue than they did on the previous occasion we discussed this matter.
Lord Henley: My Lords, I have to say I am positively distraught that the noble Lord, Lord McCarthy, does not like dealing with me. I have to say that after my sabbatical away in the Ministry of Defence it is a positively extraordinary joy for me to be back facing the noble Lord, Lord McCarthy, the noble Baroness, Lady Hollis, and others. I look forward to many, many more years of it.

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Turning to the amendments, let me say that I perfectly well understand and have considerable sympathy with the intention behind both these amendments. I even have sympathy with the intention behind Amendment No. 37A, or whatever it was that my noble friend Lord Swinfen wanted to move. However, the types of steps suggested by these amendments are already certainly covered by the duty of reasonable adjustment. For example, where an employer has existing car parking facilities for his employees it might well be reasonable, depending on the circumstances, that he should, under the duty in Clause 7, have to allocate a dedicated car parking place to a disabled employee who finds it very difficult or impossible to use public transport. It may well be reasonable for a disabled employee who needs help to get from his car to his office, or her office, to receive that help. There would also be the situation, however, where the provision of a parking space or help in getting from a car to a place of work, was not reasonable. I think we are all agreed on that.
Where I differ is that I am not persuaded that these amendments should be accepted. Subsection (3) of Clause 7 after all, as I think my noble friend Lord Swinfen carefully pointed out, only sets out examples of steps and at a level of generality which will be most of benefit to people seeking to interpret and understand the duty. As was made clear in Committee, we feel that we must resist the temptation to add an ever-increasing list of examples. We must not include examples that are too precise and detailed. I am sure that there are many disabled people who would want to include steps on the face of the Bill which are even more likely to meet their own individual needs. But I do not believe that is a practical step.
My noble friend Lord Inglewood stated in Committee that these are matters which are far better addressed in the code of practice. Indeed, expanding upon the provisions of the Bill is the precise purpose of the code. We place great importance on the guidance that will be contained in the employment code of practice and will he consulting employers' organisations and organisations of and for disabled people in the preparation of the code. More often than not it will be to the code of practice that employers and others turn to get information and guidance on their responsibilities, and not the Act itself. Dealing with this sort of issue in the code will help to flesh out the examples in these amendments and make them meaningful and helpful to employers.
I hope that my comments reassure the noble Baroness, Lady Masham, and other noble Lords, even the noble Lord, Lord McCarthy. I hope that they accept that we have very much taken note of their concerns. I can give the assurance that it is our intention that the code will cover this issue. I hope that the noble Baroness will not feel it necessary to press her amendment or, for that matter, that the noble Lord, Lord McCarthy, will press his amendment.
Lord McCarthy: My Lords, before the noble Lord sits down perhaps I can be sure that I have got it right. Is he saying in terms that Amendment No. 36, or perhaps Amendment No. 37, will be in the code of practice?
Lord Henley: My Lords, I am saying that these issues will be addressed in the code. I am not saying that we will use those precise words.
Baroness Masham of Ilton: My Lords, I thank all noble Lords who have spoken. I feel that we really need more than sympathy. Sympathy does not mean much. The Minister mentioned putting details into the code. There is already a great deal of detail in the Bill, set out in paragraphs (a) to (i) of Clause 7(3). To take just one, paragraph (f) provides for,
"allowing him to be absent during working hours for rehabilitation, assessment or treatment".
The most important thing of all is to get a disabled person into the building so that he can work. Therefore, this is an important issue.
I feel that the suggestion of the noble Lord, Lord Swinfen, that we should get together and draw up the perfect amendment is probably what we shall have to do. I am sorry that the Minister could not recognise these points. I want him to think what would happen if he broke his neck driving up to Northumberland or Cumbria, where he lives. He would want to come down to your Lordships' House and continue his work as a Minister. I hope he would. But he might need some assistance getting into your Lordships' House, as I do. I am very grateful for it. The policemen give me some assistance. Once I am in your Lordships' House I can carry on my usual activities, but I need help to get my car out because I have very stiff shoulders.
I do not know what the noble Lord, Lord McCarthy, intends to do, but at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 37 not moved.]
Lord Henley Lord Henley moved Amendment No. 38:
Page 5, line 6, at end insert:
("(3A) In determining whether it is reasonable for an employer to have to take a particular step in order to comply with subsection (I), regard shall be had, in particular, to—

(a) the extent to which taking the step would prevent the effect in question;

(b) the extent to which it is practicable for the employer to take the step;

(c) the financial and other costs which would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of his activities;

(d) the extent of the employer's financial and other resources;

(e) the availability to the employer of financial or other assistance with respect to taking the step.

This subsection is subject to any provision of regulations made under subsection (7).").
The noble Lord said: My Lords, I spoke to Amendment No. 38 with Amendment No. 35. I beg to move.
On Question, amendment agreed to.
Lord Henley Lord Henley moved Amendment No. 39:
Page 5, line 46, at end insert:
("( ) This section imposes duties only for the purpose of determining whether an employer has discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such.").
The noble Lord said: My Lords, Amendment No. 39 is in my noble friend's name. I spoke to the amendment with Amendment No. 10. I beg to move.
On Question, amendment agreed to.
[Amendment No. 40 not moved.]
Clause 8 [Exemption for small businesses]:
[Amendments Nos. 41 and 42 not moved.]
Lord Monson Lord Monson moved Amendment No. 43:
Page 6, line 3, at beginning insert ("After 1st November 1999,").
The noble Lord said: My Lords, perhaps I had better preface my remarks by explaining that the noble Lord, Lord Vinson, has unexpectedly had to go to the United States. Therefore, although he supports the amendment as strongly as I do, and perhaps more so, unfortunately he cannot be present to argue the case for it, which I am sure he could do better than I can.
This is an extremely modest amendment. It would not be necessary if one could be certain that the present administration would be in power in four or five years' time, because if that were the case one could be certain that no precipitate action would be taken. That is obviously the Government's wish. However, we all know that a week is a long time in politics. Who knows who may be Secretary of State at the end of this year, let alone at the end of 1996 and still less at the end of 1997?
The Bill will probably receive Royal Assent in early November this year. As it is drafted, the then Secretary of State, whoever he or she may be, could immediately order a review, which could not last for more than nine months, following which the word "20" could in theory be reduced to "10", to "5" or even to "2" by August or September 1996. The noble Baroness, Lady Hollis, says "Splendid!", so we know what the Labour Party's intentions are.
This modest amendment, which is supported by the Institute of Directors, would ensure that a fair and reasonable period of at least four years must elapse, not least for the purpose of calmly assessing how well the Act is working, before the minimum number of employees could be reduced below 20. I beg to move.
Lord Addington: My Lords, the noble Baroness, Lady Hollis, from a seated position allowed the Chamber to hear the Labour Party's intentions. Regarding the Liberal Democrats' intentions, if the Government were to oppose the amendment in the Division Lobbies, I would support them.
Baroness Hollis of Heigham: My Lords, I take pleasure in joining with the noble Lord, Lord Addington, in regretting the amendment proposed by the noble Lord, Lord Monson. The Bill already fails to embrace the concerns of something like a third of the working population—17 per cent. of those who are self-employed. Were a future government—the next Labour Government—minded to reduce that to embrace more disabled people to offer them the rights that they are entitled to have, should that be restrained by an amendment which calls on them not to do so for four years? By that time I have no doubt that the noble Lord
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might be hoping for a different change of government. I believe that that situation would be extremely regrettable.
Lord Rix: My Lords, I too am opposed to the amendment. In Hansard of Thursday 15th June at col. 1922 I stated to the noble Lord, Lord Mackay of Ardbrecknish:
"If … over the next five years from the date of the enactment of the Bill, this whole provision in relation to employers with fewer than 20 employees could disappear from the Act, that offers us definite hope for the future".
The noble Lord replied:
"That is exactly what my amendment would allow. I am delighted to give the noble Lord that hope".
That is the hope with which we are now left as a result of the failure of our earlier amendment.
I can only say that, regrettably from the Cross Benches also, I am totally opposed to the amendment.
Lord Renton: My Lords, lest it be thought that any Back-Bencher on this side were in favour of the amendment, perhaps I may say that I, too, am opposed to it. As the noble Lord, Lord Rix, mentioned, we had some hope earlier this afternoon from the Government that there would be flexibility in what has been called the threshold. I believe that the amendment destroys the possibility of flexibility for four years. Within, shall we say, even a few months it might be found that the threshold could and should be reduced from 20. It would be quite wrong if we were to overlook that factor and to say, "No, we have to wait four years".
I hope that my noble friend on the Front Bench will join with the rest of us in expressing a very clear opinion about the amendment.
Lord Swinfen: My Lords, from the remarks that I made when Amendment No. 17 was discussed, the House will realise that I, too, strongly oppose the amendment.
Lord Hamilton of Dalzell: My Lords, without imputing the same motives as the noble Lord, Lord Monson, in proposing the amendment, after what he has heard my noble friend might think it wise to implement it!
Lord Henley: My Lords, we have heard a number of differing and opposing views on the question of the threshold for small employers. Being a government of great reasonableness, as always, the Government find themselves somewhere in the middle on these matters. Obviously opposing views reflect the need to ensure that we take account of very different interests. We must carry with us all sectors of society in taking this legislation forward, otherwise we risk it failing in its purpose.
We listened to all arguments for and against this clause throughout the passage of the Bill. We have responded positively, amending the clause in another place so that the power in the Bill to change the threshold by order cannot be used to raise it above the initial number of 20. There is now an obligation to review the effect of the clause within a few years, matched by an obligation not to change the threshold during that time without carrying out such a review. The

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amendments will enable the Government to ensure that any changes made, and their timing, take account both of experience gained in operating the new right and other relevant circumstances.
I believe that the further government amendment during Committee stage in this House requiring the Secretary of State to review the effect of the clause within five years of it coming into force also goes a considerable way to accommodating the views of the noble Lord, Lord Monson. In tabling Amendment No. 43, he is obviously concerned about the threshold number being reduced before we have had a chance to gain some experience of the legislation.
I trust that he will bear in mind the requirement in the Bill that before the compulsory five-year review, any changes in the threshold must be preceded by a review, even if it were not the compulsory five-year review. I hope that the noble Lord also noted my earlier comments to my noble friend Lady O'Cathain to consider whether later changes to the threshold must also be preceded by that review. I also hope that he will accept my assurance that we shall not rush into any review and that we are committed to reviewing the situation within four or five years. We believe that four or five years is probably the right time in which to do so. With those assurances, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Monson: My Lords, some interesting signals have been coming from various parts of the House. All the safeguards which have allegedly been written into the Bill by the Government and with which they sold the Bill to industry and commerce now seem to be virtually illusory. The noble Lord, Lord Henley, talked about making up one's mind on the basis of experience gained. However, if the Opposition have their way—which they may well do soon—there will be no question of waiting until experience has been gained, the legislation will be forced through within nine months.
Lord Henley: My Lords, if I may interrupt the noble Lord, even the Opposition would accept that, in the unlikely event of them coming to power, they will be bound by the requirement to have a review.
Lord Monson: My Lords, indeed they would, but nine months is not much time in which to see how the provisions have been working. It is a very short time for changing figures in that way.
The difficulty is that the noble Lord, Lord Henley, operates on the assumption that the Government will win the next election and that their policy of waiting four or five years before any change is made will apply. However, in practice that is unlikely to happen.
Lord Henley: My Lords, look at the track record.
Lord Monson: My Lords, all right, I might place a bet with the noble Lord at some point, but not right now. However, if the Government will not accept the help proffered to them by the amendment, who am Ito try to force it upon them? With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 44 not moved.]
Lord Monson Lord Monson moved Amendment No. 45:
Page 6, line 4, after ("20") insert ("or less than 5").
The noble Lord said: My Lords, to some extent we have already covered the ground earlier today when speaking to Amendments Nos. 42 and 44. As I pointed out earlier, in Committee the noble Lords, Lord Swinfen, Lord Addington and Lord Rix, moved an amendment, later withdrawn. One of its effects would have been to set the lower limit at five in perpetuity. Of course, it could have been changed by primary legislation, but only by primary legislation.
Amendment No. 45 is also backed by the Institute of Directors and it would re-set that modest lower limit. Let us suppose, for the sake of argument, that 1 per cent. of the working population is so severely disabled that their productivity is markedly lower than that of their fellow workers. A firm with 1,000 employees would, on average, find itself employing 10 such individuals. The costs of doing so could be absorbed without too much difficulty. I am not talking about the costs of alterations but of giving leave to people who are ill much more frequently than the norm. The situation is very different for a firm with four or fewer employees because if it is obliged to employ even one such disabled employee with a much lower than average productivity, its burden would be 25 times greater than that imposed on large firms. Bearing in mind, as was suggested by the noble Lord, Lord Swinfen, and his colleagues, that a lower limit of—
Lord Addington: My Lords, perhaps the noble Lord will give way for a second. He is aware that under the Bill disabled employees only have to be employed if they are reasonably capable of doing the job. That is the basic premise behind the Bill. The scenario about which the noble Lord is talking simply does not exist under this legislation.
Baroness Hollis of Heigham: My Lords, perhaps I may refer the noble Lord, Lord Monson, to Clause 6(4) (a), (b), (c) and (d). I think his fears will be allayed.
Lord Monson: My Lords, that is all very well in theory. The trouble is that when speaking to employers who employ a number of such people one finds that what happens is that they take on someone thinking that things will work out all right. Then they find the employees have to take off much more time than usual. Being a decent sort of employer, they do not have the heart to sack them but they find them something of a drain on their operations. In a large firm that can be absorbed, but in a very small firm it is difficult.
It should be borne in mind that a number of noble Lords from various parts of the House suggested in Committee that a minimum of five was acceptable to them. I think that the noble Lords, Lord Swinfen, Lord Addington and Lord Rix, would not deny that; it is exactly what their amendment in Committee implied. I suggest that this amendment is acceptable, also bearing in mind that in the United States, where the legislation in this area is frequently praised by noble Lords, the minimum is 15. The argument speaks for itself.
Lord Carter: My Lords, I have made this point at previous stages in the Bill. Is the noble Lord aware that in California the number has been six for a long time and that in New York it is four?
Lord Monson: My Lords, I was not aware of that. But I also draw the noble Lord's attention to an article in the Spectator last week which pointed out that, far from the legislation working beautifully in the United States, as is so often alleged, it is actually causing a great many problems. We could argue about this matter indefinitely. I beg to move.
Lord Swinfen: My Lords, the noble Lord, Lord Monson, mentioned me quite often in his introductory remarks. The amendment that I and others moved in Committee was designed to bring the number and size of the firms down gradually. Had we been successful then, or a later stage, I should have endeavoured to lower that number still further to zero. No way do I believe that any form of discrimination should be tolerated.
The noble Lord also said that if an employee was taken on who became so disabled that his productivity went down to an extremely low level, it would be a drain on the firm. It could well be a drain on the firm; but it would then be unreasonable to expect that firm to continue employing that disabled person. That, as I understand it, is already within the provisions of this Bill.
The noble Lord is trying to set an "in perpetuity" lower limit. I believe that, as time goes on, the Government will come down to a lower limit of zero as employers generally learn to live with disabled people, learn to appreciate their skills, and learn to adjust to the way in which those people can operate using the skills that they have. We must not forget that there are considerable advances in technology on almost a daily basis, and that more and more people with very severe disabilities will be able to achieve greater and greater things for themselves and for their employers. I hope that the noble Lord will withdraw his amendment, and not attempt to press it.
Baroness Hollis of Heigham: My Lords, I, too, strongly oppose the amendment moved by the noble Lord, Lord Monson. The whole push of the amendment is to assume that disabled people are a burden on society in general and on employers in particular, and that it is not fair because small firms cannot afford that burden. That was the import of his remarks. I wish very strongly to dissociate these Benches from them.
The noble Lord went on to argue that where a disabled person might have markedly low productivity a small company could not afford to carry that person. First, a small company would not have to employ such a person under Clause 6 of the Bill. Secondly, I am assured by my noble friend Lord McCarthy that, on grounds of capacity, it would be grounds for fair dismissal were such a person to show that he or she had markedly lower productivity than was desirable or acceptable. At the end of the day, we totally reject the notion that disabled people are a burden which small businesses cannot afford to carry. On the contrary, we regard them as having abilities and resources which are
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part of the wealth of our society. They, as individuals, are as much citizens of this society as is anyone in this Chamber, and they have the right to the opportunities of employment as much as anyone in this Chamber. Any attempt to limit that should be strongly opposed.
Lord Rix: My Lords, as the noble Lord, Lord Monson, has chosen to put aside me and the noble Lords, Lord Swinfen and Lord Addington, in regard to having said that we would accept five as a minimum figure for employees in small companies, I must reiterate my firm conviction that the figure should not be on the face of the Bill in the first place. Twenty employees should not be a minimum requirement to allow employers not to be associated with the Bill. Therefore, I should like to support entirely the remarks made by the noble Lord, Lord Swinfen, and the noble Baroness, Lady Hollis. I too should like the House to reject the amendment.
9.30 p.m.
Lord Henley: My Lords, I hope that I have given the noble Lord, Lord Monson, some idea of the number of safeguards that are placed in the Bill to ensure that any change in the threshold number will be subject to proper scrutiny if there is a limit below which they cannot go.
As the noble Lord will be aware, there is not a power in the Bill as it stands at the moment for the Secretary of State to use the order-making power to increase the figure above 20. He can only reduce it. He can only use such an order to reduce the figure to two.
The reason for that is that if the Bill is passed with Clause 8 in its present form, Parliament will have signalled that it wants a threshold, whereas an order to reduce the figure below two would, in effect, repeal the provision. That is because the figure "1" would have the result that no employers were excluded. A person with fewer than one employee is not an employer at all.
Firms with no employees or with one employee can therefore never be included in the Bill as it stands. Regulations could be made to change the threshold to any number from two to 20. A limit of fewer than two, while slightly less than that proposed by the noble Lord's amendment of "less than five", nevertheless might satisfy them.
I hope therefore that the noble Lord will accept that the Bill as it stands at the moment cannot be used completely to remove the provision. I do not feel that the noble Lord has found much support in the House tonight for his absolute amendment whereby we could not reduce the figure to below five.
Lord Monson: My Lords, I was very interested in the comments of the noble Lords, Lord Swinfen and Lord Rix, who both made clear that they were entirely opposed to setting any lower limit whatsoever. But that would have been precisely the effect that acceptance of their amendment at Committee stage would have had. I must say that it is unusual to move one amendment in Committee implying that one is happy with certain limits and then seek to stiffen it up at Report stage. That has happened, but it is not usual. In a way, if the

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amendment had been accepted and left at that it would in a sense have been almost better than having the Bill as it stands.
The noble Baroness, Lady Hollis, suggested that I was implying that all disabled people are a burden to employers. I did not imply that at all. I simply suggested that of some disabled people and often it does not become apparent until after those people have been accepted and taken on. It is then embarrassing and difficult for employers to get rid of them, even if by law they are entitled to do so. On the whole, people would rather not take them on in the first place.
There is another matter that has been overlooked and the noble Lord, Lord Henley, pointed it out on various occasions today. Very small firms simply do not have the managerial manpower to send people to tribunals to argue their case, to go to solicitors and so on, or indeed to devote most of their time to making special provisions for disabled employees. I had not proposed to press the amendment tonight. I considered it a paving measure in a sense for some compromise that might be worked out between now and Third Reading whereby we might straightaway reduce the present upper limit somewhat to 15 or something like that and introduce a firm lower limit.
But from what I have heard tonight it does not seem as though this would find favour. Things may change during the Recess. People, having reflected upon this matter and what has been said tonight, may start to think differently. But for the time being at any rate and reserving the right to come back again at Third Reading, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 46 to 48 not moved.]
Lord McCarthy Lord McCarthy moved Amendment No. 49:
Page 6, line 33, at end insert:
("( ) Notwithstanding the provisions of this section, it shall be the duty of the Secretary of State to have regard to the need to remove and prevent discrimination against disabled persons when employed by. or applying for employment from, employers with fewer than 20 employees; and the Secretary of State to this end may make appropriate financial provision by way of grants and loans to such employers, who can show that they wish to meet the obligations to disabled persons which they would have but for the exemption contained in this section.").
The noble Lord said: My Lords, I am afraid this amendment takes us back to the debate in relation to small businesses, their exemption and numbers. But it is a different way of looking at the situation and that is why, though there was a suggestion that it should be grouped with other amendments, I wanted it to stand alone.
The amendment begins at the point where we decided in the Bill that we would do nothing for those employees who are employed in bunches of less than 20. Nothing is to be done for them, for all the reasons that we have been through. Amendment No. 49 seeks to say that perhaps something can be done for them other than applying the provisions of the Bill to people in bundles of less than 20.
We accept that at this moment the Government will not include people employed in bunches of less than 20. But the amendment seeks to persuade the Government
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to take some responsibility for disabled people by doing something for them when they are employed in firms which employ fewer than 20 people. The amendment provides,
"Notwithstanding the provisions of this section, it shall be the duty of the Secretary of State to have regard to the need to remove and prevent discrimination against disabled persons when employed by, or applying for employment from, employers with fewer than 20 employees".
We then tried to make appropriate provision by way of grants and loans for those who say that they wish to improve the facilities for people employed in bundles of less than 20, and that is set out specifically in Section 7 of the Bill.
The House will be aware that this amendment was moved briefly at Committee stage as Amendment No. 56A. At that point the noble Lord, Lord Mackay, said,
"We intend to … try to encourage small firms—although outside the ambit of this legislation—to try to behave as we all want them to behave".
He went on to say,
"Of course, we want small firms to continue their good record of employing disabled people. We certainly do not want them to discriminate. We shall encourage them to follow a code of practice that we shall be drawing up. In drawing up that code of practice, which, as long as the Bill escapes unharmed from your Lordships' House in this regard [and it has], will apply legally only to firms with more than 20 employees, we shall think about and consult not only with such firms or their representative organisations, but also with firms of fewer than 20 employees".—[Official Report, 15/6/95; col. 1923.]
The Government went quite some way, therefore, in accepting a responsibility, but they would not accept the amendment. We have therefore brought it back to see what the Government say this evening. I beg to move.
Lord Henley: My Lords, this amendment seeks to ensure that employers with fewer than 20 employees complying with Part II of the Bill receive help with subsidies. I congratulate the noble Lord on an ingenious amendment and probably another attempt to get round the exemption in Clause 8 of the Bill. But the noble Lord has overlooked a couple of points.
The first point, that I made earlier, is that not all the burdens that small employers are likely to experience in Part II will be financial. I described the regulatory burden and the problem of absorbing and implementing the details of the Bill. The second fairly crucial point is that the Government already have a scheme for meeting certain expenses. It is called the "Access to Work" scheme. I imagine that the noble Lord is familiar with it. It is open to all firms, regardless of size, and an additional power is unnecessary. However, as the noble Lord will be aware, the Access to Work scheme, the introduction of which we announced early last year, is under review. It is impossible for me, therefore, to give any detailed undertaking until that review has been concluded. I can though confirm that the Government very much intend to continue providing help under the Access to Work scheme after the review. I hope, therefore, that the noble Lord will feel able to withdraw the amendment.
Lord Carter: My Lords, before the noble Lord sits down, and with the leave of the House, if the review of the Access to Work scheme reintroduces the

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Government's original idea, which they dropped, that the employer should contribute to the costs of access to work, would that not be a greater burden on the smaller employer? Therefore, the point behind my noble friend's amendment is even stronger.
Lord Henley: My Lords, the noble Lord will remember the issues relating to access to work probably as well as I do. Like Calais and other things, they are engraved on my heart. As the noble Lord said, when we originally proposed the scheme we thought in terms of having an employer contribution. We then listened to a great many representations on the subject and made a certain amount of extra money available whereby we could dispense with the employer contribution. At the time I gave a commitment that because we were doing this and because the scheme, if it was going to be successful, had a chance of growing quite dramatically, it would be fair to look at these matters thoroughly again when the review was conducted. I cannot give any commitment one way or the other as to what we will do after the review. However, I can tell the noble Lord that the scheme has been a great success. It has helped a large number of people find work or stay in work. We would not do anything in any way to undermine the success of the scheme. Further than that I think the noble Lord would accept that I can give no commitment.
Lord Ashley of Stoke: My Lords, I am grateful to the noble Lord for giving way. He was at the meeting with David Hunt, the then Secretary of State, when the All-Party Disablement Group put very powerful arguments against employers paying half of the cost. I am sure that the noble Lord was as impressed as David Hunt was, because David Hunt then told the other place that he was so convinced by those arguments that the payment by employers was completely out. Now the noble Lord seems to be indicating that it is under consideration again. If that is the case, how can he now argue in response to my noble friend that the Access to Work scheme is an argument against considering this amendment?
Lord Henley: My Lords, as the noble Lord rightly said, I was at that meeting. I was at a great many other meetings where these views were expressed fairly forcefully. I have not said—and I do not think the noble Lord should start hares running in this manner—that we had any intention of bringing back any idea of there being an employer contribution. My right honourable friend the then Secretary of State did not rule it out in perpetuity. He said that we were going to bring it in without an employer contribution and see how things went. However, because of financial constraints and other such matters, it was right to review how the scheme was working. I am not just talking about reintroducing or not reintroducing an employer contribution. I am talking about the whole gamut. Who is it reaching? Is it targeting the right people? Is it really assisting people into work or is it just retaining people in work? The whole gamut has to be reviewed after a year. That is the assurance we gave and that is the review that is taking place. It would be wrong for me to start announcing what we might or might not do before that review took place.
Lord McCarthy: My Lords, we have probably got the Government to go as far as we are going to get them to go. I thank the noble Lord for what he said. We certainly do not accept the arguments which he has put several times this evening, as has his noble friend, that small firms can be excluded because not all the burdens are financial. There are other burdens. We do not accept that these are burdens which disproportionately fall on small firms. As I understand what the noble Lord is saying, they are the burden of coming to terms with the Bill.
A small firm should find it easier to come to terms with the Bill because a small employer with a few employees should have a better knowledge of his employees than is the case in a large firm. Indeed, that employer should be closely involved in questions of recruitment and promotion. He should know that information without having a heavy personnel function in order to bring such matters to his attention. Therefore, I do not believe that such things fall disproportionately on small firms.
The Minister also pointed out that there is the access-to-work scheme. Of course, that is so. If that scheme were generous enough, if the Government were to say to us this evening that they have absolutely no intention of introducing an employers' contribution in the foreseeable future, and if they were to say that they would like to see the access-to-work scheme particularly used for those disabled persons in small firms who are not covered by legal regulation, they would be going far further than they are at present. But of course the Government will not say that. Indeed, what the Minister said about the access-to-work scheme seems to be worrying my noble friends sitting behind me. I can understand why because what he said about the scheme is that the Government cannot be sure what they will do with it in the future. That is why we will have to take the matter away, consider it and decide whether we can come back with another version, or a modified version of it, on Third Reading.
Finally, the central idea behind the amendment is that you should do something to compensate for the fact that you are excluding a group of workers from the protection in the Bill. We want something done, yes, not to replace the fact that the Government will not let the figure go below 20—indeed, that cannot be replaced because it is legal regulation—but in order to demonstrate that the Government are particularly concerned about all disabled people and their employment opportunities. If they are not prepared to regulate, perhaps they will be prepared to give some financial assistance. Nevertheless, as I said, we have gone as far as we can tonight. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.45 p.m.
Lord Henley Lord Henley moved Amendment No. 50:
After Clause 12, insert the following new clause:
Discrimination against contract workers
(".—(1) It is unlawful for a principal, in relation to contract work, to discriminate against a disabled person—

(a) in the terms on which he allows him to do that work;

(b) by not allowing him to do it or continue to do it;

(c) in the way he affords him access to any benefits or by refusing or deliberately omitting to afford him access to them; or

(d) by subjecting him to any other detriment.

(2) Subsection (1) does not apply to benefits of any description if the principal is concerned with the provision (whether or not for payment) of benefits of that description to the public, or to a section of the public which includes the contract worker in question, unless that provision differs in a material respect from the provision of the benefits by the principal to contract workers.
(3) The provisions of this Part (other than subsections (1) to (3) of section 4) apply to any principal, in relation to contract work, as if he were, or would be, the employer of the contract worker and as if any contract worker supplied to do work for him were an employee of his.
(4) In the case of an act which constitutes discrimination by virtue of section 39, this section also applies to discrimination against a person who is not disabled.
(5) This section applies only in relation to contract work done at an establishment in Great Britain (the provisions of section 60 about the meaning of "employment at an establishment in Great Britain" applying for the purposes of this subsection with the appropriate modifications).
(6) In this section—

"principal" means a person ("A") who makes work available for doing by individuals who are employed by another person who supplies them under a contract made with A;

"contract work" means work so made available; and

"contract worker" means any individual who is supplied to the principal under such a contract.").

The noble Lord said: My Lords, an "employment business"—to use the terminology of the Employment Agencies Act 1973—is a business which supplies people in the employment of the person carrying out the business, to act for, and under the control of, other people in any capacity. Disabled people working under employment business arrangements, are protected by the Bill in their role as employees of the employment business. However, there is no protection for disabled people working under employment business arrangements if a hirer either refuses to hire the disabled person or discriminates against the disabled person once he has begun working for the hirer. There is a further issue which relates to the duty to make a reasonable adjustment. There is currently no duty on the hirer to make even the most insignificant adjustment or co-operate with any adjustment made by the employment business.
That would mean that, in its present form, the Bill would not affect the actions of the hirer. A hirer could lawfully turn away a disabled person working under employment business arrangements purely on the grounds of prejudice. He could refuse to allow a braille keyboard to be plugged into his computer system even if the employment business or the individual himself provided it. I am not suggesting that such extreme examples are likely, but they illustrate that this is a potentially wide loophole in the Bill's provisions as they
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stand. It could narrow the range of jobs to which the employment business could send the worker and may lead to the employment business being unable to continue employing that person. It could also lead to tribunal complaints being brought against employment businesses for matters which were not their fault and which, although they might succeed, could cause difficulties.
To avoid that kind of situation arising, the proposed new clause would place hirers under a duty of non-discrimination similar to the corresponding duty set out in the Sex Discrimination Act and the Race Relations Act. It would be unlawful for a principal, in relation to contract work—in other words, the person doing the hiring—to discriminate against a disabled person in any of the following ways: the terms on which he allows him to do that work; by not allowing him to do it or continue to do it; in the way that he affords him access to any benefits or by refusing or deliberately omitting to afford him access to them; or by subjecting him to any other detriment.
Subsection (3) applies the provisions of Part II to any principal in relation to contract work as if he were, or would be, the employer of the contract worker. The effect of that would be to incorporate the same definition of discrimination as applies for employers—including the need to justify less favourable treatment—and to place a duty on the principal for reasonable adjustment. This duty would include the hirer co-operating as far as was reasonable with adjustments made by the employment business. Clearly what would be reasonable in the case of the hirer would depend on the hirer's circumstances and this would necessarily take account of the often much more limited relationship between the hirer and worker. For example, there might be very few types of adjustment a principal could reasonably be required to make for people hired for only a couple of weeks or for people whom the employer needed at very short notice. We recognise, however, that there is potential overlap where the duty of reasonable adjustment is imposed on both the principal and the employment business for the same person. We intend to use the regulations under Clause 7(7) to provide in detail for the allocation of such a duty between the two organisations.
Subsection (4) makes victimisation unlawful in this context, even where the contract worker is a non-disabled person. It would mean that non-disabled people involved in, for example, proceedings acting as witnesses would be covered by the provision. Subsection (5) provides that the new clause applies only in respect of contract work at an establishment in Great Britain and that this is to have the same meaning as it has for the employment provisions. Subsection (6) sets out the meaning of "principal", "contract work" and "contract worker".
I believe that the amendment closes a potential loophole in these provisions of the Bill and I commend it to the House. I beg to move.
Lord Carter: My Lords, it would be helpful if the Minister could clarify the situation if the principal employs fewer than 20 people and the contractor employs more than 20 people and vice versa—if the

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contractor employs fewer than 20 people and the principal employs more than 20 people. How is all that caught by the 20-employee limit?
Lord Henley: My Lords, I think that I am right in saying that if it is the principal who is covered and he employed fewer than 20 staff, he would be exempt. As I said, there is a grey area where the question of whether it is the principal or the employment business who is the employer is unclear. We want to deal with that in regulations. However, it would be the size of the one covered at the time that would be the size that was relevant, not the other one—if the noble Lord follows me. If I am wrong on that, I shall write to the noble Lord.
Lord Carter: My Lords, with the leave of the House, does that mean that if the contractor employed more than 20, he could not discriminate, but the principal who employed fewer than 20 would be able to discriminate even though the employer of the contract worker was not allowed to do so?
Lord Henley: My Lords, it is exceedingly unlikely that the employment business which has any degree of success will employ fewer than 20 people. It is likely to employ more. It depends who he is covered by at that given time. If he is covered by the principal and the principal has fewer than 20 staff, he is not covered; but if he is covered by the employment business with fewer than 20, he is not covered and vice versa.
Lord Swinfen: My Lords, I should like briefly to welcome the amendment. I believe that between now and Third Reading my noble friend should look again at the point that has just been raised by the noble Lord, Lord Carter. In the part of the country where I live, quite large farms employ only one or two people, but when it comes to harvesting their brassicas, potatoes or whatever, they bring in gangs of labourers under contract from a specialist hiring firm which could well employ more than 20 people. I feel that this point should be cleared up, at Third Reading if necessary.
Baroness Hollis of Heigham: My Lords, perhaps I may give the Minister an example. A local authority may have been required, through contract compliance, to put out its cleaning work to small companies. The local authority will employ more than 20 people, but the company that has won the tender will probably employ fewer than 20 people. Equally, one could perfectly well have a small business employing fewer than 20 people which employs a cleaning firm which employs more than 20 people. That is now a common circumstance.
Lord Henley: My Lords, I hope that I have made the position clear. It depends very much on who covers the individual at the given time and whether they are covered by the exemption for 20—
Baroness Hollis of Heigham: My Lords, what does the Minister mean by that?
Lord Henley: My Lords, as I have pointed out, the principal will be treated as if he was the employer in most cases. If the principal employs more than 20, they are covered. If he employs fewer than 20 people, they are not covered. If they are covered by the employment
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business and the employment business has fewer than 20 employees, there is no protection. If it has more than 20 employees, there is protection. It is as simple as that.
Baroness Hollis of Heigham: My Lords, this is a rather important point, particularly for local authorities which are now required to subject large swathes of local authority business to compulsory competitive tendering. Many of those contracts will be won by small companies. Is he saying that because the local authority is the principal and will almost invariably employ more than 20 people, all of the companies that go in for compulsory competitive tendering must conform, whatever their size, to the requirements of the legislation? Because that will be a form of contract compliance that we would welcome.
Lord Henley: My Lords, perhaps I may remind the House that we are on Report. I am intervening for the last time to make the point clear. In that case, the individual is protected while he is working for the local authority because the local authority is the principal. That does not mean that small firms feeding in will suddenly find themselves bound by that. I was not saying that. I was saying that the individual who is offered protection is offered protection depending upon whom he is covered by at the given moment, whether it is the principal or the employment business.
Lord Swinfen: My Lords, before my noble friend sits down—
Lord Lucas: My Lords, we are on Report. We must bring this Committee-style conversation to an end. I am sure that if there are any problems remaining my noble friend will be able to write to my noble friend.
On Question, amendment agreed to.
Lord Henley Lord Henley moved Amendment No. 51:
After Clause 12, insert the following new clause:
Discrimination by trade organizations
(".—(1) It is unlawful for a trade organisation to discriminate against a disabled person—

(a) in the terms on which it is prepared to admit him to membership of the organisation; or

(b) by refusing to accept, or deliberately not accepting, his application for membership.

(2) It is unlawful for a trade organisation, in the case of a disabled person who is a member of the organisation, to discriminate against him—

(a) in the way it affords him access to any benefits or by refusing or deliberately omitting to afford him access to them;

(b) by depriving him of membership, or varying the terms on which he is a member; or

(c) by subjecting him to any other detriment.

(3) In the case of an act which constitutes discrimination by virtue of section 39, this section also applies to discrimination against a person who is not disabled.
(4) In this section "trade organisation" means an organisation of workers, an organisation of employers or any other organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists.").
The noble Lord said: My Lords, I shall speak also to Amendments Nos. 52, 53, 98, 99 and 179.
Amendment No. 51 means that trade unions, employers' associations and analogous bodies would be covered by this Bill in their relationship with their

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members or prospective members who are disabled or who have had a disability. Such organisations are already covered in the Bill to the extent that they are employers. However, they are not covered by the access to services right because they are not providing services to members of the general public—just to their members. The inclusion of trade unions, employers' organisations and analogous bodies follows directly from the matter being raised in Committee in the Commons when my honourable friend the Minister of State gave an undertaking that the Government would consider the matter further. I am pleased that that consideration by my honourable friend has resulted in the amendments on which I can now seek the approval of the House.
I can see no reason not to apply the provisions of the Bill to those bodies. And discussions between officials in my department and those from the TUC and CBI indicated a favourable response to the proposals.
Amendment No. 51 would cover trade unions, employers' organisations and analogous bodies in a similar way to the coverage of such organisations in the Race Relations Act. That amendment would make it unlawful for a trade organisation to discriminate against disabled people in relation to the terms on which it admits disabled people to membership or by refusing to accept, or deliberately not accepting, the application of a disabled person for membership. The amendment also makes it unlawful for trade organisations to discriminate against a disabled person who is a member in the way they afford him access to benefits, by depriving him of membership, or varying the terms on which he is a member or by subjecting him to any other detriment. Finally, it also covers non-disabled people should they be victimised as a result of, for example, helping a disabled member enforce his rights under this Bill.
Amendment No. 52 sets out the meaning of discrimination in this context and also provides for grounds for justifying less favourable treatment of disabled people as applicants for membership and as members. Amendment No. 53 places a duty on trade organisations to make reasonable adjustment. Amendments Nos. 52 and 53 are based on an amendment which we discussed earlier in some detail. It is clear that there needs to be a duty of reasonable adjustment; for example, to ensure that, where it is reasonable, visually impaired members could get union literature in braille and members with hearing impairments could have signers at meetings. And there will be circumstances where less favourable treatment of a disabled person would be justified. For example, in the case of a trade union delegation to inaccessible premises not controlled by the union it might be necessary to leave out a wheelchair user or it may be the case that a disabled person would be excluded from an employer organisation for a particular trade if that person does not work in that trade and is not qualified to do so.
Amendments Nos. 98 and 99 are consequential amendments proposed to Clause 37 (Code of Practice), stemming from the inclusion of contract workers and trade organisations, so that the code of practice on
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employment can include practical guidance to eliminate discrimination against contract workers and by trade organisations.
Amendment No. 179 is a consequential amendment which clarifies the meaning of trade organisations for the purpose of the Bill.
Perhaps I may make a further point in order to flag it up for Third Reading. We may wish to return on Third Reading to clarify the position of the bodies which issue qualifications. Such bodies are excluded if they are in the education sector, as defined by Clause 13(5), but they may otherwise be covered by Part III of the Bill if they are deemed to provide services to the public. We are considering what the consequences might be and whether we should rely on the Bill's regulation-making powers to detail what is or is not reasonable for such bodies to have to comply with Part III. If we are not satisfied that that is the right approach we may return to the House on Third Reading with further amendments setting out on the face of the Bill how qualifying bodies are affected.
I hope that that description of the amendments is useful. I beg to move.
10 p.m.
Lord McCarthy: My Lords, we welcome this series of amendments. I wish to ask three questions in order to gain some enlightenment. I cannot find a clear definition on the face of the Bill or in the amendments of a trade organisation. I may be wrong and the Minister may point it out to me. Amendment No. 179 indicates that I can find the definition somewhere else, but I cannot find the definition itself. It is a term of art and it is a new term to me. We are not talking only about trade unions. Are professional associations, employers' associations, institutes—for example, the Institute of Personnel Management—trade associations, pressure groups and single interest groups trade organisations covered by the Bill? There may be a simple answer to that question. It may be that the Government tabled the amendment late, that I got up rather late and that I have not found the definition in the Bill. Perhaps the Minister will enlighten me.
The Minister must be aware of my second point because he said that the Government had had discussions with the TUC. It is a TUC point. The TUC would not oppose the amendment but would like to have clarification from- the Government, which it has not yet received. First, where a non-disabled person would not be eligible for membership of a union, under this clause a similarly disabled person will also not be eligible for membership. Of course, as the noble Lord will know, many unions in their rule books limit eligibility. Nurses cannot join the National Union of Mineworkers, for instance. It is understood that if the amendment is passed that position will not change. But the TUC would like to have the matter clarified.
The second point is more complicated but I understand that the Government have been informed of it. It is feared that the amendment might render unions liable for any failure to make adjustments by an informal group of union members of whose existence the union's officers are unaware. I refer to groups of

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union members not recognising union rule books and with whom the national union does not communicate and who are given no powers or resources. They may emerge in workplaces where the union is not recognised. Does the amendment mean that the union has some degree of responsibility over such people, including entry into the union?
I have outlined two concerns and a point of information. I look forward to hearing what the Minister has to say.
Lord Henley: My Lords, the noble Lord asked for a definition of a trade organisation. It may be that the noble Lord did get up late because subsection (4) provides an explanation of what is meant by a trade organisation. It means:
"an organisation of workers, an organisation of employers or any other organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists".
Of course, if the noble Lord would prefer to have a more detailed definition I should be happy to write to him about that.
Secondly, he asked whether, under the provisions of this Bill, someone who was not disabled and not qualified to be a member of a union for a particular reason might find a disabled person who was similarly not qualified somehow being able to be a member of the union. That could not be the case. If a legitimate disqualification affected X who was not disabled, it would presumably also affect Y who was disabled.
Thirdly, the noble Lord asked whether trade unions would be liable if groups of members committed the union to expenditure by making a reasonable adjustment when the union was unaware of what was being done. I find it odd that the noble Lord seeks to restrict the duty on trade unions to make reasonable adjustment if local members are expected to offer union services; for example, holding meetings and distributing literature. Unions must ensure that the duty on them is given adequate effect by the members according to the rules of the union. Financial control is obviously an internal matter for the union.
If the noble Lord requires an enlargement of subsection (4) of Amendment No. 51, I should be more than happy to write to him about that.
Lord McCarthy: My Lords, I had noticed that but I regard it as a tautology. Therefore, I should be extremely pleased if the noble Lord would write to me about that.
On Question, amendment agreed to.
Lord Henley Lord Henley moved Amendments Nos. 52 and 53:
After Clause 12, insert the following new clause:
Meaning of "discrimination" in relation to trade organizations
(".—(1) For the purposes of this Part, a trade organisation discriminates against a disabled person if—

(a) for a reason which relates to the disabled person's disability, it treats him less favourably than it treats or would treat others to whom that reason does not or would not apply; and

(b) it cannot show that the treatment in question is justified.

(2) For the purposes of this Part, a trade organisation also discriminates against a disabled person if—
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(a) it fails to comply with a section (Duty of trade organisation to make adjustments) duty imposed on it in relation to the disabled person; and

(b) it cannot show that its failure to comply with that duty is justified.

(3)Subject to subsection (5), for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.
(4) For the purposes of subsection (2), failure to comply with a section (Duty of trade organisation to make adjustments) duty is justified if, but only if, the reason for the failure is both material to the circumstances of the particular case and substantial.
(5) If, in a case falling within subsection (1), the trade organisation is under a section (Duty of trade organisation to make adjustments) duty in relation to the disabled person concerned but fails to comply with that duty, its treatment of that person cannot be justified under subsection (3) unless the treatment would have been justified even if the organisation had complied with the section (Duty of trade organisation to make adjustments) duty.
(6) Regulations may make provision, for purposes of this section, as to circumstances in which—

(a) treatment is to be taken to be justified;

(b) failure to comply with a section (Duty of trade organisation to make adjustments) duty is to be taken to be justified;

(c) treatment is to be taken not to be justified;

(d) failure to comply with a section (Duty of trade organisation to make adjustments) duty is to be taken not to be justified.

(7) In this section "section (Duty of trade organisation to make adjustments) duty" means any duty imposed by or under section (Duty of trade organisation to make adjustments).").
After Clause 12, insert the following new clause:
Duty of trade organisation to make adjustments
(".—(1) Where—

(a) any arrangements made by or on behalf of a trade organisation, or

(b) any physical feature of premises occupied by the organisation,

place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the organisation to take such steps as it is reasonable, in all the circumstances of the case, for it to have to take in order to prevent the arrangements or feature having that effect.
(2) Subsection (1) (a) applies only in relation to—

(a) arrangements for determining who should become or remain a member of the organisation;

(b) any term, condition or other arrangements on which membership or any benefit is offered or afforded.

(3) In determining whether it is reasonable for a trade organisation to have to take a particular step in order to comply with subsection (1), regard shall be had, in particular, to—

(a) the extent to which taking the step would prevent the effect in question;

(b) the extent to which it is practicable for the organisation to take the step;

(c) the financial and other costs which would be incurred by the organisation in taking the step and the extent to which taking it would disrupt any of its activities;

(d) the extent of the organisation's financial and other resources;

(e) the availability to the organisation of financial or other assistance with respect to taking the step.

This subsection is subject to any provision of regulations made under subsection (7).
(4) In this section "the disabled person concerned" means—

(a) in the case of arrangements for determining to whom membership should be offered, any disabled person who is, or has notified the organisation that he may be, an applicant for membership;

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

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(i) an applicant for membership; or

(ii) a member of the organisation.

(5) Nothing in this section imposes any duty on an organisation in relation to a disabled person if the organisation does not know, and could not reasonably be expected to know that the disabled person concerned—

(a) is, or may be, an applicant for membership; or

(b) has a disability and is likely to be affected in the way mentioned in subsection (1).

(6) Subject to the provisions of this section, nothing in this Part is to be taken to require a trade organisation to treat a disabled person more favourably than it treats or would treat others.
(7) Regulations may make provision for the purposes of subsection (1) as to any of the matters mentioned in paragraphs (a) to (h) of section 7(7) (the references in those paragraphs to an employer being read for these purposes as references to a trade organisation).
(8) Subsection (8) of section 7 applies in relation to such regulations as it applies in relation to regulations made under section 7(7).
(9) Regulations may make provision adding to the duty imposed on trade organisations by this section, including provision of a kind which may be made under subsection (7).
(10) This section imposes duties only for the purpose of determining whether a trade organisation has discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such.").
The noble Lord said: My Lords, I spoke to these amendments with Amendment No. 51. I beg to move.
On Question, amendments agreed to.
Lord Swinfen Lord Swinfen moved Amendment No. 54:
After Clause 12, insert the following new clause:
("Discrimination in Employment: Genetic Predisposition
.—(1) The Secretary of State may, by order, extend the provisions of Part II of this Act to make it unlawful to discriminate against a person who is not disabled in circumstances where, by reason of a person's family history, or by virtue of the result of a medical test which has indicated that a person has a genetic disorder, it is known that a person will or may have a disability in the future.
(2) An order made under this section may make such consequential amendments to the provisions of this Act as the Secretary of State considers necessary.").
The noble Lord said: My Lords, in moving this amendment I shall speak to Amendment No. 82 and also to Amendment No. 168, which is consequential on the other two amendments.
The purpose of the amendments is to facilitate at some later date the introduction of appropriate legislation to protect from discrimination those people who are currently healthy but who are at risk of a disability on account of a genetic problem.
The need for the amendment arises from the rapid growth of interest shown in genetic information by non-medical parties—specifically, insurance companies and employers. The growth of that interest is evident from the literature on the subject in both specialist and non-specialist journals. It is also evident from phone calls to the Genetic Interest Group's office. Those calls also reveal that genetic information is sometimes used to discriminate unfairly against people with a predisposition to a genetic disorder.
The continuing and rapid advance of scientists' understanding of the role of genes in the more common diseases, such as cancers, means that third parties will soon be interested in acquiring genetic information
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about large numbers of people. It is essential that a framework is established to control access to and use of such information.
It is appropriate to raise these issues on this Bill because the danger of the discriminatory use of genetic information is connected directly with the fact that genetic information may show that a person will or may become disabled at some point in the future.
The advantage of an enabling amendment—and it is only an enabling amendment—is that it will allow more thought to be given to how to tackle genetic issues and disability prior to the introduction of legislation. At the same time it will allow legislation to be introduced rapidly once a consensus has emerged on the way forward. For example, it is clear that issues relating to the appropriate use of genetic information are raised in the report of the House of Commons Science and Technology Committee on human genetics which was published today.
The introduction of this enabling amendment into the Bill would make it possible to turn some of the recommendations in the report into law much faster than would otherwise be possible. I do not anticipate that my noble friend has read that report; it is some 2 inches thick and runs to about four volumes. I trust that this amendment will satisfy the concerns of all the parties with an interest in the issue: affected individuals, employers, providers of goods and services and government. Its acceptance into the Bill would give hope and confidence to those individuals at risk of developing a disability. It would not impose immediate burdens on employers and providers of goods and services. However, it will create a framework within which codes of good practice for employers and providers of goods and services can be developed and turned into legal obligations.
The Association of British Insurers was kind enough to send me a copy of a letter which it had written to a number of Peers inviting them to reject this amendment. The letter states,
"As there is at present no satisfactory definition of what constitutes a genetic predisposition and as, without such a definition, it would certainly be inappropriate for immediate implementation of this amendment".
I am not seeking immediate implementation of the amendment. As I have said, the amendment can be implemented when the knowledge is available here and the Government have had the opportunity of studying it. It will then be up to the Secretary of State at the time to implement the amendment. The letter continues,
"The ABI has an interest in this area because there may come a time when genetic information forms part of an individual's medical record and is accordingly used in assessing applications for insurance".
The House will probably know that there is already a test that is 99 per cent. accurate in showing whether someone has Huntington's Chorea, which is a genetically inherited, extremely serious disease which is both mentally and physically disabling.
I am sure that a number of noble Lords have had to undergo medical examinations. If one's heart is being examined, it is quite common for a medical practitioner to ask one to tell him if there is any history in previous

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generations of one's family of any form of heart disease. Although I am not medically qualified, I should have thought that the conditions of our hearts have something to do with our genetic inheritance.
I have not had an opportunity of studying in detail the report of the Science and Technology Committee from the other place, Human Genetics: The Science and Its Consequences, but I wish to quote from some of its conclusions and recommendations. The report states, with regard to employment, on page xcvii,
"We wish to stress that, at present we know of no genetic diagnosis sufficiently robust to make a case for insisting that it be revealed to an employer.
We recommend that legislation to protect the privacy of genetic information should be so drafted as to forbid employers from testing for genetic traits other than those which might put the public at direct and substantial risk. There should be a mechanism by which such conditions could be defined. Any genetic testing conducted for employment purposes should be strictly limited to the specific conditions relevant to the particular employment and genetic material supplied for such tests should not be examined for evidence of other conditions.
We recommend that genetic screening for employment purposes should be contemplated only where:

(i) there is strong evidence of a clear connection between the working environment and the development of the condition for which the screening is conducted;

(ii) the condition in question is one which seriously endangers the health of the employee;

(iii) the condition is one for which the dangers cannot be eliminated or significantly reduced by reasonable measures taken by the employer to modify or respond to the environmental risks".

If the Committee in the other place makes recommendations on genetic screening in employment, that must mean that some genetic screening is taking place somewhere or that there is a fear of it.
With regard to insurance, on the same page of the report the committee writes:
"The evidence given to us by Professor Arrow and Dr Barr suggests that it would be possible to find ways to regulate the use of genetic information in insurance which would both protect the interests of society in enabling as many people as possible to obtain insurance and protect the insurance companies themselves".
The committee recommended that the insurance industry should be allowed one year in which to propose a solution acceptable to Parliament and that, if it fails to do so, a solution should be sought by legislation if necessary.
The report continues:
"We believe that one effect of genetic information may well be to limit the scope of medical insurance in the medium to long term".
I do not know of plans for any other Bill in which this subject could be dealt with. Therefore, I believe that we should include this group of amendments in this Bill at this time. I beg to move.
10.15 p.m.
Lord Addington: My Lords, I very much sympathise with the aims behind the noble Lord's amendments. We should guard against discrimination on the basis that someone has a disposition to develop a particular disease. However, Amendment No. 54 states:
"An order made under this section may make such consequential amendments to the provisions of this Act as the Secretary of State considers necessary".
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That is repeated in another amendment in the group. I am not very comfortable with that proposal. We do not know what any Secretary of State at any given point in time may consider necessary or on what criteria or grounds.
Having said that, however, the aim of the amendment to try to prevent the use of information concerning a disorder which may not become apparent for some time as an excuse for denying certain services or employment is one with which I agree wholeheartedly. I hope that when the Minister responds he will be able to address both areas of concern.
Lord Carter: My Lords, the noble Lord, Lord Swinfen, explained the arguments behind the amendments extremely well. He quoted from the report published only today of the Science and Technology Committee of the other place entitled Human Genetics: The Science and its Consequences. The sections of the report which the noble Lord quoted and others bear extremely well on the argument in favour of the amendment. For example, in paragraph 220 the report states:
"we consider that genetic knowledge does differ from other sorts of medical information. The effects of genes are complex, subtle, and depend on interactions with the environment … Even in the minority of cases where possession of a defective gene inevitably leads to the development of a condition, it cannot predict its severity or, in late onset diseases, show when it might appear…Genetic information also differs from other medical information in that it can, in some cases, give a clear indication of the genetic status of other family members".
There is evidence from a witness to the committee which is extremely relevant. Professor Modell says:
"It would be illogical and inequitable to permit discrimination against healthy people with a genetic predisposition to disability, while at the same time excluding discrimination against those already disabled".
As the noble Lord said when he moved the amendment, the report says:
"We believe that genetic discrimination may happen inadvertently, and should be prevented. There must be some mechanism to do this".
On insurance, the suggestions were in three parts:
"Insurance companies should not ask for any information on genetic tests at the time the contract was made. If the insured dies of a genetic disease on a list maintained by an appropriate authority as predictable by a genetic test, then the sum paid by the insurance company need not exceed a ceiling specified at the time of the contract. Insurance companies would re-insure an industry pool against the risk of deaths from genetically identifiable causes on the list".
It is an excellent report. It is a complex area. All that the noble Lord seeks to do is to leave a gateway in the Bill to enable later legislation, regulation, or whatever seems appropriate, to deal with the matter. If we leave the issue alone, it will raise enormous problems for people who have a genetic predisposition but are not disabled. If the Government do not intend to deal with the issue in this Bill, they will have to indicate how they intend to deal with it in other legislation.
To be fair, the Committee states that it is not sure that this Bill is the right way to deal with the issue. It is suggested that a privacy Bill would be a better way. Yesterday we heard the combination of handwringing

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and chickening-out that the Government are indulging in over a privacy law. It is extremely important that we make some provision in this Bill.
Baroness Masham of Ilton: My Lords, I find this a most interesting subject. I should like to ask the Minister this question: what existing legislation covering privacy of people deals with medical confidentiality? There is concern about fax machines, with information passing from doctors and hospitals being left in fax machines.
Perhaps I may ask another question about haemophiliacs and the workplace, and health and safety issues. There must be some legislation covering those aspects at the moment. It is necessary to ensure that the legislation that we are now discussing does not complicate other legislation.
Baroness Darcy (de Knayth): My Lords, perhaps I may briefly but warmly support the amendment. It is an area where things are moving very fast. The noble Lord, Lord Carter, referred to the report of the Select Committee on Science and Technology in another place. I heard the subject referred to on the radio this morning. In the same breath an item was mentioned regarding a semi-do-it-yourself kit for testing for the cystic fibrosis gene.
It would be a wise move to have this enabling amendment in position. I hope that the Government will show their wisdom by accepting the amendment, or by bringing a provision of their own back at Third Reading.
Lord Mackay of Ardbrecknish: My Lords, I am pleased to be able to address this important matter because, as your Lordships will be aware, it was debated at some length in another place and briefly touched upon during our own Committee stage.
Scientific advances in our understanding of human genetics have opened up complex moral and practical issues which will need to be looked at very carefully and in the round. I do not think that these issues can be picked off bit by bit. I believe that the implications go a great deal wider than the discussions that we are having this evening. As some noble Lords have already mentioned, the Select Committee on Science and Technology in another place has today published a report. The Government will want to look at it very carefully before considering legislation. My noble friend Lord Swinfen was quite right to presume that I had not had the opportunity today to read this voluminous report. I was rather busy reading another one from the Bank of England board. However, since I indicated to him at lunchtime that this report was published, I am rather glad that he has had an opportunity to glance through its pages. If he did so, I am sure that his eye will have alighted on paragraph 223. It was referred to by the noble Lord, Lord Carter, when he spoke about Professor Modell.
However, Professor Modell's point comes in the last three lines of a rather longer paragraph in which the Committee states:
"There were suggestions that some genetic discrimination could be dealt with through amendments to the Disability Discrimination Bill. While we agree with the ends of those in favour of these changes, we are dissatisfied with the means proposed. It would be difficult to prove that failure to offer employment, say, was caused
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by knowledge of a genetic predisposition to a late onset disease. Moreover, we were told that people with genetic predispositions, or who were likely to develop late onset diseases, might also be put at a psychological disadvantage if they were simply treated as disabled".
The report then goes on to give the quote from Professor Modell who was a witness.
Lord Carter: My Lords, in case the noble Lord was implying that I was attempting to mislead the House by partial quotations, I was careful to say that the report suggested that the Bill was perhaps not the best place to put such a provision.
Lord Mackay of Ardbrecknish: My Lords, the noble Lord did absolutely that. However, I just wished to underline what was said in paragraph 223. The amendment of the noble Lord, Lord Swinfen, would facilitate, he claims, future legislation. However, the noble Lord, Lord Addington, reached my point before I had the opportunity to do so. It is just as well for my noble friend that the noble and learned Lord, Lord Simon of Glaisdale, is not with us at this late hour because my noble friend would have received the same kind of lecture as I have received on a number of occasions about Henry VIII clauses. I suggest to my noble friend Lord Swinfen that his amendment seems to be the mother and father of Henry VIII clauses. I have made clear to your Lordships on a number of occasions that I am a reluctant taker of Henry VIII powers. The amendment proves no exception to my rule.
We must first think carefully about the effect the inclusion of people with genetic predispositions would have on the Bill. As I have said on a number of occasions, the Bill is intended to provide protection for people who have or have had a disability. The amendments make it entirely clear that here we are talking about people who have no disability. People with genetic predispositions do not yet have a disability and indeed may never have one. The predictive power of genetic testing is, with a few exceptions, likely to remain uncertain. No screening test is 100 per cent. certain. Having a predisposition to a condition which may or may not lead to an impairment which may or may not have a substantial effect on that person's ability to carry out normal day-to-day activities should not be deemed to be a disability as commonly understood. Nor should people in that position be covered by a Bill aimed at protecting disabled people.
Furthermore, as we are able to isolate and test for more and more conditions, it has been estimated that we will all be found to carry a complement of potentially lethal mutations. That is not to say that we all have a disability, but there will be an increasing number of us for whom it will be found, if we have the tests, that we may have a disability in the future, however slight that possibility. Are we really to envisage a situation in the future when the Disability Discrimination Bill covers the entire population?
I have said it on a number of occasions and I say again that we are trying to cater for those people whom the great public—employers and all of us—consider to be disabled. Those are the people whom we wish to help. The effect of including people with genetic predispositions in the Bill would be to increase the uncertainty among employers, service providers and

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disabled people as to who is and who is not covered by the Bill. This would undermine its effectiveness to protect the people whom it is intended to protect: those whom we all recognise as having or who have had a disability. I have been down the road on that argument before.
Another example of the uncertainty is the amendment to Clause 13 which was accepted at the Committee stage. It extended the provisions of Part III to include people treated as having a disability as defined in the Bill. In our view, that amendment has served to undermine the effectiveness of Part III, just as the amendments before us this evening would undermine the Bill as a whole. As I have done on a number of occasions, I wish to make it clear that I do not want to go down those roads. We shall seek to remove the amendment to Part III on treating people as disabled when the Bill returns to another place.
Let me repeat what my colleague said in another place on the problem of genetic predisposition. The Government will want, as will the whole House, to look very carefully at the Select Committee's findings and its recommendations before deciding whether specific action is called for. That will provide a valuable opportunity to consider the issue in the round, including the points raised in this debate.
The noble Baroness, Lady Masham, mentioned the confidentiality of medical records. Of course, it is there. So far as fax machines are concerned, I suppose that the confidentiality of medical records is as safe from the fax machine as many confidential government documents appear to be safe. I am afraid that one of the downsides in the modern world of communication is that, just occasionally, the wrong buttons can be pressed and one's confidential piece of paper arrives in the office of the Leader of the Opposition or perhaps, as in the instance mentioned by the noble Baroness, in the office of one's insurance company. In these circumstances there is not much that can be done in the modern world except be careful about sending faxes and other pieces of information.
To sum up, I fully accept that there is a real problem here, but this is not the right point at which to address it. We have to look at this issue as it develops, and as it is reported upon in the Select Committee, and then perhaps consider what action has to be taken on a much wider front, rather than on the narrow front of this discrimination Bill.
10.30 p.m.
Lord Ashley of Stoke: My Lords, I am rather disappointed at the Minister's response to the debate. I am particularly concerned that the Government intend to show such disdain for the views of this House about perceived disability. A democratic vote is a democratic vote. I should have thought that, rather than simply announce what the Government intend to do, the Minister and his colleagues in government would take the views of all sides of the other place rather than make such an announcement today, which I am sure will disturb many Members of this House.
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I should like to get the views of the noble Lord clear and correct on this particular amendment. He states that he agrees with the ends but disagrees with the means. Is it not a fact that that is precisely the argument the Government have used against this Bill, and use against any Bill? They use that argument against any legislation on disability discrimination. They have said, "We agree with the ends, but we disagree with the means". For years they have pursued that argument. But they have acknowledged now, by bringing this Bill forward, that that argument is bogus; it is quite false.
Is it true, as the Minister stated, that the Government believe they should deal with this problem in the round, and not bit by bit? If that is so, was it not incumbent on the Minister to tell us precisely how the Government intend to do that? It is simply not good enough to say that it will be considered in the round, full-stop, end of discussion. This amendment was moved by a Conservative Peer. Both sides of this House are entitled to a statement of Government policy. The Government cannot simply say that they are not going to do anything about the issue, having said that they need to deal with it in the round. The Minister has a clear obligation to make a statement on that. I have many more points to make, but there are a lot of amendments to move before the night is over. I will leave matters there, but I hope that the Minister can give the House some kind of constructive response.
Baroness Seear: My Lords, briefly, on this occasion I agree with the Minister. This is an enormously important subject. We want a great deal more information. We want to study the report. The subject merits a Bill on its own when we are ready to have one, but I do not believe that that time is now.
Lord Mackay of Ardbrecknish: My Lords, with the leave of the House, I say to the noble Lord, Lord Ashley, that the noble Baroness, Lady Seear, has made my point for me. Indeed, the Select Committee, which reported only today, clearly indicated that it did not consider this Bill to be the proper vehicle. The committee reported only today, and I believe that we all need to have an opportunity to reflect on this issue. Frankly, it is full of serious moral and practical problems. I simply do not accept that anybody who knows even a tiny bit about this whole question can believe that it can be dealt with quickly. We have to look extremely carefully at all the aspects of the committee's report and decide what legislation, if any, is required on the wider field.
Lord Ashley of Stoke: My Lords, perhaps I may make one quick point. A few weeks ago, the All-Party Disablement Income Group listened to the Genetic Group, a special group set up to study this matter. I found it a hair-raising experience and the fears expressed by that expert group were the cause of very deep concern. Would the Minister consider meeting that group himself before the Government move on this issue, so that he can receive its expert advice?
Lord Swinfen: My Lords, I thank all those who have taken part in this short debate. I am inclined to agree with my noble friend, with the publication only today

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of the report from the other place—he says that he has not had a chance to read it but his officials have gone through it and there is one sentence which he has found extremely useful—in suggesting that we should not do anything on this particular Bill. I have had the opportunity only of glancing at the summary of recommendations and should like to read the report properly. I am sure that those who brief me would like to do the same.
It is possible that I may come back on this subject at Third Reading in order to give my noble friend the opportunity of advising the House that there will be mention of an appropriate Bill in the Queen's Speech. I should like to give him as early an opportunity as possible to do so.
This is an extremely important subject. It is a very worrying subject. We already have the knowledge that there are certain seriously disabling illnesses that are genetic in origin and are being passed down. We should make certain that we deal with the matter as early as possible. With those words, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCarthy Lord McCarthy moved Amendment No. 55:
After Clause 12, insert the following new clause:
("Review of this Part
.—The Secretary of State shall lay a Report before Parliament no later than April 1997 which shall include a review of the operation of this Part of this Act, and an account of the effectiveness of financial, social security and other support in promoting the employment of disabled people".).
The noble Lord said: My Lords, noble Lords opposite are masters of what one of my students called "the reply of Pontius Pilate": "This is a very real problem and we are very much aware of it; unfortunately, this is not the place to address it". I hope that they will not use that argument for this amendment, which does not ask them to decide anything in this place at this time, other than to have a review.
The amendment seeks to insert a new clause stating that the Secretary of State (obviously, it cannot be the Secretary of State of the Department of Employment because there is not one):
"shall lay a Report before Parliament no later than April 1997 which shall include a review of the operation of this Part of this Act"—
that is to say, Part II, the employment part, of the Act—
"and an account of the effectiveness of financial, social security and other support in promoting the employment of disabled people".
There are three good reasons why we can ask the Government to accept this amendment. First, we have had considerable experience with Acts designed to deal with discrimination: to remove discrimination and promote equality, especially equality in the employment field. Every one of them—the race relations and the sex discrimination bodies of legislation and, taking in Northern Ireland, religious discrimination as well—creates different problems. They are all slightly different and all suffer on occasion from having the same framework. In every case—race and sex in particular—we have had to learn from our mistakes. In race legislation, it took three Acts—in 1965, 1968 and 1976—to get it broadly right; and even then it had to be changed from time to time and probably needs changing
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again. In sex discrimination, there were the Acts of 1970, 1975 and 1986; and there is still much that is wrong. Nevertheless, by periodic changes in legislation in both those areas, any fair-minded person could say that advances have been made in removing discrimination and that the Acts concerned became more carefully adjusted to the circumstances with which they had to deal.
The exception to that—which we have debated in this House in relation to this Bill—is the Disabled Persons Act 1944. When that Act was passed it was a pioneer Act; it was the first example of positive discrimination. But that Act was not brought up to date, and we found when we came to discuss it earlier in the Committee stage of this Bill, that it had become largely ineffective—indeed, some people say counterproductive. Therefore the experience of the past and in other areas suggests that discrimination Acts are innovations; they all require slightly different approaches; and all, with experience, produce different problems. They are therefore best subject to periodic review, especially in the area of employment.
That is the first reason for tabling the amendment. The second reason concerns the employment provisions in the Bill. There is much that is uncertain in terms of definition and consequences. There is much about which people have reasonably said, "We must wait to see how it works out". I shall quickly give five such areas. The first is the extent to which the definition of "disability" is too much dependent upon perceptions and is not objective enough. We must wait and see. It will come through in time, but it may be that the definition of "disability" needs to be changed.
The second area concerns exceptions. Clearly there must be exceptions, and we have a list of exceptions where unfavourable treatment is allowed. Whether we can, in advance, on the face of the Bill, fix the proper boundary where disability actually affects performance when we do not yet know what the regulations will say, is to be doubted. That is an argument for review. There are also the exemptions for small businesses, which we have spent much time debating. No reasons can clearly be given for setting the limit at 20, 10 or five employees. We need to know what happens in the firms where there are below 20 employees. If the Government persist—as it looks as though they will—in keeping that area out of the Act, then they themselves admit that there will have to be a review. Another area is enforcement, and whether the provisions for enforcing the Bill are strong enough. Finally, can the job be done without a commission? Some say yes and some say no. The answer to that will emerge through time.
That is the second general reason for having a review; that is, that the Act is particularly innovative with a number of definitions and revisions, and we shall only know how they work out in practice.
The final reason relates to what the amendment says about financial, social security and other support. We have no way of telling in advance whether there will be an adequacy of funds for the Access to Work scheme; how the operation of the disability allowance will work; how the work of the disablement resettlement officers will operate; what will be the adequacy of the

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assessment and rehabilitation services. The Department of Employment, in its last White Paper—People, Jobs and Opportunities— claimed that it had conducted an extensive review and consulted all those working in the various services. It was going to bring them together into a high quality integrated service offering disabled people more personal advice and assessment,
"as well as continuing support in implementing the individual action plans".
That is something we are required to study and review. Changes are taking place in the responsibilities of the Department of Employment. What effect will that have on the operation of this aspect of the Bill? We are saying that there are many good and sufficient reasons why there should be a review of this Bill not later than April 1997. I beg to move.
10.45 p.m.
Lord Henley: My Lords, the noble Lord spoke at great length at this time of night. I do not intend to follow his example but will respond to his points very briefly. First, the noble Lord talked about the lack of a Department of Employment. There is no such lack. We have simply merged the Department of Employment with the Department for Education to provide a much greater focus for the work that it does.
Secondly, I shall deal with the point on timing. For some peculiar reason the noble Lord—perhaps I am naive in terms of the motives behind the amendment—suggested that the report should be laid before Parliament not later than April 1997 and should include a review of the operation of Part II of the Act. I simply do not understand why he has chosen that date, but that is a matter for him. By April 1997 this part of the Act will have been in operation for substantially less than a year since we have already made it perfectly clear that we intend to commence Part II of the Bill towards the end of 1996. Even the noble Lord would accept that there is no point in mounting a review of the working of the Act barely six months after it has been brought into operation.
I accept that there is value in a periodic and continuing review of all aspects of government policy on these matters. That is what governments do and that is what governments have done over the past few years. That is why we have always made it clear that we thought that, though the Bill was highly important, it was not the sole line in our strategy in this area and that we had various other broad aspects that we wished to pursue—first, to increase the employer contribution to a positive approach towards employing disabled people; secondly, this legislation; and, thirdly, the various pieces of practical support that we are able to offer through Access to Work, disability working allowance and other such measures. I can assure the noble Lord that we shall continue to keep such matters under review, but I see no point in accepting an amendment of this kind.
Lord McCarthy: My Lords, I shall give an even shorter reply than my introduction. I think I heard the noble Lord say that the Department of Employment had been absorbed into the Department for Education.
Lord Henley: My Lords, the two departments were merged into one under a new Secretary of State.
Lord McCarthy: My Lords, so when I read in the newspapers that part of the old Department of Employment has gone into the DTI, that is quite wrong, is it?
Lord Henley: No, my Lords. What the noble Lord can assume is that something of the order of 90 per cent. of the department has merged with the Department for Education. A very small amount has gone to the Department of Trade and Industry and statistics have gone to the Central Statistical Office.
Lord McCarthy: My Lords, I am not going to go on like this. I have just one more question. Does that mean that the most important part of the Employment Service itself has not gone to the DTI?
Lord Henley: My Lords, the Employment Service is part of the new Department for Education and Employment.
Lord McCarthy: My Lords, this is becoming more and more interesting. Very well, I shall not go further. What I would say, however, is that if the noble Lord had said that he did not like 1997 but that he would take 1998 or even 1999, we might have had more agreement with him. But he did not like 1997 and he did not put forward any other time, which means that he does not want the Act reviewed at all. Nevertheless, it being this time of night, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 [Discrimination in relation to goods, facilities and services]:
Lord Swinfen Lord Swinfen moved Amendment No. 56:
Page 10, line 18, after second ("provision") insert ("design, adaptation, and labelling").
The noble Lord said: My Lords, the House will be relieved to know that I have made a précis of my speech. It is only one-and-a-half pages long instead of three-and-a-half pages. It is a probing amendment which seeks to highlight the need for service providers to take into account the needs of disabled people when designing products, goods and services. The amendment also raises the importance of adapting a product to make sure that a disabled person can use it more easily; for example, by placing tactile markings on cookers. The Bill currently excludes from Part III manufacturers who do not provide services directly to the public.
Of the United Kingdom's 1 million blind and partially sighted people, almost half live alone. Good practice in the design and adaptation of goods is a very important aspect in assisting visually impaired people to live independently. Among the advantages of taking into account the needs of disabled people when a product is designed is the fact that it is more cost effective to take note of the needs of as many customers as possible at the design stage, rather than treating the needs of a disabled user as an afterthought. All visually impaired people would benefit if needs were taken into account when products are designed as compared to a far smaller number who are likely to ask for adaptations to be made on request.
Having clearer markings and easier means of operation for goods would not only be of benefit to visually impaired people. People with conditions such as arthritis, and older people in general, may find that they, too, would benefit. The Government have accepted the importance of designing low floor buses—a method which would benefit elderly people and parents with small children, as well as those with disabilities. I beg to move.
Baroness Dean of Thornton-le-Fylde: My Lords, I should like to speak briefly in support of the amendment which has at its core the purpose of enabling people with disabilities to live independently. Indeed, by taking such matters into account when equipment for the home is designed, it would, as the noble Lord said, be more cost effective. However, it would also mean that the person with a disability does not have to be a "one off" as regards asking for something to be adapted. The design would be there and it would mean that such people would be able to stay within their own home and have a better quality of life all round. Such matters do not concern only those who are blind or partially sighted. For example, my mother suffered for many years from arthritis. If she had not had much of the adapted equipment at home, I very much doubt that she would have been able to be as self-sufficient as she was.
Of course, there is the other factor; namely, printing. I have in mind the printing of labels on products. Indeed, many people have difficulty reading such labels in any event, even if they are not partially sighted, because the print is so small. That may be an inconvenience; but it becomes more than an inconvenience when someone, perhaps, has to have a special diet and has to get the ingredients absolutely spot on when they are mixing them. If such people cannot read the labels properly, it is more than an inconvenience. It is something which is wrong and which could quite easily be rectified.
As the noble Lord, Lord Swinfen, said, this is a probing amendment. I believe that it is recognised that there are difficulties in drafting quite specifically a provision on the face of the Bill. Nevertheless, the issue needs to be aired. It is, perhaps, an issue that a code of practice could cover with, say, some encouragement from the Government to the new council for disabilities. I support the amendment.
Lord Mackay of Ardbrecknish: My Lords, I am glad to hear that this is a probing amendment. For the reasons that I shall outline, it would be extremely difficult to legislate in such a field.
Clause 13(2) (b) provides that only those who provide services to the public are covered by the provisions of the Bill. The design and manufacture of products is not covered. That must be right. It is one thing to give an individual a legal right of access to goods and services as the Bill does; but it is quite another to give him a right to products of a certain type or design. It would be folly to constrain designers and producers in that way. I do not believe that your Lordships would wish to prevent the introduction of new products unless they were accessible to disabled people. There could also be
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incalculable damage to the competitiveness of British industry as the provisions of the Bill cannot extend beyond our shores.
I am also unsure as to what noble Lords intend should be done about foreign products which do not meet the requirements of the amendment. Would they be banned from our shops? Similarly, I am not entirely sure how that squares with the single European market, let alone the General Agreement on Tariffs and Trade.
I am happy to acknowledge that both speakers indicated that this is a field in which it is easier to ask the question, but, frankly, there is no answer because the question itself leads us into a totally hypothetical and difficult area to navigate. I do not see how we could get such legislation to work. I do not believe that any other country, even those countries that are being cited as being "more advanced" than our own have gone down that road. If they have, I should be interested to hear how they got round the problems that I have mentioned.
I readily concede the importance of accessible products to disabled people. I agree totally with the noble Baroness, Lady Dean, about the importance of adapting equipment for people with specific problems. There are such adaptations and many are very impressive. That is the course of action that we should follow. I believe that we should also try to create new market incentives to encourage companies to make accessible goods. That will come about because we are giving disabled customers greater freedom to shop. We should also try to persuade manufacturers that more accessible products will find a larger market. As I have said previously, the National Disability Council will be able to play a role in discussing design improvements with manufacturers.
I suspect that I have confirmed to my noble friend and the noble Baroness that that is an impossible road to take. Having heard some of my observations about the difficulties, I hope that my noble friend will be able to withdraw his amendment.
Lord Swinfen: My Lords, I shall indeed seek leave to withdraw the amendment, but I should like first to thank my noble friend for his reply. The important thing is that, wherever possible, the manufacturers of any goods should bear in mind that those goods could well be used by people with disabilities. For a long time people have been fighting the application of Part M of the building regulations, which relates to accessibility to and within buildings, to residential accommodation. As my noble friend knows, the Government have set up a working party on that and I expect that in the very near future there will be a change in the building regulations to make Part M apply to residential accommodation—at least, that is what I have heard. Similar thought could be given to many other articles, particularly in the manufacturing world. I hope that manufacturers will bear that in mind. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Darcy (de Knayth)Baroness Darcy (de Knayth) moved Amendment No. 57:
Page 10, line 24, at end insert:
("( ) the provision of services in further education includes provision of appropriate transport for students with disabilities;").
The noble Baroness said: My Lords, in moving Amendment No. 57, I should like to speak also to Amendments Nos. 61 to 64, 84 and 85. I have been happy to group these amendments together to save making several speeches, but I hope that your Lordships will therefore understand if I take five or six minutes to introduce them.
I should say straightaway that I am not seeking to introduce any of the amendments into the Bill but, as a result of a very helpful meeting with the noble Lord, Lord Mackay, and Mr. Tim Boswell on 4th July, together with the then Department for Education and the director of SKILL, I have tabled the amendments to elicit various statements and, I hope, undertakings from the Minister. I congratulate the noble Lord, Lord Henley, on his new position. For me, at any rate, it is a pleasure to be discussing students with disabilities with him once more.
Amendment No. 57 was moved by the noble Baroness, Lady David, in Committee on 15th June because I had failed to get into the Chamber at the time. I am grateful to the noble Baroness. It aims to fill the loophole in the Further and Higher Education Act 1992 whereby LEAs have a duty to consider the transport needs of disabled students to and from colleges, but they are not absolutely required to provide or pay for the transport. The National Bureau of Students with Disabilities, or SKILL, has many examples of the problems that students have encountered. The noble Lord, Lord Mackay, said that he would look into individual cases and that the department would look sympathetically on the need for further guidance. I hope, therefore, that the Minister can bring us up to date on the state of play on that.
Amendments Nos. 61 to 64 are similar to amendments that I moved and withdrew in Committee on 15th June, except that I have now omitted reference to "higher education". We had a long and useful debate, with much support expressed for trying to include "further and higher education" in the Bill at that stage. I stress that the government amendments on strategic planning are very welcome and we look forward to the sector making changes in a co-ordinated way in the future.
But there are still concerns about problems encountered by individual students. In Committee, I argued that we could ensure through tight regulations that costs did not escalate and did not jeopardise the strategic plans. Having had a great many discussions, I now accept that the Government and the department feel genuinely that they cannot draft regulations to ensure that.
The question remains therefore: how can we sort out the problems for individual students in FE institutions and within LEA provision? Because we must remember that LEAs provide a great deal of further education, particularly to adults on a part-time basis. I put down
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the amendment so that the Minister can state how he can best deal with the problems encountered by disabled students in further education.
Amendments Nos. 84 and 85 I moved and withdrew in Committee on 27th June. They ensure that students with severe learning disabilities who may not be able to go on directly to a more academic or vocational course are covered by the FE sector under Schedule 2 to the Further and Higher Education Act 1992 and Section 6 of the Scottish Act, or by LEA provision.
SKILL says that in practice many students fall between the two stools. The noble Lord, Lord Mackay, made it clear in Committee (Hansard col. 739.)—I am grateful for this—that the guidance issued by the FEFC indicates that eligible course in independent living and communication skills must have as their primary objective progression to another course in Schedule 2. Schedule 2 sets out basic English, basic maths, courses preparing for GCSE and so forth. The noble Lord also made it clear that there is an equally important duty of the LEAs to secure adequate facilities for FE.
At col. 741 the Minister said that he was happy to discuss the matter to see whether something needs to be done to make it clear where the duties between the FEFC and the LEAs fall. He believed that the point I was making was not necessary, but that the boundaries were wrong, and one of the parties did not seem to realise how the Act works.
I am not trying to change the boundaries if it is clear that the original intention of myself and the noble Baroness, Lady David, when we secured the Schedule 2 amendment in the Further and Higher Education Act 1992 is being met; that is, that the opportunities for people with severe disabilities to learn basic skills are being met on the same basis as those for non-disabled students. By that I mean that an A-level in a physics course for the brighter academic student is the equivalent of NVQ carpentry for the vocationally oriented student, which is the equivalent of learning how to conduct a conversation with confidence with a shopkeeper for a student with severe learning difficulties. They are all preparing the student to take his place in adult society. They are, if one likes, A-levels in living.
I am not trying to change the boundaries, but in relation to the FE sector the guidance may say that the primary objective is to move on to another course, as the noble Lord, Lord Mackay, said in Committee, but, if we look at the Act, Schedule 2, page 74, at (j) provides:
"A course to teach independent living and communication skills to persons having learning difficulties which prepares them for entry to another course falling within paragraphs (d) to (h) above".
The point is that some students may take several years to be prepared for entry to other courses. There are also instances where students have progressed to other courses where professionals working with them never envisaged initially that that would be possible. I am merely asking that the guidance be no more restrictive than is the wording in the 1992 Act. I hope that the Minister can respond positively to this amendment too.
The last point—I shall speed up—relates to LEAs. I appreciate that they have many concerns and responsibilities so that non-Schedule 2 further education

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does not always receive the priority treatment that we would like to see. I hope that the Minister can give an undertaking to do something, possibly by an amendment on Third Reading, to ensure that LEAs carry out their duties in this respect. I look forward to hearing what the Minister has to say on transport to college, problems of the individual students in FE, and the dilemma of students with severe learning difficulties falling between the FE sectors and LEA provision. I beg to move.
Baroness David: My Lords, my name is down to all the amendments in the group. I support them strongly. We discussed them fully in Committee. I have a particular interest in Amendments Nos. 84 and 85 because I know that when we were busy going through that Bill in the House we were very anxious about the rigidity of the Schedule 2 courses and what would be done by the FE colleges and what would be done by the LEAs. We are asking that the rules should not be too rigid and that there should be flexibility. There should he some give and take so that people have an opportunity to progress at their own speed. I hope that the Minister can give us reassurance on this.
Baroness Farrington of Ribbleton: My Lords, we on these Benches support the amendments. At this stage we have nothing to add. The points were well covered by the noble Baroness, Lady Darcy (de Knayth), and by my noble friend Lady David.
Baroness Park of Monmouth: My Lords, I wish to add my strong support to what has been said. I do not propose to make a speech but simply offer my strong support.
Lord Henley: My Lords, I wonder whether as a mere man I may intervene in the debate. I offer my thanks for the welcome from the noble Baroness, Lady Darcy (de Knayth). It is jolly nice to know that some people welcome me back even if others do not. I also thank the noble Baroness for agreeing to group together all her amendments on education. It has probably saved the House a considerable amount of time. I apologise in advance for the length of what I have to say but it is important that I say it. I hope that the noble Baroness will read carefully what I say. If she has any points, she can always come back to them by means of correspondence and we can sort things out before and at Third Reading.
In Committee my noble friend Lord Mackay explained in some detail why the Government do not wish to include education in Part III of the Bill. Perhaps I may summarise his arguments as regards Amendments Nos. 63 and 64 which seek to place further education in the Bill. We do not think they are the most effective way of achieving greater access to education for students with disabilities. The practical effects of inclusion would be to undermine the strategic role that the further and higher education funding councils already play, and will increasingly play as a result of government amendments passed in Committee. Each institution would have to consider adaptations without having any regard to the accessibility of provision in other institutions; this would lead to unplanned and piecemeal arrangements causing scarce resources in the
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sector to be wasted. These arguments for excluding further education provision apply equally to further education provision secured by LEAs in England and Wales and education authorities in Scotland. For those reasons we resist Amendments Nos. 61 and 62.
The noble Baroness, Lady Darcy (de Knayth), asked at Committee stage whether, with the creation of a separate Part IV of the Bill, education might not be included overall with a new definition of "reasonableness". Although that might seem an attractive option, in practice it would be extremely difficult, if not impossible, to frame the primary legislation and regulations in a manner consistent with the strategic role of the funding councils. We would have to set out in regulations all the circumstances in which institutions, by striving to target resources strategically, were discriminating in a reasonable fashion. The Government's further and higher education amendments now in the Bill will strengthen provisions in existing education legislation.
In further education, new Clause 25, subsections (1) to (3), places a duty on the further education funding councils to require individual colleges to produce as a condition of grant information on their facilities for education of students with disabilities. The Government wish the statements to be of practical value to students without placing an intolerable burden on institutions. Therefore, they will consult before prescribing in regulations the frequency and content of the statements. The views of Skill, which the noble Baroness, Lady Darcy (de Knayth), mentioned and of which she is president, have already been sought. I expect the contents to be sufficient to provide students with disabilities with useful—indeed essential—advice to aid them in their decision about the suitability of a college. Statements are likely to include not just physical access and the provision of specialist equipment but also the college's admission policies, examination arrangements and counselling and support services. Once accepted by a college, students will be entitled to expect that they will enjoy the access and support necessary to pursue their studies.
As a condition of receiving entry funding units, colleges already produce learning agreements with students after assessing the suitability of the learning programme and the educational support needed during the student's time on the course. The new provisions will build upon that. In cases where colleges identify that students require extra support the FEFCE recurrent funding methodology allows colleges to claim additional support funding units to cover a wide range of extra costs. These costs range from additional teaching support costs through to extra administration costs associated with providing alternative examination arrangements for students with disabilities. These costs can be claimed, in bands, up to a maximum of £8,800 per student. This removes financial disincentives to the recruitment of students with learning difficulties or disabilities who require additional support. Those costs claimed by colleges are audited by the FEFC.
The council has also addressed the concern in the sector that the previous funding methodology did not take sufficient account of the extra equipment needs for

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some students with learning difficulties or disabilities. For 1994–95 and 1995–96, the FEFCE has agreed that the methodology should increase the allocation for equipment in direct proportion to those units allocated for additional support within a college's overall recurrent funding allocation. I recognise that the issue of redress for students who feel themselves to be the victims of discrimination is one about which the noble Baroness, Lady Darcy (de Knayth) feels strongly. I know that she has discussed this with my noble friend. In future, students who have exhausted their college's internal procedures will be able to seek redress from the councils on the occasions when provision fails to meet expectations raised by the college's disability statement. Where other measures fail, the councils will have the power to impose a further condition on grant to colleges requiring them to fulfil the commitments set out in their statements.
I believe that requiring colleges to produce disability statements will encourage all institutions to strive to achieve best practice in the sector. I hope that the need for students with disabilities to resort to the redress measures I have explained will be rare. Nevertheless, they provide a comprehensive safety net in cases where colleges act wholly unreasonably and complaints cannot be resolved through an institution's own internal procedures.
As regards Amendment No. 84, in Committee, there was a full and, I believe, fruitful discussion of the division of duties between the FEFC and LEAs for providing courses in independent living and communication skills. My noble friend Lord Mackay explained that the Further and Higher Education Act 1992 places the same duty to,
"secure the provision … of adequate facilities for further education"
on both the FEFC and LEAs; the FEFC's duty being for part-time students over compulsory school age and full-time students aged 19 and over following courses listed in Schedule 2; the LEAs' duty being for these students following courses not falling within Schedule 2.
This division places an equal duty on the FEFC and LEAs and is a logical division of responsibility: where courses in independent living and communication skills are the start of a ladder leading to vocational or academic courses, it is appropriate for the council to be able to offer an integrated package of provision. Where they are free-standing, it is sensible for LEAs to secure their availability along with other local authority responsibilities in the social services area.
The boundary between the responsibilities of the FEFC and LEAs is clear. The FEFCE's guidance indicates that the primary purpose of courses of independent living and communication skills, if they are to fall within Schedule 2, must be progression to another course in Schedule 2 such as basic numeracy or literacy. In practice, this means that the FEFC funds provisions such as national proficiency testing and modules accredited through the open college network. The emphasis is on progression—no matter how slow or seemingly small—and I believe that this has brought increased rigour to such provision. I recognise, though, that the issue of progression is a complex one. We shall
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ask the FEFC to consider how this might be clarified further in guidance to colleges, drawing upon the work on this issue by the FEFC's committee on learning difficulties and/or disabilities and also any results from Sir Ron Dearing's review of the 16 to 19 year-old qualifications framework.
As regards Amendment No. 85, in Scotland, the Secretary' of State already funds further education colleges for the full range of provision they make under the duties and powers conferred on them by the Further and Higher Education (Scotland) Act 1992, including courses in independent living and communication skills. The same division of responsibilities between the funding councils in England and Wales and LEAs therefore does not arise in Scotland. I believe that amending the current legislation would confuse the position but I do recognise that there is the possibility that some LEAs may not fully understand their responsibilities in this area.
The view expressed in Committee about the need to maintain the parity of esteem between the FEFC-funded provision and that funded by LEAs for students with disabilities is one with which I have considerable sympathy. The corollary is that information on both types of provision should be readily available to prospective students. Therefore, the Government will consider whether an amendment can be brought forward at Third Reading to place a duty on LEAs in England and Wales similar to that laid on colleges to produce information about their provision for disabled students.
Lastly, I turn to Amendment No. 57 on transport to further education colleges. During Committee stage my noble friend Lord Mackay agreed to look at the need for guidance on the matter of transport for students with disabilities in further education. To summarise the clear legislative positions: LEAs are under a duty to make arrangements for the provision of free transport as they consider necessary to facilitate the attendance of persons at institutions within the further education sector. The arrangements they make for full-time FE sector students must be no less favourable than those made for pupils of the same age at schools maintained by a local education authority. LEAs are also able to pay the whole or any part of the reasonable travelling expenses of FE sector students for whom free transport is available. LEAs are obliged to have regard to (amongst other things) a person's age, and the nature of his or her possible routes to school. In practice this means that an LEA cannot refuse the provision of free transport on policy grounds without considering representations made to it by students or their parents as to why in their particular circumstances that policy should not be followed.
The noble Baroness has indicated that there may be problems with the delivery of this service. Having given her concerns careful consideration, I remain convinced that to separate the provision of home-to-college transport for students with learning difficulties and disability from that for other students has more disadvantages than advantages. Nevertheless, we will be undertaking research to ascertain the current position, identifying good practice and points of difficulty. In the light of the findings of that research, further guidance will be prepared. In cases where students are

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experiencing difficulties, my department will be more than happy to investigate. In addition, of course, the local government ombudsman has the power to investigate complaints of maladministration.
I hope that has addressed most of the concerns of the noble Baroness. As I said at the beginning, I think it probably would be useful if she read carefully what I had to say and if there are any further points she wishes to come back to, I of course would be more than happy to engage her in correspondence and come back to certain matters on Third Reading if necessary.
11.15 p.m.
Baroness Farrington of Ribbleton: My Lords, before the Minister sits down, can he clarify whether it is possible for the LEA to make more favourable provision for a student with a disability that causes him or her a travel difficulty than for other students under the existing legislation?
Lord Henley: My Lords, I believe that that is the case; that they would be in such a position. I should like absolutely to check up on that. However, I think I have affirmation of that point and I can assure the noble Baroness that that is the case; it would be a matter for the discretion of the local authority.
Baroness Darcy (de Knayth): My Lords, I thank all noble Lords who have supported me once again, and also the noble Baroness, Lady Farrington, for her interjection which was useful, too. I wish to thank the Minister for his full reply and also for the offer to correspond with me if I have not fully understood everything he said. That would be useful.
I start with his final point, that there will be research into the current position on transport and any problems there may be, and that further guidance will probably be forthcoming. That is most welcome, as is the offer that the department will investigate any individual problems, and the reminder about the ombudsman.
Turning to Amendments Nos. 61 to 64, I appreciate that very full answer to my suggestions about regulations and an alternative definition of reasonableness, and so on. It was very useful that the Minister said that, once accepted, a student would be entitled to expect the appropriate support within the college. He also said that there would be a great deal more about the suitability of the college and the admissions policy. He made an announcement about additional financial support, which is most welcome, and on the increase in the allocation of equipment.
The Minister then went on to talk about redress, about which I was particularly worried. He said that when a student had exhausted the initial procedures he could go to the council, which will have the power to impose further conditions of grant. I am greatly reassured by that. I thank the Minister for that answer.
Turning to the provision in Schedule 2 and to Scotland, I should like again to extend my thanks. He will ask the FEFC to consider further guidance on what he said was a complex subject. Let us hope that it will be less restrictive and more in tune with the Bill. In respect of LEAs, the Minister said that he is willing to
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consider whether to bring forward an amendment at Third Reading. That would tie in very neatly with the welcome government amendments on students in higher and further education. I look forward to that, and I may communicate with him beforehand to ascertain whether that amendment will be forthcoming.
That is a very auspicious start. I appreciate that the groundwork was done by the noble Lord, Lord Mackay. We must not forget him. I thank the Minister very much, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Swinfen Lord Swinfen moved Amendment No. 58:
Page 10, line 24, at end insert:
("( ) other service providers not defined in paragraph (b) above shall, where necessary, make accessible information ancillary to the use of a product, good or service.").
The noble Lord said: My Lords, the Government have made clear that manufacturers not selling directly to the public will not be covered by the Bill. If a company sells to the public by way of a retailer, the onus will fall on the retailer to explain to a customer who, for example, is visually impaired or has learning difficulties how the product works. In reality, that will probably be considered an unreasonable requirement for a retailer to undertake.
The manufacturer is best placed to ensure that instructions relating to the safe use of a product are made accessible on request. The use in the amendment of the words "information ancillary to" are designed to distinguish written information from adaptations to the product.
The provision of information is of vital importance following the purchase of a product so that blind and partially sighted people can get the most out of a service. For example, information is needed about the installation, operation, maintenance and safety aspects. However, blind and partially sighted people are denied access to this kind of information every day.
I have been told of the case of a deaf-blind man who bought a washing machine. He was told that if he wanted the manufacturer's instructions in braille it would take about seven months before he would receive those instructions and in addition he would have to pay an additional cost. Why should a disabled person have to pay extra for instructions which are given free of charge to other people? Furthermore, why should he wait an unreasonable amount of time in order to be able to operate the product independently? I beg to move.
Baroness Dean of Thornton-le-Fylde: My Lords, the amendment has been clearly explained by the noble Lord, Lord Swinfen. Clearly, if you are buying a product you need the instructions on how to use it. If one is blind or partially sighted, one cannot read the instructions on how to use the equipment. Quite frankly, that is wrong. I support the amendment.
Baroness O'Cathain: My Lords, I wish to intervene even at this late hour. I think we are being a little unrealistic. My noble friend referred to a situation involving a washing machine. I beg to suggest that the washing machine was almost certainly not manufactured in this country. Perhaps I may say, as someone who has

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worked a long time in the manufacturing industry, that unfortunately the greater proportion of domestic and other equipment that we buy is not manufactured in this country.
It is a difficult situation. Although not necessarily through the provisions of this Bill, people should be mindful of providing some other ways of communicating the instructions for such a machine, perhaps by a tape in a cassette player. If noble Lords buy equipment manufactured in other countries—for example, Japan, or even Germany—they no doubt find that the translated instructions are almost as impossible to follow as if one were blind. I believe that we are being a little stupid on this matter, much as I support the principle.
Lord Mackay of Ardbrecknish: My Lords, I cannot agree with this amendment. It seeks to widen the effect of the right of access provisions to beyond those who provide service to the public and include manufacturers of goods and services. It seeks to make manufacturers provide information ancillary to the use of their goods and services in accessible formats.
As the Bill stands, there will be no compulsion for manufacturers to alter the way in which they make their products, for the reasons I have already discussed in responding to one of my noble friend's previous amendments. This is the case even where the product could be regarded as "information"; for example, newspapers, books and television programmes. There will therefore be no requirement for those items to be made available in an accessible format.
Manufacturers' instructions and packaging are special cases. Although they can be thought of as "adjuncts", I do not believe that it is practical to compel them to be made available in different formats.
If we did not place the duty on the manufacturer, the only other agent who could be asked to comply is the retailer. But it would be an extremely onerous liability, particularly where information about products is supplied as part of the packaging, in a situation where a retailer might stock thousands of items. Imagine the responsibilities that it would place on, say, a large supermarket to provide accessible information on all the goods that it sells.
There are also two major problems with holding manufacturers responsible for providing accessible information. I have already used these arguments in relation to a previous amendment. Foreign manufacturers would clearly fall outside the scope of the Bill and therefore only some of the products available in a shop will be covered. My noble friend Lady O'Cathain made the point exactly. If my noble friend looks for a washing machine, he would probably have to spend a great deal of time before he finds one manufactured in Britain. What will he do? Will he force the Italian manufacturers to go down this road? The Italian manufacturers, I think, will very quickly tell him where to go. If we say, "You cannot bring your product into the United Kingdom", then we are up against all sorts of problems with market access, the European Union, and, indeed, GATT.
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Secondly, it would prove very difficult to tie down exactly what was meant by information. For example, would the operating instructions for a CD player include the booklet that comes with the product together with the labels and knobs on the machine itself? If they did, the implications for designing and bringing new products to the market would be enormous.
I think. that the problems I have outlined show how this amendment would add nothing but uncertainty and, frankly, unreasonableness to the right of access provisions. Every opportunity will be taken to persuade manufacturers to make information about their products accessible, but it would simply be wrong to risk constraining the creation and design of new products within the straitjacket of legal compulsion. It would be wrong to impose these additional costs on the United Kingdom manufacturers with all the other aspects I have mentioned about products coming in from abroad.
While we probably all have some sympathy with the points of my noble friend and the noble Baroness, Lady Dean, people who lobby my noble friend and bring amendments like this before your Lordships' House must try to live in the real world. I fear that the amendment is going a few bridges beyond the real world. I hope that my noble friend will be able to withdraw his amendment.
Lord Swinfen: My Lords, the answer my noble friend gave was much as I expected. However, I feel that manufacturers should take advantage of what will become a growing market over the years as we have more and more disabled people in the country with one form of disability or another. Much can be done in the way of instructions by the use of cartoons, which to a great extent would overcome the problems pointed out by my noble friend Lady O'Cathain of translations from strange languages into English. One can get some funny answers on that. I agree that they may make absolute nonsense. I have tried to make sense of some myself.
While I appreciate the difficulties that have been pointed out, I am sure that manufacturers could do a great deal more than they do at present. It could be done at the manufacturing stage. After all, on many products we now have instructions given in half a dozen or more languages. It would not be difficult to do it in cartoon form or possibly even in braille, which is not expensive to produce, provided it is not long. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
11.30 p.m.
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 59:
Page 10, line 39, at end insert:
("( ) legal services, including the services of any court or tribunal and of agencies of the criminal justice system.").
The noble and learned Lord said: My Lords, someone once said, "All things come to those who wait". In the Marshalled List this amendment is linked with Amendment No. 60, to be moved by my noble friend Lord Ashley. He and I are agreed that, although any common theme linking them is somewhat tenuous, we

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are content that in the interests of expedition they should be discussed together. However, I propose to confine my contribution to Amendment No. 59.
The amendment was set down at the suggestion of the Law Society, whose Mental Health and Disability Sub-Committee has been responsible for much valuable work on behalf of those with disabilities but whose anxieties have not so far been ventilated in the course of your Lordships' debates.
My noble friend Lady Hollis and I set down an amendment in these terms at Committee stage. The noble Lord, Lord Addington, was kind enough to add his name to it. In the event, it was not moved. One reason for that was that I proposed to ventilate a number of specific problems confronting people with disabilities. This amendment is not a theoretical exercise, and I would not wish the noble Lord to accept it unless he can assure us that the Government are addressing the specific instances where the shoe pinches. It did not seem fair to expect him to do that in the absence of some notice of the issues which I proposed to raise, so accordingly I deferred moving the amendment in order to write to the noble Lord setting out the issues. That I duly did. He was kind enough to reply, indicating a view on one of the issues—and this is a summary of his reply—and undertaking to offer his reflections on the others in the course of the debate.
Before I indicate the specific concerns, may I invite the Government's views as to the impact of the Bill upon the provision of legal services generally. Of course, the list of services in Clause 13(3) is said to be simply a list of examples of the services to which that clause and the subsequent three clauses are intended to apply. It would follow that the fact that legal services are not specifically included in the list does not entail that they are intended to be excluded. But I am sure that the noble Lord would accept that it is better to set the matter beyond doubt by saying clearly in the Bill what is intended.
What is perhaps in greater need of clarification is what activities of the Government and their agencies we intend to be subject to the Bill. Clause 35 says that the Bill applies to the Crown; but presumably these clauses apply only when the Crown is providing services. Are Ministers providing services when they make regulations about the provision of legal aid; or is the Courts Agency providing services when it builds a courthouse? I understand that the noble Lord's answer to the former question is: no, there is nothing in the Bill which precludes a Minister from discriminating when he issues regulations. I think that he is probably right, if it will comfort him, and I do not suggest that the Bill should be amended to impose an obligation on him not to discriminate when he is exercising that function. I shall return in a moment to the problems arising from that situation. However, I hope that the noble Lord can give us an assurance that those who provide court premises are intended to be subject to the provisions of the Bill.
These are general concerns, but I should not wish to turn this amendment into a lawyer's debate about draftsmanship. The Law Society has three practical concerns—or more accurately, three groups of practical
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concerns. So I hope noble Lords will forgive me if I take a little longer than I would normally presume to do at this hour. This amendment really incorporates four amendments into one, so I hope your Lordships will think that it represents a saving of time.
The first group of concerns relates to the provision of legal aid. and the ways in which disabled people encounter discrimination. It is here that I return to what I was saying a moment ago about discrimination in the regulations. That may not be the subject in this Bill, but it may compel others unwittingly to discriminate.
For most people who seek advice and assistance on legal aid, the process begins with the green form scheme. That is to enable the solicitor to have preliminary discussions with the client, to hear about the problem, to offer initial advice and to discuss how to proceed. It is the very beginning of the quest for redress.
The regulations require that before anything happens at all, the applicant must sign the green form in the presence of the solicitor. So the applicant must be present in person; it cannot be done by post or on the telephone. Therefore if the applicant has difficulties in travelling to the solicitor's office, there is a problem. It can, of course, be overcome if the solicitor is prepared to travel to the applicant's home or to the hospital where he or she is an in-patient. But he will not be able to recover the cost of travelling there, or any recompense for the time spent, because when he incurred the costs the form was not signed. If the applicant is in some remote psychiatric hospital, the costs may be considerable. It may be possible to circumvent the difficulty if the solicitor's firm has a franchise under the franchise scheme, since it can then authorise its own travel costs.
That, however, gives rise to at least two further difficulties. First, the applicant may not be immediately aware of a firm in the area with the appropriate franchise. Disabled people do not always find it easy to visit the town hall or the post office, or to read notice-boards, even if the information is available there. Secondly, the franchise scheme does not apply to a number of areas of law which are of particular concern to disabled people: eligibility for community care services or the law relating to children with special educational needs. Those are subjects that are not within the franchise scheme. The consequence is that the people who provide legal services, the solicitors, do discriminate against disabled people. They may have to begin by imposing a charge on them on a private basis. That is not what they want. They do not want to be able discriminate with impunity. They want not to have to discriminate at all. So, although they are protected presumably under Clause 13(1) (d) of the Bill, that does not solve their difficulty.
Whether or not this amendment would directly address the problem, the disturbing truth is that that law is not open to all alike. There is not that equality before the law of which this country has always boasted. What is needed is for the regulations either to provide for postal applications for green form assistance or to enable non-franchised solicitors to claim the cost of travelling to visit the disabled applicant before the form is signed.
There is one other problem in relation to eligibility for legal aid. People who are in receipt of incapacity benefit are allowed it because that is what they need to cope with the additional cost of living imposed on them by their disablement. It is not to make them rich or to give them some spare cash. Yet, if they are awarded legal aid, when their liability for contributions is calculated, their benefit is taken into account. So the Government give it to them with one hand and then proceed to take it back with the other. I am sure that was not the intention of the Lord Chancellor.
In April 1993, changes were introduced into the regulations to ensure that normally people who were in receipt of income support would qualify for legal aid without a contribution. Those receiving either of the lower tiers of incapacity benefit will normally need to be topped up by income support, so that they will not be required to pay contributions. But those who receive the highest level of benefit—presumably because they need that money to cope with the highest level of difficulties—find that, if they apply for legal aid, much of their benefit is taken away again. It has been calculated that normally it will be a loss of something around £8 a week. The problem is that the legal aid means test takes no account of disability costs.
I am aware that the Lord Chancellor's Department has assured the Law Society that it is considering the matter. But it has been considering it for something like three years. Again, we have a situation in which disabled people encounter discrimination when they seek legal aid and advice and the solicitors who provide it have no choice but to discriminate.
Let me mention briefly two further instances of discrimination. When a child complains of abuse, physical or sexual, a number of practices come into play which have been developed over the past few years as we have learnt more about such matters. The child may be interviewed by skilled social workers. They may make use of facilities for describing what happened, such as pictures and dolls. The police have squads trained in investigating such complaints. The Crown Prosecution Service considers the difficulty of presenting the case and how it might be overcome. The Judicial Studies Board addresses these difficulties and helps judges see how the courts can help. That is if the complainant is a child.
But at present there are no corresponding facilities if the complaint is made not by a child but by a mentally vulnerable adult. I heard the noble Lord at Committee stage explaining that in dealing with mental disorders it is necessary to confine ourselves to identifiable clinical conditions, and I do not seek to go beyond that. But what is important is that the police, the CPS and the courts should not assume too readily that people with mental disability are unable to understand what they are being asked or give a reliable account of what happened to them.
On 5th May this year, there was a seminar held at the Law Society's Hall on mentally vulnerable complainants and witnesses. It was attended by delegates from a wide range of bodies with a great deal of expertise. From their deliberations there emerged a
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report containing 25 recommendations. I have them with me. I hope that the noble Lord has seen the document. If not, I commend it to him and would be happy to supply it to him.
I hope that the noble Lord will not reply that the courts do not provide services for witnesses, so that Clause 12 is not applicable. They are users of the courts. Certainly the Government, in the National Survey of Court Users, designate as users a whole range of people, including journalists, members of the public, jurors and, specifically, witnesses.
I apologise for the length of this contribution but, as I said, this proposal is probably four amendments in one. I come to the last subject of concern. It relates simply to access for disabled people to the courts and tribunals and the facilities which may be found there. Here, I declare an interest. The Council on Tribunals, which I am privileged to chair, produced in 1993 a checklist and code of practice on access for disabled people using tribunals. It deals with provisions such as have been mentioned by some of your Lordships tonight in other contexts: car parking; barriers to access; signposting where it can clearly be seen by those who are partially sighted; impediment-free entries and corridors; doors which can be opened by people on crutches; entry phones accessible to people with wheelchairs. They are examples which are known to most noble Lords here but which are not always present in the mind of busy officials building courthouses. I commend the document to the noble Lord and, if he does not have a copy, I shall be delighted to supply him with one.
The noble Lord may recollect that in the course of the Criminal Justice and Public Order Bill, as it then was, my noble friend Lord Ashley moved an amendment relating to the right of deaf people to participate in the public duty of jury service. He spoke of a judge discharging a deaf juror because he could not hear the evidence. Of course, if he cannot hear the evidence, justice requires that he be discharged. But my noble friend wanted to ensure that judges were aware of the technological provisions available to enable deaf people to hear. Since then the Lord Chancellor's department has sent a circular to courts on those matters, for which I am grateful. But these are topics where judges would benefit from information and guidance.
When questions of discrimination arose against people from minority ethnic groups, the Judicial Studies Board provided seminars which were immensely helpful to judges and recorders. I hope that the JSB will consider whether it is possible to provide similar guidance in relation to disabled people. The Human Awareness Working Party of the JSB discussed at least some of these matters and I hope that, when he replies, the noble Lord will be able to share with the House what the Government are doing.
Those are some of our anxieties. No one believes that they will be addressed simply by incorporating this amendment into the Bill. But whether the Bill can assist in addressing them is a different question. I apologise

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again for the length of this contribution, but I hope the noble Lord is able to tell us something of the Government's thinking on these matters. I beg to move.
11.45 p.m.
Lord Ashley of Stoke: My Lords, my noble and learned friend treated the House to a fine mixture of lawyer's analytical logic and a politician's powers of persuasion. He is an old ally from another place and I hope the Minister took on board the legitimate concerns that he expressed. I warmly welcome his amendment and strongly support it, because it will ensure that all criminal justice agencies will have to ensure equal access and justice for all.
The concept of justice for all is a British birthright, at least in theory. Though it is the subject of many erudite speeches, in practice it is a mirage; justice for all in Britain simply does not exist. Let me take one example; that is, the lack of signing interpreters for deaf people in our courts of law. Some discretionary funds are available, but by definition they are discretionary and so can be withheld. I do not see much of a guarantee of justice with that arrangement. We do not have discretionary prosecutions and we do not have discretionary English language in the courts, so we should not have discretionary funds for interpreters. Without an interpreter some profoundly deaf people can neither follow court proceedings nor contribute to them.
Perhaps I may briefly explain to the House that people speak of "deaf" people, but they range from the slightly hard of hearing to the profoundly or totally deaf. Those people who are born profoundly or totally deaf need a sign-language interpreter, because that is their first language. They are the very people who are denied interpreters in a court of law.
There would be a great howl of outrage if a British citizen was tried in a foreign country in that country's language without an interpreter; but that is precisely what happens in Britain when profoundly deaf people go to a court of law without an interpreter. There is absolutely no point in our claiming justice for all in Britain; it simply does not exist.
Funds for interpreters, if required, should always be available because that is a necessary cost of justice. An interpreter should also be provided for deaf parents if their child, although hearing, is involved in a court case. Otherwise deaf parents are unable to understand what is going on. They have not only a right to know but a responsibility. Failure to provide properly trained interpreters can result in wasted time and money. I am sure that all of us, especially Ministers, do not want that. That happened at the Old Bailey in June of this year. The interpreter made an error and the trial, which cost £1 million, collapsed. Everyone lost in that case. The £1 million could have paid for a good many interpreters. We really must have fully qualified interpreters.
My noble and learned friend mentioned deaf jurors. That became a scandalous situation not simply because a deaf person was denied the right to be a juror but because that woman had computer aided transcription. Like myself, with the wonderful Palantype display I have in front of me, she could follow every word without difficulty. But the judge was biased and
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prejudiced and discriminated against that deaf woman. He said, "No, we are not having you in this court". That is the kind of thing which we simply cannot tolerate. That is why I hope that my noble and learned friend's amendment will be accepted.
I, too, apologise for the length of my contribution but perhaps I may speak briefly to Amendment No. 60 and make two basic points. First, disabled people should not he prevented by their disability from consulting Members of Parliament or councillors, from lobbying them or watching them at work, or having access to the political process. Secondly, they should not be prevented by their disability from becoming elected or appointed. Yet both of those things happen in Britain today.
On the first aspect, when deaf people go to see Members of Parliament—I should know and my noble and learned friend will know as well—there are very rarely loop systems in the MPs' surgeries. There are never interpreters and there are very few minicoms. Therefore, in that sense people are denied the right to talk to their Member of Parliament, which is a ridiculous situation in a democracy. The position is similar for people in wheelchairs. Very few MPs consider access to their surgeries. I was one of the guilty ones. Even while I was chairman of the Parliamentary All-Party Disablement Group I was holding my surgeries in a place with steps. Admittedly, I could not get another place, but I should have fought harder to demand an easily accessible surgery. Very few MPs consider access to their surgeries or provide Braille or large print for the leaflets for their constituents.
There was a recent lobby on the Bill. I hope that the noble Lord, Lord Mackay, and all his colleagues were there. I think that we saw them there, or certainly they know about it. Thousands of disabled people came to press for the passage of a strengthened Bill. No microphone was allowed in Westminster Hall. The Serjeant at Arms and his colleagues were very helpful. They were almost as good as Black Rod and his colleagues are in this place. They were very helpful indeed. But they had to accept what Parliament lays down, and Parliament laid down that no microphones could be used in Westminster Hall. That is a fine situation! Westminster Hall is accessible to wheelchairs but we could not use microphones. Even my rather loud voice could not be heard shouting, so it was a fairly bad situation. Microphones can be used in Westminster's Grand Committee Room, but that is inaccessible to large numbers of wheelchair-bound people. So one cannot win either way. That is the kind of situation that could be dealt with if this amendment were accepted. I am sure that the noble Lord, Lord Mackay, will view it with great sympathy. In this House, or anywhere else where elected representatives meet disabled people, it is not appropriate that rigid rules should be enforced.
I believe that disabled people, especially those who are deaf and blind, have enormous difficulty. Yet, in Britain today, there are no sign language broadcasts on political programmes; there are no election addresses in large print; and there is nothing either on tape or on

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video. There are some sign interpreters at party conferences for a handful of deaf people, but not on television where they could be viewed by thousands.
A few weeks ago I interviewed a Canadian Member of Parliament for a television programme. That man was totally deaf and without speech. However, he had been elected a Member of Parliament. The Canadian Parliament provided four full-time sign interpreters for that man, not only in the House of Commons in Canada, but also in his constituency. That is really remarkable provision. He had Palantype and all the necessary provisions for sub-titling of the proceedings all the time. It makes us look really shabby by comparison. I am not saying that we want the moon. What we really want is a big change in attitude as regards the people in our Parliament and in our councils.
Finally, I have one further question for the Minister. I have read in some learned books about the law—although I have not found this in the law—that people who are "deaf and dumb" are debarred from standing for Parliament. Can the Minister comment on that? Is it the case that deaf and dumb people are debarred from standing for Parliament by statute? My noble friend Lady Hollis shakes her head, and she is a person with whom I do not readily disagree. However, I am not asking for her opinion; I am asking for the Minister's opinion so that the answer is official. We want to know the Government's policy on the issue. Can the Minister kindly tell us whether or not such people can stand for Parliament. In other words, are such highly-related legal textbooks written by distinguished lawyers right or wrong? I apologise for having taken so long. I hope that the Minister will consider my amendment sympathetically.
Lord Addington: My Lords, I support the general direction of the amendments. If the criminal justice service is not included in the Bill, as provided for in the first amendment, it really should be. As mentioned by both speakers, that is one of the basic rights of our society. The amendment tabled in the name of the noble Lord, Lord Ashley, is important, but I am afraid that legal services might just take priority as regards being an essential requirement for living in our society.
Midnight
Lord Mackay of Ardbrecknish: My Lords, the aim of Amendment No. 59, moved by the noble and learned Lord, Lord Archer, is to extend the list of illustrative examples in Clause 13 to include legal services and the services of any court or tribunal, as well as the agencies of the criminal justice system.
Once again, I should like to clarify that Part III of the Bill is about the elimination of discrimination in the provision of goods, facilities and services to members of the public. That statutory right is intended to be drawn widely in order to embrace all services which are provided to members of the public.
The list of examples included in Clause 13(3) is intended as an illustration of how widely the right of access is drawn and is not intended to be exhaustive. There have been a number of attempts in earlier debates
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to have the list of examples extended—and, indeed, to have other such lists extended—to a degree which, I might add, would have increased the size of the Bill even more than it has already grown.
As in the other debates, for two reasons I cannot agree to extend the list to include the amendment. First, the greater the number of examples in the list, the greater the likelihood is that it will be seen as being an exhaustive one, with the consequent risk that certain services will be thought to have been excluded. By adopting a more general approach, we are able to avoid the pitfall of important areas being overlooked.
Secondly, the right of access already applies widely to all services provided to members of the public, including those services provided by government departments and, in this instance, to courts, solicitors and the Legal Aid Board. It therefore follows that the services which the courts, tribunals and agencies of the justice system provide directly to the public are already covered by the Bill. My noble and learned fellow clansman the Lord Chancellor, who is responsible for the provision of court services and for some tribunals, is already taking steps to ensure that those services are accessible to disabled people.
I can assure the noble and learned Lord, Lord Archer, on his question about buildings. My noble and learned friend has a continuing refurbishment programme in which buildings are upgraded as resources and physical constraints allow. This programme includes the provision of improved facilities for disabled people such as ramps, better court layouts and infra-red hearing enhancement systems. For example, the Royal Courts of Justice have recently been upgraded and now include stairlifts which were not previously available.
It is worth mentioning that the majority of courts and tribunals already provide facilities to enable disabled people to participate in hearings. The noble and learned Lord, Lord Archer, drew our attention to the checklist which is available to encourage tribunals to ensure that they keep the needs of disabled people in mind. The position will continue to improve as a result of good practice and as a direct result of this legislation once it is enacted.
The noble and learned Lord, Lord Archer, referred to regulations. I concur with him in the view that the issuing of regulations is not covered by the Bill, but it is not Ministers who approve regulations; Parliament does so and I do not believe that Parliament's right to approve or reject legislation should be fettered in any way. I believe that I am right in saying that no legislation could bind Parliament in that way.
I have been asked about legal aid, the accessibility of the legal aid system and the green form scheme. Solicitors' firms which are part of the Legal Aid Board's franchising scheme have the authority to accept applications for green form by post or by telephone, and to give advice and assistance by post and by telephone in any category of work in which they hold a franchise. The special authority which has been delegated to franchisees is in recognition of the fact that they have met quality standards and have therefore built up trust with the Legal Aid Board. At a time when the green form scheme is known to be vulnerable to abuse by

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some solicitors, it would not be in clients' interests to extend these authorities to firms which have not demonstrated compliance with the board's standards. Over 1,050 solicitors' offices have been granted a franchise and that figure is expected to double over the next 12 months. The number of franchises granted so far represents approximately 27 per cent. of legal aid fund expenditure and that figure is expected to rise to nearer 70 per cent. in the next 12 months. Firms can already be franchised in many categories such as matrimonial, crime, welfare benefits and personal injury. It is planned that firms will be able to obtain franchises in the categories of mental health and education in the near future. I should add that, for those people who are unable to travel, any person with a good reason can authorise someone to go to a solicitor (whether franchised or not) to apply for green form assistance on his or her behalf. This may be useful if a disabled person wishes to seek advice in a category of work in which solicitors cannot yet obtain a franchise.
With regard to financial eligibility for legal aid, I should point out that neither the receipt of sickness benefit nor invalidity benefit allowed for automatic qualification of free legal aid prior to the introduction of incapacity benefit. However, I understand that the Lord Chancellor's Department has undertaken to look at the situation where the requirement to make a contribution towards legal aid by applicants who are in receipt of the higher rate of incapacity benefit would put them at a financial disadvantage compared to those applicants in receipt of income support. I should perhaps add that we are not convinced that significant numbers of people would in fact be affected in this way.
I shall deal now with the question of mentally vulnerable witnesses and the difficulties faced by them. We are very much aware of the problems faced by such witnesses, in particular those with learning difficulties. We are concerned to ensure that they can give evidence in courts with the minimum of trauma. The Home Office has also commissioned research into how the criminal justice system treats people with learning disabilities and the results are expected later this year.
The question of deaf jurors was raised by the noble Lord, Lord Ashley. I should, first, clarify the position. Service as a juror is not covered by Part III of the Bill since that cannot be construed as a service being provided to members of the public. However, I can assure the noble Lord that the improvements the courts are already making and those they will require to make to comply with the Bill will clearly have a knock-on effect for all court users, including jury members. Moreover, Section 41 of the Criminal Justice and Public Order Act 1994, which came into force in February 1995, makes it clear that a disabled person is eligible for jury service, and that the judge should affirm the summons unless, in his opinion, the person is not capable of acting effectively as a juror on account of his disability, in which case the judge should discharge the summons.
I appreciate that the noble Lord's concern relates to profoundly deaf people being able to perform jury service. I am aware that my noble and learned friend the Lord Chancellor has been considering whether it might
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be possible to amend legislation to enable a profoundly deaf juror to take an interpreter into the jury retiring room. However, there are a number of difficulties associated with that, not least the concern that there should be no suggestion of any outside party being able to exert any undue influence over the jury's consideration. Because of those difficulties, and the principle That a defendant's needs must be paramount and given paramount consideration, the Lord Chancellor has decided that it would not be practical to pursue such a change to the legislation at the present time.
The noble and learned Lord, Lord Archer, asked me whether witnesses would be classed as receiving a service. The fact that witnesses are classed as users of the court services does not mean that they are receiving a service within the meaning of the Bill. However, as I said with regard to jurors, the measures to provide access to defendants and other people using the courts as a service should also have a knock-on beneficial effect for witnesses.
I shall turn to some of the points made by the noble Lord, Lord Ashley, about his Amendment No. 60. If I followed him aright, we were talking about MPs, how they are covered by the Bill, and whether they provide a service which would be consistent with the Bill. The Bill's provisions cover all those providing services to the public. I can confirm that MPs provide services to the public.
Noble Lords: Oh!
Lord Mackay of Ardbrecknish: My Lords, I thought that might bring forward some reaction from your Lordships. That means that MPs must take reasonable steps to make themselves accessible to disabled constituents. However, an MP who visits a constituent in his own home would probably be providing a reasonable alternative to making his surgery accessible. I suspect that most MPs visit people in their own homes if they are unable to go to the surgery for any reason. I believe that answers that point.
As regards the interesting question of whether there is provision on the statute book which prevents deaf and dumb people standing for Parliament, I have to be careful because I do not know of any such statute. If the noble Lord does, I should be more than interested to see it. We do not know whether such a statute exists and I should prefer to have it drawn to my attention before giving any judgments, so to speak, on such a weighty matter.
I hope that I have not spoken for too long. Clearly, both noble Lords who introduced the amendments asked a considerable number of questions. I hope that I have answered most of them. I have also written to the noble and learned Lord, Lord Archer, and I hope that between the letter and my remarks I have responded to his points sufficiently for him to withdraw his amendment and for the noble Lord, Lord Ashley, to refrain from moving his.
Lord Ashley of Stoke: My Lords, I thank the Minister for that response. My noble and learned friend and I would have liked him to go further but we shall return to the points at a later date. In the meantime, I shall not move my amendment and my noble and learned friend will tell the House what he intends to do.
Lord Archer of Sandwell: My Lords, I am sorry that I confused my noble friend. It will not surprise your Lordships to know that I propose to ask leave to withdraw my amendment but I did not wish to do so before my noble friend had had an opportunity of saying what he wished.
This is not the time to reply in detail to all that the Minister said. It may be that when he reads what I said he will appreciate that not everything in his brief was totally unknown to me. I too mentioned that this merely added to the list of examples. However, I ventured to say that, in parliamentary draftsmanship, as a matter of wisdom it is a general rule that if you mean it there is something to be said for saying it expressly.
I was of course aware of the provisions made by the noble and learned Lord the Lord Chancellor in relation to court premises. However, before we become too smug, the Minister should visit some of the premises which we on the Council of Tribunals have to visit. There are 70 different systems of tribunals in this country, covering almost every human activity that one can imagine. Most of them have tribunals in most urban centres and there are quite a few rural ones. The Minister said that most of them now have adequate provision for disabled people. I should be happy on some occasion to show him some of them.
I was grateful to hear the Minister's comments about the green form scheme. This is not the time to go into the details of the matter but I shall take it away and look at it. I was also grateful for his comments about contributions for those who have been awarded legal aid. He said that the Lord Chancellor's Department is considering that, but I must point out that, as I said in my opening remarks, it has been considering it for some three years. I had hoped that the Minister would give us an idea of how much longer we must wait.
I promise that I shall read carefully what the Minister said. In return I ask only that he reads carefully what my noble friend and I have said. Perhaps at an hour when we are all a little fresher and we have all had time to reflect on these matters we might consider them further. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 60 not moved.]
[Amendments Nos. 61 to 64 not moved.]
Clause 14 [Meaning of "discrimination"]:
Lord Henley Lord Henley moved Amendments Nos. 65 to 67:
Page 11, line 33, leave out from ("treat") to ("cannot"), in line 35 and insert ("others to whom that reason does not or would not apply; and
(b) he").
Page 11, line 36, leave out ("under section 15").
Page 11, line 37, leave out subsections (2) and (3) and insert:
("(2) For the purposes of section 13, a provider of services also discriminates against a disabled person if—

(a) he fails to comply with' a section 16 duty imposed on him in relation to the disabled person; and

(b) he cannot show that his failure to comply with that duty is justified.

(3) For the purposes of this section, treatment is justified only if—

(a) in the opinion of the provider of services, one or more of the conditions mentioned in subsection (4) are satisfied; and

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(b) it is reasonable, in all the circumstances of the case, for him to hold that opinion.

(4) The conditions are that—

(a) in any case, the treatment is necessary in order not to endanger the health or safety of any person (which may include that of the disabled person);

(b) in any case, the disabled person is incapable of entering into an enforceable agreement, or of giving an informed consent, and for that reason the treatment is reasonable in that case;

(c) in a case falling within section 13(1) (a), the treatment is necessary because the provider of services would otherwise be unable to provide the service to members of the public;

(d) in a case falling within section 13(1) (c) or (d), the treatment is necessary in order for the provider of services to be able to provide the service to the disabled person or to other members of the public;

(e) in a case falling within section 13(1) (d), the difference in the terms on which the service is provided to the disabled person and those on which it is provided to other members of the public reflects the greater cost to the provider of services in providing the service to the disabled person.

(5) Any increase in the cost of providing a service to a disabled person which results from compliance by a provider of services with a section 16 duty shall be disregarded for the purposes of subsection (4) (e).
(6) Regulations may make provision, for purposes of this section, as to circumstances in which the condition mentioned in subsection (3) (a), or that mentioned in subsection (3) (b)—

(a) is to be taken to be satisfied;

(b) is to be taken not to be satisfied.

(7) Regulations may make provision, for purposes of this section, as to circumstances (other than those mentioned in subsection (4)) in which treatment is to be taken to be justified.
(8) In this section "section 16 duty" means any duty imposed by or under section 16.
(9) In subsections (3), (4) and (7) "treatment" includes failure to comply with a section 16 duty.").
The noble Lord said: My Lords, I spoke to these amendments when moving Amendment No. 10. I beg to move.
On Question, amendments agreed to.
Clause 15 [Circumstances in which less favourable treatment is justified]:
[Amendment No. 68 not moved.]
Lord Henley Lord Henley moved Amendment No. 69:
Leave out Clause 15.
The noble Lord said: My Lords, I spoke to this amendment when I moved Amendment No. 10. I beg to move.
On Question, amendment agreed to.
Clause 16 [Duty of providers of services to make adjustments]:
12.15 a.m.
Lord Swinfen Lord Swinfen moved Amendment No. 70:
Page 12, line 45, leave out from ("which") to ("which") in line 46 and insert ("has an adverse effect on a disabled person's enjoyment of, or participation in, a service").
The noble Lord said: My Lords, from what was said in Committee, I gather that the Government remain unpersuaded as to the need for an authoritative disability council. That will mean that it will depend entirely on the disabled individual to test the legislation through the courts.
In court, the disabled person must overcome two hurdles: first, he must establish that discrimination has occurred; and, secondly, he must prove that the service provider has not taken steps which are reasonable in all the circumstances of the case to remove discrimination. That second hurdle is of itself difficult to surmount, dependent as it is on many factors which are particular to the service, the time and the place and the cost cap.
In addition, to establish that discrimination has occurred, the disabled person must demonstrate that it is impossible or unreasonably difficult to use the service. How will that be measured? Even in the most clear-cut situations where there are physical obstacles to access, the service provider could quite easily argue that access was not impossible or unreasonably difficult. For example, he may argue that porters could be made available to manhandle a wheelchair user up flights of stairs or that a disabled person could be redirected to a back alley to use the service entrance. Those strategies make access possible and perhaps not unreasonably difficult. I was going to read a letter from a well-known bank to one of its customer which said that it was far too expensive to lower the steps so that she could get into the bank. Therefore, she still has to conduct all her business on the pavement.
We should be looking for a duty for service providers to take steps which will afford disabled people the same dignity and respect as any other customer might expect. The amendment states:
"has an adverse effect on a disabled person's enjoyment of, or participation in, a service".
That conveys a more positive message to service providers and the courts and it lowers one of the hurdles which a complainant must overcome. I beg to move.
Lord Monson: My Lords, I have some sympathy for the idea behind the amendment but I believe that, as it is drafted, it is rather too sweeping. I suggest that it would be much more acceptable if the word "adverse" were to be qualified by an adverb such as "seriously", "substantially" or "markedly".
The problem here, as elsewhere in the Bill, lies in the interpretation of the word "reasonable". After all, "reasonable" means a hundred different things to a hundred different people. Let us take, for example, the case of a restaurant which spreads over two or three floors. One can think of a dozen such restaurants in London alone. The food served is identical wherever you happen to eat in the restaurant and the prices charged for the food are' also the same. A disabled gentleman rings up and says that he would like to book a table on the first floor, or possibly in the basement, but that he will need assistance because he walks with two sticks. He can just about manage steps provided that there are two people to help him. The manager says, "I am extremely sorry, sir, but we are extremely busy and I cannot take two waiters from their other duties to help you up the stairs at the beginning and end of your meal, but you can have an excellent table on the ground floor and I am sure that you will be very happy there".
The would-be customer says, "There is absolutely no question of this; I found the decor on the ground floor quite repulsive. I cannot stand the colour you have painted your walls. It has got to be the first floor or the
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basement or nothing". The manager says, "Well, in that case I am afraid there is nothing I can do about it". If the case goes to court, it is probable that the court will find that the manager had behaved not unreasonably in the circumstances, but perverse decisions do occur and he or she cannot ever be entirely certain about that. The worry will be there. If, however, the word "adverse" were to be qualified by some word such as I have suggested, for example "seriously" or "markedly", I believe that would improve the situation and make it more acceptable. That is a suggestion I put to the noble Lord.
Lord Mackay of Ardbrecknish: My Lords, I have listened carefully to the reasons why my noble friend has felt that an amendment of this nature is necessary. I hope, if I can, to be able to persuade him that his concerns are already catered for by the Bill as it stands. The distinction between my noble friend's approach and our own is a subtle one and your Lordships will need to bear with me as I try to set out the Government's position.
My noble friend's amendment seeks to wrap up two concerns in a single proposition: the first is that service providers should seek to make their services accessible to disabled people, and the second, that the service in question should not be offered at a lower standard. I quite recognise that there is a degree of overlap between the two requirements. But, in my view, the Bill as currently drafted deals with them in a better way by dealing with them distinctly in two separate clauses.
Clause 16 is primarily concerned with the extent to which services are accessible. Clause 16(1), which this amendment seeks to alter, puts a duty on a service provider to change a policy, practice or procedure which has the effect of making his service inaccessible to disabled people. So, for example, a restauranteur would have to waive a "no dogs" policy if it meant that his premises were inaccessible to a blind person with a guide dog.
I can assure my noble friend that his concern that the Government's test of discrimination is insufficiently tough on service providers is unwarranted. Service providers will not be able to get away with treating disabled people without the same dignity and respect as any other customer. If, for example, a café proprietor does have to change a "no dogs" rule it will not be good enough for him to suggest that he is happy to see the animal tied up outside with a bowl of water!
I can also assure my noble friend that, in this context, the term "service" includes the concept of service as far as possible to the same standard as that received by other people. There is no question of service providers being able to get away with providing access to a lower standard than normal unless there are inescapable reasons. This applies to all of the duties in Clause 16. For instance, under Clause 16(2), a cinema will have to make reasonable provision to allow wheelchair users a degree of choice as to where they sit. But all the seats in the cinema would not have to be movable to leave space for a wheelchair. Of course, this means that the wheelchair user would have less choice than other customers and thus receive a lower standard of service.

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The requirement, however, is to provide access to a service as close as it is reasonably possible to get to the standard normally offered.
A further illustration might help to clarify what this means for Clause 16(1). The dining area of a particular café may occupy two rooms. In one, where 80 per cent. of the tables are accommodated, the management are happy to admit guide dogs, but in the other room, where diners are entertained by a pianist, a ban on dogs is applied. In this circumstance, it will not be good enough for the proprietor to suggest that, because a blind person is able to use 80 per cent. of the café, the service is reasonably accessible. He must consider a reasonable adjustment so that the disabled person can use the service to the full. However, as I prefer to eat my meals without the accompaniment of music, I would volunteer to sit in the 80 per cent. of the restaurant without the music.
A different issue arises where nothing has to be done to make the service accessible but the disabled customer needs to be protected against poor quality service. To return to the café again, it might be that all of the tables are now accessible but the proprietor has decided that he does not want to encourage them to become regular customers because he feels they will make his other clientele feel uncomfortable. That example is not as unlikely as it may sound. There is evidence that that kind of thing goes on, as some of your Lordships will be aware. He therefore makes sure that his disabled customers are made well aware that they are not welcome—ushering them to the least desirable tables, making sure that they have to wait a while to be served, and generally adopting a surly attitude.
Here again, I can assure my noble friend that service providers will certainly not be able to get away with that sort of treatment. But it is not Clause 156 to which a disabled person can look for protection but to Clause 13. Here it states that:
"It is unlawful for a provider of services to discriminate against a disabled person … in the standard of service which he provides to the disabled person or the manner in which he provides it to him".
Bearing in mind that discrimination consists of less favourable treatment for a reason related to a person's disability, your Lordships can be reassured that a disabled person's enjoyment of a service will not be able to be adversely affected by conduct of that kind.
I have gone on at some length, but I hope that I have been able to persuade my noble friend that there is a distinction to be drawn between two different varieties of discrimination which I believe the amendment would obscure. I am content that the Bill already protects disabled people as comprehensively as my noble friend would wish. In view of my explanation of how the Bill does that, perhaps he will consider withdrawing his amendment.
Lord Swinfen: My Lords, I thank the noble Lord, Lord Monson, for his suggestion that the word "adverse" should have a suitable adjective tied to it. He is probably right.
With regard to what my noble friend said, he spoke for some time and at this time of night my brain is moving more slowly than its normal snail-like pace. I
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would therefore like to read what he had to say with a view, if necessary, to coming back to the matter at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lucas Lord Lucas moved Amendment No. 71:
Page 14, line 14, at end insert:
("( ) This section imposes duties only for the purpose of determining whether a provider of services has discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such.").
The noble Lord said: My Lords, the amendment was spoken to earlier with Amendment No. 10. I beg to move.
On Question, amendment agreed to.
[Amendment No. 72 not moved.]
Lord Ashley of Stoke Lord Ashley of Stoke moved Amendment No. 73:
After Clause 16, insert the following new clause:
("Television broadcasts: subtitling for the deaf
—(1) The Broadcasting Act 1990 shall be amended as follows.
(2) In section 35 (subtitling for the deaf)—

(a) In subsection (3) (a) (ii), for ", the greatest number of hours in a week that appears to the Commission to be reasonably practicable" substitute "such numbers of hours in a week as the Commission shall determine in order to achieve 100 per cent of programme hours by the year 2010";

(b) in subsection (3) (b), for paragraph (ii) substitute—

"(ii) for the year which includes the tenth anniversary of the date of the commencement of the provision of Channel 5, 100 per cent of programme hours.".").

The noble Lord said: My Lords, I began speaking in these debates on an intervention. This is the last speech I shall make this evening. I see smiles all round the Chamber!
I am delighted that the noble Lord, Lord Henley, is taking part in these debates again. That sentiment will be echoed all round the Chamber.
The purpose of the proposed new clause is to establish a timescale for the coverage of all television programmes. Subtitling is crucial for totally deaf and profoundly deaf people, because without it television is meaningless. That is a deeply regrettable form of discrimination. With specially adapted sets, and given subtitling, totally deaf and profoundly deaf people can participate fully in this most powerful medium of information and entertainment.
Great progress has already been made, and deaf people and those who are hard of hearing appreciate it. Nevertheless, if we are not to discriminate against them in access to television all programmes should be subtitled.
The proposed new clause lays an obligation on the ITC, but it is in no way critical of the ITC. I pay tribute to the work of Mr. David Glencross and his colleagues at the ITC as they have been vigilant, understanding and helpful. However, they can only operate within the remit laid down by Parliament. That is why I have tabled this new clause. Although the new clause only deals with subtitling, I hope that the Government will think hard about the needs of deaf people whose first language is sign language.
One programme per channel per day should be produced for them and some general programmes should also be covered by sign language. That would be one small step forward. The Government should remember that sign language is the fourth indigenous language in the United Kingdom: after English comes Welsh, then Gaelic, with sign language not far behind. The Government subsidise channels with Welsh and Gaelic programmes. Therefore at the very least they should help with some signed programmes.
Finally, the pattern of broadcasting is changing steadily, with satellites and cable competing with terrestrial television. I recognise that there may be difficulties with satellite programmes beamed from other countries. However, the Government should examine the position with the television under their control or where they have an influence.
For the reasons that we have subtitling of our terrestrial television, so we should have it with cable and satellite. In addition, it is important to ensure fair competition for all competitors: they should all have the same subtitling regulation.
In his response will the Minister tell us about the European situation? Have the Government made any representations to other European countries regarding subtitling targets? I beg to move.
Baroness Darcy (de Knayth): My Lords, I support the amendment and the remarks of the noble Lord on the importance of the British sign language. I associate myself, too, with his remarks about David Glencross and the ITC.
12.30 a.m.
Lord Mackay of Ardbrecknish: My Lords, the amendment seeks to set target dates by which the Channel 3 and Channel 5 licence holders would be required to achieved 100 per cent. subtitling for deaf people of their television programmes. I recognise that subtitling is clearly important for many viewers who are deaf or hard of hearing and it should be encouraged. I hope that I can offer some assurances on this matter to your Lordships. I have to say that just because those people will be able to hear the programme, it will not necessarily change it from being meaningless. Although I do not see much television, when I do, so much of the content seems pretty meaningless. However, that is a little aside as a television critic for this evening.
First, I confirm that broadcasting is covered by the Bill since it is a service which is provided to members of the public. Providers of broadcasting services will therefore be under the same duties under Part III of the Bill as all other service providers to ensure that they take reasonable steps to make broadcasting services accessible to disabled people.
We must bear in mind the excellent legislation which already exists in this area in the Broadcasting Act. The Government believe that better progress can be made by working with the grain of existing legislation to achieve improvements for disabled people in the field of broadcasting.
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We have made provision for specific targets for both Channel 3 and Channel 5. The Broadcasting Act 1990 sets a target of 50 per cent. of subtitling of programmes by 1998 for Channel 3 programmes and by the fifth anniversary of the commencement of the service for Channel 5 programmes. Thereafter it is for the Independent Television Commission to determine the greatest number of hours per week which it judges is reasonably practicable.
There is no specific requirement on the BBC to provide subtitling. However, the BBC accepts that it has a responsibility to do so as part of its general public service objectives. In practice, the proportion of programmes subtitled on the BBC is in excess of that required of commercial broadcasters.
Progress is already being made. For 1994, the commission set a target of 27 per cent. of subtitling of programmes and all the Channel 3 licensees met this. The target for 1995 is 31.5 per cent. The Channel 5 licence has not yet been awarded.
A target date for total coverage clearly has its attractions, and the Government considered this during the passage of the Broadcasting Act. However, as I said earlier this evening, we need to be realistic. We should remember that full coverage would include live unscripted material, news flashes, football matches, panel discussions and so on. Subtitling might be easier said than done. There might also be legal difficulties for the licence holders if, for example, subtitling were omitted from just one programme.
We also have to consider that subtitling involves licensees in extra work and additional costs. One must bear in mind that, as the proportion of subtitling increases above the 50 per cent. figure, it is likely to have higher cost implications, chiefly because it will bring into the frame programmes which are live and for which subtitling is more difficult to provide such as news, current affairs programmes and sport. Many sports commentators appear to want to speak so fast that I sometimes find it difficult to make them out. The holders of licences bid for them on carefully costed plans, taking into account the statutory requirements placed upon them. It would be difficult now to change the ground rules.
The Broadcasting Act aims to ensure that the obligation on subtitling continues after 1998. Therefore, after the 50 per cent. target is reached, it gives the ITC discretion to set targets thereafter which are reasonably practicable. This does not rule out achieving a much higher target than 50 per cent., and advances in technology may aid that. The advent of digital technology may open up prospects for the further provision of subtitling services.
The noble Lord asked me about Europe, and when considering it one thinks of satellite television and all the other things coming along like the Internet. They are opening up worldwide communication far beyond what we have with our four, nearly five, terrestrial channels. The same problem arises with them as with the manufacture of goods. The services are international. Therefore, quite rightly, we cannot impose the laws

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which we may or may not wish to pass in this country on the international community and international communicators. That is a much wider field.
As regards Europe and European standards, I am afraid I cannot answer the noble Lord's point this evening, but I shall look into it. I suspect that we may well be ahead of the game on that aspect. From what I see when I am abroad, television there does not provide any of the facilities that I see from time to time on my own television screen.
I hope that with that explanation of the position and the progress that has been made, and with a bit of enthusiasm from myself to encourage progress, the noble Lord can withdraw his amendment.
Lord Ashley of Stoke: My Lords, last Sunday I visited my grandchildren, one six years old and one three. They explained to me what a CD-ROM and a mouse were. I felt rather old-fashioned. I have the feeling this evening that the Minister is revealing himself as being old-fashioned because he said that if we had 100 per cent. subtitling it would mean that news flashes and unscripted programmes should be subtitled. With modern methods of subtitling, that is a piece of cake. Just as a child can use a CD-ROM with a mouse and the rest of it, so people in broadcasting can subtitle anything within one-and-a-half seconds, whether it is unscripted or news or whatever. So the Minister should not reveal himself as being old-fashioned, as he did. That is a fact. I suggest he watches any BBC programme which is high quality, with unscripted interviews, tomorrow night at six o'clock or nine o'clock, and then I shall accept his apology.
The Minister mentioned the cost of subtitling for all programmes. I am afraid that there is a cost, but it is necessary. I am speaking only for profoundly deaf people now, but the alternative is for them to be denied television, and that is discrimination. This cost should, and must, be met in order to do justice to the very small minority of deaf people. It is done in other countries. There is absolutely no reason why it cannot be done here. Why must we always find excuses for lagging behind, not being able to do this, not being able to do that?
The Act to which the Minister referred is very limited indeed. It speaks of 50 per cent. This new clause speaks of 100 per cent., and that is the difference. We want subtitling, but we want signing as well, for the even smaller minority who rely, upon sign language. I hope that the Minister will reconsider his reply. I shall return to this subject; I am laying down a marker. In the meantime, I thank the Minister for his reply, and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Rix Lord Rix moved Amendment No. 74:
Before Clause 18, insert the following new clause:
("Requirements as to consultation in respect of community care developments
. The Secretary of State shall issue guidelines on good practice in establishing homes and other resources for people with disabilities in the community which shall include guidance on—

(a) the extent of the information to be provided to neighbours and other interested parties in order to accord with the principles of this Act; and

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(b) the rights of intended residents or of users of services as to the disclosure of personal details to third parties.").

The noble Lord said: My Lords, in view of the lateness of the hour, I hope that noble Lords will forgive me if I take only a couple of minutes to move Amendment No. 74. It touches on a new subject for this time of night, "nimbyism"—not in my back yard.
Very few of us have been so fortunate, or unfortunate, as never to have moved house. I think I am safe in assuming that, while we may on occasions have looked the neighbours up and down to see whether we want to live next door to them, none of us has invited the neighbours to look us up and down to decide whether they wanted us living next door to them as well.
People with learning disabilities, however—and I speak only for them, recognising that exactly the same applies to people with other disabilities—commonly have little choice as to where they live, but are by convention exposed to a process of public consultation which gives others the chance, and indeed the encouragement, to object to their living in the same street. Parliamentary commissioners have been known to criticise those developing homes in the community for not consulting the neighbours. Minister have not to my knowledge ever criticised this requirement and this practice. Although there is no legal basis for it, it has come to be commonly accepted—though not, I am glad to say, universally adopted.
I do not complain about the normal process of planning applications under which, where a property is to have bits added or taken away, the aesthetics are quite rightly exposed to public scrutiny. I am raising questions about the additional consultation which often takes place in advance of planning applications. It seems to me that if a family with a large number of teenage children, each cherishing a ghetto-blaster and a motorbike, is building a house or moving in, no additional consultation is required; whereas if a group of quiet, middle-aged people with learning disabilities moves in, there may be public meetings, door-to-door questionnaires and so on. Indeed, I am sure that noble Lords would like to know that in the Surrey Comet only two weeks ago there was a headline about housing in Hampton:
"Psychiatric patients move from hospital into supported home: despair at plans for rehousing".
Noble Lords will see, therefore, that it is very much a current subject.
I definitely challenge what I regard as the wholly unjustified convention, encouraged by those who ought to know better, of knocking on doors and saying, "Would you mind if Miss Smith moves in next door? Miss Smith has a learning disability". I regard that as grotesque discrimination and entirely contrary to the principles of this legislation.
MENCAP and other similar organisations have had the painful experience of public meetings and individual consultations which provide a platform for the nastier elements of the local community to scare the rest into believing that the character of the local community is to be destroyed forever. Sometimes the head of steam is such that project managers or local councillors take fright and people lose the home into which they might

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have moved. In other words, it is about real life discrimination, which in turn leads on to, and indeed invites, further discrimination. I beg to move.
Baroness Darcy (de Knayth): My Lords, as my name is to this amendment perhaps I may say very briefly that I support it most warmly, but in view of the lateness of the hour and the clear explanation that my noble friend has already given, I shall say no more.
12.45 a.m.
Lord Astor of Hever: My Lords, I also should like to support the noble Lord, Lord Rix, who has spoken eloquently on what is a real problem. Despite the fact that the great majority of people with learning disability have always lived with their families in the community, there is a popular impression that they used to live in large hospitals and are now being dumped in the community as a result of a change in government policy. That impression is reinforced by a process which, as the noble Lord pointed out, involves asking neighbours whether they mind if someone with a learning disability lives next to them.
Change of use requirements are less onerous than they used to be but still raise questions about residents' rights. However, a parliamentary commissioner has, in the past, gone beyond that in commending consultation with neighbours as good and required practice. Consultation implies that if neighbours do not like it, it will not happen. It is not surprising that neighbours, given a power in relation to neighbours with learning disabilities that they do not enjoy in relation to any other neighbours, both anticipate problems and take the opportunity to object. Even a hostile minority can doom a project to failure.
Earl Russell: My Lords, I do not suppose that the Minister will accept this amendment. But he would save himself an awful lot of trouble if he did.
Lord Mackay of Ardbrecknish: My Lords, let me first welcome the noble Earl, Lord Russell. I thought that my day was going to be totally incomplete, but there you are!
I turn to the amendment of the noble Lord, Lord Rix. I appreciate the concern which has led him to table this amendment. It seeks to offer some protection to disabled people moving into the community. I hope that I shall be able to alleviate his fears sufficiently to enable him to withdraw the amendment.
The Government's policy on development control recognises the right of local residents to have their say about planning applications in their neighbourhood. Indeed, as my noble friend said, that is even encouraged. Both statutory and non-statutory bodies which are responsible for planning such facilities are encouraged to involve potential neighbours and take account of their views. But we have made it abundantly clear that a council cannot reject a proposal simply because a lot of people are against it. Opposition to a proposal simply does not count unless it is founded upon valid planning reasons which can be substantiated, including such things as parking and traffic problems. The effect that a development might have on property values, for
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example, is not a planning issue. Indeed, the planning authorities' own representatives at the National Development Forum said:
"Care must be taken to see that it is the matters of general community interest that are given weight in decision-making, not those private, narrow or sectional interests which many organisations or individuals with a particular perception are inclined to express on their behalf".
That advice is relevant to comments made by local residents after an application has been made. But it applies with even greater force to comments made in ignorance of the specific project in question.
If a planning application is refused by a local planning authority, the applicant has a right of appeal to the Secretary of State for the Environment. A council that has refused an application just because of local prejudice can have no doubt that the Secretary of State will not support it. The council will have wasted public money on rejecting a proposal that it should have allowed. It may even have to pay the appellant's costs if the appeal is decided by public inquiry.
All that is familiar ground to local planning authorities, both officers and members. That being so, we do not believe that the guidance proposed in the amendment is necessary. But I hope that my firm restatement of the policy will in fact be of assistance. I hope that, in the light of my firm restatement, the noble Lord, Lord Rix, will feel that he can withdraw his amendment.
Lord Rix: My Lords, I am grateful to the Minister for his assurances. I regret that they have fallen on slightly deaf ears because, in spite of his assurances, I know that this "NIMBYism" goes on in a number of places throughout the country. For instance, recently a group of people clubbed together to buy a house, but people with learning disabilities were not allowed to move in. It may be said that those were market forces. They were not; they were motivated purely by the total dislike of having people with learning disabilities move in next door.
I recognise that it may be tactful to consult neighbours, but it is demeaning for those moving in to be labelled and have to apologise for moving into the neighbourhood. Only two weeks ago it was said,
"A lot of us in this street have very young children. The last thing I want to do is tell my kids not to go near these people… A lot of elderly people living around here are suddenly feeling extremely threatened".
That is not exceptional; that is commonplace. I cannot accept the Minister's assurance that that is not happening. Obviously I shall not divide the House at this hour of the night, but I shall to continue this discussion, perhaps with his department during the Recess, and hope that we can come to some accommodation, if only in codes of practice or something of that nature. I feel that we must continue this discussion into the Third Reading of the Bill, but in the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 19 [Meaning of "discrimination"]:
Lord Henley Lord Henley moved Amendments Nos. 75 to 78:
Page 16, line 14, after ("person") insert ("("A")").
Page 16, line 18, leave out ("who do not have the disability") and insert ("to whom that reason does not or would not apply").
Page 16, line 19, leave out ("under section 20").
Page 16, line 20, at end insert:
("(2) For the purposes of this section, treatment is justified only if—

(a) in A's opinion, one or more of the conditions mentioned in subsection (3) are satisfied; and

(b) it is reasonable, in all the circumstances of the case, for him to hold that opinion.

(3) The conditions are that—

(a) in any case, the treatment is necessary in order not to endanger the health or safety of any person (which may include that of the disabled person);

(b) in any case, the disabled person is incapable of entering into an enforceable agreement, or of giving an informed consent, and for that reason the treatment is reasonable in that case;

(c) in a case falling within section 17(3) (a), the treatment is necessary in order for the disabled person or the occupiers of other premises forming part of the building to make use of the benefit or facility;

(d) in a case falling within section 17(3) (b), the treatment is necessary in order for the occupiers of other premises forming part of the building to make use of the benefit or facility;

(4) Regulations may make provision, for purposes of this section, as to circumstances in which the condition mentioned in subsection (2) (a), or that mentioned in subsection (2) (b)—

(a) is to be taken not to be satisfied;

(b) is to be taken not to be satisfied.

(5) Regulations may make provision, for purposes of this section, as to circumstances (other than those mentioned in subsection (3)) in which treatment is to be taken to be justified.").
The noble Lord said: My Lords, I spoke to these amendments with Amendment No. 10. With the leave of the House, I shall move them en bloc. I beg to move.
On Question, amendments agreed to.
Clause 20 [Circumstances in which less favourable treatment is justified]:
[Amendment No. 79 not moved.]
Lord Henley Lord Henley moved Amendment No. 80;
Leave out Clause 20.
The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 10. I beg to move.
On Question, amendment agreed to.
Clause 23 [Advice and assistance]:
Baroness O'Cathain Baroness O'Cathain moved Amendment No. 81:
Page 17, line 39, leave out subsection (1) and insert:
("( ) The Secretary of State' shall make arrangements for the provision of independent advice and conciliation services to parties to disputes arising under this Part with a view to promoting the settlement of such disputes otherwise than by recourse to the courts.").
The noble Baroness said: My Lords, this amendment seeks to make provision for an independent advice and conciliation service to be even-handed. In the explanatory memorandum to the original Bill which was brought to the House before Committee stage, it was stated:
"Clause 22 provides for the establishment of a conciliation service to provide advice and support to individuals alleging discrimination under Part III, in order to promote the settlement of disputes".
There is no mention of a conciliation service on the face of the Bill under goods and services. Surely it is equally important for an independent conciliation
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service, akin to that provided by ACAS on employment issues, to be available for all parties on access issues to help weak claims and encourage settlements without recourse to the courts. I beg to move.
Lord Mackay of Ardbrecknish: My Lords, my noble friend's amendment provides that the Secretary of State shall make arrangements for independent advice and conciliation. As she explained, she has her own views on how advice may best be provided and clearly she is looking to the service to provide not just advice, but also conciliation.
I am concerned that my noble friend's amendment might make the operation of the service we have in mind more difficult. As it is presently drafted, Clause 23 provides that the Secretary of State shall make arrangements for advice and assistance, rather than conciliation. We are concerned that the strict neutrality implied by the term "conciliation" might be an unrealistic and unacceptable imposition on the type of service we intend to set in place.
We will ensure that disabled people have access to information about their rights under this legislation and can obtain advice and assistance if they feel that they have been discriminated against. However, we recognise that a disabled person may often be the more vulnerable party in a dispute arising under the right of access and we are committed to ensuring that disabled people can secure their rights. That is why we provided, in Clause 23, for advice and assistance, rather than strictly neutral conciliation, to be available. We hope that the provision of advice and support will help to empower disabled people to gain the benefits of their new rights. We intend to ensure that advice and support are provided in the most practical and sensible way and we are keen to learn from the experience of existing networks so that we may be better able to plan the way forward.
My noble friend is looking to this service to do something a little different from that which we are looking to it to do. As I have said, we do not see it as necessarily having as its main role conciliation, because that involves neutrality. Of course we hope that in many cases its assistance will amount to conciliation between the disabled person and the provider of goods and services in order to find a way forward to resolve the dispute. But I do not think that we want to give it the flavour, which conciliation would give to it, of being neutral when it comes to, looking at the problem. We want the body to feel that it is there to assist the disabled person and, therefore, without reading too much into my words, that it is batting slightly more in favour of the disabled person, is trying to find a way round the problem, is trying to find an accommodation and is assisting in the search for that accommodation. With that explanation of why we have gone down the road that we have gone down, and why I am reluctant to take on board the use of the word "conciliation", I hope that my noble friend will feel able to withdraw her amendment.
Baroness O'Cathain: My Lords, I thank my noble friend the Minister for giving that explanation. The word "conciliation" was included in the explanatory memorandum but now the Minister has changed his

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mind. However, in view of the fact that it is five minutes to one in the morning and in view of the fact that he said quite a lot and I was not really concentrating on it too hard, I shall withdraw the amendment. I shall read what he said. I want to ensure that the provision of the services which he envisages will be evenhanded. There is a feeling that perhaps different types of conciliation or advice could be given which would mean that it was not. With that warning, so to speak, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 82 not moved.]
Clause 25 [Further and higher education of disabled persons]:
Earl Russell Earl Russell moved Amendment No. 83:
Page 20, line 3, after ("of) insert ("physical or other support").
The noble Earl said: My Lords, I thank the Minister for his welcome and I should like to extend a welcome to the noble Lord, Lord Henley, who I am very glad to see joining us on this Bill. In moving Amendment No. 83 I should like to speak also to Amendment No. 86, which is the Scottish version and is otherwise identical. In any matter involving higher education, I must declare an interest.
We discussed this matter in Committee. I was entirely satisfied with what the Minister said then. In fact, I was so satisfied that I threw away all the papers. I thought the business was finished. So I can claim to have added a new meaning to the phrase "Pride goeth before a fall". But after that I received a letter from the Minister written, I think, on advice from within the Department for Education on 5th July. I am not sure whether it was the Department for Education or whether it had already become the Department for Education and Employment. Having given me an assurance in Committee that the facilities referred to in the Government's Bill related only to physical facilities, he told me in that letter:
"For the avoidance of doubt, in referring to physical facilities, it was not my intention to imply that the statements would deal only with physical facilities".
That may have been done for the avoidance of doubt, but it has in fact led to the creation of doubt.
I should explain that what we are dealing with here are disability statements which universities are to be required to supply under the Bill. Clause 26(6) says that such statements should contain,
"information of a specified description about the provision of facilities for education and research made by the institution in respect of persons who are disabled persons".
There is one aspect that has always concerned the universities in this respect. We are perfectly happy to provide any information about physical facilities, support services and so on. However, what we are not as happy with is the detailed investigation into curriculum matters, possibly leading to pressure to change course content.
I understand the point made in the Minister's letter of 5th July, but support services may not necessarily be physical. For example, if someone reads to a blind man, is that a physical facility? I can understand that a court might amuse itself on that point. Therefore, I propose the insertion of the words, "physical or other" support
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facilities. I hope that that will be satisfactory. However, if it is not satisfactory for any reason, I would be very glad indeed to know what else it is that the Department for Education and Employment desires from such statements. Once we know exactly what is wanted, we might then be able to achieve a form of words which could express the purpose in the Bill. I beg to move.
1 a.m.
Baroness Darcy (de Knayth): My Lords, I have one question for the noble Earl. Perhaps he could include his answer to me in his response to the Minister. I absolutely accept that universities want to keep their academic freedom. Indeed, the noble Earl has said again tonight very much what he said in Committee on 15th June (at col. 1983 of Hansard); namely, that what tends to cause us concern is any intervention by an outside authority in matters of specific curriculum and academic content.
However, we are now talking about something quite different—the provision of support so that students can gain access to the curriculum. But the wording of the noble Earl's amendment of "physical and other support" seems wide enough not to cause me concern, especially if he can give me a positive answer to my question. Does the noble Earl agree that universities should take it upon themselves to consider in relation to an individual student whether there is leeway for flexibility if a particular part of the curriculum prevents that student reaching his educational goal? Any subsequent decision on that would, of course, be entirely a matter for the university concerned, but I would be happier if the noble Earl said that they should at least ask themselves the question.
Lord Henley: My Lords, perhaps I may start by saying that, whatever the noble Earl feels, his amendments would in fact limit the information that could be provided in disability statements to information about purely physical or other support services. Perhaps I may also say how grateful I am to the noble Earl for his welcome for my return to such matters.
As I understand it, the purpose of the amendment is to exclude information about academic matters upon the grounds of possible interference in academic autonomy. In Committee the noble Earl sought to limit the scope of disability statements to physical facilities. But the amendment now before us provides for a broader scope to include physical and support facilities. It would, however, appear that, even with that broader scope, the effect would be to exclude information about access to various courses or types of course which disabled students might find helpful.
The noble Earl referred to the comments made both in Committee and in the letter from my noble friend Lord Mackay. Obviously, I regret it if those comments have given rise to any misunderstanding. My noble friend made it clear in his speech in Committee that the Government considered that disability statements should go wider than simply including information about physical facilities. In referring to physical facilities later in that debate, it was not my noble friend's intention to imply that disability statements should deal only with

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physical facilities. I hope that I have set the matter straight as regards my noble friend's letter as it has obviously raised new fears in the mind of the noble Earl.
Obviously we wish to be as helpful as possible to all disabled students. We feel that the disability statements should assist such students to understand what provision will be available to them. By limiting the information required, the amendment could reduce the possible value of such statements—for no good reason, it seems to the Government.
I understand that the noble Earl's prime concern is that the provision of academic information could possibly intrude on an institution's academic autonomy. I do not see how that can be the case. It is certainly not meant to be the case. Any university is in the business of informing potential students, disabled or otherwise, what the university has to offer. The information in the disability statements is meant to be helpful to that client group. As my noble friend made clear in Committee-am happy to restate this-it will be for the institution to decide what provision it wishes to offer. In all honesty, I do not see how that could lead to interference in the subject matter of the course, as the noble Earl fears. I hope that he will accept my assurance that that is very much the case and that his amendments are therefore not necessary.
Earl Russell: My Lords, I thank the Minister for that reply, but I should like to reply first to the noble Baroness. I stress that I can speak only for myself. I have no ministerial authority in this - in fact, nobody has. Obviously, if one accepts a student, one undertakes a duty to that student. One is therefore bound to do everything that one can to get that student a decent education. That is a duty and it is within the limits of possibility, which must be enlarged (if they can be), and binding.
There is a difficulty about altering a syllabus in relation to just one single student. We shall have to think about syllabuses in general as well as in particular. But that difficulty gets easier to overcome because of the way syllabuses are now changing. They are now incorporating a much wider range of options and
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alternatives which should give a lot of scope for doing what the noble Baroness wants. I hope that it will, and I shall try to see that it does.
The Minister's reply makes me feel that the plot thickens. He says that my amendment would limit what the Government may do. Of course, any form of words necessarily limits what can be done under them. The question is: does it limit it to what the department wants, or does it rule out something that the department wants to do and, if so, what?
The Minister referred—I think that I have his words right—to "information on access to courses or types of courses". That puzzles me because it seems that the Government are trying either to do something that they cannot do or to do something that they should not do. Are the Government asking universities to list courses which are or are not open to people with disabilities? All of us who have followed this Bill know how impossible it is to do that. There is no such thing as a course open to people with disabilities, full stop. So, if that is what the Department for Education and Employment wants, even if the full power of parliamentary sovereignty requires it and everyone in universities does everything they can to co-operate with it, it still cannot happen. If that is what is wanted, I am afraid that it really will not work.
However, if what is wanted is to try to produce a whole lot of detailed information about course content leading to proposals to change course content, that would be an interference with academic judgment and would be extremely unwelcome. As far as I can see, the department is trying either to do the impossible or to do the improper. If that is not the case - may perfectly well be wrong about it - it would be nice to know exactly what it wants, and when we know what it wants, we may perhaps be able to accommodate it. I hope that we shall. We cannot do any more with this tonight, so we shall have to discuss the matter over the Recess. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 84 not moved.]
Clause 26 [Further and higher education of disabled persons: Scotland]:
[Amendments Nos. 85 and 86 not moved.]
House adjourned at ten minutes past one o'clock.