Disability Discrimination Bill

HL Deb 18 July 1995 vol 566 cc205-80

8.50 p.m.

Consideration of amendments on Report resumed on Clause 7.

Baroness Masham of Iltonmoved 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 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 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 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.

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 Henleymoved 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—

1. (a) the extent to which taking the step would prevent the effect in question;
2. (b) the extent to which it is practicable for the employer to take the step;
3. (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;
4. (d) the extent of the employer's financial and other resources;
5. (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 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 Monsonmoved 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 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 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 Monsonmoved 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 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 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 McCarthymoved 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 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 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 Henleymoved 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—

1. (a) in the terms on which he allows him to do that work;
2. (b) by not allowing him to do it or continue to do it;
3. (c) in the way he affords him access to any benefits or by refusing or deliberately omitting to afford him access to them; or
4. (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 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 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 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 Henleymoved 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—

1. (a) in the terms on which it is prepared to admit him to membership of the organisation; or
2. (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—

1. (a) in the way it affords him access to any benefits or by refusing or deliberately omitting to afford him access to them;
2. (b) by depriving him of membership, or varying the terms on which he is a member; or
3. (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 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 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 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 Henleymoved 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—

1. (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
2. (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—

1. (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
2. (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—

1. (a) treatment is to be taken to be justified;
2. (b) failure to comply with a section (Duty of trade organisation to make adjustments) duty is to be taken to be justified;
3. (c) treatment is to be taken not to be justified;
4. (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—

1. (a) any arrangements made by or on behalf of a trade organisation, or
2. (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—

1. (a) arrangements for determining who should become or remain a member of the organisation;
2. (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—

1. (a) the extent to which taking the step would prevent the effect in question;
2. (b) the extent to which it is practicable for the organisation to take the step;
3. (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;
4. (d) the extent of the organisation's financial and other resources;
5. (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—

1. (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;
2. (b) in any other case, a disabled person who is— 229
   1. (i) an applicant for membership; or
   2. (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—

1. (a) is, or may be, an applicant for membership; or
2. (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 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 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 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:

1. (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;
2. (ii) the condition in question is one which seriously endangers the health of the employee;
3. (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". 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 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 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 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.

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 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 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 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 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 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 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) 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 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 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 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 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 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 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 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 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 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.

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 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 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 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 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 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 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 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 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 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 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 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—

1. (a) he fails to comply with' a section 16 duty imposed on him in relation to the disabled person; and
2. (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—

1. (a) in the opinion of the provider of services, one or more of the conditions mentioned in subsection (4) are satisfied; and
264
2. (b) it is reasonable, in all the circumstances of the case, for him to hold that opinion.

(4) The conditions are that—

1. (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);
2. (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;
3. (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;
4. (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;
5. (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)—

1. (a) is to be taken to be satisfied;
2. (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 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 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 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.

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 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 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 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)—

1. (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";
2. (b) in subsection (3) (b), for paragraph (ii) substitute—
   1. "(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.

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 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 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—

1. (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
272
2. (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 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 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 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—

1. (a) in A's opinion, one or more of the conditions mentioned in subsection (3) are satisfied; and
2. (b) it is reasonable, in all the circumstances of the case, for him to hold that opinion.

(3) The conditions are that—

1. (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);
2. (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;
3. (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;
4. (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)—

1. (a) is to be taken not to be satisfied;
2. (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 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 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 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 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 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 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 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 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.