§ 4 p.m.
§ The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish)
My Lords, I beg to move that the Bill be now further considered on Report.
§ Moved, That the Bill be further considered on Report.—(Lord Mackay of Ardbrecknish.)
§ On Question, Motion agreed to.
§ Clause 34 [The National Disability Council]:
§ The Chairman of Committees
My Lords, in calling Amendment No. 86A, I should point out that if it is agreed to, I cannot call Amendment No. 88.
§ Lord Swinfenmoved Amendment No. 86A:
Page 26, line 5, leave out subsection (2) and insert:
("(2) It shall be the duty of the Council—
(2A) In discharging these duties the Council shall have the following powers—
§ The noble Lord said: My Lords, in moving this amendment, I should like to speak also to Amendments Nos. 89, 90 and 100. Grouped with these amendments is an amendment in the name of my noble friend Lady O'Cathain, Amendment No. 91. I should start by apologising to the House for the number of alterations that have been made to the group of amendments between Committee stage and today. That has happened because we have been trying to take into account all that was said in Committee and all that people wanted.
§ At the moment the council can only advise, it cannot act to prevent discrimination, and it can only advise the Secretary of State; it cannot give advice to businesses or disabled people. It has no remit to cover the employment aspects of the Bill. In other words, at the moment it has a very narrow role. The amendments would broaden this role beyond that of purely advising the Secretary of State. Most importantly, they give the NDC powers to advise and support businesses and disabled people.
§ Businesses are very worried about where they can get advice from. Representatives from the CBI and from the Employers Forum on Disability made this clear when they came to talk to the all-party group last month. The CBI calls for consistent support throughout the UK, 387 coherent across employment and access issues, readily accessible at local and national level, available to providers of goods and services, and employers. With these amendments, the council's assistance to disabled people could include carrying out investigations into complaints, providing conciliation, and providing legal and financial assistance so that the disabled person could enforce the right not to be discriminated against.
§ The Government have said that employers and disabled people will get advice on employment issues from PACTs and ACAS. They have given no indication of who is going to provide advice on access to goods and services. My noble friend Lord Mackay said that PACTs and ACAS have adequate resources to meet the obligations placed upon them. That is not the experience of disability organisations, which are often being contacted by disabled people having difficulty getting what they need through their local PACTs. PACTs have been repeatedly criticised by both disabled people and employers for being under-trained and under-resourced. I note that the CBI wants assurances that the funding of ACAS and PACTs will be expanded to cover their new obligations. The employers forum points out that it was because employers found it so difficult to find advice and support on disability that it—the employers forum—was founded.
§ I understand that 10,000 telephone calls were received seeking advice and guidance when the codes of practice to the Sex Discrimination Act were issued. This legislation is in many ways more complicated in that it requires businesses to make adjustments. Therefore, there are likely to be more queries. Where can businesses go for expert and consistent advice on their rights and obligations?
§ Businesses will not only have to act in accordance with the statute; they will also have to keep up with the way in which the law has been interpreted by the tribunals and courts. Many of the concepts in this law are new and there are a number of key areas where the bare outline of the statute will be filled in through interpretation by the tribunals and courts. Who is going to advise employers on recent industrial tribunal cases and the policies and procedures they need?
On goods and services, the Bill says that the Secretary of State may make arrangements for the provision of advice and assistance to persons with a view to promoting settlements. My noble friend Lord Mackay said on 13th June that the Government would be establishing a network of advice points on the right of access to goods and services and these would be readily accessible and locally available, but he then went on to admit that the Government were only currently exploring how this network will be provided. He said that he was sure there would be plenty of organisations that would be prepared to help once the Bill had become law, but went on to say:
I do not have a crystal ball. I do not know who will be prepared to provide the advice".—[Official Report, 13/6/95; col. 1699.]
§ My noble friend Lord Mackay also said that the local advice points had to be in place before the first provisions of the Act came into force, which he said would be in the second half of next year. This means 388 that government are expecting to establish a network of advice points between November and next summer, through organisations that have yet to be identified.
§ Few disability organisations have a network of local branches. Most disability organisations have expertise in one particular disability. Few local branches or local organisations have the resources necessary to cope with all the inquiries that are likely to arise. Most have no staff; others are staffed by volunteers. Of course local disability organisations will try to help disabled people who contact them, but they will not have the resources, breadth of knowledge or legal expertise to deal with the sort of issues that are likely to arise.
§ In 1988 a Coopers & Lybrand report produced for the Department of Health criticised existing information services for their fragmentation and uneven quality. It also emphasised that the profusion of organisations meant that the cost of providing information was higher than necessary. Having a number of different organisations providing information and support is likely to lead to conflicting advice.
Employers recognise the importance of good support services, not only to themselves but also to disabled people. Northern Foods states:
we know that dealing with claimants who do not have access to expert help only results in an additional cost burden in terms of time and resources on the employer".
If the new legislative framework is to have credibility in the eyes of both employers and disabled people it must be seen to be backed by the same commitment to guidance, support and enforcement which underpins the EOC and the CRE".
The lack of legal support for disabled people is of particular concern. Who will help disabled people who feel that they have been discriminated against bring a legal case to an industrial tribunal (where there is no legal aid) or to court? Without support many disabled people will shy away from going to court. Research has shown that without an adequate system of representation it is very difficult for an individual to prove discrimination. A spokesperson for British Rail said:
Without the force of a law enforcing body businesses will not comply with the legislation".
§ Another power that this amendment would give the NDC is to carry out or commission independent research and undertake educational activities. Experience both in the USA and here has shown how vital these are to securing implementation. I know that the CBI is particularly concerned about this role, and I am happy to support Amendment No. 88 in the name of my noble friend Lady O'Cathain, which also gives the council powers to initiate independent research.
§ Under the Bill as currently drafted the power to advise the Secretary of State for Employment about employment, self-employment and training of disabled people rests with the National Advisory Council on the Employment of People with Disabilities. Many Members of both Houses have expressed concern that two separate bodies will be advising two different Ministers. Presumably it will be the new Department for Education and Employment that will now deal with the employment parts of the Bill—though industrial 389 tribunals will now come under the Department of Trade and Industry, and health and safety will be under the Department of Environment.
Employers are certainly concerned. Both the Employers Forum and the CBI have urged the Government to look again at this aspect. The Employer's Forum says
A central authoritative body is required to draw together both sides of the Bill's provisions (employment and access to goods and services) and to assure the successful and coherent delivery of the Bill's worthy aims".
The CBI says
the CBI believes that the NDC should be an authoritative body able to offer consistent advice across the fields of employment and goods and services".
§ The NACEPD does not have the remit to combat discrimination or to monitor the legislation. Nor does it have the resources. It is only able to advise the Government, and the Government can ignore its advice—as of course they have done on the Bill because NACEPD has also called on the Government to set up a single authoritative body with enforcement powers, to cover all aspects including employment.
§ In his response to my amendments in Committee my noble friend said that the Government had a three-pronged approach: a powerful body to advise government, information for business and disabled people, and conciliation, advice and support to help resolve disputes. But the NDC will not be powerful: it will have very limited resources and no independent status. It will not even have its own budget to commission research. Neither disabled people nor businesses are satisfied that the arrangements for information, advice and support will be adequate. In the case of access to goods and services those arrangements are not even in place. Without good quality advice and appropriate support services the law is unlikely to function effectively. On conciliation, the Government propose that ACAS should deal with cases, but ACAS is already struggling to cope with rising numbers of employment cases and lacks the necessary expertise. There are no proposals as to who will provide conciliation in the area of access to goods and services. The Government's three-pronged approach has, I am afraid, failed to impress businesses and disabled people. Nor does it impress me.
§ In my amendments I have sought to cover the concerns that those groups have expressed. They have cross-party support. They have the support of the All Party Disablement Group. Sir John Hannam, its co-chairman, has written to Members of this House to say that the group believes that it is essential that the powers of the council are strengthened. He writes that members of the group fear that the lack of a central authoritative body is likely to undermine the legislation. Giving the council enforcement powers is also supported in a paper, entitled New Abilities, produced by the Bow Group.
§ These amendments concentrate on information, advice and support. The investigative powers are restricted to investigating individual complaints of discrimination. They are the powers that a solicitor would have if approached by an individual disabled person wishing to take a case of discrimination to court. 390 They are not the investigative powers included in my amendments for the Committee stage to which my noble friend Lord Mackay objected. He was concerned that they would create a backlash from businesses. While I do not agree, in the spirit of compromise, I have focused on those powers which I believe to be particularly essential. If these amendments are carried, then disabled people will believe that the Government have listened to their concerns. If these amendments are passed, then employers will be reassured that there will be a single central authoritative body able to give them the advice and support for which they are asking. I do not believe that businesses would be against the powers that these amendments give the NDC. I know that businesses and the Government want the Bill to succeed, and to bring an end to discrimination against disabled people. These amendments will help achieve that aim, and I hope that the House will give them their support. I beg to move.
§ 4.15 p.m.
Baroness Darcy (de Knayth)
My Lords, I give my wholehearted support to the amendments so clearly and forcefully explained by the noble Lord, Lord Swinfen. In Committee I expressed my concern about who would advise individual disabled people in the area of goods and services, because, as the noble Lord, Lord Swinfen, has already said, the Minister said that he did not have a crystal ball and could not predict who would do that.
It was only Tuesday night, when the noble Lord, Lord McCarthy, spoke about the noble Lord, Lord Inglewood, having departed from the Bill to the Lottery and the RSC, that I started to wonder whether the noble Lord had still been able to help his noble friend the Minister: has Mystic Mac now got his crystal ball? Or perhaps a quick trip to the blasted heath has brought enlightenment to the Thane of Ardbrecknish. I hope that we will be told.
Today I should like to change tack and focus my concern on the fact that the National Disability Council was not to cover employment unless NACEPD were abolished. Those arrangements have three basic flaws. First, the Bill's implementation needs to be overseen in its entirety. The abolition of discrimination cannot be divided neatly into topics. For example, one cannot separate access to a shop for its disabled customers and access to the shop for its disabled employees. That is why there has been so much consistent campaigning for comprehensive anti-discrimination legislation. I am therefore delighted that the Government have expanded the Bill to cover education and transport.
The second flaw arises if NACEPD is abolished eventually, leaving the NDC to handle all areas covered by the Bill. That stems from a mistaken assumption that by eliminating discrimination one solves all the problems faced by disabled people. NACEPD has kept an eye on sickness benefit and the jobseekers' allowance. It has been involved with the careers service. It will still be necessary.
The third flaw arises from the significant difference in composition of the proposed NDC and NACEPD. The former will need full-time paid disability experts; the latter is served by dedicated part-timers who give their services free. I feel strongly that disabled people will end up frustrated and confused if we have two bodies to 391 try to oversee and monitor the Act. We need a strong NDC to attend professionally to all areas covered by the Bill and to help individual disabled people. I hope that noble Lords will give the amendments their strong support.
§ Lord Rix
My Lords, it is with some frustration that I support the amendments: frustration because I had hoped that by now the Government might have gone some way towards recognising the validity of the case which has been made with eloquence and passion by many noble Lords on all sides of the House on behalf of disabled people and their organisations.
I want to concentrate a few remarks upon Amendments Nos. 86A and 92 which deal with assistance by the council. I can assure the Minister that without some such provision for the NDC few, if any, people with a learning disability will be able to seek redress under the Bill.
In Committee, the Minister told us that it costs nothing to take a case to a tribunal and only a few pounds to go to a small claims court, and that both mechanisms are designed to be used by individuals without legal representation, with the tribunal or judge specifically charged to draw out the facts of the case. The few pounds, the legal representation, the support and the advice on how to present the case are crucial, particularly for people with a learning disability. They are not incidental, as the Minister seemed to suggest.
Organisations such as MENCAP will of course advise people with learning disabilities on how to seek redress under the legislation, as it does of course with all legislation. I for one will be sorely disappointed if the Government do not at last recognise that sometimes we need the bite as well as the bark. Therefore I support all these amendments with great enthusiasm.
§ Lord Ashley of Stoke
My Lords, the strength of this House is that noble Lords of all parties, and of none, can combine to persuade the Government to improve legislation. That is the unique capacity of the House, and we are all proud of that. Today we are witnessing an attempt by noble Lords on all sides of the House to make the Bill a genuine vehicle for change. That is what they are trying to do, and they deserve success, because at present the Bill is like a vehicle without an engine.
No amount of hyperbole from Ministers about the Bill being an historic step forward can obscure the central fact that it is simply not enforceable; that the proposed council has no real power; that disabled people have no champion; and that their organisations are almost unanimous in supporting the amendments put forward so eloquently by the noble Lord and the noble Baroness.
It is truly astonishing that the Government should refuse to make this Bill readily and easily enforceable, given the vivid lesson of history which Ministers themselves have been preaching. Time and again Ministers have condemned the quota system of the Disabled Persons (Employment) Act 1944 as an unworkable failure. Time and again they have been right. It was an unworkable failure because successive governments refused to enforce it.
392 The quota system held high promise for disabled people. However, the problem was that it was ignored. It fell into disrepute; it let disabled people down. Without the powers spelt out in these amendments, this Bill too will be ignored. It too will fall into disrepute; it too will let disabled people down.
The Government maintain that their legal area of tribunals and small claims courts are means of enforcement. But that argument is fundamentally flawed. It rests on the mistaken ministerial assumption that all disabled people are as vigorous and as actively militant as the few who demonstrate in Whitehall. They are not. Most disabled people find it very difficult to cope. They battle against severe disability and they lack confidence and the experience of the methods of complaining. They simply do not have such experience. It is absurd to expect such people to fight their individual way through tribunals and so forth.
This House loves its lawyers—or, at any rate, most of them! But most disabled people would sooner suffer than tangle with lawyers. They simply do not want to fight. I believe that many disabled people would rather go without their rights than become embroiled in legal tangles in tribunals or small claims courts.
If the amendments were accepted the council would be available to support and advise disabled people. It would be available to undertake the actual fighting on key issues of principle. That would be marvellous. And it could happen as a result of your Lordships' votes in a few moments' time.
I know that the Government maintain that hundreds of voluntary organisations are available to offer advice. That is true, but none can replace the functions of a strong central council. There is no doubt whatever that the Government underrate the importance of a simple focal point for all disabled people. They need to go to one authoritative body which can give them guidance and practical assistance.
The noble Lord, Lord Swinfen, rightly says that those in business want a body to which they can go for guidance. I am co-chairman of the All-Party Disablement Group. I am glad to see so many distinguished members here today. Employers have attended meetings of the group in order to explain that they need the central focal point of a powerful council. That was outlined by the noble Lord, Lord Swinfen. My point is that Ministers should be aware that if they want people to take up their offers they should provide one point of contact. Any good marketing man will tell them that. Why else must we dial 999 for police, fire and ambulance? People, in particular disabled people, must know where to turn because they can become lost. The need for that focal point is important in respect of disabled people, more so than in respect of race and gender.
As the Minister said, there are varying disabilities—indeed, there are multifarious disabilities—and a need for adjustment. However, I am afraid that the Government interpret those varying disabilities in a perverse and misleading way. They say that a single focal authority would not work simply because of the diversity of disabilities as distinct from the homogeneity of race and sex. They do not use those exact words— 393 they are my words—but I believe that I have not distorted the Minister's meaning. I am sure that he will correct me if I have. But the Bill does not deal with the diversity of disability; it deals with the simple basic issue of discrimination. When discrimination occurs it must be dealt with. As a body of case law is built up the issues will become even more simple and more amenable to solutions.
The final misconception of the Government is that if the amendments are accepted somehow there will be a backlash, as mentioned by the noble Lord, Lord Swinfen. Time and again, Ministers have uttered that refrain without justification. It is an example of the Government misunderstanding the effect of their own Bill. The fact is that any provision for disabled people in the Bill must be reasonable in accordance with the terms of the Bill. The Bill lays down the fact that the provisions must be reasonable. Unreasonable provisions cannot be forced because the Bill ensures that they cannot be unreasonable. No undue burdens can be imposed in any business. That is spelt out specifically in the terms of the Bill. Those provisions make a nonsense of the claim that there would be a backlash.
It would be infinitely sad if the plea from all sides of the House was rejected by the Government. It would mean the betrayal of millions of disabled people. They have lived in the hope that Parliament would effectively outlaw unjustified discrimination with proper enforcement measures so that they could have the same human rights to employment and to goods and services as anyone else. It is a reasonable, modest and, indeed, moral demand that is put forward by the noble Lord, Lord Swinfen. If the Government fail disabled people, I hope that your Lordships will support those people with their votes in the Division Lobby.
§ 4.30 p.m.
§ The Lord Bishop of St. Edmundsbury and Ipswich
My Lords, I wish to associate myself strongly with the amendment introduced by the noble Lord, Lord Swinfen. At an earlier stage in the long debate on this issue I raised two matters of grave anxiety. One related to education and the other to the powers given to the national disability council. I am grateful to the Government for the amendments that have been made as regards education. However, in terms of the powers given to the NDC, we are, effectively, where we were at the beginning of the debate.
I do not know whether the Government are aware as yet of the strength of feeling which is being engendered in this area. The presence of the right reverend Prelates sitting on my left is an expression of that. The pressure applied by the different disability organisations is another example.
My fear is that unless the amendment is accepted by the House, the Bill will fall into the sand. It would be a tragedy if, after all the strength of feeling that has been expressed and the very good intentions which the Government clearly have in that regard, the Bill were to go into the sand because it did not empower any group to bring it into effect and to operate it.
394 I must confess that I am bemused and puzzled by the fact that we are still where we were. I urge the House and the Government to look very carefully at this issue and I hope that the House will support the amendment on a Division.
§ Lord Astor of Hever
My Lords, I too am happy to support my noble friend Lord Swinfen. I believe that it is essential that the powers of the council are strengthened so that it is able to act as a central, authoritative body which advises business and disabled people and so that it has enforcement powers to ensure that serious cases of discrimination do not go unchallenged. I hope that the Minster will look again at that aspect of the Bill and will agree to strengthen the powers of the National Disability Council.
Lord Campbell of Croy
My Lords, I would hope to speak now because I intend to present some points which are rather different from those which have been expressed hitherto.
This group of amendments would have the effect of changing substantially the nature of the proposed council. It would become similar to the commissions which deal with issues of race and sex, as has been pointed out in previous debates at earlier stages.
My noble friend Lord Swinfen and others have explained their reasons for trying to make a major change on Report after the Bill's passage through the other place. Their aims and sincerity are clear and laudable.
We all want the Bill to be fully effective when it is enacted. The question is whether the council is being given a large enough role. In our debate in Committee, I put some questions to the Minister. First, I asked whether the council could make it known publicly, if it wished, that its advice was not being accepted by the Government. I thought that my noble friend gave me a satisfactory reply when he said that it could do so.
Secondly, I asked about research. That is the subject of a later amendment. The Minister told me that the requirements for research would be channelled through the Government so that any research, or the results of it, that was already taking place would be available and that would avoid duplication. The council would not necessarily be aware of all the research that had been or was being carried out in different spheres.
On a third point, the Minister confirmed that the council would not be excluded from the employment provisions in Part II and that it would take over more in that field when NACEPD—I use that acronym with which we are all now familiar—comes to the end of its life.
There is one matter remaining for me; that is, the resources available to the council. The figure so far indicated by the Government seems somewhat meagre. The CBI is also concerned about whether sufficient finances will be available also to ACAS and the PACTS teams of the Employment Service because of the functions which the Government expect them to perform in pursuance of the aims of the Bill. I hope that the Minister will reassure us on those matters.
395 I have received from the CBI today, as no doubt have other noble Lords, a note containing a summary of its latest views on these amendments. The CBI suggests that the council should be able to initiate research and be empowered to produce codes of practice. In both cases, that is written into the Bill but the approval of the Government is required. I hope that the Government would not withhold consent in any reasonable circumstances. Indeed, under Clause 35, the council is expected to prepare some of the codes of practice at the request of the Secretary of State.
The CBI suggests also that the proposed council should be the:lead body pursuing the aims of the legislation".I hope that the Government will be the lead body, but I know what the CBI means. The CBI states—and I agree—that the council:will need to be seen to do more than simply maintain a dialogue with the Secretary of State".No doubt the CBI has also made its ideas clear to the Government. It is not proposing major changes to the Bill, as I interpret its views, but recommends that it should be implemented in the way that it suggests.
When my noble friend Lord Swinfen was winding up a similar debate on 27th June, he agreed with me that discrimination in the sphere of disability is different from that of race and sex but that the principle is the same. He then referred to employment only and not to goods and services. Only about one-fifth of the disabled people in the United Kingdom are of working age. Over 5 million are retired or over working age. Under Part III, which deals with goods and services, they will all come under the umbrella of the Bill. The issue will not be simply whether someone is or is not accepted for employment, as in the case of race or sex. Often it will involve also the making of adjustments not only to the workplace but to methods of working in employment. Also it will be relevant in relation to the provision of goods and services to the public.
The public in the United Kingdom contains about six times more disabled persons who are retired or over working age than of working age. Their disabilities vary to a vast extent both as to the types and degree of disability. In Committee, the Minister gave examples of a wide variety of forms of disablement. I shall not give more examples now, especially since I initiated a debate in your Lordships' House on 14th December after this Bill had been announced. Speakers in that debate provided a mine of information which can be looked up.
Today I shall add another personal example at the suggestion of one of the doctors and surgeons who have been seeing me two or three times a week for the past two months because of present troubles. Those doctors and surgeons have wished me to take part in these debates, provided I obey their strict orders. Some noble Lords will have seen me doing that.
When troubles have arisen from my disabilities such as they are—the disabilities were caused 50 years ago—doctors both abroad and in this country have sent me back to St. Bartholomew's hospital where I spent 14 months being repaired at the end of World War 2. I have 396 been in changing situations of disablement since then, sometimes on my pins and sometimes not. My disabilities were caused by a bullet passing through my middle—an infrequent occurrence in peacetime, one hopes. Its legacy is unusual and I am regarded as a one-off case. My Lords, I am lucky to be alive; I am not complaining.
Further, I am told that if the bullet had been an inch higher or lower, or had struck me in the front at a different angle, the disabilities would have been different, if I had survived, depending on what was severed, smashed or punctured on its way through and depending on what it just missed. I should add that the skilled surgery and nursing of those at Bart's and others has always been equal to the occasion.
The point that I am making is that the disabled are not a single, homogeneous group or category. It is a mistake to over simplify by making that assumption. Arrangements to abolish disability discrimination are bound to be much more complex and wide reaching than those for race and sex. For 36 years, in both Houses of Parliament, I have been encouraging governments to bring in legislation themselves on the subject. I have made that clear; and, indeed have made it clear that I thought the resources of the departments of government were needed when I introduced my own two Private Members' Bills, having been successful in ballots.
Now the Government are at last doing that and tackling a huge area of this vast subject. I believe that the Government have to be the lead body, while having an independent, well qualified advisory council. It may be said that I am influenced by the years that I spent in another place as a Member of governments and of the Cabinet. I agree that, to some extent, that may be so. My experience tells me that action under the Bill is mainly a job for government.
It may also be said that the Government may drag their heels or, indeed, that future governments will do so when the Bill becomes law. If that happens, I am sure that Members of both Houses will be chasing Ministers and continually raising what needs to be done, especially those of us who meet in the Parliamentary Disablement Group.
I find that I reach a rather different conclusion on the amendments from my colleagues in the Parliamentary Disablement Group—certainly as regards those who have spoken so far—because I would not wish to see the major changes made in the role of the council which the amendments would bring about. I hope that they will be proved to be unnecessary.
§ Lord Zouche of Haryngworth
My Lords, I should like to support the amendment moved by my noble friend Lord Swinfen. The issue is crystal clear to me. The National Disability Council is virtually worthless without the powers to advise business and industry, to advise disabled people and to investigate complaints. At the moment the National Disability Council only has powers to advise the Secretary of State.
This is a truly historic moment for the disabled. Let us not mess it up with inadequate legislation. The big question must be: can it really work in its current form? The Association of Disabled Professionals has grave 397 doubts. It has received 67 submissions from disability organisations and individuals. Some of them include—the Royal National Institute for the Blind; the Royal National Institute for the Deaf; Scope (formerly the Spastics Society); the Spinal Injuries Association; the National Bureau for Students with Disabilities; Age Concern, and many others.
All those disability organisations are of one voice. They all have serious misgivings about the current proposed legislation. They all believe that anti-discrimination legislation must include a strong central council with adequate powers and funding. I believe that the heart of my noble friend the Minister is in the right place and that he genuinely believes that the NDC will function adequately in its current proposed form. However, his view is not shared by the disabled and the professional organisations who represent them. In fact, I have heard one disability organisation say:We are concerned that the wrong signals will be sent out about the commitment of the Government to dealing with discrimination against disabled people if they do not back it up with an authoritative NDC".Business and industry support the concept of a strong central council that is able to advise them about their legal rights and responsibility under the new law.
In conclusion, we have come so far and raised so many hopes, let us not fall at the last fence. Perhaps my noble friend the Minister might give a little ground and allow the NDC sufficient authority to help make the new law workable, both for disabled people and their prospective employers.
§ 4.45 p.m.
§ Baroness Masham of Ilton
My Lords, it is the wish of all organisations and individuals who have contacted me over the matter that there should be a body which will be independent and be able to sort out the problems and advise employers, organisations and individuals on all the various problems that will arise. There must be an overview.
In Committee, the noble Baroness, Lady Flather, was most effective in explaining to the House that she was in a unique position: being a woman, belonging to an ethnic group and having a very severely disabled husband. On that occasion, the noble Baroness said that, of course, the disabled problems needed a commission as much as the other two groups. The noble Baroness has given me permission to mention her unique situation.
The fact is that sex and race are much more straightforward than disability, which has such a multitude of different aspects to be covered. Each problem can involve a different individual. There are about 6 million disabled people in the country. Can the Minister spell out clearly what the proposed council will do and who will run it? It was a good idea to suggest that it should be linked with the Citizens Advice Bureaux, but I can see that they already have more than they can cope with.
Would it not be possible to have a commission which is independent and restricted to, say, five or 10 years to start with, so that if it was not working or proved to be 398 unnecessary it could then be changed or wound up? I do not know why the Government want to discriminate between disabled matters and those of sex and race.
§ Lord Ackner
My Lords, after the protestation of affection—although, perhaps, not undying affection—of the noble Lord, Lord Ashley of Stoke, I feel that I owe him a short intervention. Unless the amendment or something of its kind is accepted, it seems to me that there is a serious risk of the Short Title of the Bill, the Disability Discrimination Bill, becoming even shorter and ending up merely as the Disability Bill. I say that because it will contain within its own pages an essential disability; namely, the lack of any authoritative body with appropriate powers. Without such powers, I cannot see how one can expect the law to function effectively. Therefore, I support the amendment.
§ Lord Addington
My Lords, I shall not detain the House for long on the matter. I have very seldom participated in a debate on an amendment which received such tremendous support from so many parts of the House. We are now talking about something which is effectively the engine which will drive the legislation on and make it successful. If we do not have something which will give real teeth to what is put into the legislation, it will fail and fail miserably.
At present, disabled people—that is, people who have difficulty with reading, writing or mobility—are being asked to take on cases by themselves. We need the proposed amendment or something very like it. If the Government have had a change of heart at this point I should be very glad to hear it; but I do not believe that they have. The legislation will provide a body which has the legal powers and, it is to be hoped, the financial power, to ensure that we give effect to the regulations within it. Without such powers, much of the rest of the Bill is pointless because it will not have any effect. Historically an Act which has had no mechanism to support it has not been effective. I refer, for example, to the Factory Acts of the 19th century. Those Acts had no effect until inspectors were appointed to inspect factories. An Act that is not backed up in this way might as well not exist. I ask the House in all sincerity whether there is any real point in having this Act unless we have strong enforcement powers.
§ Lord Skelmersdale
My Lords, the right reverend Prelate referred towards the end of his speech to his confusion in this matter. I, too, am somewhat perplexed. Even though I have not uttered upon it until this moment it was many weeks ago that my noble friend the Minister first aroused my interest in this Bill. I have listened to the debates in the Chamber and I attended meetings outside it. Even if my noble friend had not aroused my interest, as chairman of the Stroke Association sooner or later I would have sparked on certain aspects of this Bill. Stroke, which affects an extra 100,000 people every year, can occur at any age. The youngest person we have recorded with stroke-like symptoms had not even been born. Those symptoms occurred in the womb. The next youngest was only two years old. Although one usually thinks of stroke as an impairment of people's later years, that is not the case. One only has to look around this Chamber to know that there is life after stroke. Therefore it behoves us to 399 think what kind of life that is. Will it be a working life? It could well be with the right sort of advice and the right sort of encouragement.
That rapid introduction brings me straight to the meat of these amendments. It seems to me that the protagonists are like two dinosaurs locking horns. On the one hand, we have a concordat, not only of all the disability charities, but also of the Employers Forum on Disability. They believe that the Government have produced a good, even a very good Bill, on the rights of disabled people, but that it has one fatal flaw to which the noble Lord, Lord Addington, has just referred. The disability commission proposed in this Bill seems to do nothing for anyone except the Secretary of State. He certainly needs up-to-date advice on the state of the law and practice affecting disabled people. But—it is a very big but—so do disabled people and their possible employers.
The Government, of course, are my other horned dinosaur. They know full well what is needed: an organisation to protect disabled people from the possible sins of employers—ACAS, we are told, can do that—and an organisation to advise on access for disabled people. The advice centres proposed by my noble friend in Committee are an obvious route. But what we simply do not have is a one-stop shop, and it is that that all the workers in the field desperately believe is needed.
I can readily understand the Government's reluctance to set up a national proselytising body: the equivalent perhaps of the Equal Opportunities Commission. I am sure that body does a lot of good work but that is marred—and I am afraid, badly marred—by the occasional howler. I recently came across one such in my capacity as a governor of a large comprehensive school in Taunton. An opinion was sought from that body on the law and practice of schoolgirls wearing skirts at school. I shall not weary the House with all the details but I shall be happy to place a copy of the document in your Lordships' Library for information. A short extract will suffice on this occasion. Paragraph 5 is headed "Stereotype". It states,Uniform skirts and trousers encourage boys and girls to identify with the behaviour of adults of the same sex. This leads to a perpetuation in the new generation of the sharply different roles of the sexes in earlier generations. The skirt reminds the girls' teachers and male peers that she is female, that sex differences are important"—wait for it—that society expects her to be less of a scholar than a boy".This is in a school which has recently been the subject of an Ofsted report in which it was praised for having produced boys' results of the same high educational standard as the girls' results. Paragraph 5 continues,Forbidding girls to wear trousers, therefore, forces girls into role playing and stereotyped attitudes which define the treatment of individuals according to social expectations of what is appropriate for each sex".I leave noble Lords to draw their own conclusions from that.
No one, certainly not I, will wish for a proselytising body. I therefore believe that these amendments fall at the last fence; namely, in Amendment No. 86A the proposed new subsection (2A) (d) states that the new council is,to undertake … any educational activities".400 I stress the word "any". Amendment No. 92 states in the proposed new subsection (3),Assistance by the Council under this section may include—giving advice".I would have no problem with that if the words were changed slightly to read,responding to requests for advice".However, to spit it out willy-nilly is not something that I can support. An organisation which the Secretary of State, disabled people and employers can use and respect is infinitely to be desired.
The Government's other main worry, as I understand it, is costs. I believe that that is a real and sensible concern. If I am right about employers wanting the new commission or council, call it what you will, they have the obvious remedy. They can either be charged by the advisory council, or disband their existing forum on disability and put the money towards a more general council such as these amendments provide for.
I am in a quandary. I want a broader council but, equally, I believe that the Government have won some, even most, of the arguments. I hope that my noble friend Lord Mackay will produce further arguments for my voting with the Government today. If not, I am afraid that I still cannot support any of these amendments for the reasons I have given. I shall therefore abstain.
§ Lord Addington
My Lords, I make a brief point for clarification. We are not discussing Amendment No. 92—
§ Lord Renton
My Lords, everyone who has spoken in favour of these amendments seems to have overlooked a vital fundamental factor: that we are to have one disability council. Its work is to cover the whole of the United Kingdom, including even Northern Ireland. In the amendment it is suggested that it should be given power to consider individual cases of various kinds and in various circumstances. I am surprised that the noble and learned Lord, Lord Ackner, did not notice this. It seems that it is even, as stated in the proposed new subsection (2A) (b) of Amendment No. 86A,to provide assistance, including legal and financial assistance … in enforcing their rights under this Act—";that is, going to court. The body is to have a jurisdiction with regard to legal aid. How can it consider individual cases and deal with all these particular matters which will arise locally all over the United Kingdom from one central body? I should have thought that regional offices would not be enough. One would have to have at least one in every district. That would add tremendously to the cost of administering the Bill. I do not think it is necessary because I personally have sufficient faith in the system of enforcement that is already in the Bill which provides industrial tribunals for employment cases and the courts in other cases. I greatly respect all those who have spoken and all the outside pressure groups who have advised them but I really do not feel that in practice it would be wise to accept my noble friend's amendment.
§ Lord Archer of Sandwell
My Lords, I was brought to my feet by something said by the noble Lord, Lord Renton, who had a distinguished career as a legal 401 practitioner. I think that a large number of legal practitioners would have been surprised at what he said a moment ago which implied that this amendment really did not address a problem. For the moment I shall not trouble your Lordships with an argument as to whether there may be other ways to address it. But to suggest that he has sufficient faith in the existing means of redress is something that will puzzle very many people who are actively engaged before industrial tribunals.
The fact is that someone who appears for himself before any tribunal has an ordeal which those of us who have not experienced it ourselves may find difficult to imagine. It is an unfamiliar atmosphere in which the person is faced with unfamiliar proceedings and complicated matters of law which sometimes even lawyers have difficulty in understanding. As my noble friend Lord Ashley has said, many people who suffer from disabilities are extremely articulate and can be very persuasive, but that in itself is not enough to cope with the kinds of questions that may be directed at them when they appear before an industrial tribunal.
Perhaps I may paraphrase what I believe the noble Lord said at Committee stage. If the suggestion is that there is no need to worry because the chairman of an industrial tribunal is perfectly capable of eliciting the bones of the applicant's case in the course of the hearing, no one who has not been in the position of such a chairman will find it easy to imagine the task that we seek to impose upon him. In the first place, he has to be, and appear to be, objective. If he goes out of his way to elicit the case of one of the parties, that will place his objectivity in question. On occasions, all of us have had to interview people who have had a problem. It may take quite some time to ascertain what the problem is, particularly the arguments that should be used in the person's favour. To attempt to do that in a public hearing does not allow for the kind of problems which we seek to impose upon industrial tribunals.
On occasion I have been in the presence of judges who have just been told that they are to hear a litigant in person. I have watched their faces. Never once have I heard a judge say that there is no problem and he is not troubled in the least because he will be able to ascertain the litigant's case in the course of the hearing. That certainly is not the approach of the judiciary.
I add two further pieces of evidence. First, in the commercial courts of this country where litigation takes place between people who usually can afford to be represented, it is not often that one hears someone say that he does not need to be represented because he is perfectly capable of putting his own case. Those who can afford to do so believe that skilled representation is an asset. Secondly, I refer to the report of Professor Hazel Genn. She did a great deal of research into this matter two or three years ago. I know that in the course of debates on this Bill I have sought to impose a good deal of reading on the noble Lord. If he has not read that report I commend it to him. What emerges from those pages is the sheer uncomprehending puzzlement of many people who are unfamiliar with tribunal proceedings when they find that they have to go to a tribunal. Many do not know what question is being addressed, what the issue is or what they have to say to 402 the tribunal. Many of them leave the tribunal without ever knowing what the whole proceedings are about. It is clear from the report that across a whole range of tribunals one's prospects of succeeding are very much greater if one has skilled representation, not always by a lawyer.
I am not certain whether the noble Lord, Lord Renton, intended to suggest that there was no problem in relation to conciliation procedures. The noble Lord indicates that he was not. If not, then there is a problem in relation to conciliation procedures, and it is incumbent upon us to address the point. In more and more cases nowadays those who are concerned with these matters believe that a great deal of court time can be saved and that there are many other advantages if conciliation procedures come into operation before the matter is litigated.
Offhand, I can think of three advantages. First, if the parties can be assisted to resolve their dispute, that is enormously preferable to someone having to arbitrate so that one wins and the other loses. Secondly, most the courts and tribunals of this country keep abreast of their workload but frequently do not do very much more than that. A slight increase in workload produces a problem. The question of how many cases to put into a day's list is always a nightmare. If a substantial number of those cases can be diverted, there will be an enormous saving to the courts and the Treasury, which no doubt the Government will welcome. Thirdly, the costs both to the public and to the parties to the litigation can be avoided if these cases can be diverted from the process in the first place.
That is a point well taken in the report of the noble and learned Lord, Lord Woolf, Access to Justice I shall not add to the noble Lord's burden of reading. However, Chapter 18 contains a great deal of what the noble and learned Lord has to say about the advantages of dispute resolution procedures as they have been tried out in the United States, Canada and Australia. It does not follow that this amendment is the only possible way to address the problem but certainly the case has been made out overwhelmingly that there is a problem to be addressed.
§ Baroness Gardner of Parkes
My Lords, as someone who has sat for over 20 years as a member of an industrial tribunal, I believe that I must put the other side of the picture. I had not intended to speak to this amendment, although I intend to vote with the Government against it. The noble Lord pointed out that many judges were horrified when they discovered that ordinary litigants would speak. I believe that that reflects upon the judiciary. Fortunately, I do not believe that it applies to all of them. My experience of an industrial tribunal is that very often the applicant is much better off unrepresented. There is nothing worse than to be badly represented. I believe that most tribunals go to enormous lengths to see that the litigant has the opportunity to put his or her case. I believe that to be the whole merit of the industrial tribunal procedure as it is. If counsel appear on both sides, it simply doubles, trebles or quadruples the time that is taken up by the case.
§ Baroness O'Cathain
My Lords, we have had a long debate on this amendment, but I am afraid that some confusion still remains. Several noble Lords have said 403 that the CBI supports an authoritative central body. The latest briefing from the CBI says that to fulfil its role in the institutional framework the National Disability Council will need to be authoritative; that is, to command respect and be able to influence the shape and delivery of the supporting framework. That is a matter which the CBI has been pushing throughout this series of debates.
Business expects of the National Disability Council and the legislative framework that it can be seen as the hub of the institutional infrastructure which supports the aims of the Bill. Currently, some indications have been given of what that framework will look like. While the CBI recognises that the precise way in which this will be delivered must be an evolutionary process, it may be helpful to mention what employers really need. They need advice that is independent, authoritative, consistent and readily available at national and local level, whoever and however it is provided and delivered. They also want a helpline facility. There is a particular need for independent advice and conciliation services to be provided for business, as ACAS has on employment, in cases relating to the provision of goods and services. At the moment that does not exist. This should help to filter weak claims and encourage settlements, thereby reducing the need for recourse to the courts. The NDC should be empowered to produce codes of practice and guidance and ultimately be responsible for issues relevant to employment, as well as access at the point when members' tenure on NACEPD is complete in June 1997. Co-ordination is essential for consistency in the interim, particularly given the recent changes to departmental responsibilities which bring in at least three separate government departments: the DTI, the DSS and the DFEE. The codes of practice produced under the legislation to inform and assist all those required to follow their guidance must be heavily publicised and widely distributed.
During Second Reading and at Report stage, we had much help from the Government indicating that, indeed, the will is there and that they believe the means will be likewise.
There are factors in the amendment which obviously meet the concerns of the CBI. However, it disagrees with paragraph (a) of new Section 2A; namely, the proposal for a power of investigation. I think that businesses have appreciated the change in the way in which the EOC and the CRE have approached the elimination of discrimination in business, particularly the greater emphasis now on high quality guidance. For example, the CRE's Racial Equality Standard for Employers is a splendid document and is widely supported. Similarly accessible documents will be needed to support the legislation with which we are currently dealing.
However, by including the power of investigation in my noble friend's amendment, there is a shift away from consensus and elimination of misunderstanding to a more confrontational approach. Surely that is not the right way forward, particularly in an area as complex as this, as many noble Lords have mentioned. One case of disability can be so very different from another.
404 The power of investigation is not an approach which will maximise goodwill. We want to avoid people facing each other across a courtroom. Experience with other ant-discrimination legislation, and the bodies which support it—namely, the CRE and the EOC—suggests that businesses are worried by the joint role of adviser and enforcer, a situation which can create unnecessary tension.
The arguments for assistance and conciliation are valid, but, as my noble friend Lord Campbell of Croy stated, point to better resourcing of the promised conciliation and advice mechanisms rather than enforcement powers. I still have faith that the Government's conception in that respect can work. Therefore I must reluctantly say that I cannot support the amendment as drafted because of new Section 2A(a) but urge that the Government consider the other elements of the amendment, in particular on research, and incorporate those at Third Reading.
§ 5.15 p.m.
§ Lord Peyton of Yeovil
My Lords, perhaps I may trouble your Lordships for a moment or so. I am not a habitual or fervent admirer of the legislation which governments bring before us from time to time. I am, therefore, a little surprised to find myself this afternoon quite willingly supporting my noble friend Lord Mackay—at least I believe that that is so—in rejecting these amendments. I hope that no one will be foolish enough to accuse me of any lack of sympathy with the disabled.
I put forward two reasons. First, I simply cannot bring myself to believe that a government will go through all the labour of producing a Bill of this kind, but will not then wish to see it work, will ignore the advice for which they have asked, and would expect to get away with such folly. I do not believe that for a moment. That is one reason why I should be reluctant to support the amendment.
Secondly, I was impressed and moved, as I am sure most noble Lords were, by the words of my noble friend Lord Campbell of Croy. He knows a good deal about the problem. He referred to the complexity which attaches to enforcement. He was absolutely right in saying that enforcement was a job for government and that a government who do not enforce such a Bill would incur very heavy blame. I should be reluctant to believe that this Government will not be as enthusiastic as possible to see that it works. Therefore, I do not believe that it would be right to accept the amendments. I very much fear what could easily become the habit of distributing those very considerable powers to people other than governments. Professional enforcers of the law are bad enough; amateurs would be much worse.
§ The Earl of Northesk
My Lords, my noble friend's amendments are seductive. Indeed at a whole variety of levels, they also appear both worthy and worthwhile. However, I am uncertain that the National Disability Council, strengthened in the way that my noble friend envisages, would necessarily act in the best interests of either the disabled or of the Bill itself.
405 To my mind, what lies at the heart of the Bill is "consensual reasonableness"; as it were, a contract of best practice between those who are disabled and the rest of society. What will define whether it achieves its objectives is its capacity to persuade rather than to prescribe, to coax rather than to coerce. If the Bill is to become an enforceable and effective Act, it has to carry the whole of society with its spirit as well as its actual words. My own view, perhaps rather simplistic, is that the NDC espoused by the amendments threatens that.
I believe that it would be a tragedy to inveigle the enforcement and investigative powers implicit in my noble friend's amendments upon the NDC thereby serving to undermine this concept of consensual reasonableness and ultimately alienate an opinion within society that has been so hard fought for and hard won. In effect, it would be nonsensical to have won the battle of changing attitudes only to sacrifice the war by imposing upon those attitudes in an overbearing way.
Much has also been made of the fact that commissions with enforcement and investigative powers exist in the fields of gender and ethnic discrimination. The fundamental differences between their character and that of discrimination of the disabled, as addressed by my noble friend Lord Campbell of Croy, is an issue here and an important one. I shall not dwell on that. Suffice it to say that the issues that the NDC, whatever its ultimate form, will have to consider will not be able to be contained by any general, universal or central set of rules or judgments.
A more important issue needs to be considered. Such an argument presupposes that the CRE and EOC as constituted, and with their wide-ranging powers, are the correct structures in this day and age to defend and obtain the redress and rights to which those discriminated against are rightfully entitled. I question that.
That is not to say in any way that their work over the years has been anything other than extremely valuable. It is to say that we have moved on since their formulation. For example, Herman Ouseley, in his introduction to the 1994 annual report from the CRE, stresses, in my view quite rightly, the imperative for persuasion as the best means to achieve the statutory duties of the commission. He wrote thus:Our priority goal is to use our power to conduct formal investigations as 'a weapon of last resort', and to persuade more employers and organisations instead to enter into voluntary agreements to take action for equality".That should inform us that the prevailing circumstances are better served by a "carrot" rather than a "stick" approach, the more so if we reflect that the Bill will impose upon society the requirement to implement what my noble friend the Minister defined at Committee as "additional arrangements".
We all want the Bill to work, and to work effectively. We all acknowledge that the injustice of discrimination of the disabled has endured for far too long. But now that we have the mechanism of redress before us, we should guard against our enthusiasm seducing us into what I believe would be an overcompensation. I am convinced that if we accept the amendments of my noble friend, we shall be stating our desire to prescribe 406 rather than to persuade, to coerce rather than to coax, and that would not serve the interests of either the disabled or of society at large.
§ Baroness Hollis of Heigham
My Lords, the Bill is a good Bill. It is a Bill of which Government have every right and every reason to be proud. Since it is a good Bill, what is the problem? I believe that the problem is that the Bill has a hole at the heart of it. In the words of the CBI, used frequently throughout its briefing, the Bill lacks, but needs, a central authoritative body in order to make it work.
I am confident that every Member of your Lordships' House wants the Bill to work. But those who know most about it—employers on the one hand and disabled people on the other—do not believe it will work without a central authoritative body. That is what the amendment will provide. It does not expand the scope of the Bill or alter its content. It makes the Bill work.
All that the Government have proposed so far is an advisory committee which advises only and exclusively the Secretary of State, no one else. Is that sensible? As everyone admits, it is a complicated Bill. British employers have a sound and fine record of complying with legislation in the field. They do not seek to circumvent or avoid it. They seek and wish to act lawfully. But they will need help, precisely because the Bill is so complicated about what the law means and requires. What does "reasonable" mean? What does "severe disability" mean? Where will the employer go to find that out? That is why employers want a central authoritative body. But so do disabled people.
As my noble friend Lord Ashley said, if you are disabled you are not tough, not very well and not confident; you are somewhat isolated and probably rather poor. You cannot afford a solicitor and you have no access to legal aid. Yet you are expected to plough your lonely way through the courts and the industrial tribunal system. You do not know whether your complaint is reasonable or frivolous; or whether other people have complained in that way before. Behind you, you need a strong friend to advise you, to discourage frivolous claims, to filter out what is unreasonable and to conciliate, where possible. The noble Earl, Lord Northesk, was absolutely right about the need to conciliate and persuade where possible. At the end of the day, you need help to enforce your rights if there is nothing else you can do. I suggest that disabled people are entitled to that.
At the moment, there is nowhere for employers or disabled people to turn to because there is no body at the centre, nothing. As a result, the same points and the same issues will be revisited time and again all round the country. The consequence will be incoherent, inconsistent and fragmented judgments by courts and tribunals so that employers and disabled people will not know where they stand.
Why are the Government so resistant to the proposal? After all, under the proposals of the noble Lord, Lord Swinfen, the Secretary of State would appoint all the members and staff, and control the resources. The noble Lord, Lord Skelmersdale, was right to raise the issue; such a body will in no sense be an EOC or CRE. It will 407 not have that range of powers. If the amendment were accepted today, the National Disability Council would not have the power to go into companies and investigate their practices. It will not have the authority to take cases to the European courts. As the noble Lord, Lord Campbell, said, the amendment recognises precisely that disability is not the same as race and gender, it is much more complicated. It is precisely because it is complicated that individual employers, organisations and disabled people will want a central authoritative body to interpret the law for them. Would the council, as the noble Lord, Lord Renton, feared, displace the existing framework of tribunals and courts? No. Instead, it will filter out the frivolous and unreasonable and ensure that the judgments of tribunals and courts are shared widely so that future cases do not need continually and repetitively to be tested in courts and tribunals. Would the council add bureaucracy? No. It would simply add additional functions to the existing body which the Secretary of State proposes to set up, but make it outward-looking rather than introspective.
The Government may argue that all the functions are already in place. Then why are the CBI and disability organisations so worried that the Bill, which they want, will not work? Will it produce a backlash? I suggest that the backlash will come not because there is a central authoritative body in place but because there is no central authoritative body in place. Employers are faced with the nightmare of lawmaking by litigation—frivolous complaints based on a host of test cases, judgments and verdicts, often contradictory, ad hoc and fragmented. They will not know where they stand.
The reason for the amendment by the noble Lord, Lord Swinfen, and why we hope your Lordships will support it tonight, is simple. The central authoritative body will produce firm ground on which employers and disabled people alike will stand. With its help they will know what the law means and how it affects them. Without the amendment, they will not. The ground will shift underneath them.
This could be a landmark Bill. It will only deliver what it promises if tonight your Lordships support the amendment which will place at the heart of the Bill a central authoritative body to make it work. We support it.
§ Lord Mackay of Ardbrecknish
My Lords, before I turn to the substantive issue before us, on behalf of the whole House I express our pleasure at seeing the noble Lord, Lord Houghton of Sowerby, back in his place. When the Chairman of Committees was dealing with the portrait that is to be painted, I thought of demanding, on behalf of the noble Baroness, Lady Hollis, and myself, the right to be painted at the Dispatch Box. It is where we seem to spend most of our time!
Indeed, we have already spent a considerable time on the amendment or one like it. My noble friend introduced a similar amendment at Committee stage and, if my recollection is right, after a debate lasting about two-and-a-half hours he withdrew it. Today, we have been over largely the same ground. The arguments directed at me are much the same as then. No doubt in a little while I shall be accused of advancing exactly the 408 same arguments as I did on that occasion. I do not believe that the position has changed much since we argued the matter in Committee.
I wish to take up one point made by the noble Baroness, Lady Hollis, when she prayed the CBI in aid. I am sure she did not mean to do so, but it is wrong to pray the CBI in aid on 411 aspects of my noble friend's clause. The CBI may be asking for an authoritative body to give advice and assistance, but so far as I can see it is not asking for an authoritative body with the policing and legal powers called for in the amendment. So the noble Baroness has attempted to pray in aid the CBI today in exactly the same way as she attempted to pray in aid the Employers Forum on Disability and the views of all its members at the Committee stage. Noble Lords who were there will recall the debate. The Employers Forum has now made clear that it was not speaking on behalf of all those public sector organisations like the Benefits Agency, as was implied at the Committee stage.
However, we should remember that we are all trying to achieve the same ends in the matter. We are all trying to achieve the elimination of discrimination against disabled people. It is on that one aspect of the commission—which my opponents want and which I think would be wrong—that we differ. I was grateful to the noble Baroness, Lady Darcy (de Knayth), the right reverend Prelate and my noble friend Lord Zouche for the points they made about the way the Government have listened and moved. My noble friend Lord Henley or I myself have moved, for example, on education. We have imported into the Bill a great deal of new material on transport which has been widely welcomed. As recently as Tuesday I was happy to accept an argument from my noble friend Lady Gardner on the subject of HIV. When I hear myself being beaten about the head this afternoon, I wonder whether all my kindness over the past few days has simply gone unnoticed.
Amendment No. 86A seeks to replace the National Disability Council's duties as drafted in the Bill with two very similar duties, drawn from the Sex Discrimination Act. Together with consequential Amendment No. 89, it would create a commission by another name. As is usual with my noble friend's amendments—I have chided him about this before—he does not indicate what price tab may be carried by the proposal, and how costly such a commission would be to the taxpayer and to business.
I apologise if I have to repeat some of the arguments that I stated in Committee. I said then that there were three principal reasons why we oppose a commission. First, we do not believe that it would work. Disability anti-discrimination legislation differs markedly from sex and race legislation, as the noble Baroness, Lady Masham, indicated. It is the duty of the existing commissions to promote equality of opportunity between men and women, and to promote equality of opportunity, and good relations, between persons of different racial groups generally. The amendments do not attempt to reflect this requirement. These amendments would not set up a body to look after everyone's interest equally. They seek to create a powerful executive body charged with the explicit duty 409 to act in the interest of disabled people, without a statutory responsibility to have regard to the effect its advice and actions would have on the rest of society.
A council with the duties proposed in these amendments would not be capable of bringing about the changes that we all seek. Government, business and voluntary organisations need to work together to achieve these aims. In this new and sensitive area we need an independent body to give balanced and practical advice on the wide range of issues relating to discrimination. The National Disability Council we propose would be positioned to give this advice and to influence change. I have already said that we expect it to take an active role in persuading business to take account of the needs of disabled people in areas which cannot be dealt with through rights-based legislation—for example, as we discussed earlier in the week, in the area of the design and manufacturing of products. It will provide advice to business and disabled people through its codes of practice. It will be consulted on our plans to publicise the rights and responsibilities created by this Bill and indeed on our plans to publicise the codes of practice prepared by the NDC. And my right honourable friend the Prime Minister has already made clear that the NDC would not only be providing us with independent advice on how the Act and the advice and support services are operating once the provisions come into force, but will be advising us on the setting up of the service in the first place. It would be a powerful voice for disabled people and have the respect of business. It will be the lead body in pursuing the aims of the legislation. It would provide advice to the Secretary of State which, once accepted, would be implemented with the full backing of government.
As my noble friends Lord Campbell of Croy and Lord Peyton of Yeovil said, the Government do not intend to wash their hands of the Bill once it receives Royal Assent. Ministers and their departments have come together to produce this Bill and they will want to see it implemented in line with the policy intention. The Bill itself, which spans the responsibilities of a number of departments, is a very clear example of the way in which government can work in a co-ordinated way. This will continue. I know my honourable friend the Minister for Disabled People, Mr. Alistair Burt, backed up by the disability unit, will be taking an active role in co-ordinating the Bill's implementation and operation.
The second reason why I do not agree with the idea of a commission is that it would run the risk of causing a backlash. Those noble Lords who wait just a little while this afternoon and into the evening will hear the problems that are being raised, because we wish to bring forward minimum access standards for taxis, and how much resentment there can be to the imposition of new duties. Indeed, there are already ominous signs of this in the United States of America, where the Americans with Disabilities Act is losing political support.
As I have said on a number of occasions, the provisions needed to overcome discrimination against disabled people must go much further than the sex and race legislation. The sex and race legislation requires essentially that the same service is extended to people without regard to their sex or racial origin. But this legislation requires service providers and employers not 410 only to stop discriminating in the sense of the sex and race legislation, but also to change the way in which they offer services or organise jobs, to overcome the problems that disabled people encounter. This sets the boundaries for eliminating discrimination against disabled people much wider than those for sex and race.
A centralised bureaucracy would not be well placed to provide advice and support on individual cases. It would be distant and therefore unfamiliar with the local environment; for example, with the layout of a restaurant, the nature of an employer's business, or the nature of a town or village itself. Without this local knowledge it would be difficult for a person trying to provide advice to take a view on what was appropriate in the circumstances of a particular case. Well meaning, but inappropriate advice, mixed with the inevitable dose of political correctness and bureaucracy will do little to change attitudes and actions that affect disabled people. But it could create a backlash.
My third argument against a commission is that there is a huge difference between the world of the 1970s, when the two commissions were set up, and the world of the 1990s. Many conceptions and ideas that were worshipped, if I may so describe it, in the 1970s have now been discarded. During the 1980s the Government, under my noble friend Lady Thatcher, slayed many of the dragons that haunted the land in the 1970s. Indeed, perhaps we see the Labour Party attempting to distance itself from those beliefs. The world has moved on very significantly since the 1970s. The solutions of the 1970s are not appropriate for the end of the century.
This proposal also ignores completely the hundreds of voluntary groups and other organisations, including many bodies set up by the Government, which work very actively to promote the interests of disabled people and which simply did not exist in the 1970s on the sex and race front.
I spoke on a number of occasions during the Committee and Report stages of our shared recognition of the need for conciliation, advice and support services. We intend setting up advice and support services on the goods and services provisions which would be available locally. We shall also look to ACAS to provide conciliation on the new employment rights in that Bill. Our intention is that the organisations providing these services will receive support from government in the way of detailed information about the provisions of the Act and comprehensive training packages. They will also have recourse to expertise. This will ensure that a consistent approach to the giving of advice is maintained across the country and that instances where a disabled person does not have a realistic legal case can be filtered out at an early stage.
I am confident that the majority of cases where there appears to be a genuine grievance can be settled short of legal action. But in a situation where both parties believe they have right on their side, they will have recourse to an arbitration hearing in the local small claims court under the right of access to goods and services, and access to ACAS under employment rights.
We are proposing to put the means to obtain redress into the hands of the people concerned, not a centralised bureaucracy. We are convinced this will be successful. 411 Some 90 per cent. of cases under the sex discrimination and equal pay legislation are taken to tribunals without the aid of the EOC. It is therefore wrong to assume that people cannot secure their rights without the aid of a commission with investigative powers as was proposed in Amendment No. 86A.
I will talk about test cases in detail later when we debate Amendment No. 92. Suffice it to say, at present we do not believe that they would have the wide application they can have in sex discrimination cases because disability has its own individual characteristics and therefore requires individual solutions. My argument on this was made far better than I could possibly make it by my noble friend Lord Campbell of Croy, with all the personal experience that he has had over 50 years—50 years during which he has shown that disabled people can go right to the top in the profession of politics. We also believe that if the policy intention needs to be clarified and the boundaries of the law changed, it should be for the Government and Parliament to make these decisions, based on the advice of the NDC. The sex and race relations Acts, simply do not have the regulation-making powers which this Bill contains. They allow for fine tuning. From debates on other Bills I know the whole House agrees that the law should be made here in Parliament. I was slightly surprised to hear the noble and learned Lord, Lord Ackner, supporting a commission that might take some of the responsibilities away from Parliament, where they should properly be.
The Government's approach is to work with the grain of existing provisions—to build on their valuable work and secure for disabled people their rights under this anti-discrimination legislation. That makes a lot more sense than placing all the duties on a new and untried commission.
These amendments also propose that the NDC should be able to undertake or commission research and educational activities. I can assure your Lordships that the NDC will have access to research undertaken independently. I shall be speaking further to that matter when we debate Amendment No. 88. As I said previously, the Department for Education and Employment and my own department are planning a major publicity campaign to support the implementation of the provisions in the Bill. We have set aside more than £3 million to do this. We are also considering setting up a national telephone helpline for businesses and disabled people to ensure that everyone knows where to go for help and advice. It is for all those reasons that I cannot accept my noble friend's Amendments Nos. 86A and 89.
§ Baroness Seear
My Lords, before the noble Lord sits down, I am sure that he is not misleading the House, but no commission actually applies the law. It brings a case to the law courts as a result of its investigations; it is then the law courts which impose the law. There is no question of the commission acting as a legal body.
§ Lord Mackay of Ardbrecknish
My Lords, I suggest that the noble Baroness looks at the amendments we are discussing and asks what interpretation can be put on them.
412 I turn now to Amendments Nos. 90 and 91—as I have not yet finished and not yet sat down—which deal with the separate question of the role of the National Advisory Council on Employment of People with Disabilities, NACEPD. Let me try to explain why we believe that NACEPD should be retained and why I hope that my noble friend will withdraw these two amendments.
In summary, our aims are to: avoid institutional duplication; retain expertise while the employment code of practice is being drawn up; and ensure that government receive advice in the long term on employment and training matters from whichever body is then most appropriate to provide it. The NDC will be the primary source of advice to government on general issues and will be the lead body pursuing the aims of the legislation. What we are seeking to do in subsections (9) and (10) of Clause 34 is to ensure that the NDC does not waste its time by looking at issues which more naturally fall to an existing statutory body, that is to say, NACEPD.
NACEPD's members are appointed because of their knowledge and expertise of employment and disability issues. Ministers in the former employment department have drawn on their advice in making decisions and senior officials meet with members regularly to discuss programmes, services and policies affecting people with disabilities. Moreover, we need their help now. Amendments Nos. 100 and 101 provide for the deletion of Clauses 37 and 38 of the Bill, which provide for my right honourable friend the Secretary of State for Education and Employment to draw up and issue a code of practice to support employment rights.
Employers and voluntary organisations want a code to be available in time to help them become familiar with the law and advise them on the steps they might need to take. NACEPD will perform immediately the task of helping us with the code of practice and guidance. That is the reason I hope my noble friend will not press Amendments Nos. 100 and 101.
This debate turns on two points: first, whether the Government, acting on the advice of influential and independent advisory bodies, should take responsibility for implementing this ambitious legislation or whether we should delegate this responsibility to a new, untried, centralised bureaucracy. We do not believe that government and Parliament should abandon their responsibility in this new and sensitive area. The second point is how best to change attitudes and actions in society to ensure that disabled people are able to secure their rights. We believe the mechanisms provided in this Bill are the best approach to bringing about the necessary changes and ensuring that disabled people get the help they need at the right time and the right place effectively to secure their rights.
It is in the nature of pressure groups always to want more for the people they represent. But it is the duty of government and the House to bring forward measures which take account of the needs of all members of society. That is why again I hope that, having heard my explanations, my noble friend will withdraw his amendment. If he does not seek to withdraw it and presses the issue to a vote, I hope that not only my noble friends but also other noble Lords who look seriously at this issue will join me in the Lobbies.
§ Lord Swinfen
My Lords, this has been a long and interesting debate, particularly when coupled with the even longer debate that we had at Committee stage. There is some confusion over the investigative powers in these amendments. A number of those who have spoken suggested that they are general investigative powers; that the NDC could go into a place of work and investigate the general ideas behind the way that that operator was dealing with disabled people. These powers are no more than the powers one would need to investigate an individual case before carrying out—preferably—a conciliation rather than going off to a tribunal.
My noble friend Lord Renton mentioned that under these amendments the NDC would have to set up branches throughout the country. There is no disputing that. The Government have already said that they would have to set up a number of organisations throughout the country or make use of existing organisations, and presumably fund them; so there is no difference between us.
There has been some talk of the cost of this body. I realise that this is a difficult area because it is a new subject. I understand that the EOC costs £7 million and the CRE £15 million annually. But these amendments do not give the NDC the same powers—it would not be so powerful—though I recognise that it is a difficult area. Money would need to be spent to ensure that the powers behind the Bill were enforced. That would be the case whether or not my amendments were accepted. The importance that the Government appear to give to the NDC, without these amendments, may be recognised by the suggestion that it will cost only £250,000 a year.
I listened with interest to what my noble friend and others said. I have not been satisfied and should therefore like to test the opinion of the House.
§ 5.47 p.m.
§ On Question, Whether the said amendment (No. 86A) shall be agreed to?
§ Their Lordships divided: Contents, 136; Not-Contents, 164.415
|Ackner, L.||Carmichael of Kelvingrove, L.|
|Addington, L.||Carter, L.|
|Airedale, L.||Castle of Blackburn, B.|
|Allenby of Megiddo, V.||Clinton-Davis, L.|
|Archer of Sandwell, L.||Cocks of Hartcliffe, L.|
|Ashley of Stoke, L.||Coventry, Bp.|
|Astor of Hever, L. [Teller]||Craigavon, V.|
|Beaumont of Whitley, L.||Dahrendorf, L.|
|Birk, B.||Darcy(de Knayth), B.|
|Birmingham, Bp.||David, B.|
|Blease, L.||Dean of Beswick, L.|
|Blyth, L.||Dean of Thornton-le-Fylde, B.|
|Brightman, L.||Desai, L.|
|Broadbridge, L.||Diamond, L.|
|Bruce of Donington, L.||Donaldson of Kingsbridge, L.|
|Donoughue, L.||Masham of Ilton, B.|
|Dormand of Easington, L.||Mayhew, L.|
|Dubs, L.||Merlyn-Rees, L.|
|Eatwell, L.||Methuen, L.|
|Elis-Thomas, L.||Milner of Leeds, L.|
|Falkender, B.||Monkswell, L.|
|Falkland, V.||Morris of Castle Morris, L.|
|Farrington of Ribbleton, B.||Nelson, E.|
|Fisher of Rednal, B.||Nicol, B.|
|Flowers, L.||Ogmore, L.|
|Foot, L.||Oxford, Bp.|
|Freyberg, L.||Parry, L.|
|Gallacher, L.||Peston, L.|
|Geraint, L.||Prys-Davies, L.|
|Gladwin of Clee, L.||Rea, L.|
|Gould of Potternewton, B.||Redesdale, L.|
|Graham of Edmonton, L.||Richard, L.|
|Grey, E.||Ritchie of Dundee, L.|
|Hamwee, B.||Rix, L.|
|Hanworth, V.||Rochester, L.|
|Harris of Greenwich, L.||Rodgers of Quarry Bank, L.|
|Haskel, L.||Russell, E.|
|Hilton of Eggardon, B.||St. Albans, Bp.|
|Hollick, L.||St. Edmundsbury and Ipswich, Bp.|
|Hollis of Heigham, B.|
|Holme of Cheltenham, L.||St.John of Bletso, L.|
|Hooson, L.||Sandwich, E.|
|Howell, L.||Seear, B.|
|Howie of Troon, L.||Sefton of Garston, L.|
|Hughes, L.||Serota, B.|
|Hutchinson of Lullington, L.||Shannon, E.|
|Inchyra, L.||Shepherd, L.|
|Irvine of Lairg, L.||Simon, V.|
|Jacques, L.||Stallard, L.|
|Jay, L.||Stedman, B.|
|Jay of Paddington, B.||Strabolgi, L.|
|Jeger, B.||Strafford, E.|
|Jenkins of Hillhead, L.||Swinfen, L. [Teller.]|
|Judd, L.||Thomas of Walliswood, B.|
|Kennet, L.||Thomson of Monifieth, L.|
|Kilbracken, L.||Tonypandy, V.|
|Kinloss, Ly.||Tordoff, L.|
|Kirkwood, L.||Turner of Camden, B.|
|Leigh, L.||Wallace of Coslany, L.|
|Lester of Herne Hill, L.||Waverley, V.|
|Lock wood, B.||Weatherill, L.|
|Lovell-Davis, L.||Wedgwood, L.|
|Macaulay of Bragar, L.||White, B.|
|McCarthy, L.||Wilberforce, L.|
|McIntosh of Haringey, L.||Williams of Elvel, L.|
|Mackie of Benshie, L.||Williams of Mostyn, L.|
|McNair, L.||Wise, L.|
|Mar and Kellie, E.||Zouche of Haryngworth, L.|
|Abinger, L.||Brigstocke, B.|
|Ailsa, M.||Brookes, L.|
|Alexander of Tunis, E.||Brougham and Vaux, L.|
|Archer of Weston-Super-Mare, L.||Burnham, L.|
|Arran, E.||Byron, L.|
|Balfour, E.||Cadman, L.|
|Barber, L.||Campbell of Alloway, L.|
|Belhaven and Stenton, L.||Campbell of Croy, L.|
|Beloff, L.||Carlisle of Bucklow, L.|
|Belstead, L.||Carnock, L.|
|Birdwood, L.||Carr of Hadley, L.|
|Blaker, L.||Carrington, L.|
|Blatch, B.||Chalker of Wallasey, B.|
|Borthwick, L.||Chelmsford, V.|
|Boyd-Carpenter, L.||Chesham, L. [Teller]|
|Brabazon of Tara, L.||Clanwilliam, E.|
|Braine of Wheatley, L.||Clark of Kempston, L.|
|Brentford, V.||Coleraine, L.|
|Courtown, E.||Mackay of Clashfern, L. [Lord Chancellor.]|
|Cranborne, V. [Lord Privy Seal.]|
|Macleod of Borve, B.|
|Cross, V.||Malmesbury, E.|
|Cumberlege, B.||Mancroft, L.|
|Dacre of Glanton, L.||Marlesford, L.|
|Davidson, V.||Massereene and Ferrard, V.|
|Dean of Harptree, L.||Merrivale, L.|
|Denham, L.||Mersey, V.|
|Denton of Wakefield, B.||Miller of Hendon, B.|
|Digby, L.||Milverton, L.|
|Dixon-Smith, L.||Monckton of Brenchley, V.|
|Donegall, M.||Monk Bretton, L.|
|Downshire, M.||Montgomery of Alamein, V.|
|Dundee, b.||Moore of Lower Marsh, L.|
|Eccles, V.||Mountevans, L.|
|Eden of Winton, L.||Mowbray and Stourton, L.|
|Ellenborough, L.||Moyne, L.|
|Elles, B.||Munster, E.|
|Elliott of Morpeth, L.||Murton of Lindisfarne, L.|
|Elton, L.||Newall, L.|
|Faithfull, B.||Northesk, E.|
|Foley, L.||O' Brien of Lothbury, L.|
|Forte, L.||O'Cathain, B.|
|Fraser of Carmyllie, L.||Oppenheim-Barnes, B.|
|Fraser of Kilmorack, L.||Oxfuird, V.|
|Gainsborough, E.||Pearson of Rannoch, L.|
|Gardner of Parkes, B.||Pender, L.|
|Gibson-Watt, L.||Peyton of Yeovil, L.|
|Gisborough, L.||Pym, L.|
|Goschen, V.||Quinton, L.|
|Haig, E.||Rankeillour, L.|
|Hailsham of Saint Marylebone, L.||Rawlings, B.|
|Hambro, L.||Rees, L.|
|Hamilton of Dalzell, L.||Rennell, L.|
|Harding of Petherton, L.||Rodger of Earlsferry, L.|
|Harmar-Nicholls, L.||Romney, E.|
|Harmsworth, L.||Sainsbury of Preston Candover, L.|
|Hemphill, L.||Saint Albans, D.|
|Henley, L.||Saltoun of Abernethy, Ly.|
|Hogg, B.||Savile, L.|
|Hood, V.||Seccombe, B.|
|Hooper, B.||Shaw of Northstead, L.|
|Hothfield, L.||Shrewsbury, E.|
|Howe, E.||Strange, B.|
|Inglewood, L.||Strathcarron, L.|
|Jenkin of Roding, L.||Strathclyde, L. [Teller.]|
|Kenilworth, L.||Sudeley, L.|
|Killearn, L.||Teviot, L.|
|Kimball, L.||Thatcher, B.|
|Kinnoull, E.||Thomas of Gwydir, L.|
|Laing of Dunphail, L.||Thomas of Swynnerton, L.|
|Lane of Horsell, L.||Torphichen, L.|
|Lauderdale, E.||Trefgarne, L.|
|Lindsay, E.||Trumpington, B.|
|Long, V.||Ullswater, V.|
|Lucas, L.||Vivian, L.|
|Lucas of Chilworth, L.||Wakeham, L.|
|Lyell, L.||Waterford, M.|
|McColl of Dulwich, L.||Willoughby de Broke, L.|
|McConnell, L.||Wolfson, L.|
|Mackay of Ardbrecknish, L.||Wynford, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 5.57 p.m.
§ [Amendment No. 87 had been withdrawn from the Marshalled List.]416
Baroness O'Cathain had given notice of her intention to move Amendment No. 88:
Page 26, line 13, at end insert ("and for these purposes the Council may, where it deems it appropriate, initiate or have recourse to independent research").
§ The noble Baroness said: My Lords, the point raised in the amendment, which concerns the NDC, was covered by my noble friend the Minister in his comments on the previous amendment. It encapsulates the point I have made before that the NDC will also need to be informed and must be able to initiate and access independent research in support of its work. In the last part of the speech of my noble friend the Minister I think I heard him say that it would be able to commission independent research. Therefore, I shall not move the amendment.
§ [Amendment No. 88 not moved.]
§ [Amendments Nos. 89 to 91 not moved.]
§ 6 p.m.
Lord Lester of Herne Hillmoved Amendment No. 92:
After Clause 34, insert the following new clause:
§ ("National Disability Council: actual or prospective complainants
.—(1) The Council may assist, in accordance with the provisions of this section, actual or prospective complainants under this Act.
(2) Where, in relation to proceedings or prospective proceedings under this Act, an individual who is an actual or prospective complainant applies to the Council for assistance under this section, the Council shall consider the application and may grant it if they think fit to do so on the ground that—
(3) Assistance by the Council under this section may include—
but paragraph (d) shall not affect the law and practice regulating the descriptions of persons who may appear in, conduct, defend and address the court in any proceedings.
(4) In so far as expenses are incurred by the Council in providing the applicant with assistance under this section the recovery of those expenses (as taxed or assessed in such manner as may be prescribed by rules or regulations) shall constitute a first charge for the benefit of the Council—
(5) The charge conferred by subsection (4) is subject to any charge under the Legal Aid Act 1988, or any charge or obligation for payment in priority to other debts under the Legal Aid (Scotland) Act 1986, and is subject to any provision in either of those Acts for payment of any sum to the Legal Aid Board or into the Scottish Legal Aid Fund.
(6) In this section "respondent" includes a prospective respondent and "rules or regulations"—
§ The noble Lord said: My Lords, I move this amendment even though it does not stand in my name in the Marshalled List, but in those of several other much more distinguished noble Lords. I should own up to the fact that the drafting of the amendment owes a great deal to the sex discrimination and race relations Acts. I realise that much of the ground of this amendment has been covered already in debating Amendment No. 86A. Nevertheless, I move the amendment because it raises narrower and somewhat different issues.
§ This amendment has the limited and important purpose of empowering the council to assist individuals in preparing and presenting their cases and conducting legal proceedings under the Acts. Under the amendment the council will be empowered, but not required—and I emphasise "not required"—to exercise this limited power only in two kinds of case. The first is in raising matters of public importance, including legal interpretation of the Bill and, secondly, in cases where individuals have no other source of assistance.
§ Nothing in this amendment empowers the council, as distinct from the courts of the land, to decide what the law is; and neither, if I may say to the Minister, did Amendment No. 86A do any such thing. This amendment quite clearly does not give any law-making powers to the council. Unlike Amendment No. 86A, this amendment will not make the council in any way similar to the EOC or the CRE except for this power. It confers no power to investigate nor to carry out research or education. It does not prevent the Government, in the words of the noble Lord, Lord Campbell of Croy, from being the lead body. It will not create a proselytising body.
§ The amendment is a slightly more limited version of the similar power conferred on the EOC by Section 75 of the Sex Discrimination Act 1975. Subsection (4) of the clause would enable the council to claw back costs or expenses paid to the applicant by the respondent.
§ I suggest that there are two main arguments in favour of this modest amendment. The first is based on the basic right of access to justice. The second is based on the need for complex social legislation of this kind to be implemented in a sensible and practical way, avoiding unnecessary conflict and misguided and costly litigation.
§ If Parliament enacts legislation conferring civil rights and imposing obligations on individuals and companies, it is essential that what is enacted should be implemented in practice. Everyone in this House will 418 agree with that. It is also essential that everyone should enjoy effective access to tribunals and courts in the determination of their civil rights and obligations. That right of effective access to justice is so elementary and important that it is guaranteed on the international plane by Article 6 of the European Convention on Human Rights. There was the case of Ayre v. Ireland where the court decided that in complicated civil cases there is a positive obligation on the state to ensure effective access to justice. That obligation binds this country as much as Ireland.
§ Complaints of disability discrimination in the employment field will be adjudicated on, as noble Lords know, in industrial tribunals where legal aid is still not available. The noble and learned Lord, Lord Archer of Sandwell, has already explained the problems of appearing unrepresented at industrial tribunals. Although I accept that in the ordinary run-of-the-mill unfair dismissal case, an individual can perfectly well appear without the benefit—sometimes dubious benefit—of legal representation, everyone who practises in the discrimination field in complicated cases will, I believe, accept that those cases require skilled representation on both sides.
§ Complaints of discrimination in the non-employment field will be dealt with in county courts and sheriff courts where legal aid is available, but only to the poorest of the poor. That is one important reason why Parliament has empowered the existing commissions to give assistance to those complaining of sex and race discrimination so that they are able to enjoy effective access to justice. Although the Minister has said that much has changed since the mid-1970s, I am sure he will agree that effective access to justice is as important in 1995 as it was in 1975.
§ I come to my second argument. It is equally important for employers and the providers of goods, services and facilities, as well as for those who suffer from unlawful discrimination, that the legislation should be interpreted and applied in a wide and practical way by courts and tribunals and ordinary men and women. One of the great advantages of the council's power to assist would be that it would enable an expert administrative agency to take up test cases raising serious points of principle, while denying assistance to misconceived, frivolous or relatively trivial cases. Such a limited power assists not only individuals but also tribunals, courts and employers or service providers.
§ If I may say so without in any way being self-regarding, I have had 30 years' practical experience as an advocate in the discrimination field. I really know how useful it is to have an expert body able to sieve the wheat from the chaff in this way. I spend much of my time in cases which are assisted by the EOC, advising that body that cases are hopeless and should not be pursued. I am sure that lawyers perform a prophylactic role of that kind.
§ The Minister referred to the price tag and I come to that straightaway. The EOC and the CRE may be accused of many things, but no one can criticise them for being extravagant or imprudent in the exercise of their comparable powers of assistance. Last year, the EOC received 1,629 applications for legal assistance. It 419 granted assistance in 108 cases. If my arithmetic is right, in only 6.6 per cent. of the cases was assistance granted. Public expenditure under this head amounted for the whole year to £330,000. That is not a large sum to cover all assisted legal proceedings from industrial tribunals and county courts, all the way to this House.
§ I am still dealing with the price tag. The statistics for the CRE, which has a significantly larger budget, are roughly comparable. It received a larger number of cases. It spent £882,000 on assisting 228 cases, which was 11.8 per cent. of 1,937 applications.
§ In answer to a point made by the noble Lord, Lord Renton, earlier, neither of those bodies has had to create any expensive regional legal aid offices in order to deal with this in any expensively bureaucratic way. The price tag is the tag that I have just referred to—not huge in the context of this social legislation.
§ What the statistics do not reveal is that these agencies provide a huge amount of valuable advice and assistance, both in exercising their formal power and also in acting under the general power, to a wide cross-section of society. They do so in cases which never ripen into adversarial litigation because they are sensibly settled by informal conciliation and dispute resolution. What begins as a request for legal assistance often results in the avoidance of legal conflict in this way. But in my view what is essential is that the council should have this limited power, not only to be used carefully and sparingly in legal proceedings, but also to be used in this wider way.
§ Finally, I make this general point. There is surely no good reason to fetter effective access to justice for disabled people who are victims of unfair, unreasonable and unlawful discrimination, on the ground of their disability, compared with the victims of sex and race discrimination or, for that matter, the victims of religious discrimination in Northern Ireland. Surely, I ask rhetorically, all those categories of victims are entitled to the equal protection of the law and to equal access to legal remedies. Surely applicants should be able to obtain advice and assistance as do respondents; otherwise I am concerned that a well-aimed Bill could result in real injustice and could even result in complex cases in breaches of Article 6 of the European Convention on Human Rights, and the principles enunciated in the Ayre case. We should not enact a law which is unlikely to be enforced. This modest amendment would make it much more likely that the law would indeed be translated into practical reality. I beg to move.
§ Lord Mackay of Ardbrecknish
My Lords, I can well understand why the proposers of the amendment passed it in the general direction of the noble Lord, Lord Lester, who has considerable expertise in these matters. I suppose that in the midst of his speech and while telling us of his expertise,. he was, in these post-Nolan days, declaring his considerable financial interest in this aspect of the law—
§ Lord Lester of Herne Hill
My Lords, I hope that the Minister will, on reflection, withdraw the implication of that remark.
§ Lord Mackay of Ardbrecknish
My Lords, if the noble Lord thought that there was an implication, I must tell him that there was none. I was just pointing to the fact that he is known to be very successful in this general field and that I can therefore understand why the four Peers who put their names to this amendment decided to ask him to move it. If I have said anything to which the noble Lord takes exception, I withdraw it.
This is simply a subset of the argument that we have just had, and I am not going to rehearse for the third time my arguments on the commission and so on. That has already been done.
The amendment seeks to insert a new clause setting out the circumstances in which and the categories of people to whom the National Disability Council could provide assistance. It stems from two basic thoughts: that disabled people will require legal assistance and that there will be a need for test cases to be taken. I have already explained the reasons why the Government believe that the advice and support services that we propose, together with ACAS, will be the best means of providing disabled people with the assistance they will need to secure their new rights.
The noble Lord, Lord Lester, took me up on an earlier point by saying that the amendment gives no new law-making powers to the NDC. That is not what I implied in my previous speech. It is true that the amendment gives no law-making powers to the council, but it gives the council a power to choose which cases to take to court. Inevitably, there will be a temptation for the council to choose those cases offering the best chance of widening the scope of the legislation in areas where there is room for interpretation. That is what I mean when I say that this amendment, like the previous amendment, would give the council a role in determining how the law would apply. I should prefer these matters to be left to government and eventually, if the matter has to come to regulations, to Parliament. That is the point that I was making and I make it again.
Turning to the amendment, it makes provision—
§ Baroness Seear
My Lords, may I ask whether the noble Lord agrees that he did not in the least intend to imply in the previous debate, as a great many noble Lords thought that he did, that there would be new law-making powers for this body which it does not have and which would be usurping the position of the courts? Are we now quite clear that the noble Lord did not mean that?
§ 6.15 p.m.
§ Lord Mackay of Ardbrecknish
My Lords, I think that I have made my position clear. I do not want to revisit the argument that we have just had and settled. I hope that the noble Baroness now understands the position. If I did not make myself clear, I hope that I have now done so.
As I was about to say, this amendment makes provision for assistance to be granted to cases which raise a question of principle. Members opposite will 421 doubtless think that a commission is needed to take test cases to court to establish precedents. However, test cases will have little general application in the area of disability. The fact that we use the single word "disability" should not mislead us into thinking that disabled people form a single group with common characteristics. That is not the case, as my noble friend Lord Campbell of Croy argued convincingly from a position of considerable strength and knowledge in the previous debate. What an elderly person with a hearing impairment might need to access a service is completely different from what a person with a sight impairment might need to access the same service. Even with similar impairments, there will be significant differences in effect. Somebody encountering mobility problems in his sixties faces very different challenges from someone who is born with mobility difficulties. While a central body taking test cases to a court may be of help in setting precedents on behalf of women, there is little scope for it to do the same for disabled people who form such a diverse group.
As I have already indicated—I should like to underline this point for the noble Baroness, Lady Seear—should it become apparent that the policy intention or the practical advice needs to be clarified, we believe this should be undertaken by government and Parliament based on the advice of the National Disability Council. The regulation-making powers and the provisions for codes of practice, are designed to provide the Government, Parliament and the NDC with the flexibility to do this. The sex and race legislation does not contain similar powers, and does not require anything like the amount of change that this Bill will require. It is right that the boundaries of this legislation should be fixed by government and Parliament.
It is unrealistic to think that the provisions of this amendment could work in tandem with the advice and support services we have proposed. The notion that only a limited number of cases would apply for this kind of assistance is mistaken. Rather than going to the advice and support service as a first course, people would naturally go to the NDC—and they would be encouraged to do so. The NDC would then be faced with the huge task of examining and filtering every allegation without the benefit of local knowledge. That would be totally impractical and would run the risk of greatly protracting the length of time needed to reach a satisfactory solution to a claim of discrimination. I should point out that the Equal Employment Opportunities Commission in the United States should serve as a warning to us here. In 1994, it had a backlog of more than 85,000 cases which was an increase of about one-third on the previous year.
If these proposals were successful, we would also increase the risk of creating a backlash. I explained that previously and I have no desire to go over the same argument. Perhaps I may describe the provisions as a "back-stop" for the people who want a commission. The amendment draws back a little from the powers that they would have given a commission under the previous amendment, but, for exactly the same arguments as I used previously and for those which I have just brought before your Lordships' House, I suggest that the 422 amendment is wrong. I hope that the noble Lord will withdraw it, but, if he does not, I hope that my noble friends will support me in the Division Lobby.
§ Lord Lester of Herne Hill
My Lords, I think that the Minister was suggesting that in some way I might have been motivated in what I said by self-interest. I am glad that the Minister has now withdrawn that suggestion and shall not therefore deal with it further.
However, I should like to deal with some of the points that the Minister has made. Almost all of his objections would apply with equal force to the power to give assistance which is already possessed by the Equal Opportunities Commission and the Commission for Racial Equality. I had thought that governments of both main parties had for two decades or more supported the notion that there should be effective access to justice by the victims of sex and race discrimination. The Minister has not explained to the House why there should be unequal access to justice as regards the victims of disability discrimination, except to suggest that somehow the problems of the victims of disability discrimination are different.
I suggest that, as far as the law is concerned, there will be difficult problems about the legal meaning of the definition of "unlawful discrimination" and about the scope of the many exceptions contained in the Bill. Again, speaking from practical experience, I believe that industrial tribunals, sheriff courts and the county courts will have great difficulty making sense of a Bill which confers on them such wide powers of interpretation. The Minister said that he would prefer the Government and Parliament to decide the law. Of course, the Government and Parliament are now deciding the law, but in the end the only bodies in this country to decide how to interpret the law are the courts and tribunals. It is no use leaving the courts and tribunals with misconceived, sometimes frivolous and unsupported cases, which are badly argued, leaving inexperienced industrial tribunal chairmen and chairwomen and sheriff and county court judges without the assistance that they need in complicated discrimination cases. In the amendment, there is no question of trying to create a commission. There is no hidden agenda. The purpose is merely to try to secure more effective access to justice. I submit that test cases will be as important under this Bill as they are under existing discrimination legislation.
The Minister has also not referred to, nor would I expect him in fairness to do so, to the point I raised about Article 6, paragraph 1 of the European Convention on Human Rights and the positive obligation that that places upon the Government and Parliament to ensure effective access to civil justice. I should be grateful if the Minister could reflect upon that point. He might find it convenient to write to me about it in the comparatively near future.
The Minister put forward one further argument which I hope he will, on reflection, agree is entirely without merit. He suggested that the proposed power would delay legal proceedings and lead to an American-style backlog. That is a bad point because the equivalent power in the Sex Discrimination Act in no way affects the short time limits within which applicants must bring their cases. They still have to bring them within three 423 months in industrial tribunals and within six months in county courts and sheriff courts. This power would do nothing to prolong the period within which cases had to be brought or within which they would have to be fought.
I hope, therefore, even at this last moment—the Bill's 11th hour—that the Government might think again that a narrow and limited power with a mean Treasury-driven budget for legal assistance, to ensure no extravagance—the present budgets of the EOC and the CRE are controlled by the Treasury and are limited and mean—with the Government controlling the purse strings in a way they already do, and find it within themselves to accept this amendment, or something even narrower, to allow assistance to be given in this way. Otherwise, Cassandra-like, I predict that one day not very long from now an applicant will say, "I have a very complicated case. I cannot do it myself. I cannot get legal assistance, and that is a breach of my Article 6 rights". That is something I do not wish to see, even though the Minister might think that I would earn money from representing such a person before the European Commission and Court of Human Rights.
Your Lordships have only recently voted on a broader amendment which incorporated part of this amendment. I do not wish to tax your Lordships' patience by seeking your opinion. I therefore beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Schedule 4 [The National Disability Council]:
§ [Amendments Nos. 93 to 95 not moved.]
§ Lord Mackay of Ardbrecknish moved Amendment No, 96:
§ Page 51, leave out lines 37 to 42.
§ The noble Lord said: My Lords, I shall speak also to Amendments Nos. 120, 180, 181, 196 and 197. The purpose of this group of amendments is to tidy up and clarify the wording of the Bill.
§ Amendments Nos. 96, 180, 181, 196 and 197 correct a minor drafting error. Paragraph 8 of Schedule 4 at present refers to the House of Commons Disqualification Act and the Northern Ireland Assembly Act. The provision is modified in relation to Northern Ireland in Schedule 7. However, as the House of Commons Disqualification Act is a UK-wide Act, there is no need for its inclusion in Schedule 7.
§ Amendment No. 96 deletes the provision on the House of Commons Disqualification Act in Schedule 4, and Amendments Nos. 196 and 197 remove the unnecessary provision from Schedule 7. Amendment No. 181 combines the provisions currently in the schedules and inserts them into Clause 62 for clarity. Amendment No. 180 is a consequential amendment which rewords subsection (2) of Clause 62 to take account of the change to be made by Amendment No. 181.
§ The effect is to bring the Northern Ireland Disability Council, together with the National Disability Council, within the provisions of the House of Commons Disqualification Act and the Northern Ireland Assembly Disqualification Act. This is a standard provision to 424 prevent members of the National Disability Council or the Northern Ireland Disability Council from becoming Members of Parliament or representatives of the Northern Ireland Assembly. Similar provisions are included in other Bills which create statutory or non-governmental bodies. Amendment No. 96 removes paragraph 8 of Schedule 4. Amendment No. 181 inserts the provision into Clause 62 and makes reference to the Northern Ireland Disability Council.
§ Amendment No. 102 would change the wording of Clause 41 to ensure that it is consistent with that used in other parts of the Bill which deal with criminal acts. With that explanation, I commend these amendments to the House. I beg to move.
§ On Question, amendment agreed to.
Lord McCarthy moved Amendment No. 97:
Before Clause 36, insert the following new clause:
("Restriction of publicity
.—(1) Schedule 9 to the Employment Protection (Consolidation) Act 1978 (regulations for industrial tribunals) shall be amended by the insertion in paragraph 1 of the following.
(2) After sub-paragraph (5A) there shall be inserted—
(5B) The regulations may include provision—
In this sub-paragraph—
discrimination offences against disabled persons" means those prescribed in the Disability Discrimination Act 1955."").
§ The noble Lord said: My Lords, the amendment is grouped with Amendment No. 166 tabled by the noble Lord, Lord Kilmarnock, which is a version of a similar amendment that he moved in Committee where I believe it was Amendment No. 141. My amendment to which I am now speaking, although I shall refer to the noble Lord's amendment, is more limited than his. It is more limited in that it is confined to the employment areas of the Bill. It works on those parts of the Bill which produce claims before industrial tribunals. It does not deal with the non-employment aspects of the Bill, whereas of course the amendment tabled by the noble Lord, Lord Kilmarnock, dealt with both.
§ I am not putting the amendment forward because I do not believe that the noble Lord was right to say that something should be done on the subject matter of the clause in respect of employment and non-employment cases. I do. It seems to me that the need is slightly stronger on the employment side. In so far as I understood the arguments put forward by the Government when the amendment was moved in Committee, it seems to me that they had some slight case on their side when dealing with non-employment matters because they said that there was a procedure 425 whereby people complaining of discrimination in goods and services could take their claims through the small claims arbitration procedure and so find a way of doing what we want to do with the amendment tonight.
§ My amendment is trying to do something about industrial tribunals. It follows, as faithfully as I can, the model of Sections 40 and 41 of the Trade Union Reform and Employment Rights Act 1993. They had to do with restricted publicity in cases involving sexual misconduct. What the House agreed to do then was based on a government amendment. The Government brought forward Section 40 to the House, although it was widened at that point to make it fairer and more equitable. The Government then wanted to deal with publicity which arose in cases of alleged sexual misconduct before industrial tribunals.
§ The Government said that employers, in particular, were receiving unfavourable publicity in circumstances in which frequently when the case was heard by the tribunal there was found to be nothing in it. My noble friend Lady Turner suggested to the House on that occasion that if we were going to protect employers from unfavourable publicity, it would be only fair to protect employees. Once that was pointed out to the Government, they agreed.
§ In the amendment we are trying to achieve the same in the area of discrimination. The Government have already accepted (col. 729 of Hansard of 27th June) that there already are cases—for example, in national security, or where there may be a substantial degree of injury to the undertaking, and, as I have said, in cases of sexual misconduct—where tribunals are allowed to curtail the degree of publicity. Restrictions on publicity orders are made, and they last, of course, only until the decision of the tribunal. Therefore, it is not a case of justice not being seen to be done. It is seen to be done when it has been done; when the tribunal has made a decision it becomes public. Only during the period of the hearing can the tribunal, if it agrees, impose a restriction on publicity in the cases of alleged sexual misconduct.
§ I believe that there is no real difference between cases of discrimination or alleged sexual misconduct. When the issue was debated in Committee we gave many examples involving cases of HIV or AIDS and mental illness in which appellants did not want discussions and reports of allegations to appear in newspapers. We also gave examples of hotel employers facing allegations of laying people open to viral infections which led to their disability. Of course, the tribunal might decide that that was not the case but until the matter was decided one way or another, understandably, employers said that they wanted a degree of protection.
§ The fact is that in cases of disability we can put forward a set of examples showing that, reasonably, people want a degree of privacy until the tribunal decides the matter. That is what my amendment seeks to provide. I beg to move.
§ 6.30 p.m.
§ Lord Kilmarnock
My Lords, the noble Lord, Lord McCarthy, was kind enough to refer to Amendment No. 166 which stands in our names and that of the noble 426 Baroness, Lady Masham. It is a revised version of a similar new clause which was moved and discussed in Committee.
On re-reading the debate, I concluded that the Minister had a point because as the new clause then read it would have introduced a blanket privacy provision. That was not our intention. I did not draft the amendment but took it over at the last minute. Had I scrutinised it more carefully I might have discovered that problem in advance.
The amendment has been revised and I wrote to the Minister giving him advance notice. It has been made perfectly clear that what is proposed is purely a permissive and enabling measure and not mandatory on any tribunal. It seems reasonable that a court or tribunal should have at least the same powers as those in Section 40 of the Trade Union Reform and Employment Rights Act 1993, to which the noble Lord, Lord McCarthy, referred. The amendment standing in his name and that of the noble Baroness, Lady Hollis, is closely modelled on that.
As the noble Lord, Lord McCarthy, said, my new clause goes a little wider, covering employment and non-employment cases. Subsection (1) (a) enables a hearing to be held in private. We are talking only of a discretionary power and therefore I do not see why that possibility should be excluded. After all, the capacity for a hearing in private is provided in Section 8(2) and (3) of the Industrial Tribunal Constitution and Rules Procedure 1993. Subsections (1) (b) and (c) reflect closely the provisions of subsections (2) (a) and (b) of the amendment tabled by the noble Lord, Lord McCarthy, in their effects.
I am in some doubt as to whether I should rally behind the noble Lord, Lord McCarthy, in the hope that his amendment is more acceptable to the Government. I find it hard to see how they can refuse the noble Lord's amendment, even if they believe that mine goes a little wider than they would wish. I strongly believe that the Bill should contain provisions relating to confidentiality. There are none at present. I can think of a number of instances in which, from the point of view of both the employer and the employee, it might be desirable for proceedings of a delicate nature to have reporting restrictions placed on them.
I shall listen carefully to what the Minister says and I shall make up my mind at the end of the debate.
§ Baroness Masham of Ilton
My Lords, I support Amendment No. 166. I hope that the Minister will consider these sensitive issues. Disability brings all kinds of problems which relate not only to the disabled person but also to his family. They can relate not only to HIV and AIDS and mental illness but to genetic disabilities in particular. I hope that the Minister will merge the two amendments and will bring forward a proposal on Third Reading.
§ Lord Mackay of Ardbrecknish
My Lords, we debated these issues in Committee—late at night, if my memory serves me correctly. The amendments before the House today are slightly less sweeping than those 427 then tabled. I have reflected on the discussion that we had and I hope that I shall be able to offer words of reassurance to your Lordships.
In response to the noble Baroness, Lady Masham, I have a great deal of sympathy with the problems that she presented and the intentions behind the amendment. However, I wish to remind your Lordships that it is fundamental to our system of jurisprudence that judicial proceedings should be open, except in the most exceptional circumstances. That ensures that justice is not only done but that it is seen to be done.
This principle is reflected in Article 6 of the European Convention on Human Rights, which provides that:in the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing".This principle is closely adhered to by the Council on Tribunals in its Model Rules of Procedure for Tribunals.
Perhaps I may deal with the courts first. As I pointed out in Committee, it is already open to parties to proceedings to request that their case be heard in camera. Subject to the judge's discretion, this would mean the case being heard in private and details of the case and documents used in the evidence would not be in the public domain.
The onus has always been on those who are seeking an exception to the principle of an open and public hearing of a case to demonstrate that it is in the interests of justice for a case to be heard in private on the grounds, for example, of national security, public order, decency, safety or the protection of minors. It is then for the discretion of the relevant judicial authority to decide upon the facts presented to it. I do not believe that Amendment No. 166 is necessary as far as the courts are concerned.
Moreover, we are confident that the majority of cases brought under Part III of the Bill can be settled short of legal action. But in a situation where both parties believe that they have right on their side they will have recourse to an arbitration hearing in the local small claims court. As your Lordships are aware, the arbitration procedure is informal and is usually conducted in private. The Government's decision to set a financial limit on claims for injury to feelings will ensure that the small claims procedure will almost always be appropriate. I believe that as regards court proceedings, there is no need for any changes to the current position.
I now turn to tribunals. In Committee and today I listened carefully to the points made about the need for a degree of confidentiality for disabled people bringing cases to tribunals under this legislation. As I have indicated, I understand and share some of that concern. In Committee the noble Lord, Lord Kilmarnock, drew my attention in particular to those suffering from HIV, and the noble Baroness, Lady Masham, referred to people suffering from mental or genetic problems.
I have said already, and I repeat it, that restrictions on the freedom of the press should be avoided wherever possible. We certainly could not support the introduction of a power for such hearings to be in private. However, I understand the desire at least to make possible confidentiality in cases which are brought 428 to tribunals under this legislation. As under the small claims procedure, tribunal proceedings are also designed to be informal, but, as I have said, I appreciate that someone who brings an action because he feels that he has been discriminated against on the grounds that he was HIV positive may not be quite so keen to do that if he believes that it will receive a lot of publicity in the local press. Similarly, an employer may not wish it to be widely known that he is employing somebody with HIV. I could have used other examples but that was the example that was used in Committee.
I should like to take away the question of reporting restrictions in tribunals in order to consult interested parties and the Council on Tribunals as regards the scope for a discretionary power in that area with a view to bringing forward an amendment on Third Reading if I reach the conclusion that that is appropriate. I know that the noble Lord, Lord McCarthy, homed in on tribunals, and I hope that he will feel that I am making a helpful suggestion.
I hope that I have explained satisfactorily that the courts already have those powers. I shall consult interested parties and the Council on Tribunals to see whether something needs to be done at Third Reading. I hope that, with that undertaking, the noble Lord will withdraw the amendment.
§ Lord McCarthy
My Lords, yes, of course—delightful and delicious. I hope that the noble Lord will read the debates as regards the introduction of Sections 40 and 41 into the Trade Union Reform and Employment Rights Act. I simply remind the Minister that the Government said that under the existing rules, which covered national security and so on, cases of sexual misconduct were not covered. Therefore, the Government asked the House to introduce that additional provision. If that is the case, I suggest that discrimination is also not covered and the same arguments apply. But certainly, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 37 [Codes of practice prepared by the Secretary of State]:
§ Lord Henley moved Amendments Nos. 98 and 99:
§ Page 29, line 2, leave out ("an employer") and insert ("a person").
Page 29, line 18, at end insert:
("(8) In subsection (1) (a), "discrimination in the field of employment" includes discrimination of a kind mentioned in section (Discrimination against contract workers) or (Discrimination by trade organizations).
(9) In subsection (1) (b), "employment" includes contract work (as defined by section (Discrimination against contract workers) (6).").
§ The noble Lord said: My Lords, I spoke to these amendments with Amendment No. 51. I beg to move.
§ On Question, amendments agreed to.
§ [Amendment No. 100 not moved.]
§ Clause 38 [Further provision about codes issued under section 37]:
§ [Amendment No. 101 not moved.]429
§ Clause 41 [Aiding unlawful acts]:
§ Lord Mackay of Ardbrecknish moved Amendment No. 102:
§ Page 31, line 35, leave out ("commits") and insert ("is guilty of").
§ On Question, amendment agreed to.
§ 6.45 p.m.
Baroness Dean of Thornton-le-Fylde moved Amendment No. 103:
After Clause 44, insert the following new clause:
("Disabled persons: monitoring of numbers employed
—(1) It shall be the duty of local authorities, health authorities, government departments and government agencies to keep such records regarding the numbers of disabled persons employed by them as the Secretary of State shall by Regulation prescribe.
(2) Regulations may prescribe:
(3) Regulations made under subsection (2) (b) may, in particular, make provision for particulars to be collected separately with respect to different categories of employee.
(4) Regulations made under subsection (2) (c) may, in particular, make provision for the confidentiality of information collected about individual employees.
(5) In preparing such Regulations the Secretary of State shall consult—
§ The noble Baroness said: My Lords, this is a very similar amendment to one which was moved in Committee. At that stage, the Minister gave a detailed reply. However, it was not at all reassuring and that is why we have returned to the matter.
§ The amendment will require all public sector bodies to monitor the numbers of disabled people that they employ. It will also respect the confidentiality of those individuals where that is sought.
§ In Committee the Minister said that the Government want to monitor the position of disabled people in the labour market after the implementation of the Bill. He went on to say that the Cabinet Office already takes positive steps to achieve equal opportunities for government employees in the Civil Service and that government departments and agencies are required to carry out monitoring. Will that policy remain when this Bill becomes law? It is obviously helpful. The Government must feel that it is helpful and that there is a reason for doing it. We support that and we think that they are right. But we say that that should be extended and provided for in regulations.
§ As with all employers employing more than 20 people, local authorities keep registers of disabled employees. Therefore, there will be no extra work if the amendment is accepted. Indeed, taking that one stage further, the Employment Service believes that it is worth while keeping statistics and carrying out surveys because it awards a symbol to employers which denotes that an employer is carrying out good practice by 430 surveying the workforce for both registered and non-registered disabled employees. What are the plans for that scheme if the Bill goes through without this amendment? Will the Employment Service continue to award that symbol where the employers operate good practice and survey their workforce?
§ The report from the Employment Select Committee of another place on the operation of the Disabled Persons (Employment) Act, which was published in April this year, stated that the maintenance of accurate statistics on the position of disabled people in employment was essential. I agree with that. We should develop that policy, monitor the progress or otherwise and assess whether the Act is working and, if it is not, why it is not. It is absolutely essential to have complete and accurate statistics.
§ The view of the Select Committee, of the Employers Forum on Disability and of this side of the House is that it is essential that we have proper statistics. This amendment will require the public sector to keep those statistics. Indeed, the amendment supports the Government's policy of requiring that to happen. There will be no added burden on resources because the public sector already does that.
§ The intentions behind the Bill are indeed creditable. It is essential to monitor the effects of the Bill on the workplace so that we can assess how it is or is not succeeding. I suggest that without those accurate statistics, that will not be possible. We should not have to rely on ad hoc research or this piece of work or that piece of work. Those figures should be continuously to hand and, if they are not, that will act to the great detriment of the Bill. I beg to move.
Lord Campbell of Croy
My Lords, I wish to raise one point on which I touched at an earlier stage. I am in favour of monitoring in the public service as far as possible and I agree that there should be confidentiality. However, we face the difficult problem of why disabled people did not register under the quota scheme, which still continues.
It has been suggested by RADAR that whether or not an individual is prepared to indicate his disability in a survey is in part an indication of the confidence that he feels that his employer will not treat him less favourably on that basis. It is a measure of a disabled employee's trust in his employer. I believe that it is a very small part. There are varying reasons why disabled people do not register. That is something with which I have been involved over the past 40 years. Most of them are not employed. They are unemployed and should be on the register. Therefore, it is no reflection on their attitude towards a particular employer. The fact must be faced that some obviously disabled people do not register and do not want to be included in the category of disabled. That may be obstinate. They appear to have conscientious objections to being put in that category. That has been one of the problems which has made the quota system so difficult to operate. Therefore, I hope that that point will be addressed. I would encourage all disabled people to register; indeed, I have always done so. I hope that, under any monitoring in public service departments, or elsewhere, such encouragement will be given.
431 However, I recognise that there are certain people who are, as I say, conscientious objectors in the field. My question is: would they automatically be included? For my own part, I agree with the proposals that disabled people should identify themselves for confidential monitoring purposes. I would be against pressing such people to be included if they conscientiously objected to the process.
§ Lord Addington
My Lords, I should like to follow the noble Lord, Lord Campbell of Croy, down that stony path. I totally agree with him that there has been terrible trouble with the registration system due to the fact that people will not register. However, we must try to move away from that position. If we are to take active help forward, we must have something along the lines of the amendment for the simple reason that knowledge can be turned into action; in other words, knowledge of a problem can be turned into an action to resolve it. Therefore, as I said, the amendment proposed, or something very like it, is required.
Further, the advantage of this fairly limited amendment is that it would deal with local authorities, health authorities, government departments and government agencies. Perhaps we should try to convince disabled people that, if they admit to a confidential registration, it will not go any further than becoming a statistic. After all, when all is said and done, we are all statistics. If such people can become part of a list without having a name attached to them, they will try to help themselves and others. Surely that is something that we should encourage.
I do not know whether the amendment proposed is the best one for the purpose, but certainly something along those lines should be included. We must try to get our hands on the facts, and government-related activities are probably the best areas in which to start looking for such information. As regards conscientious objections to being monitored, the same argument could be applied to national insurance numbers and beyond. Therefore, that really is not an argument which should prevent monitoring and the collection of such valuable information.
§ Baroness Masham of Ilton
My Lords, it is possible that some people do not know whether or not they are classified as disabled. Perhaps there should be more information available. Certainly most people will come forward if there is a benefit, a carrot or a point in so doing. But, if there is not, they may think there is no point in being registered; indeed, it may be a disadvantage to be registered as disabled. Therefore, more clarification is needed in the matter. For example, is someone who has diabetes classified as being disabled? There are so many different disabilities. It is quite complicated. Perhaps a solution can be found to the problem.
§ Lord Henley
My Lords, the noble Baroness stated that we debated a similar amendment in Committee and that we discussed it for quite a long time. I have to say that I believed we debated a more or less identical, if not identical, amendment (bar the rubric), at considerable length in Committee when my noble friend Lord Inglewood answered for the Government. I am not 432 sure that much has been said that has added to the argument; and, indeed, I am not sure that there is much that I can add on the Government's behalf.
I certainly understand what the noble Baroness is seeking to achieve by way of her amendment. Its purpose is to introduce a provision which will compel the specified bodies that she named—local authorities, health authorities, government departments and government agencies—to monitor in a prescribed fashion their employment of disabled people and, by so doing, set an example of good practice for other employers to follow.
The Government can, of course, and do already, arrange by administrative measures, for government departments and agencies to monitor their employment of people with disabilities. Under the Civil Service Management Code, government departments and agencies are required to monitor the numbers of their staff and applicants who are disabled. Moreover, the Cabinet Office has recently taken steps to reinforce that requirement by promoting a "Programme for Action to Achieve Equality of Opportunity in the Civil Service for Disabled People". The amendment that we are now debating covers a very much wider range of bodies on which I do not believe it would make any sense to impose such a uniform approach.
The noble Baroness asked me about the disability symbol, something with which, I have to say, I am familiar from my earlier days in the Department of Employment and for which I am most honoured, in returning to the department, to reacquire responsibility. I can tell the noble Baroness that the code of practice which is to be brought forward under the Bill will obviously encourage employers to introduce a wide range of good practices including monitoring the number of disabled people whom they employ. We hope that many employers will look to establish such systems as the code may recommend.
The disability symbol is increasingly being used by employers; indeed, I understand that the figure stands at over 1,400 at present. When I left the department a little over a year ago, a mere 900 employers were involved. Therefore, we have seen quite a dramatic increase over the year. That gives some indication of those employers who have made a positive commitment towards employing disabled people. I can give the noble Baroness an assurance that I shall certainly be doing my bit—as indeed will the Employment Service and the department as a whole—to encourage employers to continue to use the symbol and to continue to develop policies so that they can acquire it. Obviously the commitment made by employers who use the symbol will need a degree of review in the light of the provisions in the legislation. However, any requirement for monitoring will continue to be voluntary.
The amendment would impose a bureaucratic and rigid monitoring system which would be unable to take account of the different needs, circumstances and requirements of those bodies that it would affect. As I have made pretty clear, the Government accept the case for encouraging employers—most certainly encouraging those in the public sector—to monitor the numbers of people with disabilities whom they employ. We believe 433 that educating and persuading employers of the benefits of employing disabled people is the right way to achieve that aim. Indeed, that has always been high on the Government's agenda. The legislation itself will, over time, help to change attitudes, but I do not believe that we can compel employers to adhere to good practice. There is no point in any employer collecting numbers if his management is not committed to good practice. It is that commitment by all employers that we seek to win.
As the noble Baroness will be aware, we will be bringing forward the code of practice under powers laid down in the Bill. It will encourage employers to implement a variety of good practices, including monitoring the numbers of disabled people they employ. But its guidance on monitoring will set it firmly in the context of employers' own policies on disability. Information gathered by employers will be of value only if it suits the needs and circumstances of the individual employer and his employees.
I believe that a prescriptive system, such as that proposed in the amendment, would be inflexible and that, frankly, the results would be questionable. With that explanation, I hope the noble Baroness will feel able to withdraw her amendment on this second occasion.
§ Baroness Dean of Thornton-le-Fylde
My Lords, I thank the Minister for that reply and for responding to the two particular questions that I put to him. I am also—I hope, rightly—assured. The noble Lord said that when he left the department 900 companies were registered and that a year later the figure had risen to 1,400. Well, if the Minister is committed, let us hope that that record will be doubled over the next year. I would certainly suggest that the code of practice and its content may or may not he an encouragement for such numbers to rise. Therefore, we shall be watching the progress of the code of practice closely.
The Minister said that collecting numbers is no use if the employer is not committed. However, I suggest that, if the employer is not committed and numbers are not collected, that would lead to an even worse situation because you cannot assess where you are or consider the policy which is applicable.
I thank the noble Lords, Lord Campbell of Croy and Lord Addington, for their support. I know that the noble Lord, Lord Campbell of Croy, is particularly exercised by the concern that disabled persons have as regards registering. He made that point on a previous occasion and I have reflected on it. I believe that is not just an indication of the way they believe that employers will view them but also an indication of the way that people with disabilities believe that everyone in the community views them as individuals. Obviously I am disappointed with the response. I have no regrets at all for having brought this measure forward a second time. I hope that the Minister will take note of the desire on this side of the House that there should be proper statistics on this matter. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, may I suggest that the Report stage begins again not before 8 p.m.
§ Moved accordingly, and, on Question, Motion agreed to.