Lords Sitting of 13 June 1995

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Coventry.
The Earl of Morton—The Earl of Morton—Sat first in Parliament after the death of his kinsman.

Mr. Ian Hay Davison
Lord Peyton of Yeovil Lord Peyton of Yeovil asked Her Majesty's Government:
When they expect the action they initiated 10 years ago in the American courts against Arthur Andersen, arising out of the De Lorean affair, to come to trial; and whether they are now prepared to consider Mr. Ian Hay Davison (a partner in Arthur Andersen at the time of the affair) as eligible for any such government appointment as may be appropriate.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Henley): My Lords, Arthur Andersen and Company has filed a Motion for summary judgment in this action. No date for trial will be set until the United States Federal Court has decided that Motion. While the proceedings continue, it would not be appropriate to offer any public appointment to anyone who participated in Arthur Andersen's work for De Lorean Motor Cars Ltd.
Lord Peyton of Yeovil: My Lords, I wish to ask my noble friend a straightforward question. Does he really believe that it is fair or respectable to keep a British citizen, Mr. Ian Hay Davison, effectively in quarantine for as long as 10 years while the action which they have launched in the American courts winds its labyrinthine way towards a trial, and to do so at the behest of an American lawyer who simply fears that Mr. Ian Hay Davison's evidence, as a witness for the defence, might be more valuable as a result?
Lord Henley: My Lords, obviously I have no control over the speed at which the American courts process this matter, but, as I said in my opening remarks, while it is before the courts it would be prejudicial to the proceedings against Arthur Andersen to offer any public appointment to anyone who took part in Arthur Andersen's work for De Lorean. That obviously includes Mr. Ian Hay Davison.
Lord Dean of Beswick: My Lords, is the Minister aware that I have a Question on the Order Paper, not dealing with the person involved in this Question, but with the company? Is the Minister further aware that the Arthur Andersen company was pretty heavily involved in the nonsense and lack of probity that took place in the Wessex Regional Health Authority? Is the Minister also aware that, as I understand it, that company has just been awarded another government contract for over £300
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million by, I believe, the DSS? What criteria are the Government using in awarding contracts, particularly to a company with a reputation of this kind?
Lord Henley: My Lords, I am not aware of the noble Lord's Question. But I can tell him that in 1985 an understanding was reached between Arthur Andersen and the Government in relation to the firm's appointment to undertake public sector assignments while the US action continued. The Government agreed to treat those arrangements as confidential and I cannot go further than that.
Lord Peyton of Yeovil: My Lords, does it not seem rather unjust that Mr. Ian Hay Davison, who was not a party to that agreement, should be penalised as a result of it?
Lord Henley: My Lords, I am very sorry, but I do not believe that it is unjust. The simple fact is that Mr. Ian Hay Davison will be a witness and I do not believe that I can go further than what I said in answer to my noble friend's first supplementary question.
Lord Eatwell: My Lords, can the Minister tell us how much was lost by the taxpayer because of the De Lorean affair; who was the Minister responsible at the time and what proportion of that loss does he believe is attributable to the activities of Arthur Andersen and Company?
Lord Henley: My Lords, that is another Question, but I can tell the noble Lord that the earliest decisions in terms of lending money to De Lorean were made by, I believe, the party represented by the noble Lord opposite. I believe that they were made while the noble Lord's noble friend, the noble Lord, Lord Mason of Barnsley, was Secretary of State for Northern Ireland.
Lord Pearson of Rannoch: My Lords, does my noble friend agree that there must be many members of Lloyd's who look back on Mr. Ian Hay Davison's period there with affection and gratitude?
Lord Henley: My Lords, I am sure there are, but I believe my noble friend will appreciate that that is another Question.

Money Laundering: Gibraltar Discussions
2.43 p.m.
Lord Harris of Greenwich Lord Harris of Greenwich asked Her Majesty's Government:
What discussions they have had with the Gibraltar Government on money laundering.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, we have frequent discussions with the Government of Gibraltar on this important issue. We believe that the introduction of effective anti-money laundering legislation is crucial to help Gibraltar build a successful financial services industry.
Lord Harris of Greenwich: My Lords, in thanking the noble Baroness for that Answer, with which I very much agree, may I ask whether she is aware that it creates a very difficult situation when this Parliament passes legislation

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dealing with money laundering in terms of the proceeds of serious crime and the Gibraltar authorities have not taken appropriate action? Is she further aware that there is serious concern about this matter? Is she also aware that the sooner this matter comes to a satisfactory conclusion, the better pleased we shall all be?
Baroness Chalker of Wallasey: My Lords, I very much agree with the noble Lord. The United Kingdom is determined that Gibraltar will implement the necessary legislation. We now believe that Gibraltar is of the same mind, and that progress can be made through co-operation and constructive dialogue. The only way that Gibraltar can ensure that it maintains its position as a competitive and reputable financial centre is by passing the legislation.
Lord Clinton-Davis: My Lords, is not this the third time that the Government have made entreaties to the Gibraltar Government to take realistic action to curb money laundering, which, as the noble Lord, Lord Harris, has indicated, is tied up also with international crime of the most sinister kind? Why does the Minister feel that on this occasion those entreaties are likely to receive a more fertile response?
Baroness Chalker of Wallasey: My Lords, I cannot tell the noble Lord whether it is the third, fourth or fifth time. I have lost count, to be honest. What I do know is that it is necessary. Gibraltar has made some regulations to implement the directive to deal with the laundering of drug money. She must now do so for the proceeds of other crime. The reason I am more hopeful this time on this issue than I have been in the past stems from the discussions, which must remain confidential, which my right honourable friend the Foreign Secretary had with Mr. Bossano last month.
Lord Merrivale: My Lords, will my noble friend consider that Mrs. Jean Cooper on secondment from the Bank of England as Financial Services Commission banking supervisor recently said that she agreed with the Chief Minister that there is no significant money laundering through the Rock? Will she also consider that the Gibraltar Government could need further assistance regarding the extension of the directive making laundering of drug money illegal so as to cover the many other criminal activities to which my noble friend has just referred?
Baroness Chalker of Wallasey: My Lords, I should have thought that if there were no significant money laundering operation there could be no possible reason for not passing the legislation. However, it is clear that in all our dependent territories there is an effort to deal with money laundering. That is something that we are taking up in all parts of the world for which we have any jurisdiction. It is also critically important to prevent money laundering. By having the legislation, one prevents bad things from getting started.
Lord Whaddon: My Lords, is the Minister aware of international reports being carried by the international media that Her Majesty's Government intend to impose
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direct rule on Gibraltar on or about 15th July? Does she agree that that would be inappropriate at this stage, and will she categorically deny such reports?
Baroness Chalker of Wallasey: My Lords, I would hope very much that such action would not be necessary. As I have made clear in answer to earlier questions, we believe that Gibraltar is now taking the sensible path of introducing the legislation that is important for its own future. If Gibraltar passes that legislation, I see no reason why one would have to consider such measures as mentioned by the noble Lord, which are pure press speculation.
Lord Bruce of Donington: My Lords, while I concur completely with the Minister's observations that it is essential that the legislation should be in place in Gibraltar to deal with the problem, does she agree that one of the greatest problems is that of enforcement, and that there are many capitals of the world, including our own, where enforcement may not be as adequate as it should be?
Baroness Chalker of Wallasey: My Lords, the noble Lord knows full well that we are determined to enforce our own legislation. But of course we can never he effective in enforcing our legislation unless other capitals do likewise. That is why, as the noble Lord says, it is most important that other nations agree and implement fully action against money laundering, a question which comes up in a number of different fora.
Baroness Hooper: My Lords, does my noble friend agree that Gibraltar is a small territory with a small administrative team, and that, as with many other countries within the EU, it has a backlog of a number of European directives with which to deal? Would she care to confirm that Gibraltar has undertaken to deal with the whole of that backlog, including the money laundering directive provisions, by the end of this year?
Baroness Chalker of Wallasey: My Lords, I confirm that Gibraltar has a number of regulations and pieces of legislation to carry through. That is why we have offered assistance to Gibraltar to do the work. However, it is essential that the authorities get on with that work because some of the issues have been outstanding for a considerable time.
Lord Harris of Greenwich: My Lords, is the Minister aware that her answers carry the overwhelming support of this House? This is a matter of high public importance and the sooner that the Gibraltar authorities realise that they must take urgent action the sooner the dispute can be put behind us.
Baroness Chalker of Wallasey: My Lords, I sincerely hope that the authorities in Gibraltar will act with all speed. Only in that way can they have a real relevance in the growth of their own business financial services and other legitimate interests which are carried on in Gibraltar.
Lord Merrivale: My Lords, is it not a fact that the Gibraltar Government have promised to pass 20 directives per month? As it is a small territory, 20 directives per month is not bad. Should not the Government be given a fair wind to assist them in that respect?
Baroness Chalker of Wallasey: My Lords, if when notified of the legislation to be carried through one does not make an early start, inevitably a backlog will build up. In order to clear the backlog one must then move faster than one would have done had one started at the right time. That is why we are giving Gibraltar help to get on with the job.

Single European Currency and UK Assets
2.53 p.m.
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
Whether it is correct that, as stated in the European Journal, if the United Kingdom were to join a single European currency, it would be necessary to give away for ever £36 billion of United Kingdom taxpayers' money.
Lord Henley: My Lords, the statement referred to by my noble friend is incorrect. If the United Kingdom were to join a single currency it would be necessary to transfer part of our foreign exchange reserves to the European Central Bank, receiving in exchange an equivalent claim on that bank. There would, therefore, be an exchange of assets. It is not possible to say with certainty how large the value of that exchange would be, but it is clear that it would be a mere fraction of the sum quoted.
Lord Boyd-Carpenter: My Lords, I thank my noble friend for that Answer. If we make such a payment and join the European currency, can we get the payment back if we withdraw?
Lord Henley: My Lords, first, the transfer would not be as large as suggested in the European Journal, to which my noble friend referred. Secondly, it would be an exchange of assets and obviously we would have a claim on it. Thirdly, nothing is ever irreversible and there is no point in trying to make one's flesh creep by suggesting that it would be.
Lord Barnett: My Lords, does the Minister accept that, given that the statement is inaccurate—which is hardly surprising given that it comes from Bill Cash and the European Foundation document—it is as likely that there will be a loss of £36 billion as it is that we will be asked to eat only straight bananas? Is not the Government's position that it is what is needed by the end of the century and if there is a wholly sustainable convergence it would be sensible then to join, having waited some time to observe the situation, and that if we did not it would be extremely costly and damaging? Does the Minister concede that that is the Government's present position?
Lord Henley: My Lords, it is difficult to work out exactly what the noble Lord is asking me to accept because he put a great many acceptances to me. I believe that he is asking what is the Government's position if and when we join the EMU. I can take him no further than the frequent statements made by all Members of the Government on many occasions; that it is too early to
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judge whether successful monetary union will be possible by 1999. Thanks to our opt-out, we can consider that matter at the appropriate time.
Lord Harmar-Nicholls: My Lords, does the Minister accept that the Answer he gave to my noble friend Lord Boyd-Carpenter may be inadequate? Under Article 107 of the same treaty are we not precluded even from asking questions about what can be done with whatever amount of our reserves we hand over?
Lord Henley: My Lords, I do not believe that my Answer was inadequate. As I explained to the noble Lord, Lord Barnett, we can make a decision at the appropriate time, according to the opt-out which my right honourable friend the Prime Minister negotiated. We shall make our decision at that appropriate time.
Lord Bruce of Donington: My Lords, does the Minister agree that the amount of the subscription in terms of foreign exchange is more likely to be in the region of 36 billion dollars as distinct from pounds sterling, and that that is a more realistic assessment of the amount to be transferred? Is the Minister aware that at the same time, under a protocol to the treaty which deals with these matters (paragraph 3 of No. 30), a credit will be created in the United Kingdom's favour for the sum that is deposited? Under what circumstances will it be possible for the United Kingdom to draw down on the corresponding credit which it will be granted under the protocol?
Lord Henley: My Lords, the noble Lord asked a number of questions and I shall do my best to answer some of them. He asked whether the correct figure is 36 billion dollars. I believe that the European Journal referred to 36 billion dollars but my noble friend referred to £36 billion. I cannot work out from where either of those figures emerged. The treaty refers to a sum of 50 billion ecu, which would be some £41 billion or 66 billion dollars. Obviously, if we were to join we should pay as our contribution some fraction of that total. What that fraction would be would depend very much on the number of others joining.
Lord Cockfield: My Lords, does my noble friend recall that in 1978 when we joined the European monetary system—we joined the system and not the exchange rate mechanism—we similarly had to subscribe to the capital of the system? Can my noble friend say how much profit we have made on the subscription in view of the regrettable depreciation that has since occurred in the value of the pound?
Lord Henley: My Lords, I cannot answer that question without notice. It may have helped had my noble friend asked the question in a rhetorical style and given me the answer. I am sure that he is well aware of the answer.
Lord Stoddart of Swindon: My Lords, in reply to the noble Lord, Lord Boyd-Carpenter, the Minister said that we could get back the money that we had deposited. Is it not true that Article 109/L4 in the body of the Maastricht Treaty provides that joining the single currency is irrevocable? Does not "irrevocable" mean that that is the end of the matter and we cannot go back?
Lord Henley: My Lords, I was simply trying to make the fair historical point that nothing—nothing—is ever irreversible. I do not believe that it is worth trying to make people's flesh creep by suggesting that it is.
Lord Boyd-Carpenter: My Lords, is my noble friend suggesting that if, after joining the European currency, we were to withdraw there is any certainty that we should get a penny back?
Lord Henley: My Lords, we have not yet decided to join. That is a matter to be considered when we debate the question of if and when we should join.
Lord Eatwell: My Lords, is the Minister aware that, whether the UK joins a single currency or not, as regards the City of London's planning for the existence of a single currency it is imperative that City institutions know now the kind of monetary instruments that will be disposed of by a central bank in its pursuit of monetary policy? Yet the Maastricht Treaty states that only the central bank can determine what those monetary instruments are. In those circumstances, monetary union is formally impossible, which may be encouraging to some of my noble friends. What steps are the Government taking to encourage the European Commission or the Council to determine the monetary instruments which will be disposed of by the European Central Bank so that the City of London can plan for and profit from any such eventuality?
Lord Henley: My Lords, that question takes us beyond the original Question. I repeat that it is too early to make such decisions, which can be considered later. It is far too early to judge whether monetary union will be possible by 1999. As the Prime Minister said, it will not be possible, and Britain will not be joining a monetary union in 1996 or 1997.
Lord Whaddon: My Lords, in view of the extreme complexity of these matters, will the noble Lord be sure to consult his noble friend Lady Thatcher, who has such a profound understanding of them?
Lord Henley: My Lords, I am sure that we shall always listen to the advice of one of the most distinguished former Prime Ministers.
Lord Hylton: My Lords, is it not desirable that as many as possible of our cross-border financial transactions should be denominated in ecus in advance of any monetary union?
Lord Henley: My Lords, I do not believe that that is necessary, but that might be something that we could consider when it is necessary to make those decisions.

"Repulse" and "Prince of Wales": War Graves
3 p.m.
Lord Clifford of Chudleigh Lord Clifford of Chudleigh asked Her Majesty's Government:
Whether they will ensure that war graves such as the warships "Repulse" and "Prince of Wales" are preserved, with the White Ensign flying, on the handover of Hong Kong in 1997.
Lord Henley: My Lords, the White Ensign on Her Majesty's ships "Prince of Wales" and "Repulse" is maintained as and when the opportunity arises, bearing in mind that both lie in international waters. I assure the noble Lord that this will continue to be the case.
Lord Clifford of Chudleigh: My Lords, I thank the Minister for that reply. Will he assure the House that Royal Naval divers have recently checked that the White Ensign in position on the propeller of HMS "Repulse" in 1975 is not only still there but is intact, out of respect? Will he assure the House that the non-ferrous metals and the metals which make up the armour plating around the two battleships are kept in position and are not tampered with in the slightest bit, again, out of respect; and that they are not used as a form of salvage bonanza? Is the Minister aware that where money is concerned, respect is very often buried? This nation is quite prepared to forgive but never to forget.
Lord Henley: My Lords, the noble Lord is right to draw attention to the importance of those two ships as recognised war graves. However, I cannot give the noble Lord the precise assurances which he seeks. There is no set procedure for regular examinations of those two ships. As and when ships from the Royal Navy or various Commonwealth navies are in the area and there are diving teams available, they will be inspected and we shall see whether we can replace the White Ensigns on them. We do not believe that it would warrant a regular visit from Her Majesty's ships nor, because we no longer have bases in that area, would it be feasible so to do.
Lord Clifford of Chudleigh: My Lords, this year is the 50th anniversary of a particular event. Would not this be a good year to check?
Lord Henley: My Lords, it is right to check as and when a ship from Her Majesty's Navy or a ship from a Commonwealth navy happens to be in the area. I am not sure when the White Ensign was last replaced on those two ships but it will be done as and when it is necessary.
Lord Williams of Elvel: My Lords, I ask purely as a matter of information, will the noble Lord tell the House which other war graves may be affected by the handover of Hong Kong to China in 1997? Are there war graves in Hong Kong itself, on the islands, on the mainland? If there are, what measures are the Government taking to ensure that those are kept properly?
Lord Henley: My Lords, there are no complete records of ships lost in action in Hong Kong waters. It is known that HMMTB26 was lost with all hands but that was a tiny wooden vessel and it was thought that nothing would remain of it. It is not known whether there are any other war graves in Hong Kong waters.
As regards cemeteries on land, there are two which are both managed by the Commonwealth War Graves Commission, which is not part of the Ministry of Defence but obviously it has close ties with it. The Commonwealth War Graves Commission believes that it has residual rights in relation to the future care of those cemeteries. The question of how best to discuss the matter with the Chinese has been raised with the

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Governor. I assure the noble Lord that the Commonwealth War Graves Commission has considerable experience of looking after war graves not only in this country but in a large number of foreign countries throughout the world.
Viscount Caldecote: My Lords, will my noble friend give the House an assurance that all ships of the merchant navy and Royal Navy sunk in war will be preserved as war graves and that permission will not be given for them to be disturbed by diving or in any other way?
Lord Henley: My Lords, I can give an assurance that all ships sunk since 1914 will be treated as war graves. Where it is possible, we shall not grant permission for them to be disturbed by divers, but where those ships are in international waters, that will be somewhat difficult to enforce.
Lord Dean of Beswick: My Lords, is the Minister aware that it is almost impossible for the Government to protect those ships from being looted? There have been reports from responsible sources that HMS "Prince of Wales" and HMS "Repulse" have already suffered large-scale looting by salvage people in the area?
Lord Henley: My Lords, there may be such reports. It is very much to be regretted if those ships are being so looted. I tried to make clear that we recognise them as war graves as well as a great many other ships lost in both world wars. Obviously, in view of the large number of war graves scattered throughout the oceans, it is extremely difficult to enforce our desires in that respect. However, we view most seriously any looting of them.
Lord Moore of Wolvercote: My Lords, does the Minister agree that it is not very difficult to check the condition of the "Prince of Wales" and the "Repulse" as, in fine conditions, they can be seen very clearly from the air lying on the sea bed, as I have seen them myself. I welcome the Minister's assurance that when Royal Navy ships are in the area, they will be inspected.
Lord Henley: My Lords, I am grateful to the noble Lord for passing on that information to the House. As and when ships are in the area, wherever possible and if a diving team is available, the ships will be examined and, where possible, the battle ensigns replaced.
Lord Craig of Radley: My Lords, do not the ships remain the property of Her Majesty's Government and in addition to their importance as war graves, surely the Government should be protecting that which they own?
Lord Henley: My Lords, the noble Lord raises a legal point, but I presume that he is right that they remain the property of Her Majesty's Government. Whether or not we can protect them is another matter. Whether our defence resources should be devoted to protecting a very large number of war graves scattered throughout the world is debatable.

Sexual Orientation Discrimination Bill [H.L.]
3.6 p.m.
Baroness Turner of Camden: My Lords, I beg to introduce a Bill to render unlawful certain kinds of discrimination on grounds of sexual orientation; to extend the functions and powers of the Equal Opportunities Commission to discrimination on grounds of sexual orientation; and for connected purposes. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(Baroness Turner of Camden.)
On Question, Bill read a first time, and to be printed.

Medical (Professional Performance) Bill
Brought from the Commons; read a first time, and to be printed.

Business of the House: Debates, 14th June
The Lord Privy Seal (Viscount Cranborne): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the debates on the Motions in the names of Baroness Elles and the Lord Brabazon of Tara set down for tomorrow shall each be limited to two-and-a-half hours.—(Viscount Cranborne.)
On Question, Motion agreed to.

Human Tissue (Amendment) Bill [H.L.]
Read a third time, and passed, and sent to the Commons.

Disability Discrimination Bill
3.10 p.m.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Mackay of Ardbrecknish.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 [Meaning of "disability" and "disabled person"]:
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 1:
Page 1, line 8, after ("has") insert ("or is perceived to have").
The noble Baroness said: I should like to move the first of what will be many amendments on the Disability Discrimination Bill. I am sure that I speak for all Members of this Chamber in saying that we want the Bill to deal with discrimination against all disabled people who suffer discrimination; in other words, we want a comprehensive

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response. But the Bill does not provide that. All the disability organisations like RADAR, Scope, MIND and the Disability Alliance believe that the legislation, particularly Clause 1 and Schedule 1, are too narrowly drawn. However good or effective are the subsequent clauses in the Bill on employment, on goods and services, on education and on transport—and for the most part we are broadly happy with them, although we shall want to push them a little further than the Government may wish to go—if the Bill is not inclusive enough in whom it protects, then it will remain a partial, inadequate and incomplete Bill, as we believe it is.
Why is there a problem? It is because the Government are operating a rather simple-minded and medical model of what disability is. The Government assume in the Bill—and I would ask Members of the Committee to be kind enough to follow me on this point—that those with no disability do not suffer discrimination; that those with only very mild disability suffer only very mild discrimination; but that those with substantial disability suffer substantial discrimination. Therefore, say the Government, in the Bill we need to protect only the most severely disabled because they suffer the most severe discrimination. That is the shape of the Government's logic.
However, a moment's reflection will show that the latter is not the case. You can have a minor disability, such as a minor facial disfigurement, and yet experience considerable discrimination from it, particularly, say, in work. You may have a major disability—for example, you may be blind—but experience very little discrimination in the field of goods and services. In other words, discrimination reflects not just the disability or impairment that a person brings to the situation; but also the perceptions that he encounters as he seeks work or seeks the supply of goods or services. Yet, the Bill outlaws discrimination against only those with severe disability as medically defined.
Therefore, if a person has no disability but an employer wrongly thinks that he has—for example, the employer may believe that he has a mental health problem or may believe, when it is not the case, that the person is HIV positive—then he may discriminate. There is no protection under the Bill to cover that situation. If, perhaps, a person has a mild disability such as mild cerebral palsy but which the employer thinks is a major impediment, the latter may discriminate. Similarly, there is no protection in the Bill to cover that situation. However, if a person has a severe disability, which may, for example, confine him to a wheelchair, the employer may not discriminate because that disability is severe enough to be defined by the definition of "disability" contained in the Bill.
Thus, paradoxically, the less disabled you are, the more an employer can discriminate against you on the grounds of your disability; but the more disabled you are the less he can do so. That is perverse. If the employer is wrong about your disability, you have no redress: but if he is right, you may have. The reason for that is that the Government have focused on a tough medical definition of disability to the neglect of the issue of discrimination. As we know, in practice—and as I have tried to suggest—
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the degree of disability is not tidily related to the degree of discrimination. The Bill assumes that it is. That is why we need to amend both the definition of who is covered, as well as how reasonable the response may be of the employer or the service provider. Hence the amendment. The amendment would forbid discrimination where a person has or is perceived to have a disability; in other words, where the problem of discrimination lies with the perception rather than the impairment of a person.
At a later stage, we shall deal with the amendment tabled in the name of my noble friend Lord Carter, who is trying to widen the definition of disability, which is very tightly drawn and more tightly drawn than in the incapacity benefit Bill. My noble friend's amendment seeks to add functional impairments to the definition. Otherwise, someone may be sufficiently disabled to qualify for incapacity benefit under one piece of government legislation, but not be deemed sufficiently disabled to acquire the protection of this Bill when he wishes to seek work or goods and services.
The Government have tabled their own amendments about past history, which we all welcome. However, my noble friend Lord Carter has also tabled additional amendments which would cover people who have experienced mental disorders in the past. Moreover there are later amendments tabled in the name of the noble Baroness, Lady Gardner of Parkes, covering such conditions such as HIV and asymptomatic situations where, if the employer knows about them, he may discriminate.
The first amendment, which seeks to insert the words "has" and
"or is perceived to have",
to Clause 1 as regards a person with a disability, perhaps picks up the most unfair situation of all; namely, where the disability may not or does not exist, but where there is a perception in the eyes of an employer that it does, and, because he holds such a perception, he may and does discriminate. However, because the person is not really severely disabled, he does not count as "disabled" under the provisions of the Bill and therefore is not protected.
Such a situation could affect someone who may or may not be thought to be HIV positive; it could affect someone who may or may not have a genetic predisposition such as Huntingdon's Disease; and it may affect someone who is, for example, facially disfigured. The Government protect those with severe disfigurement; but, as the charity Changing Faces makes clear, discrimination is not related to the severity of disfigurement or to the severity of disability. Small wounds can be very disfiguring, whereas a large burn carried by an airman may be worn with pride as a sign of war. Alternatively, mild facial palsy is, for example, very isolating. Therefore, it is not size, it is not seriousness and it is not the conspicuousness of disfigurement which affects the person's ability to cope: it is another person's perception of it. Yet, such a person would not be protected under the provisions of the Bill.
There may also be a perception against older people on the grounds that they are more likely to experience disability, so that they face double jeopardy both in age and in the perception of disability, which may not be the case. Therefore, the amendment focuses on the discrimination that results rather than the disability that

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triggers it; in other words, the consequences as much as the conditions. In the Long Title of the Bill it holds both in balance. It says that it is,
"unlawful to discriminate against disabled persons".
Yes, but the definition of a "disabled person" is so tightly drawn that discrimination will occur against people who are less disabled than as defined in the Bill and those who are not disabled at all, but where employers think that they are. That is perverse as well as being unfair. That is why we seek to move the amendment. It would mean that not only those with severe disability (as medically defined in the Bill) but also those with less disability and those where there is a perception of disability—indeed, where any such people suffer discrimination—would, as a civil right, receive protection and equal rights against that discrimination. That is the purpose of the amendment. That is why I am happy to move it. I beg to move.
Lord Addington: I rise briefly to support the amendment. I should also like to take advantage of the opportunity to declare that I have an interest in the Bill as I am a registered disabled person. The disability that I have is dyslexia and I have spent many hours trying to explain to people what that is and what it does and does not do. Effectively, a good example of that would be the way in which the education policies of the Government (aimed at trying to convince people of what something is) do not work because people will not listen. People have closed minds. That is why the amendment moved by the noble Baroness is important.
If you perceive someone to have a problem, you will still discriminate against them. The amendment would give them the level of support that they require. I hope that the Government will look favourably on this amendment, or something like it, because by accepting it they would give people the chance to acquire equal opportunities particularly in the workplace, and to strike down ignorance and the failure of a policy that is purely concerned with education.
Lord Ashley of Stoke: I hope that the Minister will be able to accept this amendment because it is of far more profound importance than it appears to be as it appears on the Marshalled List. One may ask why we should protect people where there is a misunderstanding. But in point of fact this misunderstanding recurs over a wide range of issues; it affects a large number of people and results in tremendous damage and unhappiness. The purpose of this Bill is to prevent discrimination which is unjustified. It could not be more unjustified than to discriminate against someone who is not disabled and yet there are countless examples of this discrimination. The classic example, of course, is that of people who have HIV. The other classic example is those people who have been found by genetic testing to be potentially disabled. They are not disabled but they suffer an appalling level of discrimination. This Bill fails to protect those people. There can be no justification for that.
It is ironic that people who are not disabled will suffer even more than those who are disabled simply because, as my noble friend said in her eloquent introduction, those who are disabled will receive some degree of protection. If this amendment is turned down, there is no hope for those who suffer real discrimination because of this
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perception, or rather misconception, by others. The Minister is, I believe, speaking for the Government who have indicated that they do not sympathise with this amendment. In the Second Reading debate the Minister was kind to me at the beginning and at the end of the debate. I am hoping that he will maintain that kindness and say some warm words, not about me but about this amendment. I know that he will do so if he can. All I ask him to do is not to close the door, to think about this amendment and to try to give us a good response later on.
Baroness Gardner of Parkes: I enjoyed listening to the noble Baroness, Lady Hollis, but I cannot support this amendment because I believe that it is almost an impossibility to legislate on the basis of perceptions. I believe that is totally unrealistic. People have amazing perceptions about themselves and about everyone else. It is impossible to know what one means by perception. If one is to try to prove that someone had a perception, one has to prove that they had a certain thought. This Bill should be realistic. The way to deal with perceptions about HIV is to educate people on that matter and to show them how unreasonable their perceptions are. One cannot say that one perceives a problem because in the case of someone who had HIV but who showed no symptoms of that, other people would not even know that person had HIV and therefore they would not perceive that. One could not perceive that condition if one was not aware that a person had it. A person who feels that he or she is different in any way may be self-conscious of that. I remember years ago talking to a beautiful girl who told me that she felt her whole appearance was marred by a terrible fault that she had and that she intended to undergo plastic surgery. When I asked her what was wrong she told me that her little fingernail was deformed. People have extraordinary ideas about themselves and other people can have unusual perceptions too. I cannot support the amendment because I think it is too unrealistic.
Lord Renton: Although I do not doubt the sincerity of the noble Baroness, Lady Hollis, or of the two noble Lords who have supported her, I hope that they will not doubt my sincerity either because my interest in the disabled is pretty well known as the father of a severely handicapped daughter. But I am afraid this really is a misconceived amendment. These cases, if they come to court, are going to be decided in the light of the evidence that is presented. What matters is not whether the discriminating person who will be the defendant in these proceedings has perceived something; what will matter is whether the disabled person has got the disability. It is just as simple as that. I am sorry to have to say that although well intended, this amendment, if made to the Bill, could only cause great confusion in the courts and elsewhere.
Lord Ashley of Stoke: Before the noble Lord sits down, will he kindly tell us whether in a court of law the question would not be whether the person has a disability but, when this Bill is an Act, whether the person has been discriminated against; has he suffered discrimination? The object of this Bill is to end discrimination. Would that not be the question before the court?
Lord Renton: I am afraid the answer to the noble Lord is that whereas the Bill as it stands enables an objective test to be made in the light of the evidence, the noble Lord

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is suggesting that there should be a subjective test in the mind of the person who is the alleged discriminator. It would not be in the interests of disabled people for the court to have to decide the matter in that light. Disabled people will not be helped merely by an examination of the minds of those who discriminate against them. They will be helped only by the evidence as to the nature of their disability. That is what will matter. Quite frankly, this amendment is contrary to the interests of disabled people.
Baroness Hollis of Heigham: Before the noble Lord sits down I hope that he can help us. How does he understand his remarks in the light of Clause 5(1) (b)—where the test will not, alas! be the objective test that the noble Lord has described to us; I wish it were and we shall be putting forward an amendment to that clause later—which refers to a situation where it is reasonable for the employer to hold a particular opinion? In other words, in the courts the test is not objective but subjective, in that it refers to the mind of the employer. It is that that worries us. I hope that the noble Lord can help us by giving us his views on that.
Lord Renton: With great respect to the noble Baroness, I am sorry to say that she does not have that right because it will be for the court to decide what is reasonable in all the circumstances, and that must continue to be an objective test.
Lord Renfrew of Kaimsthorn: I have the greatest sympathy with the point made by Members of the Committee opposite. It clearly is most unjust if persons who are, for instance, affected by the HIV virus but do not show symptoms of that, are discriminated against. That is unjust. I very much take the point made by the noble Lord opposite that if someone is shown to have a genetic defect simply through genetic testing, or is shown to have a potential genetic defect—for example, a shortened life expectancy or something of that kind—it is quite clearly unjust that that person should be discriminated against. I would be very much in favour of appropriate legislation to protect his or her position. The Title of the Bill reads:
"An Act to make it unlawful to discriminate against disabled persons".
I very much doubt that it is an appropriate procedure to fulfil the objective which Members of the Committee have expressed, and with which I sympathise, to enlarge the definition of "disabled persons" to a degree which goes beyond sense. As the noble Lord himself said, someone who is, for instance, HIV positive may live happily for many years without incurring any symptoms, and until that time he is not properly regarded as disabled, in my view, and should not be regarded as disabled. In some senses it would be counter-productive to regard such persons as disabled, would it not? It would be against their own interests to regard them as disabled. It may well be that one could consider legislation which would make it illegal to discriminate against persons on the grounds that they have a genetic factor or an acquired factor which might subsequently lead them to become disabled. While I have the greatest sympathy with the objectives which Members of the Committee express, I doubt whether it is in the interests of those persons that they should be defined as disabled before they have an actual disability.
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For that reason it seems to me that the amendment is not an appropriate one in this context, or is not appropriately framed, even though I would warmly support a Bill, a Motion or an amendment which, in a more appropriate manner, would protect the position of those persons.
3.30 p.m.
Baroness Farrington of Ribbleton: Before the noble Lord sits down perhaps I may take forward some of his points and raise the question as to whether this legislation is based on determining in a court of law that discrimination has occurred on the part of the employer because the employer believes or decides that a person, due to disability, is unable to carry out a job. In those circumstances I find it difficult to conceive of a situation in which it is acceptable to discriminate. This legislation is against discrimination on grounds of disability. Discrimination on grounds of disability has to be proved in a court of law. That has to be proved to be the motivation behind the decision of the employer.
Therefore, how can we logically argue in a piece of legislation that a minor form of disability or potential disability forms an acceptable basis for such a perception in the mind of the employer and for such action on the part of the employer, and that serious discrimination cannot be taken up if the disability is minor or potential? Discrimination on the grounds of disability, as perceived by the employer, is surely the basis of this legislation.
Lord Renfrew of Kaimsthorn: As I have not sat down perhaps I may try to answer the noble Baroness. There is a great distinction between the two points which she made. If there is a minor disability, I entirely agree that it is appropriate for it to fall within the scope of the Bill. We then have a disabled person, and the Bill is framed in such a way that it will be unlawful to discriminate against that person. If that person has the disfigured fingernail that we have heard about it would be grossly improper to discriminate on those grounds. That is the situation as regards a disabled person.
However, there is a separate issue, although I agree that it is a serious issue and I have expressed every sympathy. If someone has a potential disability, for example, a genetic defect which may shorten his or her lifespan or have other unfortunate consequences, but at the time in question that person is not disabled, it is against logic and, as my noble friend said, will lead to many difficulties to define such a person as disabled. It would be something of a nonsense.
I feel, therefore, that the amendment is not well framed although, as I say, I have every sympathy with persons who can be medically recognised as having a potential disability. However, it is a different case.
Baroness O'Cathain: I have great sympathy with the thought behind the amendment, but one also has to consider the matter from the point of view of the employer. It is not only disabled people who are discriminated against; a situation could arise in which the employer is discriminated against.
The amendment would alter the Bill to read:
"if he has or is perceived to have a physical or mental impairment".

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Perceived by whom? Is it the disabled person himself or the employer? Individuals could believe that they had a physical impairment or disability which they had built up in their own minds. They might feel that they do not look right, or have a disfigured fingernail or a club foot. If they do not get a job they might well think that the employer was discriminating against them because of their perceived disability, whereas the employer might have no perception of the disability. I should like some clarification on that point.
Baroness Hollis of Heigham: Perhaps I may respond to the question asked directly by the noble Baroness. The intention of the amendment is to address instances where the employer holds such a perception, even where that perception is ill-founded. Because it is ill-founded the person has no protection, whereas were it well-founded the person would have protection.
Baroness O'Cathain: I am grateful for that clarification. Perhaps I may pursue the matter further.
If an employer saw somebody on the opposite side of a desk at an interview and said to himself that because that person had a club foot, a damaged fingernail or a facial problem there was no way he would give that person a job, he would not say that that was because of the disability. Does the noble Baroness believe that employers will admit that? How would the candidate prove that that employer had not taken him or her on for the job because of the perceived disability? It is a minefield. I can see the reason for the amendment, but this is a minefield.
Baroness Seear: I should like to ask for clarification. It is a genuine question concerning an interesting and difficult point.
People have the most extraordinary idea that they can diagnose what is wrong with other people. If someone has a bad colour they say that he has a blood condition. They are not doctors and know nothing about it, but they form the idea in their minds that a particular person, although he merely has bad skin, looks as if he has a bad blood condition. An employer believes that a person has a bad blood condition because he has diagnosed that in his own mind, and on those grounds he turns the applicant down.
I very much take the point of the noble Lord, Lord Renton, concerning the difficulty of proof. However, suppose that the would-be employee has reason to know, because of something that was said or was seen to be written, that the employer had made that judgment. Suppose that it could be established in court that the employer had made that judgment, that he believed that the applicant did not look a healthy type and looked to him as if he was an alcoholic. People say very indiscreet things when they are interviewing and write very unwise scribbles on interview papers. I have done a lot of interviewing myself and one sometimes writes down some rather strange things to remind oneself of the people one has seen. Some very interesting cases have arisen as a result. Suppose the employer writes "Looks as if he suffers from alcoholism" or "Looks as if he is going to develop tuberculosis". Would that not be actionable in court? I ask that as a genuine question.
Baroness Masham of Ilton: The noble Baroness, Lady Hollis of Heigham, and other Members of the Committee have illustrated very well how complicated the issue of disability can be. It is very important to have trained people who can decide who is disabled and who is not. Many doctors and other professionals are not well trained in matters of disability. I ask the Minister who will sort out these problems, because surely we need to avoid the necessity to go to courts of law if possible.
Lord Mackay of Ardbrecknish: We have had an interesting opening debate on an amendment tabled by the noble Baroness, Lady Hollis, to this opening clause of the Bill, which is of fundamental importance to the effective operation of the ensuing provisions contained in the Bill since it describes and prescribes the definition of the terms "disability" and "disabled person" which, subject to Schedule 1, apply to the main provisions of the Bill. Those Members of the Committee who were with me on the Jobseekers Bill will appreciate that I am more than pleased that the opening clause of the Bill does not say that the definition will be as Ministers decide it will be, because they will recall that I had considerable trouble with that issue on the Jobseekers Bill. However, in this case there is a definition.
Our aim is twofold: to produce a broad general definition of disability which covers those people who would generally be regarded as disabled, and at the same time to produce definitions that can be understood and applied by those who will have to comply with the measures in the Bill; namely, ordinary businesses and disabled people themselves. I believe that the definition achieves those aims. It covers both physical and mental impairments. The Committee will be aware that that includes sensory impairments, indeed all impairments other than those mental illnesses which are not clinically well recognised. We shall come to that issue later this afternoon.
We wish to cover people who would commonly be understood to be disabled. The noble Baroness, Lady Masham, asked me who would make those decisions. In my view most of those cases would be self-evident. However, if it comes to an argument, it will have to be argued before a tribunal, if it is an employment point, as to whether the disablement exists and whether it comes within the definitions in the Bill. We have defined a disabled person as someone who has a physical or mental impairment which has a long-term and substantial adverse effect on normal day-to-day activities. We think that such a person would generally be taken to be disabled. That is what we have sought to do in the Bill.
In the debate in both Houses we have sought to keep the definition of disability and disabled persons as close as possible to that common sense view which links disability to having a condition with substantial and long-term effects on normal day-to-day activities. We believe that if the Bill is to be effective—I am sure that we all want that—it has to be as unambiguous as possible. It must define "disabled" people in such a way that most people, both disabled and others, can understand and accept that definition.
We have to guard against the road down which I fear some of the speakers from the Benches opposite have been tempting us. It is a path which discusses a general

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anti-discrimination measure: that one must not discriminate against people (period). I am not entirely sure how we would go through life if we could not discriminate. Every time we interview someone for a job, at the end of the day we have to discriminate between one and another applicant. The wider we cast the net the more likely it is that the net will prove to be very inefficient and ineffective for those people whom I believe we and the public outside wish to protect.
We shall come to the issue later but it is worth saying this now. We have accepted that people with a history of disability should be brought within the coverage of the Bill. I have amendments to which I shall turn shortly which will do just that. We have accepted that it is undesirable for someone who has recovered wholly, or even in large part, from a disability and still faces discrimination, to be in the position of losing the coverage of the Bill unless he claims that his disability is still present. That situation can apply in particular to people with mental illness, but there will be other examples. Such a situation is undesirable because it could cause difficulties for courts and tribunals, for the employer and for the disabled person himself, in judging the point at which a person was sufficiently recovered no longer to count as disabled. The situation is also undesirable not least because it may add to that person's difficulties in putting his disability behind him.
However, I cannot accept that we ought to give similar weight to the argument to extend the coverage that we shall give to people who are perceived to have a disability, or to those with disabilities whose effects are perceived to be substantial and long term. Perception is necessarily the response of an individual person to whatever matter triggered that perception. My perception of someone may well be related to the fact that he looks like someone with whom I have had either good or bad experiences in the past. That is perception. As some of my noble friends have asked this afternoon, how can one base important legal issues of the kind mentioned in this Bill on what are shifting sands?
The amendment states "is perceived to have" a disability. My noble friend Lady O'Cathain asked the question: perceived by whom? The noble Baroness, Lady Hollis, gave the answer, "by the employer". I do not believe that that is clear from the amendments. If Members of the Committee read the clause with the amendments, the position is not in the least clear, quite the contrary. It could be perceived by the employer or the service provider. What happens if that person says, "I have no such perception"? Is that an end of the matter, or does one have to look into the minds of people? Are we to have some kind of thought police on this issue of perception? I really do not believe that the amendment is the right way to proceed. I believe that it could potentially hinder the very people we seek to help.
In her speech, the noble Baroness addressed us in her usual style, which I admire greatly. I have to say that my perception of the noble Baroness is perhaps slightly different from her perception of herself. I shall not be drawn into saying what I think her perception is of herself or what is my perception of myself. However, in her usual well-argued way, in attempting to tempt my noble friends
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and noble Lords on the Cross-Benches from my side on these matters the noble Baroness made a number of points that I seek to address. She stated that only severe disabilities are covered in the Bill. Perhaps I may state now, at the beginning of our debates, that that is not the case. The Bill covers disabilities which have a substantial and long-term or recurring effect on the ability to carry out normal day-to-day activities. Such effects may well be, and frequently will be, caused by disabilities which are not severe. The focus is thus on the effects and not on the disability itself.
Perhaps I may address a point made by the noble Lord, Lord Addington. A moderate degree of dyslexia could well have a substantial effect on day-to-day activities—for example, the ability to learn.
The noble Baroness, Lady Hollis, sought to suggest that we were somehow differentiating. If I remember her words aright, she said that we assume that people with the most substantial disability face the most discrimination; those with less disability face less discrimination; and that those with little disability face little discrimination. If one reads the Bill, that argument does not arise. Anyone who meets the definition in the Bill is equally protected by the Bill. Whatever his degree of disability, if it comes within the meaning of the Bill, then the protection given by the Bill is equal, wherever it comes in the gradation which the noble Baroness attempted to persuade Members of the Committee was the way in which the Government considered the issue. That is not true.
3.45 p.m.
Baroness Hollis of Heigham: The Minister is absolutely right, but does he accept that anyone not coming within the definition of disability is therefore not protected? That is the point we sought to establish.
Lord Mackay of Ardbrecknish: I am not entirely sure that there was not some far too subtle meaning underlying that intervention. The purpose of the Bill is that people who come within the definition of disability are protected. Therefore I should have thought it self-evident—it does not need me to confirm it—that people who do not come within the definition are not protected within the terms of the Bill. They may be protected in other ways but they are not protected within the terms of the Bill.
Baroness Hollis of Heigham: If the definition of disability is too narrowly drawn, there may well be people who are disabled but who are therefore not protected. That is the point of the amendment.
Lord Mackay of Ardbrecknish: We are getting into this dead-end road to which I referred earlier. The noble Baroness really wants an anti-discrimination Bill (period). That is, discrimination on any ground. I have made my case. I shall stick to it. I hope that the Committee will agree with me that if we are determined, as I certainly am, to help the people whom I understand, and I believe that most of the population understand, we mean by "disabled people", we have to make sure that we do not draw the net so widely that the efforts we put in through the Bill are a waste of time because we have drawn the net so widely that the issue falls into some form of disrespect; or we find that the provision cannot be operated and the very people whom we wish to help are not helped.

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As I stated, and I underline it, we are protecting people whom we believe are disabled, as it is commonly understood. This is a Bill to protect disabled people; it is not a general discrimination Bill. I hope that I do not have to state that too often. I fear this afternoon, just as we start—
Baroness Seear: The Bill refers to "substantial effect". It does not mean a substantial disability. That is extremely important. I am speaking on the Minister's side. I well recall in my industrial days that it was far more difficult to find a job for someone who had a quite mild industrial dermatitis. People would have said that that was a mild disability. However, it had substantial effects. It was far more difficult to place that person than someone who had lost his legs. Most people would have said that that disability was more substantial. It is the substantial effect that matters, not the substantial nature of the disability.
Lord Mackay of Ardbrecknish: That is what I said a moment ago when I spoke of the greater, the middling and the lesser disability having greater, middling or less protection. It is not that at all. We shall come to the various ways of examining and testing whether the disability comes within the definition, but if it does, then there will be the protection of the Bill. Later today we shall discuss some of the points which we have put down which will test whether the person is disabled.
We want to give disabled people an Act which will mean that employers, businesses and the disabled persons themselves will be clear about where they stand and whom we are talking about. We want to be sure that if employers come across someone with a common trait of anger, shyness or stubbornness, they will not say, "I wonder whether he is protected, because the Act goes much wider than the matters I consider when I ask who the disabled people are". I believe that that would be quite wrong.
The last thing we want to do is to allow the Bill to leave this House containing uncertainty and vagueness. We must protect the people whom the Bill seeks to protect; that is, those who are clearly disabled, as most people in the country would understand it. Although Members of the Committee understand the points made by the noble Baroness, for the reason I gave, we should concentrate on the main issue. I hope that the Committee will reject the amendment.
Lord Ashley of Stoke: Before the Minister sits down, he referred to courts of law and tribunals; but earlier he told us that he hoped that there would be few references to courts of law and tribunals. I agree with him. Does he therefore agree that one of the points of the amendment is to send a signal to employers, institutions and other organisations that they must be careful with their perceptions? That is as important—if not far more important—as arguing about arid points of law. I say that with due deference to all the distinguished lawyers here. We need not go to law on the Bill, the Government aim to avoid it and so do we. So please do not send the wrong signals to institutions.
Lord Mackay of Ardbrecknish: Perhaps I may respond immediately. I believe that the noble Lord is inviting me to take a course which would lead to the
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position that he fears. If we draw the definitions tightly, then I hope not many cases will end up in tribunals or courts. But frankly, if we start introducing concepts like perceptions, we shall be in severe danger of many more cases ending in tribunals and in the courts. Like the noble Lord, Lord Ashley, I should not like to see that.
Baroness Farrington of Ribbleton: Before the Minister sits down, perhaps I may press him further on the issue of perceptions and what is in the mind of the employer when the decision is taken. In describing why the Government oppose the amendment, he stated that employers discriminate every day. It is my understanding that the legislation prevents employers from making judgments on the basis of arbitrary decisions and discrimination. If challenged, they must be able to say with justification that the right person who applied for the job, so far as possible using objective criteria, got the job. If a person is from an ethnic minority background or is a woman, he or she can ask to see the process, the judgment and the criteria on which the appointment was made. People can ask to see the notes of those who interviewed applicants for the job to see which factors allowed the person chosen to be appointed. They can challenge the decision if discrimination has taken place.
Presumably the Government's intention with regard to those whom they classify as being within the Bill would be that a similar process will take place. It would equally be a process of identifying the perceptions of the employer, employers or the group of people making the appointment to the job or taking the decision. For example, in a town like Preston it is known that certain families suffer from Huntington's Chorea. There is not 100 per cent. certainty—thank God!—but a strong possibility of it being hereditary and affecting the children. Surely it would be totally unreasonable to have the position where an employer arbitrarily chooses someone who is less qualified for a job on the grounds that that employer believed that another applicant might suffer, or would be extremely likely to suffer, from a disability in the future. That kind of case gives me concern. It may not apply in a large city but it could in a fairly small community. I fail to see how we are now dealing with perceptions any more than we have already done in terms of legislation which says that an employer may not refuse to appoint the best person for the job on the basis of gender or race.
All we ask is that the same protection be given when an unfavourable judgment is made, against all the evidence that such a person should have got the job and when it is clear that the only factor that could have weighted the decision was not gender or race but an assumption as to the disability of the individual. That disability may well not be one which has a major impact on the applicant's ability to carry out a normal set of tasks in daily life in the job. It may not be major, but it could be total in terms of preventing someone getting a job.
Lord Mackay of Ardbrecknish: I am not sure that I can add much to what I have already said to the noble Baroness, Lady Farrington. I believe that she is going down the dead-end road against which I warned her,

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believing that she can have anti-discrimination legislation—period. I am sure that decisions are often taken on hunch grounds or pretty irrational grounds about whom one employs. What the Bill attempts to do (and I hope will do) is to ensure that a person who is disabled is not discriminated against for reasons which relate to his disability. That is a much tighter and more narrowly drawn basis than the one which the noble Baroness would like me to advance.
If you live in a small community, you know a great deal about the work record of families whose members you interview. I have no doubt that that will play some part, perhaps quite unjustifiably. You may decide not to take on the only member who works well of a family who do not work well. That person might have worked well, but you do not know that. Those are prejudices, discrimination or whatever one wishes to call them which will inevitably happen. I for one would have no part in attempting to bring the thought police into that kind of world. We must keep this important Bill on its main track, which is to help people who are clearly disabled. I understand that there is a division between us in the Committee but I believe I shall not be able to bridge it by argument.
Baroness Hollis of Heigham: First, I wish to thank Members of the Committee for taking part in the debate. It was thoughtful and interesting, and we all recognise that there is a problem. It is not easy to shape an amendment which adequately and appropriately deals with it, but almost no one has disputed that there is a problem.
Perhaps I may pick up one or two points before coming to the main thrust of the Minister's argument. The noble Baroness, Lady Gardner of Parkes, says that she finds it hard to support such an amendment dealing with perception, because perception is impossible to test in the courts. I think that was the import of her remarks. The trouble is that whether somebody is or is not suffering from a disability or impairment, while that is objective perceptions are not. But discrimination is about perception. In other words, this Bill is seeking to prevent employers or the suppliers of goods and services bringing into play a consideration of disability when that consideration is irrelevant. That is what we are talking about. There may be other considerations that are relevant: whether you have a good work record and whether you can get up early in the morning, or whatever. We are trying to say that where a disability is irrelevant it should not be brought into play as part of the considerations.
4 p.m.
Baroness Gardner of Parkes: May I interrupt the noble Baroness? My point about perceptions was the question of what the employer was thinking. I believe that in any tribunal or any court no employers will ever say that they thought that a person was disabled if that was not so. If he was disabled, then, as has been said, he will have protection under the Act. So I think it is the perception that is the problem.
Baroness Hollis of Heigham: We shall come back later to amendments on reasonableness but at the moment, as the Bill stands, the burden of proof is on the disabled person. He needs to show that the reason for being rejected as regards an application for a job, promotion or whatever is disability. That is always difficult for a disabled person to do. If this amendment is not in place then for many it will be impossible.
I suppose the difference between these Benches and noble Lords opposite is that we are concerned with discrimination. Discrimination is what happens at the interface between a person's impairment and the response of another person, in this case the employer, to it. Clearly if the disability is, so to speak, objective, then this Bill, which has substantial long-term effects—whatever the employer's response, unless it is a reasonable one—will provide protection. However, if that person's disability is not empirically observable but nonetheless the employer behaves as though it exists, the person being discriminated against has no remedy. That is our problem.
We are therefore trying to pick up the points made by the Minister. We are not seeking to say that this is a general anti-discrimination Bill. We are trying to outlaw disability as a consideration where it is not relevant. Disability may be a consideration but we believe it is not relevant, not just where that disability is as defined by the Bill but where it is a perception; and that perception of a disability we believe should be as irrelevant as the Government's definition of disability. Otherwise we get into a situation in which somebody is believed to have HIV but is well, and you may discriminate against him and he will not get the job. But if he has HIV and is not well you may not discriminate against him and he may have the job. So the person who may very well be your best employee you may discriminate against, but as regards someone about whom you may have real worries, you may not. So we have this perverse situation that if you believe somebody has a disability and he does not, you can discriminate. If you believe him to have it, and he does, you may not discriminate. That is the dilemma that we face.
It is not an anti-discrimination measure. All we are trying to eradicate is disability where it is irrelevant, and it is irrelevant in a whole range of circumstances at work. The employer may bring it into play if it is in his head but not if it is a fact. That is our concern, and it has not gone away as a result of today's debate. If an employer is wrong to hold that attitude he may discriminate; if he is right to hold that attitude, he may not. Are we comfortable with that? If he is wrong, he is OK in the face of the law. If he is right in the face of the law he may not discriminate. I think we need to rethink this matter and see whether we wish to come back to it at the Report stage. In the meantime, I beg leave to withdraw the amendment. However, I believe that we have opened up a real problem for ourselves concerning those people who are discriminated against on grounds of alleged disability, against which under this Bill, unless it is amended, they will have no protection.
Amendment, by leave, withdrawn.
[Amendment No. 2 not moved.]
Clause 1 agreed to.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 3:
After Clause 1, insert the following new clause:
Past disabilities
(".—(1) The provisions of this Part and Parts II and III apply in relation to a person who has had a disability as they apply in relation to a person who has that disability.
(2) Those provisions are subject to the modifications made by Schedule (Past disabilities).
(3) Any regulations or order made under this Act may include provision with respect to persons who have had a disability.
(4) In any proceedings under Part II or Part III of this Act, the question whether a person had a disability at a particular time ("the relevant time") shall be determined, for the purposes of this section, as if the provisions of, or made under, this Act in force when the act complained of was done had been in force at the relevant time.
(5) The relevant time may be a time before the passing of this Act.").
The noble Lord said: I beg to move Amendment No. 3 and to speak to the other amendments which are grouped with it. Your Lordships will recall that I announced during the Second Reading debate of this Bill on the 22nd May that after very careful consideration we accepted that the Bill should confer protection against discrimination for people who have had a disability. This decision was not made lightly. We have rightly been concerned that the protection conferred by the Bill should be sharply focused on those people who are commonly accepted as being disabled, as I have just been explaining.
However, we have been prepared to listen to the arguments and to consider seriously the implications of extending the coverage of the Bill. It has become increasingly clear that people who have had a disability, although they may be no longer disabled as such, share with people who are currently disabled, a need for protection against discrimination in relation to their disability. MIND, the National Institute for Mental Health, has argued the case for people who have recovered from mental illness. Other voluntary organisations have made representations on behalf of people who have recovered from other disabilities. It is clearly a very important part of the whole process of recovery that someone who has been disabled is able not only to participate fully in employment and social activities but to feel confident in doing so.
The amendments which are now before your Lordships' Committee will help meet concerns which have been expressed. In addition, we have been persuaded that it is not always possible to tell when a person has fully recovered from a disability and when the condition is no longer likely to recur. The inclusion of people in the Bill who have had a disability removes the need for individuals, businesses, courts and tribunals to have to deal with this grey area. We therefore recognise the serious concern about discrimination against people who have had a disability but who have now recovered. Amendment No. 3 and those grouped with it are a comprehensive package which ensures that the Bill protects people who have had a past disability, in the same way as it protects people with a present disability.
The new clause provides that Parts I, II and III of the Bill apply to a person who has had a disability in the same way as they apply to someone who is currently disabled, with modifications where appropriate. The new schedule supplies those modifications. The new clause makes clear that if a person alleges discrimination in respect of a past disability the question of whether the person has a disability will be decided by reference to the definition of disability at the time of the alleged act of discrimination. This makes clear that the Bill will cover people who have recovered before the Bill has passed and it will also ensure consistency of treatment between people who are currently disabled and those who have recovered from the same condition.
The remaining amendments ensure that the bodies set up to advise the Secretary of State, the National Disability Council, the National Advisory Council on Employment of People with Disabilities and any successor body, will represent the interests of people who have had a disability as well as those who currently have a disability. They ensure also that the code of practice to be prepared by the Secretary of State to provide practical advice for employers will cover discrimination against people who have had a disability. As I have said, the Government have listened to arguments about this. We have accepted their strength, and I hope that these amendments will be welcome to all those people who have put forward arguments in favour of covering people who have had a disability. I therefore commend the amendments to the Committee.
Baroness Hollis of Heigham: We very much welcome these amendments and we thank the Government for bringing them forward.
Baroness Gardner of Parkes: May I ask the Minister if, under this guidance, he will be able to advise employers that they should not ask people to take HIV tests as a condition of obtaining employment if they have no visible or known history of it?
Lord Mackay of Ardbrecknish: I am unable to answer that point immediately. I am not sure whether it comes within the ambit of this Bill. Employees may be asked to do tests for quite different reasons; it may be sensible, as part and parcel of the job that they are about to take on, that people are asked to take a test, not just for HIV but on other grounds. As this is a Committee stage, perhaps my noble friend will allow me to check up on her question and write to her so that I can give a proper answer.
Baroness Gardner of Parkes: I thank the Minister for that reply. I should be grateful if he will look into the matter. I am concerned about situations in which people are asked to take tests that have no relevance to their particular employment.
Lord Monkswell: It is quite interesting that the Government are now introducing an amendment which effectively states that discrimination is not allowed, even though a person is not disabled, on the grounds of attitude to disability on the part of the employer. In the earlier debate the Government argued slightly differently. They said that to have a case at all there had to be a disability. I see the Minister nodding his head. In this new clause, they

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effectively say that the disability does not have to be there; that it may have existed in the past. That is the angle that the Minister is arguing.
I suggest that it may be useful in resolving problems of discrimination in the future, as well as saying that consideration of past disability should not be acceptable, to say that consideration of future disability should also not be acceptable. The situation at which I am trying to arrive is one wherein an employer has a perception that somebody will become disabled in the future and effectively throws him or her out of the job because he does not wish to have a disabled person in his employment. That takes place before the disability occurs.
So far as I can gather from the debate that we had, it would be legitimate for an employer to get rid of an employee on the basis of the risk of future disability. His defence would be: "My ex-employee, who is taking me to the industrial tribunal on grounds of discrimination against disability, is not disabled". It is only the risk of future disability that causes the person to lose the job. I suspect that that is not the intention of the Government in carrying forward this Bill. I respectfully suggest that the Minister may want to think again about this matter. Having widened the scope of the Bill with this new amendment, perhaps the Government will consider widening its scope in a future direction as opposed to a past direction to prevent what would effectively be discrimination in employment on the basis of the risk of future disability, although the disability would not be present.
Baroness Gardner of Parkes: I should like to make the point that my statement was not linked to the noble Lord's last remarks. I think that we are at cross-purposes. If you are already in a position and an employer sees that you are liable to become disabled in the future, you would be covered by normal industrial law. If you have been in a post for two years, you cannot be dismissed without good reason or for being unable to do the job. In such a case, your inability would be the cause of your disability.
My question was related to first going for employment. There is a point here. There are certain cases, such as nursing very sick people, handling foodstuffs, or risky jobs in which someone might cut their hand and someone else become infected from the blood when an HIV test might be necessary and desirable with appropriate counselling in advance. Texaco, for example, ask that as a routine question and insists that everyone takes an HIV test. That is the point that I was bringing to the Minister's attention for his consideration in the future.
Lord Mackay of Ardbrecknish: I did understand the point that my noble friend made to me about HIV. Another noble Lord accompanied a delegation to me on this issue. That was one of the points raised.
I return to the remarks of the noble Lord, Lord Monkswell. I suspect that he has fallen into the trap that I thought somebody might fall into. The previous series of amendments, which I was not prepared to accept, were about perception. This amendment is about disability. The disability may have been cured, it may have abated, or whatever. It may no longer affect the person. On that day,
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or in that week, they may not fall within the definition of the Bill. But they would clearly have fallen within that definition in the past, and would have had the protection of the Bill in the past. That is what this amendment is about. It is not about perception. It is about a real disability that somebody has had in the past. Therefore, much as I admire the noble Lord's neat attempt to tie me backwards, if I may put it that way, from this amendment that I am proposing, to the last one, which I rejected, I do not believe that the link suggested by the noble Lord exists.
On Question, amendment agreed to.
4.15 p.m.
Schedule 1 [Provisions Supplementing Section 1]:
Lord Carter Lord Carter moved Amendment No. 4:
Page 28, line 6, leave out from ("mental") to end of line and insert ("disorder").
The noble Lord said: In moving this amendment, I shall also speak to Amendment No. 5 to Schedule 1. Before I do so, perhaps I may make a general point which affects this amendment and perhaps others that we shall consider. Listening to discussion on the previous amendments, I wondered whether we were discussing a disability and discrimination in employment Bill. We should remember that the Bill is about employment, access, goods and services and premises. Virtually all the discussion on previous amendments related to the concerns of employers. But there are other areas of interest that we should consider.
The purpose of these two amendments is to deal with paragraph 1(1) in Schedule 1. The paragraph states:
"'Mental impairment' includes an impairment resulting from or consisting of a mental illness only if it is a clinically well-recognised illness".
The aim is to ensure that mental disorder is included within the term "mental impairment" for the purposes of this Bill. As the Bill is drafted, people suffering from mental illness are required to comply with an extra condition before they can seek the protection of legislation. As I just read out, a mental impairment must include a mental illness only if it is "a clinically well-recognised illness". The term "clinically well-recognised illness" is not further defined. We are advised that that is likely to cause lengthy legal and medical arguments as to whether the person seeking to enforce the right is suffering from a clinically well-recognised illness.
Amendment No. 5 refers to the fact that the term does not even relate to the powers of compulsory detention. Under the Mental Health Act 1983, a person can in certain circumstances be detained on the grounds of his or her mental disorder. It is often referred to as being sectioned.
The definition of "mental disorder" is extremely wide. It includes mental illness and also any other disorder or disability of the mind. However, under the Mental Health Act 1983 there is no requirement that the person detained must be suffering from a clinically well-recognised illness. That means that a person could be detained in hospital against his or her wishes and still not fall within the definition of mental impairment.
We are advised that inclusion of the term "mental disorder" in "mental impairment" will help to avoid such inconsistencies. It would also introduce a workable term,

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one with which legal and medical practitioners are familiar. "Mental disorder" is not the most acceptable of terms. It is certainly not ideal, but it is a term that is well-recognised. I have had to deal with it before in relation to other Bills.
When this subject was discussed in the other place, the Minister for disabled people, Mr. William Hague, argued against such an amendment on the following basis. He stated:
"We are clear also that there is no function in the Bill to cover moods or mild eccentricities and to say that they constitute a disability".
That seems to me to be a fairly curious statement. He continued:
"Nor do we want to open up the possibility of claims which are based on obscure conditions unrecognised by reputable clinicians, which courts and tribunals would find extremely hard to assess".
That seems to me to be a complete failure on the part of the Minister concerned to understand the nature of a mental illness.
That response confuses the term "mental impairment" with the definition of disability. My amendment seeks to ensure that mental impairment includes the conditions which fall within the term "mental disorder". However, it is important to realise that that is only part of the definition of disability. As drafted in the Bill, the definition of disability requires that mental impairment has:
"a substantial and long-term adverse effect on [a person's] ability to carry out normal day-to-day activities".
A person who suffers from a mental disorder but does not meet all those criteria would not be considered disabled for the purposes of the Bill.
Let me return to the quotation from the Minister for disabled people. I find it hard to understand, in a Bill which the Government have produced, that the Minister with responsibility for disabled people should feel that "moods or mild eccentricities" would have:
"a substantial and long-term adverse effect on [a person's] ability to carry out normal day-to-day activities".
The Government have argued that the reason for imposing that additional condition is because mental illness has a much greater scope for doubt than other mental or physical impairments. I hope the Minister can explain why the Government consider that mental illness is likely to cause more difficulty than any other impairment. As I said, in order to fall within the definition of disability, the impairment has to fulfil certain other stringent criteria.
We feel that the requirement that mental illness has to be clinically well recognised is an unwarranted additional hurdle which will create confusion and uncertainty. For example, the definition proposed in the Bill does not include certain groups of people with learning difficulties, those with personality disorders or those who have suffered some brain damage. As I said, in relation to mental illnesses, only those which are clinically well recognised will be included.
We are advised that there are a number of mental disabilities which are not specifically covered by recognised diagnoses. It is widely established that psychiatric assessment and diagnosis reflect an imprecise science and can vary considerably between different clinicians. Also, the Government's definition fails to
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specify the required qualifications of the clinicians who may be called upon to say whether or not an illness is clinically well recognised.
There were discussions at Second Reading and on previous amendments about the inappropriateness of relying on a medical model within which there are considerable differences of opinion to establish a legal definition. The Government's definition will cause considerable uncertainty which can only be removed, we feel, through litigation to clarify its meaning. As I said, the proposed amendment makes use of the statutory definition of mental disorder, which is already well established.
The definition of disability must not only be clear but flexible to take account of the differing conditions which cause disability and their variable effects on individual disabled people. Some amendment through regulation will be necessary in the course of time to reflect the medical achievements and changing social conditions; the regulations as laid down in the Bill should not be used to exclude the broad categories of disabled people or people with disabling illnesses.
The amendments that we propose may not be perfect. However, this is Committee stage. I hope that the Minister will accept that they are a genuine attempt to help to solve a problem which I know concerns many people in both the mental health area and the legal profession outside this Chamber. I beg to move.
Lord Addington: Once again I rise briefly to support this amendment. To have a clinically well recognised illness which is not defined creates all the terms of confusion to which the Minister referred in relation to earlier amendments. There is no definition of a well recognised illness. It is well known that if five professional people are asked their opinion, there will be at least six different answers. I suggest that considerable problems may be caused. Moreover, when does a new development become well recognised? That is another problem.
The amendment goes back to an earlier definition brought forward by the Government in another piece of legislation. It refers back to what the Government know and have dealt with. Surely the amendment is an acceptable step forward.
Lord Campbell of Croy: Perhaps I may add a few words to the debate. I have had long experience of mental illnesses. I understand my noble friend's difficulties in trying to make sure that a lot of cases do not go to tribunals and courts. This is a very difficult area for someone who, after the Bill has been enacted, complains that he or she has been badly treated.
The words used in the Bill are "a clinically well recognised illness". In my experience, on many occasions, even now with all the advances that have been made in the past 30 or 40 years, it may be quite clear that somebody has a mental illness but it is difficult to diagnose. Is it schizophrenia? Is it some other form of illness which has similar effects and symptoms? That is my one query: somebody may clearly be suffering from a mental illness but the doctors may not for months be able to say exactly which illness it is.
Lord Ashley of Stoke: One of the problems is that the definition of mental impairment leaves unprotected the very people whom we ought to be protecting: people with learning difficulties or personality disorders and those who are brain damaged.
The Minister argues in the Bill that only clinically well recognised problems should be included. He gives the impression that he has been advised by junior hospital doctors who are concerned with broken legs and other simple problems. Psychiatry is not like that. It is a very young science in a very complex area. It is a little like talking to economists: every economist has a different opinion. Practically every psychiatrist has a different opinion about a given disorder or whatever. I do not feel that one can insist, as the Minister insists, that one is only concerned with clinically well recognised problems.
The provisions are narrow and inadequate. They are very restrictive. I am surprised that the Minister lends his name to them. I know that he recognises the need to go as wide as possible. The provisions give a sense of injustice to people who are mentally ill and certainly a sense of injustice to those campaigning for them.
Members of this Chamber have been advised by some splendid organisations and have been sent wonderful briefs. I have in mind organisations such as RADAR and the Disability Alliance. The excellent briefing on this issue from MIND assures us that it makes no sense to abandon the perfectly good definition in the Mental Health Act. I see no argument against that. That definition, as I am sure the Minister is well aware, is comprehensive, is used by medical practitioners and is fair. So we could not ask for more. We ought to depend on that well established definition.
My noble friend referred to the comment made by the Minister in another place, which, I must say, took me aback. He said that it is no function of the Bill to cover "moods and mild eccentricities". We should challenge the noble Lord the Minister to say whether or not he agrees with that incredible comment. The Minister in another place is a caring person who has worked hard on the Bill. I hope that he will agree to some improvements. I do not want to criticise him personally. But I believe that the Minister in this Chamber ought to say whether or not he agrees with that irrelevant and misleading comment.
The final point I wish to make is this. Mentally ill people are in desperate need of protection, and protection from this Bill. They suffer more discrimination than people in wheelchairs and those who are blind, because the latter are understood and their problems recognised. But the problems of those who are mentally ill are not. However, where they are recognised, people feel embarrassed and uncomfortable. Therefore, they are given a low priority. People are frightened of mental illness. This fear, prejudice and embarrassment leads simply to inadequate resources. If Ministers today—and certainly at Report stage—refuse to give proper protection to mentally ill people, they themselves are guilty of discrimination. I hope that the Minister will be able to take on board these amendments.
4.30 p.m.
Baroness Gardner of Parkes: I do not follow the line which has just been put, although I found it an interesting one. The fact that one is not being asked to give a named mental illness suggests that the terminology is sufficiently wide to enable everything under psychiatric treatment to be covered. I read the MIND definition on the orange paper which is splendidly clear and easy to follow. It says that the term is not defined. I would have thought that "clinically well-recognised illness" would have covered all these conditions. I should like the Minister to make clear to me that the "mental impairment" referred to covers congenital mental defects like cerebral palsy or Down's syndrome or anything of that kind, and that "mental illness" is the only clinical point we are discussing at the present time. I believe that the present wording is all right.
Lord Mackay of Ardbrecknish: Perhaps I may begin by agreeing with the noble Lord, Lord Carter, when he reminded us that there is a good deal more to this Bill than just discrimination in employment. We should remember that. Indeed, I suspect that we shall be coming to that in more detail later on. The noble Lord, Lord Ashley, indicated that this was a very difficult field as indeed it is. Perhaps I may say a few words about our approach to the coverage of mental illness. I should also like to underline that "mental impairments", including learning disabilities, and so on, which are not mental illnesses, are covered as set out in Clause 1. We see no need for particular reference to such mental impairment in this schedule. We are now dealing only with the mental illness part of the issue.
We are clear that a recognised mental illness which has substantial and long-term effects on day-to-day activities should be within the scope of the Bill. People who have such illnesses are disabled in any commonsense use of the term. That would include, for example, schizophrenia, manic depression and severe and extended depressive psychosis. It would also include a range of other conditions well recognised by clinicians, both psychiatrists and psychologists, who practise in this field.
But as my right honourable friend William Hague said in another place—and this has already been quoted—we are clear that it is no function of the Bill to cover mild eccentricities, moods, etc. as constituting disability. I mentioned earlier on in previous debates that shyness, stubbornness, etc., also lie outside the scope.
The point being made by my right honourable friend in the other place was this. These symptoms, if I may call them that, could be claimed to come from a mental illness in the case of someone who either does not get a job and wants to find a reason for not getting it; or decides not to turn up at work when he already has a job, or does not agree to do a particular part of it. Service providers and employers could well be taken to court in those circumstances. That is why we have tried to make it clear. We do not want to open up and widen discussion to the possibility of claims based on obscure conditions which, as we say, are unrecognised by reputable clinicians.

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I know that there are many Members of this Committee who are interested in the world of science and medicine. They will be aware that there always seems to be someone in the world, with fairly impeccable credentials on the face of it, who comes up with some of the most amazing theories in the world of science. Is it not amazing how often we find that somebody attaches themselves to it and begins bombarding Ministers, Members of Parliament and Members of your Lordships' House, with closely argued letters, all based on the views of perhaps one clinician—dare I say it?—in some obscure American university? That seems to be the favourite stomping ground of some of them.
For these reasons, we want to make sure that in this Bill we are dealing with mental illnesses which are clinically well recognised. I take the point that perhaps we do not have the tightest definition we should like, or certainly that I should like. It is not an easy field, but a difficult one. I believe that the words we have chosen will encompass all the types of people and conditions that we want to help.
In dealing with physical impairment, I am confident that we can rely on the reference in Clause 1 to the,
"ability to carry out normal day-to-day activities"
to ensure that minor impairments, which do not amount to disabilities, are not covered by the Bill. The relationship of mental illnesses with the ability to carry out day-to-day activities, is a more difficult relationship to set down. We shall be debating it in connection with a later amendment.
I believe that we need a further provision to make it clear that the Bill does not cover unrecognised conditions of the kind which I have mentioned. That is the purpose of Schedule 1, paragraph 1(1) of the Bill as regards which the noble Lord's amendment seeks to take out words including, "clinically well-recognised".
The other part of the noble Lord's proposal is to link the definition of mental illness or mental disorder in this Bill to the definition in the Mental Health Act 1983. I do not believe that that is helpful. The definition in that Act is as follows:
"Mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind".
That definition appears to fall within the wide coverage of our term "mental impairment". The area of difference lies in alleged mental illnesses which have not achieved adequate clinical recognition. I believe that I have already explained the reasons why we feel that they should be excluded.
A further difficulty as regards this amendment is the specific reference to the term "psychopathic disorder" in the Mental Health Act definition. We made it clear in the other place that we intend to use the regulation-making powers to exclude psychopathic and other personality disorders from coverage in the Bill. I do not believe that it is in the public interest to protect people with psychopathic disorders from discrimination. It would bring the Bill into disrepute and cause employers and service providers great concern.
Perhaps I may reiterate our overall purpose. As I said, we do not intend to include in the Bill obscure conditions which are unrecognised by reputable
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clinicians. It seems likely that the only additional illnesses brought in by the Mental Health Act definition would be those which are not so recognised. That apart, our intention is that "mental impairment" shall be widely construed. We believe that we have achieved that.
I hope that that assures the noble Lord. I do not believe that there is too much between us although it may look as though there is quite a lot when one looks at the paper. I hope that the noble Lord will accept my reassurances as to why we believe these words are necessary and that it would not be wise to take on board the definition in the Mental Health Act.
Lord Carter: We are grateful to the Minister for his helpful answer. As he says, we are trying to tease out the underlying problems of the definition. This will not be the only occasion upon which that occurs. I thank other Members of the Committee who have contributed to the debate. I wish to pick up on just a couple of points. One of them is the point made by the noble Baroness, Lady Gardner, who said that she thought the definition in the Bill was sufficiently wide. I can but quote directly from the Law Society brief:
"It is inappropriate to rely on a medical model, within which there are considerable differences of opinion, to establish a legal definition. The Government's definition will cause considerable uncertainty, which will only be removed through litigation to clarify its meaning".
The Law Society feels that there is a problem with the definition.
I have to admit that I was a little puzzled by the Minister's reply when he referred to learning disability being caught by Clause 1, which refers to,
"a physical or mental impairment".
The Minister then referred back to the definition contained in paragraph 1 of Schedule 1, which provides:
"'Mental impairment' includes an impairment resulting from or consisting of a mental illness only if it is a clinically well-recognised illness".
If mental illness is going to include learning disability and other forms of mental handicap in Clause 1, the Minister seems to be implying that mental impairment will include mental handicap if it is not a clinically well-recognised illness. We need to look again at the drafting. The Minister has made a point at which his officials might well wish to look.
There has been some confusion throughout the debate about this important distinction between mental illness and mental handicap. I repeat the point I made earlier, which was made also by my noble friend Lord Ashley. The Minister in the other place referred to moods and mild eccentricities, and the Minister referred to shyness, I believe. How are any of those terms supposed to create a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities?
There is one point upon which I would agree with the Minister. He also mentioned stubbornness. I would say that in the case of government Ministers stubbornness does have a substantial long-term adverse effect on their ability to carry out their normal day-to-day activities.
I should like to study what the Minister said about the definition we suggested from the Mental Health Act. It might not be perfect and it might be possible to come

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back at a later stage with a definition which picks up some of the points out of the Mental Health Act but not the one which the Minister fairly made. For all those reasons, I believe there is still an area of concern here. The Minister's reply began to be helpful, but we shall have to consider it. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 5 not moved.]
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 6:
Page 28, line 23, leave out ("continuing to have that effect if that") and insert ("a long-term effect if that substantial adverse").
The noble Baroness said: This too is a probing amendment but one which we believe the Government may be able to support or make clear in their reply that it is unnecessary. We think the Government intend that where someone has a substantial disability within the field of mental health but that disability is exhibited only intermittently or recurs only intermittently, nonetheless such a person is covered by the Bill.
We believe that the wording makes that insufficiently clear. MIND gave the example of someone suffering from manic depression. There may be periods of stability, interrupted, unfortunately, by periods of deep depression, followed by periods of over-active behaviour. We believe that the Government intend such a situation and such a condition to be covered.
The wording of the amendment would make that point unambiguous. We hope that the Minister will feel able to support the amendment or to persuade us that it is unnecessary, because the situation is already covered in the Government's subsequent amendments to "substantial" and "adverse". I beg to move.
Lord Renton: With respect to the noble Baroness, the amendment raises a narrow point. It is simplified— but not over-simplified I hope—by pointing out that it refers to the difference between a continuing effect and a long-term effect. That is all it is. Frankly, I am not certain that it is in the interests of disabled people to abandon the term "continuing" and to go for the term "long-term". Nor is it in the interest of those who will be affected by the provision as employers, and so on. I think on balance that it is better to keep the word "continuing". I hope that the Government too will feel that way.
4.45 p.m.
Lord Mackay of Ardbrecknish: As the Committee will be aware, to meet the definition of "disability" a person has to have an impairment which has a substantial long-term adverse effect on his ability to carry out normal day-to-day activities. But that does not adequately reflect the position of people who have impairments where the effects fluctuate—for example, arthritis—or recur, as with multiple sclerosis.
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To ensure that those people are covered, even when their impairment may have little or no effect at a particular time, there is a provision in paragraph 2(2) of Schedule 1 which says:
"Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur".
In other words, it deems the substantial effects to continue during the intervening period of insubstantial effects or no effects.
However, to be covered by the definition of "disability", the person still has to fulfil the requirement of the definition in Clause 1: that the effects have to be long term—that is, they have to last or be reasonably expected to last at least 12 months. That means for a recurring condition to be a disability, as defined, at least one recurrence has to be, or be likely to be, at least 12 months after the first.
The reason why we have a requirement that the effects would be long-term is because the idea of disability does not cover temporary or short-term conditions. We believe that that is something with which most people would agree.
The effect of the amendment would be to deem a recurrent condition to be long-term however briefly after the first occurrence that the final recurrence occurs. For example, if a person has one further bout of an illness a week after the first, and then has no more relapses or recurrences ever, they would be regarded as having a disability. That would be in contrast to another person who had a single continuing illness over the same period of, say, three weeks, and recovered completely. That person would plainly not be regarded as having a disability.
I am sure that it is not the intention of the noble Baroness to cover those circumstances, but that would be what would happen. I hope that I have explained what we are looking for in this paragraph of Schedule 1. I hope that the noble Baroness will see my point and why we have put the matter the way we have, and understand that her amendment does something that I do not expect that she intended for a moment. I hope that she will withdraw it.
Baroness Hollis of Heigham: I should like to ask the Minister for a little further clarification. I take the point when he gave the example of the illness never recurring. What happens when one cannot tell? In other words, what happens where the recurrence is unpredictable and that unpredictability is part of the illness itself, as is the position with some mental health problems which are heavily dependent upon medication or something like that? Manic depression would be an obvious case. There might he an occurrence. There might, as the Minister said, be a recurrence a month later. There might then be a reasonably long period during which there were no recurrences.
What happens if that person is carrying the condition of which part of the diagnosis is that there could be a traumatic event which could trigger a recurrence? One cannot anticipate that traumatic event. It might be a bereavement, a divorce or something like that. That

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condition may then recur. Is that situation covered by the Minister's explanation? If it is, I am well content. We need some protection in that situation.
Lord Mackay of Ardbrecknish: We are getting into difficult territory. I hope that I can explain the matter. If my explanation is not quite right, I am sure that the noble Baroness will not mind me writing to her. Towards the end of her intervention, she mentioned something that might happen once and might never recur but because of some crisis in one's life, it does. One cannot look ahead to such a possibility and decide that therefore the person is disabled. I draw the noble Baroness's attention to paragraph 7. If the condition is progressive, such as multiple sclerosis, the situation is different and is dealt with after the first symptoms have become apparent. We shall deal with that matter in a moment.
I believe that the problem about which the noble Baroness is anxious is dealt with in the Bill. However, we do not want to go so far as reaching the position that I explained: that someone with a problem which lasts for three or four weeks and from which he then recovers completely can rightly not find himself covered, but someone with a problem which gets better but quickly recurs can find himself falling within the definition. I am sure that that is not what we want.
I shall read what the noble Baroness has said, and I hope that she will read what I have said. We can then consider whether we are at cross-purposes, whether I have satisfied her or whether she has raised an anxiety that I too should be anxious about.
Baroness Hollis of Heigham: I thank the Minister for that helpful and conciliatory response. We want a situation in which someone is not discriminated against because of a previous occurrence—which was dealt with in an earlier amendment helpfully moved by the Minister—and also a situation in which someone is protected. As regards illnesses such as MS, manic depression, ME and so forth, the condition fluctuates and is unpredictable in its recurrence. We do not know, for example, how long the original occurrence would have to last in order for it to be protected. The problem may best be explored behind the scenes, and therefore I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Carter Lord Carter moved Amendment No. 7:
Page 29, line 6, at end insert:

"( ) standing;

( ) sitting and rising from sitting;

( ) reaching;

( ) remaining conscious;

( ) breathing;

( ) sleeping;

( ) ability to communicate with other people;

( ) stability of mood;

( ) ability to go, or confidence in going, outside the home;

( ) ability to cope with unfamiliar environments;

( ) ability to care for oneself.)".

The noble Lord said: I return to the definition of disability. Amendment No. 7 attempts to improve on the definitions and the activities mentioned in Schedule 1.
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Members of the Committee will be aware that there is real concern that the definition of disability in the Bill will not be broad enough to include all disabled people who are discriminated against. The mere fact that someone has a disability or a disabling condition, no matter in how mild a form, will often lead others to discriminate against that person. We know that from our own experience.
One of the ways to expand the definition of disability is to improve the list of day-to-day activities in the schedule. I am sure that the Minister will reply with problems of listing and leaving things out. However, the Government already have a list in paragraph 4 and we are trying to improve that.
As regards cerebral palsy, for example, Scope states that as currently drafted the Bill will not cover all those with the disease. One of the most striking features of CP is that no two people with the condition will be the same. It is one of the most varied medical conditions. In moderate cases someone with CP might have unsteady movements or stiffness of limbs but will still be able to go about his or her daily life with minimal help. However, cerebral palsy can result in such severe impairment that the person is unable to move at all. As we all know, there are many shades between those presentations of CP. Scope believes—and it should know—that that variability means that the definition of disability in the Bill must be broad.
The definition requires the individual to have an impairment which has a substantial and long-term impact on one of the fixed list of normal day-to-day activities. However, as a result of an impairment a person may be restricted in, for example, breathing because of asthma. But because that does not feature in the list of prescribed activities a person will not be regarded as disabled and cannot claim protection against discrimination.
The amendment lists a number of activities, including standing; sitting and rising from sitting; and reaching. They will ensure that people with conditions such as arthritis, rheumatism, musculo-skeletal conditions, amputations and chronic fatigue syndrome will be covered by the Bill. The current definition of activities or descriptors, such as mobility or physical co-ordination, would fail to include people with one of the above or similar conditions.
The inclusion of "remaining conscious" as an activity is essential to protect people who frequently face discrimination as a result of disability; for example, people with epilepsy or narcolepsy, or people who experience frequent transient ischemic attacks or periods of altered awareness. I have already mentioned breathing as an included activity. The amendment will cover individuals with chronic respiratory conditions as well as those with cystic fibrosis and asthma. It appears that they are not covered in the present definition.
It would be helpful if, in reply today or in writing, the Minister having read what I have said about the various conditions listed, would say whether we are correct in believing that they are not covered by the list in the Bill. An individual with advanced AIDS may not qualify under the current definition but would if, for example, their night sweats and insomnia were taken into account.
The ability to care for oneself in the sense of being able to bathe, dress, go to the toilet, get in and out of bed and feed without assistance is the key criteria to qualify for disability living allowance. These should be recognised as normal day-to-day activities. The list is not exhaustive and we are trying to ensure that large groups of people are not excluded from the Bill because of the failure of the definition in Schedule 1.
Perhaps I may make a general point which is not directly related to the amendment but covers all the amendments that we are considering. The Bill is about attitude towards disability. I have given one example. It is also about avoiding any attempt to stereotype disabled people. I will put the matter as carefully and as tactfully as I can. Throughout our consideration of the Bill we have in the Chamber a classic example of stereotyping. The authorities of the House are to be congratulated on having gone to some trouble to alter our arrangements; the Hansard writers are sitting below the Bar and Members who use wheelchairs have extra room. But why only for this Bill? Why do Members who use wheelchairs have special arrangements only for debates on a Bill dealing with disability?
I ask Members of the Committee to consider the matter most carefully. I accept that the arrangements are entirely well-meant and not meant to be in the least offensive. However, it is a classic example of stereotyping that this Bill is supposed to stop. I beg to move.
Lord Campbell of Croy: Perhaps I may ask the noble Lord, Lord Carter, for a little more clarification. I find difficulty with the eighth, ninth and tenth activity on the list. Does "stability of mood" mean mental problems? If so, that ought to be dealt with in the part of the Bill that we have just discussed. Is "ability to go, or confidence in going, outside the home" a description of agoraphobia? I find the phrase "ability to cope with unfamiliar environments" the most difficult. It must be extremely difficult to define and I hope that before the end of our discussions we can have further explanation. I believe that the ability to care for oneself is important but it is a matter of degree. As a result of physical disabilities, some people are incapable of looking after themselves, and clearly they should fall within the scope of the Bill, but probably not in this part of the Bill.
Perhaps I may say while I am on my feet—and, as Members know, I cannot stay on my feet for very long—that I thoroughly understand standing, sitting and rising from sitting and reaching, all of which for 50 years I have found extremely difficult.
Lord Addington: I support the thrust of the amendment. There is one important answer that the Government can give today. Are they prepared to expand the list or to issue guidance for expanding it in the future? There is one thing that I have learnt during my time in your Lordships' House; that the minute one starts making a list one leaves something out. Surely there should be the ability to expand the list or to make
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changes to it. Will the Minister consider discussions to increase the terms of reference which go with any list appearing in the Bill?
5 p.m.
Lord Ashley of Stoke: This amendment deals with yet another group of astonishing exclusions. It very sensibly extends the list of particular activities which could be affected by mental impairment. Not for the first time, I disagree with the noble Lord, Lord Campbell, about the position of the amendment and where it should be dealt with. It is perfectly permissible to deal with it in relation to this schedule.
Lord Campbell of Croy: I am grateful to the noble Lord for giving way. I only commented on two or three points and I thought that only'two of them—certainly in relation to the mental impairment—should be dealt with elsewhere in the Bill.
Lord Ashley of Stoke: I know that, but it is those two or three points to which I am referring. I believe that it is quite legitimate for them to be dealt with at this point in the Bill. It is a matter of plain, irresistible logic and common sense that anyone with seriously unstable moods and the inability to communicate and cope with the environment may suffer discrimination. That is almost inevitable.
The fact that those people are different, are seen to be different and react differently from the norm marks them out from the herd. One only has to watch a child who is different in the playground to see how he is mocked and sometimes ostracised because he is different from the herd. One sees there the first glimmer of discrimination. That is the point in relation to people who behave differently in that manner.
To make it worse, the adults about whom we are talking in that group are often prescribed drugs which have a very powerful effect on them and which exacerbate their swinging moods, inability to communicate and failure to cope with the environment.
I am aware that the regulations will make or mar this Bill because it is essential that the will of parliamentarians is reflected fully by the initial list of day-to-day activities, which will signal a parliamentary message. So far the message has been that this Bill is more concerned with physically rather than mentally disabled people. That is totally wrong and morally indefensible. We are seeking to provide for both. This afternoon we are providing the Minister with a glorious opportunity to put that right. I am confident that he will grasp it.
Lord Swinfen: I support the ideas behind the amendment. However, I am sure that when my noble friend answers the debate, he will say that everything can be covered by paragraph 4(2) in Schedule 1. It is very important that this amendment should be considered seriously by the Minister. I am not sure whether the list given in the amendment is the best list or the right list but serious consideration should be given by the Government to the points that have been raised already before the matter comes before us again on Report. I support the tenor of the amendment.
Baroness Macleod of Borve: I have been listening to all the Committee's deliberations with much thankfulness that the able-bodied Members of the House of Lords have taken the time, trouble and thought to bring the Bill before the Chamber and to discuss it so fully.
I do not believe that I have to declare an interest because it is rather obvious. Therefore, I shall not formally declare an interest. But I am particularly interested in the Bill. I thank the noble Lord, Lord Carter, for what he said about the Hansard people vacating the two places here. That is very welcome to us all. Many times I have sat on the Steps of the Throne unable to utter a single word in this Chamber, and that has gone on for many years.
However, when I read Amendment No. 7, I wonder who is normal. I am worried that I shall go away thinking whether I should be included in the list. If one is, what does one do about that? I believe that the original list is quite long enough. If one goes into the problems of sleeping, stability of mood and so on, that is almost putting it into the category of a laughing stock and I do not want that message to go out from this Chamber. Therefore, I am in favour of the original list.
Lord Mackay of Ardbrecknish: First, I am pleased to see my noble friend Lady Macleod in what we Scots would call the body of the kirk rather than sitting on the Steps of the Throne. Whether or not that view will prevail for very long when some of her colleagues come and sit there remains to be seen. I may well be campaigning to get the Hansard writers back there so that my noble friend and her friends must watch from the Steps of the Throne. But I am sure that that will not be the case.
I appreciate the points behind the amendment and we have had an interesting debate about it. I fear that my noble friend Lord Swinfen has listened to me rather too often because he predicts that I shall say that it is not necessary. The noble Lord, Lord Carter, too says that he has listened to me too often.
I suggest that the amendment is not necessary and that the points are covered and covered clearly in paragraph 4(1). Perhaps I may recap on what the list of normal day-to-day activities in Schedule 1 is for and the basis on which it was drawn up.
As the Committee well knows, disability is defined in the Bill as a physical or mental impairment which has a substantial and long-term effect on normal day-to-day activities. The list, which is exhaustive, sets out the categories of activity which are to be treated as normal day-to-day activities for the purpose of the definition. The list is exhaustive because in our view it is important to make that key element of the legislation as clear and certain as possible. We wish to keep to a minimum the amount of time that courts and tribunals have to spend deciding whether an activity is or is not a normal day-to-day activity.
The list in the Bill is based on fairly broad categories of activity. That avoids the need for too much detail and also reduces the risk of omitting inadvertently a particular activity relating to a less common disability. Perhaps I should point out to the Committee that the Bill provides the power to add to that list if necessary. I believe that the noble Lord, Lord Addington, was asking
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me about that. It is refreshing to be asked by a Member on the Liberal Democrat Benches to make sure that I have sufficient powers to make regulations. Normally the argument is the other way round, so that was a refreshing change.
Although we have that power, we do not wish to use it more than we have to. Obviously, repeated use would not be helpful to the clarity and certainty which, as I have already mentioned, is so important to the effective working of the Bill.
The categories in the Bill have been tested carefully against the effects of a wide range of conditions which we should expect to cover. I am confident that it will achieve that coverage.
Perhaps I may now turn to the amendment itself and the little list which the noble Lord wishes to add to my little list. There are a number of elements in it which all relate to mobility which is the first matter dealt with on my list. Paragraph 4(1) (a) refers specifically to mobility. In our view, that would be subsumed within the term and my noble friend Lord Campbell of Croy has clearly supported that position.
The ability to stand, to sit, to rise from sitting, to breath, to move confidently outside the home and to cope with unfamiliar environments as listed in the amendment are all essential to normal mobility. "Mobility" is the first item in my list in Schedule 1 and it is a broad category of activity which, I believe, includes all the matters in the noble Lord's list. The ability to reach is also referred to in the amendment. That is clearly related to "physical co-ordination" and to the,
"ability to lift, carry or otherwise move everyday objects",
both of which are actually listed in the Bill. The ability to remain conscious, which also appears in the amendment, will affect all normal day-to-day activities—even including attending this place—while the ability to breath will affect "mobility", "ability to lift" and "speech", as set out in the schedule.
The amendment also includes the,
"ability to communicate with other people".
Turning to the categories already in the Bill, that is covered in large part by "speech, hearing or eyesight". However, it also introduces the concept of language as a barrier which may be an important factor in some cases. But I believe that that would be irrelevant to the purposes of the Bill. I recognise that some people will have difficulty in communicating because of severe learning disabilities, but they are covered by the phrase,
"memory or ability to concentrate, learn or understand",
which is contained in the Bill.
"Stability of mood" is also suggested by the noble Lord in his amendment. I believe that that is a very difficult concept; indeed, we have already discussed it once or twice this afternoon. I believe that the normal boundaries would be almost impossible to set. Where someone has a clinically diagnosed depression, that will affect memory, ability to learn, concentrate or understand. The Bill, rightly, does not encompass the concepts of unhappiness, lack of self-confidence or lack of self-worth as disabilities in their own right.

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Finally, there is the suggestion in the amendment of the ability to sleep and the,
"ability to care for oneself".
The first category is very difficult to define because there are people who sleep very little but who perform all their day-to-day activities prodigiously well. Each of us seems to have quite different sleep needs. If someone has severe insomnia in connection with another condition—such as, for example, manic depression—and is unable to concentrate as a result, that will clearly have an effect on his normal day-to-day activities. The difficulty with the phrase,
"ability to care for oneself",
is that it does not explain the nature of the problem. People who need help in caring for themselves do so because of a physical or mental disability which effects areas of activity already within the list; for example, mobility, co-ordination, or the ability to concentrate, learn or understand, or, indeed, continence. Therefore, I believe that that is covered in the schedule.
I hope that I have been able to give the desired reassurances. Although it is not included in his list, the noble Lord, Lord Carter, mentioned the question of cerebral palsy, as regards hand movements and the like. That would be covered by "physical co-ordination" in subparagraph (c) of the schedule.
I understand why the noble Lord tabled the amendment. Indeed, I thank him for doing so because it has given me the opportunity actually to show what we mean by the list that we have provided. I hope that I have been able to reassure the noble Lord and other Members of the Committee who took part in the debate that the list of "normal day-to-day activities" in Schedule 1 is sufficiently comprehensive and is appropriate to the purposes of the Bill. If we were to accept the noble Lord's amendment, there would, perhaps, be some danger of an overlap. However, I am sure that the noble Lord tabled it as a probing exercise. I trust he finds that his probe has been successful and that he will feel able to withdraw the amendment.
Lord Carter: I am most grateful to the Minister. Indeed, he is exactly right; the intention of tabling such an amendment was to get on record the way that the Government are interpreting the list contained in the Bill. Obviously, I shall have to read the Minister's remarks with some care and take advice. However, it seems to me that all the categories of activity that we listed are—it is to be hoped—caught by the definitions in the Bill.
In fact, I was also going to rely, for once, on regulations in respect of paragraph 4(2) (a) of Schedule 1, as mentioned by the noble Lord, Lord Swinfen. It is now clear that we can add to the list if we need to do so through regulations. Therefore, unusually from the Opposition Benches, we welcome the fact that we can make regulations to deal with a problem. As I said, I am extremely grateful to the Minister for his most helpful reply. I beg leave to withdrawn the amendment.
Amendment, by leave, withdrawn.
5.15 p.m.
Lord Carter Lord Carter moved Amendment No. 8:
Page 29, line 6, at end insert:
("( ) Regulations may prescribe that the effects of any medication or treatment, or the impact of pain, fatigue or stress on the performance of any of the activities in paragraph 4(1), shall be taken to affect the ability of the person concerned to carry out normal day-to-day activities.").
The noble Lord said: I shall move the above amendment, but, on reflection, I realise that it might have been better if we had grouped it with the previous amendment. I say that because, if we are not careful, we shall merely cover the same ground. The amendment seeks to ensure that the side-effects of medication—such as "pain, fatigue or stress", and so on—are taken into account when determining whether an individual qualifies as disabled.
The amendment would ensure that many disabled people who would otherwise be denied the benefits of the Bill would be included in the definition. It seeks to address the often adverse effects—such as "pain, fatigue or stress"—that medication can have on a person's condition. Those factors often amplify or heighten the effects of disability and can combine to debilitate the individual more than his main condition. For example, pain often causes fatigue, or medication to combat severe pain can be accompanied by unpleasantly debilitating side-effects such as nausea and dizziness. There are also the kinds of drugs which are commonly prescribed for serious mental illness, which can have serious and lasting side-effects.
The effects of medication or treatment can have a substantial and adverse effect on a person's ability to carry out,
"normal day-to-day activities",
as stated in the Bill. For that reason, the amendment proposes:
"Regulations may prescribe that the effects of any medication or treatment… shall be taken to affect the ability of the person concerned to carry out normal day-to-day activities".
I am not sure that the drafting of the amendment is absolutely perfect, but I am sure that the Minister will get the drift of the argument. I shall be brief because, as I said, we shall merely be covering the same ground if we are not careful. However, it would be most helpful if the Minister could just explain how the Government envisage such a problem being dealt with under the definition in the Bill. I beg to move.
Lord Mackay of Ardbrecknish: The noble Lord, Lord Carter, has set out his reasons for introducing the amendment. I believe that the points he made deserve careful consideration. The adverse effects of a condition on ability to carry out normal day-to-day activity are the basis of our approach to defining disability in the Bill. It is important that we cover all the adverse effects which may reasonably be said to result from such a condition.
I can, I hope, convince the noble Lord that a substantial part of the range of factors in his amendment is already covered in the Bill. If a condition produces its adverse effects on ability to carry out day-to-day activities through the pain, fatigue or stress which it causes to the person who has it, then those effects—if

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they are substantial and long-term—will be capable of bringing that condition within the definition of a disability. If a condition causes pain, fatigue or stress, those factors are just as much part of that condition as would be, say, stiffness in a limb, or difficulty in controlling a particular set of muscles.
I believe that that deals with the first part of the noble Lord's amendment. The other part concerns the effect of "any medication or treatment". I accept that there is some doubt as to whether that is covered, but it seems unlikely that there will be more than a very few situations in which a person has a condition which does not itself have long-term and substantial effects on his ability to carry out his day-to-day activities. The amendment implies that the condition itself does not fall within the disabilities at which we are looking; it is the medication or treatment which has that effect. I am pretty uncertain as to whether you can actually have the latter without the former.
In those circumstances, I hope the noble Lord will accept my explanation on pain, fatigue and stress. I must say that I am unsure as to whether one would get results from medication which might potentially bring someone within the scope of the Bill if the condition being treated did not already bring that person within its scope. It is an important issue to which, clearly, we have given some thought, but I hope that the noble Lord is reassured by what I said at least regarding the first part of his amendment.
Lord Carter: I am grateful to the Minister. He said that this was an important point. We shall have to reflect on the interesting point that he made. I cannot quickly think of an example of medication where the underlying condition would not be caught under the definition. I am sure that our advisers outside the Chamber would be able to produce a list of at least 20, but I cannot think of any at the moment. I am grateful to the Minister for his good explanation of the problem. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 9:
Page 29, line 13, at end insert:
("Substantial adverse effects
. Regulations may make provision for the purposes of this Act—

(a) for an effect of a prescribed kind on the ability of a person to carry out normal day-to-day activities to be treated as a substantial adverse effect;

(b) for an effect of a prescribed kind on the ability of a person to carry out normal day-to-day activities to be treated as not being a substantial adverse effect.").

The noble Lord said: The Committee will be aware that it is our intention to have a definition of disability that is based on a common sense understanding of the term—I believe that I have said that on a number of occasions this afternoon—that is, a person who has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. In other words, the impairment has to be such that it has effects which are of some substance, not merely minor. The effects have
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to be long term, not temporary. And the effects have to be on the sort of activities that any of us might wish to undertake, not on specialist activities perhaps unique to one person in one situation.
We think that employers, service providers and disabled people will usually know who the Bill is meant to cover, as will courts and tribunals. This is particularly so given that Schedule 1 contains provisions supplementing the definition and Clause 2 allows guidance to be issued which will give examples of what constitutes substantial and long-term adverse effects. The word "substantial" is the best word to use in describing the degree of effect we have in mind; it is also used in other legislation such as the Disabled Persons (Employment) Act 1944. However, it is not a term that courts have always, found easy to pin down. What would happen if, faced with a difficult set of circumstances, a court or tribunal came to a mistaken decision on what a substantial adverse effect really was? The decision might well go against a person who would otherwise be covered by the Bill, or it might declare something to be a disability that we never intended to be regarded as such. Without a regulation-making power we would have no means of clarifying the proper way to deal with that type of case for the benefit of future disabled people, employers and others. This seems to me to be an important gap in our powers and the purpose of this amendment is to correct it.
I know that the Committee regards the question of delegated powers as important. The Select Committee on the scrutiny of delegated powers reported on the Government's memorandum on the delegated powers in the Bill on 17th May. In the memorandum, we had pointed out that the Bill set out clear and sometimes innovative principles together with a number of regulation-making powers to enable more detailed provisions to be introduced later, if necessary, in line with those principles. We pointed out that experience of the operation of the Bill might be such that some of the powers would never need to be used. But, where they were used, we said that they would be subject to consultation with disability organisations, employers' organisations and other appropriate bodies. I am pleased to note the committee was satisfied that, although the powers are numerous, the framework within which they are being made is sufficiently clear and fully set out in the Bill to avoid the charge that this is a "skeleton" Bill. It saw no need to draw any of the delegated powers in the Bill to the attention of the Chamber.
This amendment would, as I have said, add a further delegated power to the Bill. But it is a power of the same type as other powers on which the committee commented and is for a similar purpose. It does not detract at all from the solid framework which we have established for the Bill and, if used, would be subject to the same degree of consultation as other delegated powers. The power is clearly necessary if we are to ensure that we can operate this Bill with confidence, and without the need, in this respect, to rely on further primary legislation should the courts or tribunals encounter difficulty in applying these principles. I hope that I have not gone on for too long in explaining what

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this amendment seeks to achieve and in explaining why we believe that the power is an appropriate one. I commend the amendment to the Committee.
On Question, amendment agreed to.
Baroness Gardner of Parkes Baroness Gardner of Parkes moved Amendment No. 10:
Page 30, line 5, after ("cancer") insert ("HIV infection,").
The noble Baroness said: I rise to move Amendment No. 10 and speak also to Amendments Nos. 11 and 12. This group of amendments is concerned with the scope of the Bill as it affects progressive conditions such as multiple sclerosis and muscular dystrophy which are already referred to in paragraph 7(1) to Schedule 1; and HIV and cystic fibrosis, which are not.
I shall begin by explaining briefly the effect of the amendments. Amendment No. 10 simply adds HIV infection to the short list of progressive conditions which the Bill explicitly indicates as giving rise to disability in the terms of the Bill. Amendments Nos. 11 and 12 are slightly more radical. They change the sense of the Bill to provide that protection will be given to a person with a progressive condition on diagnosis if that condition is expected to give rise to a substantial and long-term effect on his ability to carry out normal day-to-day activities.
We have debated that aspect to a considerable extent this afternoon and therefore I do not intend to speak in great detail on Amendments Nos. 11 or 12 because from what the Minister said earlier this afternoon it is quite clear that he considers it essential that there should be a symptomatic HIV condition rather than one which has been diagnosed but which has no symptoms at that stage. I would like the Minister to consider Amendments Nos. 11 and 12. Amendment No. 11 seeks to delete Clause 7(1) (b) which states,
"as a result of that condition, he has an impairment which has (or had) an effect on his ability to carry out normal day-to-day activities".
In view of all that was said earlier this afternoon I cannot believe for one moment that the Minister will find that acceptable.
Amendment No. 12 seeks to alter Clause 7(1) (c) to make it state,
"he shall be taken to have an impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities".
I claim that from the moment of diagnosis HIV has an effect that will be long term. I believe it is not disputed that HIV is a progressive condition. The length of time that it takes for the condition to progress from HIV to AIDS varies in individual cases, but there is a progression and medical opinion states that although one or two cases in the world have not been progressive no one has yet established that the condition is not progressive. The experience in this country is that the condition is progressive.
I remind the Committee that the Bill already makes adequate provision—which I am pleased about—for circumstances where less favourable treatment of the disabled is justified. It is clear in the Bill that no one should have to employ a disabled person to do a job
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which, because of his disability, he cannot do. The Bill also has to draw a line beyond which it is unlawful for someone to discriminate on the basis of the likely prognosis of a person's future condition. The point of the Bill is to ensure that the disabled can continue to be useful members of society in all the many ways that they can, for as long as they can.
I would say to my noble friend that I understand why the Bill has this common-sense definition of disability which lies at its heart, and which I support. However, I would suggest that in this particular instance there is a common-sense solution and that my suggestion is one such solution. It replaces uncertainty with certainty. Instead of arguing about whether someone with a progressive condition has an impairment which will develop into a substantial impairment—which is rather a subjective judgment—it allows for diagnosis to be sufficient. I believe that would create a situation where disabled people would feel protected. They want clear statements and in that context I should tell the Committee that I have received support for these amendments from the Multiple Sclerosis Society and the cystic fibrosis society.
The case for protecting those with HIV infection in this way is even stronger; hence the need for Amendment No. 10. I believe that Amendment No. 10 is simple and straightforward and should be accepted by the Minister.
Those with HIV, even though they are perfectly healthy, fall under the shadow of the irrational yet understandable public fear of AIDS. If they cannot work they will become a public liability in the sense that the social security system will have to support them. That point should not be taken lightly. Since HIV and AIDS seem to be linked to stress and worry, it is likely that sufferers will become ill earlier than they might otherwise have done. It has to be appraciated that death often occurs due to HIV-related diseases long before AIDS develops. I also believe that there will be an advantage in terms of the Bill as a whole if the words "HIV infection" are included as an example of a progressive condition.
I need hardly stress that HIV is probably at present the medical condition which gives rise to the most obvious prejudice. If the Bill explicitly states that those with HIV-related disability are protected, it will be clear that the Bill covers all disabled people. It would also be significant for all the organisations working in this field to know that the Government recognise HIV as a special case.
I noted the undertaking given by my noble friend at Second Reading that those with symptomatic HIV are covered. On that point he and I are one, and I am grateful to him. I want to help those disabled in this way to feel protected. We agree on policy. Let us make it more explicit on the face of the Bill by adding the words "HIV infection" to the examples of a progressive condition. I beg to move.
5.30 p.m.
Lord Kilmarnock: I wish to support the noble Baroness, Lady Gardner, particularly in her Amendment No. 10, which is the one on which she concentrated.

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As I understand the Bill, it is intended to prevent discrimination at work. People with HIV are undoubtedly discriminated against, despite the excellent guidelines for employers issued by the Department of Employment. As the noble Baroness stated, such people are undoubtedly suffering from a progressive condition. I have a letter which I received today from Professor Anthony Pinching who is Professor of Immunology at the Medical College at St. Bartholomew's Hospital, stating categorically:
"Once HIV disease supervenes, progression has already started and will progress further, for practical purposes in all cases. Current therapies may slow this slightly but will not reverse it nor will they prevent progression indefinitely … HIV disease would be more analogous to fully developed cancer, although obviously some cancers/leukaemias are now curable, which HIV disease is not".
As we know, most sufferers are young, often in their 'twenties. Owing to the long-term nature of the progression of the disease, they are able to work for long periods. As the noble Baroness said, if they are discriminated against they become a burden on the state. Therefore, adding HIV as she suggests is a cost-free exercise, unlike most in the social security and disability field.
At present I am slightly confused by the Government's position. However, I have no doubt that the Minister, with his customary lucidity, will clarify everything when he comes to reply to the debate. In Committee in another place his honourable friend Mr. Hague said:
"We have drafted schedule 1.7 so as to avoid difficulties that might arise should courts or tribunals find it difficult to define the point at which someone with a condition such as multiple sclerosis becomes disabled."
He also said:
"I believe that our definition—although it may need to be clarified in regulations in due course—would cover, for instance, people with AIDS and symptomatic HIV, but would not cover people without symptoms of HIV".—[Official Report, Commons, Standing Committee E, 7/2/95; col. 85.]
We are all agreed on that. However, it is not certain to my mind that the Bill as drafted covers symptomatic HIV without any further mention on the face of the Bill.
If paragraph 7(1) (a) of Schedule 1 is intended to be indicative—which I believe is the term of art for such lists—it is strongly indicative in the main of genetic conditions, with the possible exception of viral cancers, and not of other progressive viral conditions such as HIV. Therefore, it could well be construed against HIV as drafted.
Later, in paragraph 7(2) of the same schedule, we read:
"Regulations may make provision … for conditions of a prescribed description to be treated as being progressive".
No indication is given as to who is to make that prescription or on what criteria.
Turning to what the Minister said at Second Reading, which has been quoted by the noble Baroness, he said:
"we have also ensured that people with progressive conditions are covered from the point at which they develop effects on day-to-day activities, however slight, and that people are covered who have impairments where the effects fluctuate or recur".—[Official Report, 22/5/95; col. 801.]
We were very glad to hear that from him at Second Reading. I am sorry that I was not able to be present, but I read that with some relief. However, I do not see it reflected on the face of the Bill.
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Putting HIV on the face of the Bill is simply to put beyond legislative doubt that HIV is a progressive condition, as certified by Professor Pinching, but will not trigger any application under the Bill until such time as a disability is recognised under regulations against criteria which the Government have full power to dictate after taking the appropriate advice. I find it very hard to understand any objection to that. I hope that the Minister will indicate that he will accept the amendment of the noble Baroness.
Lord Monson: I totally lack the medical expertise of the noble Baroness, Lady Gardner. However, can we be absolutely certain that acceptance of Amendment No. 10 could not jeopardise the health and well-being of other employees in the long term?
When AIDS first hit the headlines the Government, in an attempt to avoid panic, fell over themselves to try to convince the public that AIDS could only be transmitted by sexual contact or infected needles. However, latterly there have been one or two cases which cast doubt upon that and there are indications that it can also be transmitted in other ways. The medical profession constantly change their minds, often in a dramatic fashion. A prime example is asbestos. Some 25 years ago asbestos was considered to be God's gift to mankind. One could hardly find a doctor in the entire country to criticise the stuff. Now we know very differently. Therefore, one has to be careful and ensure that one does not rush into something precipitately at the possible expense of the health of other employees.
Baroness Jay of Paddington: I wish to support this group of amendments and particularly to reinforce the arguments made by the noble Baroness in introducing them and by the noble Lord, Lord Kilmarnock, about the need to reinforce the position of HIV and AIDS on the face of the Bill.
Both the noble Lord and the noble Baroness made points about the unique position of people with HIV infection and AIDS in terms of the specific discrimination which has been shown to them because of their condition. It is also worth reminding the Committee that, as the noble Baroness, Lady Gardner of Parkes, said at Second Reading, people with symptomatic HIV with AIDS can still make a significant contribution. Although, as we have heard, there is considerable confusion about the nature of the precise definitions of HIV and AIDS which arises all the time as more is known about the condition, we are certainly sufficiently into the world epidemic to know that people can be HIV positive and infected with the virus and still appear to be well and be capable of working for at least a decade after their infection can be diagnosed.
Despite the pessimism of the noble Baroness, Lady Gardner of Parkes, about the Government's response to Amendments Nos. 11 and 12,I still believe that it is worth discussing those amendments in terms of the specific condition of HIV and AIDS, as well as the other conditions which she mentioned such as multiple sclerosis and cystic fibrosis.
Amendments Nos. 11 and 12 suggest that the good practice which many employers in this country already exhibit should be enshrined in statute. I believe that that good practice has only occurred because there have been

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some notorious cases of bad practice. That factor has been recognised in particular by the voluntary organisations working in this field and in the work that they have done with a number of important and influential employers in this country.
Perhaps I may take a few moments of the Committee's time to describe one initiative. It was developed when I was director of the National AIDS Trust. It was specifically related to the issue of the employment of people with non-symptomatic HIV illness—people whose diagnosis was known to them and to their medical advisers, but might not have been known to their employers or anyone else involved with them. The scheme was devised precisely to make more open the discussion of HIV infection and the recognition that it could be a condition which, although with obvious long-term serious implications, did not necessarily impair someone's ability to work at the time of diagnosis or indeed for perhaps a decade after, as I have described.
The National AIDS Trust, with the support of the Department of Employment—the honorary chairman of the initiative was and remains the right honourable Sir Norman Fowler—put together a group of substantial plcs, among them, for example, GEC, IBM, J. Sainsbury, National Westminster Bank, Marks and Spencer, Glaxo Holdings, and so on, with the idea that they would sign an explicit employment protocol which demonstrated their intention not to allow an HIV diagnosis to become any form of impairment to employment. The constituents of an equitable HIV/AIDS employment policy to which they all signed as members of the initiative states explicitly that,
"The policy must address both HIV and AIDS separately, and the company's response to each should acknowledge that they are separate and different conditions".
It also provided that,
"The policy should state clearly that AIDS will be treated in the same manner as any other progressive or debilitating illness".
The fact that many companies of large, substantial and influential nature in our industrial world felt it important to provide that policy indicates the need to reinforce good practice in this field. Good practice exists. However, if we were to give the provision statutory force it is more likely that such good practice would spread.
Perhaps I may underline the point made by the noble Lord, Lord Kilmarnock. Many of the people included in the category of those with HIV, compared with many other disabling conditions, are of relatively young age. They should have a lot of working life and creativity before them. Discrimination towards them is particularly wasteful and costly to the taxpayer, especially if people who are simply identified as being HIV positive are thrown on the dole. I support the amendment.
Lord Addington: The noble Baroness is absolutely right in her approach. The disease is not only of long term incubation, but also a killer of the young, as the noble Baroness, Lady Jay of Paddington, said. This provision should be on the face of the Bill. It is a growing problem and one which will become worse.
5.45 p.m.
Baroness Masham of Ilton: I hope that this legislation will educate people about the needs and problems of people with disabilities. Having an infectious virus within one's system must be a disability. One of the greatest problems for people with HIV must surely be the attitudes of some who fear infectious conditions. Will it not help to educate the public if reference to HTV is included in the Bill?
Baroness O'Cathain: I am very sympathetic to the amendment. However, I have a slight concern which I would have raised with regard to one of my subsequent amendments.
The Bill could be in force for 20, 30 or 40 years. Twenty, 30 or 40 years ago none of us had heard of HIV. If we include this provision on the face of the Bill, are we in danger of limiting the discrimination legislation to a disease about which we know now but not one which might crop up? We could have another type of disease— I hope and pray not. A few weeks ago we had a scare about the Ebola virus in Africa.
My concern is about putting on the face of the Bill a provision which restricts the legislation. I prefer to see some reference on the face of the Bill to any other disease of a nature which could cause discrimination. I recognise that there has been discrimination about HIV. I know that good employers have made every effort to stop it. However, in the workplace there has been discrimination between junior employees; it does not necessarily take place at the top of organisations. However, I am not sure that it is right to tackle the issue in this Bill. I state that as a word of warning.
Baroness Jay of Paddington: The point is surely not that putting this provision on the face of the Bill limits the Bill, but that if, for example, in years to come, with luck and with hope, medical science deals with the issues of AIDS, or cancer (which is also on the face of the Bill), the provision might well fall into desuetude. That does not preclude the provision being on the face of the Bill now when we confront a real issue.
Baroness Masham of Ilton: Is it not possible to amend Acts of Parliament and to add in issues as they arise? I am sure that the Minister will tell us that.
Lord Mackay of Ardbrecknish: Perhaps I may say to the noble Baroness, Lady Masham, that if the Government are given regulation-making powers, it is comparatively easy to change these matters in the future when the need arises and the House agrees.
However, with regard to the amendments put forward by my noble friend Lady Gardner of Parkes, Schedule 1 paragraph 7 deals with the question of people with progressive conditions. We recognise that there is a need to protect people where the effect of the condition is not yet substantial but is expected to be so in the future. That is why the Bill specifically includes people with progressive conditions as soon as there are any effects on their ability to carry out normal day-to-day activities. However, we do not believe that it would be right to include people with conditions which may remain latent, possibly for a considerable number of years.

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Members of the Committee have argued that people with HIV infection are discriminated against. That is not the issue here. The Disability Discrimination Bill is designed to protect people who have, or, as a result of accepting my earlier amendment, have had, an actual disability. It is not a general anti-discrimination Bill nor a general health discrimination Bill. If we extend it to cover people who may develop a disability at some unspecified time in the future we will undermine the effectiveness of the Bill by creating uncertainty about who is covered. I am advised that as medical knowledge advances it may be possible to arrest the development of HIV infection so that it does not progress beyond the asymptomatic stage in a normal human lifetime.
I suspect also that if one reads the press reports of 10 or 15 years ago, it will be seen that perhaps the asymptomatic stage was prophesied to be a great deal shorter than it has turned out to be. At present the asymptomatic stage usually lasts—I say "usually" because we are dealing with issues which vary from person to person—10 to 15 years during which time people, although infectious, feel perfectly well and are able to work and, quite rightly, as a number of noble Lords have said, should work. The amendments categorise as disabled people anyone who was found to have a progressive condition at whatever point that condition is identified. We cannot accept that people whose condition has no effect whatsoever should be counted as disabled or covered by the Bill.
Baroness Masham of Ilton: Perhaps I may raise this point with the Minister. Surely having a killer virus within one's system must cause a serious psychological disability. I cannot believe that it does not.
Lord Mackay of Ardbrecknish: That is quite a difficult question to answer; it depends on how the person reacts. I cannot believe that it is pleasant to find that one has the disease, but I do not feel that it comes within what we all intend the Bill to do—that is, to help people who are clearly disabled. Therefore, I am afraid that I cannot agree with the noble Baroness.
My noble friend wishes to ensure that HIV is counted as a progressive condition by including it in the list of examples. There are only three: cancer, multiple sclerosis and muscular dystrophy. I do not wish to extend the list because inevitably it will mean that many other groups may want conditions listed. There will be a risk of the list being seen as all-inclusive instead of exemplary. However, I agree that current medical opinion recognises HIV as a progressive condition and that, like people with other progressive conditions—not only the three mentioned in the Bill—people with HIV will therefore be covered by the Bill once the condition begins to have an effect—not necessarily amounting to a substantial adverse effect—on their day-to-day activities. I can assure my noble friend that if, nevertheless, it develops over time that courts or tribunals do not follow current medical opinion, then we will be able to make the matter absolutely clear in regulations. I hope that that helps the noble Baroness, Lady Masham. The regulation power is there if the worst comes to the worst.
I hope that my explanation of how we view HIV under the Bill will reassure not only my noble friend but other Members of the Committee. To sum up, when a person
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moves from the asymptomatic to the symptomatic stage, he will come within the compass of the Bill. However, like other diseases which I suspect we will find we can diagnose long before they become apparent, we ought to keep the dividing line at where the disease moves from its asymptomatic to its symptomatic stage.
Baroness Gardner of Parkes: I thank Members of the Committee who have taken part in the debate and I wish to reply to some of the points raised. What has not been mentioned is that whole families are affected by HIV. In those cases, it is usually because of blood products. We have a number of such cases under treatment in the hospital with which I am involved.
I did not press Amendment No. 11 because I realised that the Minister could not accept it—it would bring in the asymptomatic conditions. However, I believe that he is wrong in not including HIV as an example in the list. Only three conditions are listed, and no Member of the Committee has brought forward any other condition that he wishes to have listed. There has been support from all parts of the Chamber today for HTV to be included.
Earlier I said to the Minister that it was a probing amendment and therefore it would not be fair to divide the Committee on it. I do not intend to do so, although people are encouraging me to do so. I hope that before the next stage I shall be able to persuade the Minister that it is right to include it. I am glad that he agreed that it is a progressive condition. I was grateful to the noble Lord, Lord Kilmarnock, for reading out the professor's comment on the subject.
The contribution of the noble Lord, Lord Monson, was interesting and important. It brought out the lack of understanding that people have and their genuine anxiety about how contagious or infectious HIV is in normal day-to-day life. His attitude is the usual one for people to have. I am sure that the Committee will remember the occasion when the Princess of Wales kissed the person with HIV in order to show that she had no anxiety about infection through the normal course of events. That was a significant breakthrough in public attitudes towards the disease.
As a dentist, I found it interesting that a patient whom I might have had for years would say: "I am HIV-positive. Can you treat me?" It would not have mattered what the dentist said, it was the other patients who were terrified of it, it was the public reaction. At the time I was in practice, there was an HIV-infected dentist who took all such cases himself and treated them at the time when the UCL dental hospital was open. But it was a surprise to me to see that people treated a diagnosis of HIV-positive as being a full-blown AIDS case which required full nursing. People have become alarmed by what is in the newspapers. It is a terrible condition, but this year the Association of British Insurers confirmed that the increase in cases is far below what was anticipated. That has been due to good health education.
The noble Baroness, Lady O'Cathain, mentioned the danger of limiting examples and that other conditions might arise in a few years' time. They might, but we cannot possibly write into the Bill conditions which do not exist today. With the Ebola virus, and the suspected case recently in this country nursed at my hospital, there was

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tremendous alarm—much greater than with AIDS or HIV. No one was allowed to approach the patients; nurses had to work through large plastic hands and gloves. It was terrifying for the public. Fortunately, it was not a case of the Ebola virus, merely a suspected case that proved to be unfounded. However, people should realise that HIV is not in the same category. There have been instances of needle stick injuries where a blood-infected syringe has pierced someone's skin while working on a case. Such examples have proved that one can transmit the virus in that way. But on the whole, one cannot transmit it by ordinary day-to-day contact, giving meals and caring for people. Another fact that is not realised is that there are false positives and false negatives which cause people great anxiety.
I shall not speak any longer about AIDS, but the HIV infection is at present a unique condition. The point was made by the noble Baroness, Lady Jay, that we hope cancer will be cured. Who knows? Cancer may be cured sooner than HIV. These are important and significant issues and to add the words "HIV infection" under the progressive conditions would not be asking too much of the Minister. I know that Members would like me to divide the Committee. I shall not do so, but I intend to harry the Minister between now and the next stage of the Bill. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 11 and 12 not moved.]
Schedule 1, as amended, agreed to.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 13:
After Schedule 1, insert the following new schedule:

Disability Discrimination Bill
  SCHEDULE 1A

    PAST DISABILITIES
    1. The modifications referred to in section (Past disabilities) are as follows.
    2. References in Parts II and III to a disabled person are to be read as references to a person who has had a disability.
    3. In section 4(1) (a) and (2) (a), for "do not have" substitute, in each case, "have not had".
    4. In section 5(1) and (5), for "do not have" substitute "have not had".
    5. In section 6(1), after "not disabled" insert "and who have not had a disability".
    6. In section 6(5), for "has" substitute "has had".
    7. In section 18, for "do not have" substitute "have not had".
    8. In section 19(1) and (3), for "do not have" substitute "have not had".
    9. For paragraph 2(1) to (3) of Schedule 1, substitute—

    "(1) The effect of an impairment is a long-term effect if it has lasted for at least 12 months.

    (2) Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect recurs.

    (3) For the purposes of sub-paragraph (2), the recurrence of an effect shall be disregarded in prescribed circumstances."").

    The noble Lord said: I have already spoken to this amendment. I beg to move.
    On Question, amendment agreed to.
    Clause 2 [Guidance]:
    Lord Renton Lord Renton moved Amendment No. 14:
    Page 1, line 12, after ("may") insert ("by order").
    The noble Lord said: With Amendment No. 14 are grouped Amendments Nos. 17, 19, 20 and 142. We have now come to Clause 2 which raises a matter of constitutional importance; namely, whether laws should be made by or with the consent of Parliament or whether they should be made by Ministers under the guise of giving guidance; and whether Ministers can therefore, under that guise, decide what the law should be and merely inform Parliament by laying a copy of such guidance before each House, as required by Clause 2(5).
    We are not told what kind of guidance will be given: whether it will contain matters of principle or of relatively minor detail, we just do not know. But, as it stands, I suggest that the whole of Clause 2 is fundamentally flawed. May I say in passing that I am grateful to the noble Lord, Lord Lester of Herne Hill, who cannot be here today, for alerting us to the implications of Clause 2. He raised the matter briefly at Second Reading at col. 891 of Hansard when my noble friend Lord Mackay of Ardbrecknish was winding up. There is a small misprint there, because there is a reference to Clause 4 whereas it should be to Clause 2.
    One would have been justified, I suggest, in moving that this Clause 2 should not stand part of the Bill and that it should be replaced by a clause containing the guidance intended to be given by the Secretary of State. In that way it could have been turned into primary legislation and so be directly enacted by Parliament. But in what I hope your Lordships will regard as a spirit of constructive and helpful compromise, the amendments I have tabled—with the support, I am glad to say, of the noble Lord, Lord Addington—will still enable the Secretary of State to give guidance, but that guidance would have to be contained in an order approved by both Houses of Parliament under Clause 37(4), to which Amendment No. 142 refers. That would make it subject to affirmative resolution of each House.
    If any noble Lord wishes me to explain the drafting effect of any of these simple amendments I shall of course be glad to do so. I should mention that our Delegated Powers Scrutiny Committee has considered this Bill, including Clause 2; but as the guidance to be given under that clause is not legislation our scrutiny committee could not comment on it or advise us about it, except to say, as the legal adviser to that committee did say in a letter to the noble Lord, Lord Lester, and I quote the exact words:
    "It does not lessen the importance of the question"—
    referring to the fact that the Delegated Powers Scrutiny Committee had no power to comment on it.
    It is indeed an important question. Its importance, I suggest, is highlighted by Clause 2(3) on page 2. For the sake of the record and for the benefit of your Lordships, I think I should read it out. It says:
    "(3) A tribunal or court determining, for any purpose of this Act, whether an impairment has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities, shall take into account any guidance issued under this section which appears to it to be relevant."
    Surely any guidance so given could have a crucial effect in deciding most of the cases brought before a tribunal or court by any disabled person. That is the

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    position. It is not enough for the Government to say, as is said in Clause 2 (4) and (5), that the Secretary of State has got to consult appropriate persons and lay a copy of any guidance issued before Parliament. That is not good enough. I trust therefore that the Government will gracefully accept these moderate amendments. I beg to move Amendment No. 14.
    6 p.m.
    Lord Campbell of Croy: My noble friend has raised an important point. It was first raised by the noble Lord, Lord Lester of Herne Hill, not just at the end of our debate on Second Reading; he mentioned it generally in his speech at the opening of the debate. He raised the point: what would be in the guidance? Here was guidance which might contain important matters, but there was not an opportunity for Parliament to debate it.
    I am a member of the Select Committee on delegated powers, and our report on this Bill happened to be published at midday on that day, so it was technically available but of course those who were taking part in the debate did not actually have it in their hands. As my noble friend has said, we looked through the Bill. Of course I am speaking for myself in your Lordships' Committee, but I think that I am the only Member of the Committee who is here, so for the information of your Lordships I can say what we did. However, I speak with my own views on the Bill. We did, as my noble friend said, consider all the points in the Bill where it was proposed that delegated legislation would be used after the Bill had been enacted. We did not consider that guidance fell into that category.
    In the Bill the guidance has to be laid before Parliament, but there are no arrangements for it to be discussed, far less to be amended or thrown out. So the real question is: what would that guidance contain, and would it be important? I hope that my noble friend the Minister will be able to tell us that at the end of this debate. Except for powers of altering or adding to the functions of the National Disability Council, which require the affirmative procedure, the delegated legislation elsewhere is proposed to be governed by negative procedure, if there is procedure at all. So I think we need to hear how significant the guidance is likely to be.
    I must tell your Lordships that organisations representing disabled people and employers and businesses have made it clear that they are opposed to too much going into this primary legislation which would make sweeping judgments on subjects which they think are to be worked out in detail in consultation after the Bill has been enacted. I understand that feeling arising on a Bill where a great deal needs to be sorted out afterwards with the people who are going to be mostly concerned. I have received this information from both the disabled organisations and from the employers. The guidance of course should play a major part in that process—guidance from the Government—and they are seeking that guidance. When we come to later parts of the Bill I am sure that some of your Lordships will be saying that certainly employers are seeking guidance and I think that guidance will be sought on other parts of the Bill as well as in connection with employment. There is general agreement that a lot should be left to be dealt with in subordinate legislation after the Bill is enacted. The
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    question is, how much of that needs to come before Parliament as regulations in orders of affirmative or negative procedure, and whether something which is called "guidance" should come into that category too.
    This is very definitely not a skeleton Bill. During the past two or three years we have had some Bills which have been described as "skeletons" because there was not very much in the primary legislation and pretty well all the decisions needed were to be taken by means of secondary legislation. This is not one of those Bills; but I think that there is a constitutional matter here, as my noble friend Lord Renton said, because at some time in the future we could have a short Bill with very few clauses which did not say very much, and where everything else would be done by guidance. So there is a point there. We need to know what "guidance" means and how it will be used in legislation, both in this Bill and in future. What is the status of the guidance in this Bill, and should it be made debatable by Parliament? That is the issue that we must now address.
    Lord Addington: Clause 2 is effectively the most important clause in the Bill, in that it states that guidance will be given. Without the guidance, we do not have advice for courts and tribunals. Without such advice, we do not effectively have anything to provide support and enforcement powers and to make sure that people with disabilities do not suffer discrimination. That is the nub of the matter.
    If that sort of power, namely, to make the Bill effective, is taken away from Parliament, we are losing control of this Bill. There are no two ways about it. There is a very important constitutional point here.
    On purely practical grounds, I have often seen this House and another place prove themselves very much more open to ideas from many more outside bodies, approaching matters from many more angles than the Government, or indeed any government, can ever expect to do. All governments have their own process of drawing in information. I strongly suspect that that would be the case no matter who sat on the Government Benches. If we are trying to draw in the best information, we must have it debated in the best forum. This Chamber has proved itself on numerous occasions to be the best forum for drawing in all the various groups, and that is especially true in relation to disabilities. The current code of practice in the educational world is probably one the best examples. It was a long and rather drawn-out process, but the end product was very good. If the Government carry on with this legislation as currently structured, they will deny themselves that input. If the Government cannot accept these amendments, they must have a very, very good reason for not doing so. First, they would be denying Parliament its right to make the meat of a Bill work. Secondly, they would be denying the most important input and the most effective method, as has been shown, of trying to get this type of regulation right. I look forward to a positive answer from the Government. As the Minister will see, normal service on these Benches has been resumed over regulating powers.
    Baroness Thomas of Walliswood: I rise to make a very brief point and to ask a question. On the matter of regulations and guidance, if we take as an example the

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    green belt legislation, which is now quite elderly, over a period of time guidance has changed quite remarkably. Sometimes, from the point of view of those who want to protect the green belt, it changed for the better, and sometimes, I must say, for the worse. Sometimes the worse interpretation has been changed back to a better interpretation at a later stage.
    I wonder whether or not that sort of changeability might not conflict at some point with another process which I suppose will take place; namely, the process of precedents in the courts as cases are settled. "Undemocratic" is not quite the word that I wanted to use, but it will do. How do the Government see this process of rather undemocratic guidance interacting with the process of the courts taking decisions over time? We could end up with some rather difficult situations.
    Earl Russell: I, too, support these amendments. We are in a very important area and one which extends well beyond the compass of this Bill. The point that we cannot cover everything in primary legislation is a sound one. The point that Parliament needs to be able to find out what is done and decide whether to approve it is also sound. We need to consider how we can find ways of reconciling those two factors. To that end, the amendment is very well designed.
    I make just one other point. The noble Lord, Lord Renton, read out Clause 2(3), which states that,
    "A tribunal or court determining … whether an impairment has a … long-term adverse effect on a person's ability to carry out normal day-to-day activities, shall take into account any guidance issued under this section which appears to it to be relevant".
    I am not quite sure why there needs to be guidance. Is this not just the sort of question that we have a court to decide? Is it not perfectly grown-up and competent to do it? And is there not a risk that the issuing of guidance may tend to be of the "Mother Hen" school of legislation?
    6.15 p.m.
    Lord Rix: Until this morning, when The Times came through my letterbox, I thought that this was a rather academic and legal point by the noble Lord, Lord Renton, which I did not understand. I am happy to say that the noble Lord, Lord Lester of Herne Hill, wrote an article opposite the editorial page this morning which made the matter clear to a simple soul like myself. Therefore I am happy to support—indeed I wish to support—this amendment.
    Lord Mackay of Ardbrecknish: We have had an interesting debate on this matter on the amendment raised by my noble friend Lord Renton. Perhaps I may begin by explaining what Clause 2 does. It enables the Secretary of State to issue guidance about matters to be taken into account when determining whether an impairment has substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities. It is general guidance which must be taken into account by courts and tribunals where relevant. It is fair to point out that guidance, not being legislation, need only be taken into account by courts and tribunals. In that sense, it has a less determining effect than regulations. It will be of great benefit to those who need examples of what constitute
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    substantial and long-term adverse effects. This is particularly so given the wide range of possible impairments and hence effects on day-to-day activities, and the fact that this is a new and untested area of law. My noble friend Lord Renton has an amendment before us which would have the effect of making the guidance—and any future revisions of it—subject to the affirmative procedure.
    Let us first consider the issue of parliamentary scrutiny. The guidance in Clause 2 has a broadly similar function to the guidance, for example, in the code of practice under Clause 26, which would give practical guidance to employers on eliminating discrimination and on good employment practice. Obviously, I have listened to the argument on this point and I discussed—
    Lord Renton: Perhaps my noble friend will allow me to intervene. I think he has made a mistake. It is not Clause 26, but Clause 24, to which he should be referring.
    Lord Mackay of Ardbecknish: If my noble friend tells me I am wrong, I am probably wrong. However, my brief refers to codes of practice prepared by the Secretary of State under Clause 26, so I may be right. I do not think that it matters too much. Perhaps my noble friend will just bear with me for a moment as to the argument that I am about to make.
    Having discussed the matter with my noble friend Lord Renton and having listened to this short debate, I see the case for making the guidance under Clause 2 subject to perhaps the same parliamentary scrutiny as we have in Clause 26. I say to the noble Lord, Lord Rix, that I am very conscious of the importance of the powers of this Parliament. Ministers are always wise, I trust.
    We have discussed the matter at some length, and I fully understand that there have to be checks and balances. Sometimes I am concerned that we are throwing away some of our responsibilities to bodies and courts beyond these shores. That is perhaps a wider issue, but one upon which some noble Lords might reflect when they address the importance of parliamentary scrutiny on matters such as this.
    Having reflected on this matter and listened to the debate, and having accepted that we should indeed consider some form of parliamentary scrutiny, we now come to the parliamentary scrutiny that should be used.
    The provisions of the code of practice in Clause 26 come within the scope of Clause 27 in deciding on the method of scrutiny to be used. Such a code must be laid before both Houses for 40 days and cannot be issued if either House resolves not to approve it—that is, the negative procedure. We believe that this is the right procedure also for the guidance under Clause 2. As my noble friend Lord Campbell of Croy points out, almost all of the regulation-making powers in the Bill are subject to the negative procedure. The Select Committee on the Scrutiny of Delegated Powers regarded this procedure as appropriate for regulations made under these provisions.
    Therefore, I accept my noble friend's argument, though not in its entirety. I believe that Parliament should have scrutiny of this guidance and that it should be done in the same way as other scrutiny is carried out in other parts of the Bill; namely, by the negative procedure. My noble friend said that he had moved a little from his starting

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    point where he might have asked for all of this to be the subject of primary legislation to his amendment. I hope he accepts that I have come a little way towards him in saying that there should be parliamentary scrutiny but it should be by the negative procedure. If my noble friend agrees to withdraw his amendment, I will return at Report stage with one which will mean that the draft guidance will have to be laid before Parliament and may be negatived by resolution of either House. With that commitment, I hope that my noble friend will feel able to withdraw his amendment.
    Lord Campbell of Croy: Perhaps I may comment before my noble friend rises to speak again. In my earlier contribution, I was going to say that if it had been thought that the contents of the guidance, about whose significance we were inquiring, required regulations to come before Parliament, in my view the negative procedure was appropriate. I was a little surprised that my noble friend's amendments proposed the affirmative procedure. I am happy with what my noble friend has stated. There are points in the Bill where the affirmative procedure is required, but that is in connection with the National Disability Council. The Select Committee, of which I am a Member, said in its report (which I have with me) that the use of the affirmative procedure was correct in that case, and that in other cases it should be the negative procedure. I agree with my noble friend that the negative procedure is appropriate in this case.
    Lord Monkswell: I wonder whether the Minister has considered the two different aspects of the codes of guidance about which we have spoken today. He has referred to Clause 26. The noble Lord, Lord Renton, also referred to Clause 24. My understanding of those clauses is that they relate to codes of practice that are issued to the general public—that is, employers and those involved in the day-to-day business. The difference between that and the guidance referred to in Clause 2 is that the latter is guidance to the industrial tribunal, not the general public. I suggest that that guidance has greater force in legal terms because it is guidance to what is effectively a court rather than the general public. It may be pertinent for Parliament to consider guidance issued to a court that has an effect similar to legislation, and guidance issued to the general public, which is slightly different. We may wish to have the affirmative procedure for the guidance issued to a court and possibly the negative procedure for guidance issued to the general public. Perhaps the Minister can take those points on board.
    Lord Mackay of Ardbrecknish: The guidance in Clause 2 will be guidance that everybody will take into account as well—both the disabled and employers—when looking at what they should do. As subsection (3) says, it will also be taken into account by a tribunal or court. Under Clause 24(4) a code is admissible in evidence in any proceedings under the Bill before an industrial tribunal, county court or sheriff court. The codes of practice under Clause 24 will also come into play in a court. Indeed, in Clause 26(5) one sees exactly the same words. While the noble Lord makes a nice point, I do not believe that it is a distinction that carries a great deal of weight when Clause 22 is compared with Clauses 24 and 25.
    Lord Renton: I agree with what my noble friend has just said. However, I believe that we should be grateful to the noble Lord, Lord Monkswell, for raising a subtle point, which had not occurred to me. As my noble friend has said, all guidance given to all courts, tribunals or other public bodies is something of which the public from time to time in different ways needs to take note. I do not believe that there is here a real distinction of principle.
    I owe an apology to my noble friend. Although Clause 24 comes into the picture, he is right to refer first and foremost to Clause 26 and Clause 27 that goes with it. That is the alternative he recommends to the suggestion that I have made that the affirmative procedure should be followed under Clause 37. I am very much influenced by what my noble friend Lord Campbell of Croy has said in advocating a negative procedure. He speaks with the experience of membership of the Scrutiny Committee, which does such valuable work.
    I had hoped that the reasonable compromise that I had put forward would have had general appeal. But one must be realistic and sometimes accept the advice of the Government. I believe that on this occasion it is appropriate for me to do so. Therefore, it is with hope that I ask leave to withdraw my amendment.
    Amendment, by leave, withdrawn.
    [Amendments Nos. 15 to 17 not moved.]
    Baroness O'Cathain Baroness O'Cathain moved Amendment No. 18:
    Page 2, line 9, at end insert ("including appropriate organisations representative of employers and appropriate organisations representative of disabled persons").
    The noble Baroness said: The purpose of this amendment is to ensure that employers and providers of business services have confidence in complete acceptance of the fact that consultation on an ongoing basis is necessary. Disability is a very complex subject. New forms of disability arise. Advances in medicine will help, but there are other matters around the corner. New conditions also emerge. For example, there are advances in computer technology. People who perhaps 10 years ago would not have been employable have available to them a whole raft of new opportunities because of advances in technology. I do not believe it is easy to draw fine distinctions. I should like to see this consultation on the face of the Bill. This legislation may last for 100 years. Who knows how a future Conservative administration will behave? I believe that employers, providers of business services and organisations for the disabled need the comfort that when changes take place, they have the right to be consulted on an ongoing basis. I feel that very strongly as does the CBI and everybody to whom I have spoken.
    I should like to point out that, following a comment made earlier in the discussion on a previous amendment, when it seemed that we were dealing only with employers, I realised that the amendment was probably incorrectly drafted. It should include organisations representative of employers and businesses which provide services, because the Bill covers employment and services. However, I understand that this part of the Bill—this particular section—does not deal with employers; it deals with disability. If that is so, the amendment ought to include business providers as well. I can look again at this

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    matter. I want to make sure that on the face of the Bill there is a commitment that the Government will consult. I beg to move
    6.30 p.m.
    Lord Campbell of Croy: I should like to support the principle in this amendment described by my noble friend. I mentioned earlier that all the organisations concerned with this Bill hope for continuing consultations after the Bill is enacted.
    With regard to my noble friend's other point, her amendment would need to be amended because this very important part of the Bill deals with the provision of goods and services and, as I read it, Clause 2 of the Bill covers this part as well. As I said at Second Reading, there are many more disabled people who will be involved in goods and services—for instance, all the people over retirement age, who represent a very large proportion of the disabled people in this country. Only people of employment age, who represent quite a small proportion of the total of disabled people, will be involved in the employment part of the Bill, though it is a very important part of it.
    I agree that the provision would be improved if it could cover goods and services rather than remain with its present wording.
    Baroness Seear: My name is also to this amendment. Certainly I support the general principle that, when any changes or developments are being made, there should be full consultation. However, on reflection, there is something defective about this amendment. There should be something in the nature of:
    "employers, organisations of disabled people and trade unions".
    They surely have a very considerable interest in how people with disabilities are employed in places of employment. On the general principle, I want most certainly to continue my support.
    Lord Murray of Epping Forest: Perhaps I may take up the point made by the noble Baroness, Lady Seear. I hope that the spirit and purpose of the amendment will be accepted, not only for what it explicitly states but for what is implied, which could with benefit be explicated.
    The aim is to get the guidance right and to take account of the practicalities of the situation. The reason for including the concept of consultation with employees and their organisations is that discrimination by an employer often stems not only from the employer's negative attitude but also from what he thinks may be the reaction of some or all of his employees. On occasion, the employer may put forward that argument as camouflage for his own negative attitude. In either event, it makes a great deal of sense to involve employees through their organisations, so that it is made clear that employees favour non-discrimination and (or possibly or) to ensure that the organisations of employees put pressure on the employees themselves not to evince the negative attitudes which would make it more difficult for an employer to take a more positive attitude.
    I hope that the noble Baroness will agree with the thrust of that argument. In accepting the general purport and drive of the amendment, the Minister will, I hope,
    1694
    recognise the importance of keeping employees firmly in the frame in the common purpose to which we are now addressing our minds.
    Baroness Hollis of Heigham: We on these Benches very much support the amendment. Perhaps we could use the opportunity to ask the Minister, when he replies to the amendment, to comment on three matters. The first is the degree to which such consultation will be continuous and ongoing—not just an original set piece. Secondly, following the contributions made by many Members of the Committee, that consultation will indeed involve a breadth of organisation. As the noble Baroness said, this provision refers to goods and services and not just employment, as well as to trade unions.
    The third point is one that has not been raised so far and this may be the opportunity for the Minister to address it. As originally conceived there is in the Bill one set of negotiating machinery—the employment section of the Bill—hich will go through the National Council for the Employment of Disabled People set up in 1944, and the response from that is to go on to the industrial tribunal. There is also a second set of responses under the Bill associated with goods and services, which go through the route of local advice and guidance machinery and then through to the courts. So there are two parallel jurisdictions. That is one of the problems about which we are most concerned. There is one for the employment section and one for goods and services; one ending up in industrial tribunals and the other ending up in courts.
    Clearly, we need a framework and a network of guidance for both sections of the Bill. As the Government originally conceived the Bill in the other place, they led Members to believe that they were hoping that NACAB (the National Association of Citizens Advice Bureaux) would offer that guidance, advice and all the rest of it for the goods and services section en route to the courts. Since then, NACAB has made it very clear that it will not fulfil such a role. Nonetheless, the Government are pledged to introduce a local advice and guidance service in conjunction with national bodies. Could the Minister tell us how that is now to be achieved, given that NACAB will not do it and so far there has been no suggestion that anybody else will do it? Otherwise, we shall have an initial consultation but we will not have the ongoing consultation that we all wish to see.
    Lord Rix: I wish to support the amendment from the Cross Benches, from whom the Committee has not yet heard. If the Government concede that it makes sense for regulations, albeit by negative instrument, to be looked at from time to time by Parliament, surely it would make sense too for all those concerned at the sharp end—employers, employees, trade unions, etc.—to be consulted on an ongoing basis as matters change.
    Baroness O'Cathain: In my concern about the amendment not being properly drafted, I omitted to say that I also wanted to speak to Amendment No. 21. It comes within the same kind of problem area; namely, complexity and the situation which arises because of the complexity of the Bill and the complexity of the situation.
    Again, it concerns employers, business providers, service providers and such organisations. They want to know their obligations and rights from the time that the

    1695
    Bill is enacted. It is essential that the supporting codes of practice, regulations and, most critically, the sources of information and advice are in place before the new provisions come into effect. I should like to hear the Minister's comments on that point too.
    Lord Mackay of Ardbrecknish: As we have discussed already, Clause 2 of the Bill enables the Secretary of State to issue guidance about matters to be taken into account when determining whether an impairment:
    "has a substantial and long-term adverse effect on [a person's] ability to carry out normal day-to-day activities".
    Clause 2(4) requires him to:
    "consult such persons as he considers appropriate"
    before issuing any guidance.
    Amendment No. 18, my noble friend Lady O'Cathain's amendment, is intended to ensure that the Secretary of State consults in particular organisations representing employers and organisations representing disabled people before issuing guidance under Clause 2.
    I understand that one of the aims of the amendment is to require ongoing consultation. Although, as I believe my noble friend realises, the amendment does not achieve that aim, I can assure her and other Members of the Committee that the Government have every intention of maintaining dialogue with all interested parties as they develop the guidance. I hope that that answers the point from my noble friend and from the noble Baroness, Lady Hollis.
    It is our intention that discussions on developing what will inevitably be fairly detailed and perhaps technical guidance, should be with organisations which can offer appropriate expertise. We will therefore not only consult organisations representing employers and those representing disabled people, but we will involve organisations with relevant specialist knowledge. Many of these organisations with specialist knowledge do of course represent disabled people and their interests. Once the guidance has been developed we will ensure that there is wide-ranging consultation on it, including with other organisations which may have an interest. Perhaps that brings in the organisations of the type mentioned by the noble Lord, Lord Murray of Epping Forest.
    I am not sure whether I understood the point made by the noble Baroness, Lady Hollis, about the advice and guidance service, which no doubt we shall come to later. There is a difference between the advice and guidance which we hope will be available to disabled people through this service run by whoever it is decided should run it, and the advice and guidance being sought by the Secretary of State while he is coming to conclusions about the guidance and the code of practice he wishes to send out. There is some difference between the two.
    Baroness Seear: The noble Lord has said that it is the intention of the Government to continue to consult. Would it not be much more satisfactory if he allowed words to that effect to appear in the legislation? The noble Lord is giving that commitment and we accept that so long as he is here that will happen. We need to have a statutory
    1696
    commitment that that consultation will continue whoever is filling the position which the noble Lord now holds. A few words to that effect in the Bill would help greatly.
    6.45 p.m.
    Lord Mackay of Ardbrecknish: I suspect that that is not really necessary, but I shall look at the point raised by the noble Baroness. I have made the point about continuing dialogue. I find that the Government do not normally have to ask people for their opinions. Many organisations are pretty quick in giving us and Members of the Committee their opinions, as they no doubt find from their post every morning, and as I do from mine. These things continue and become really important if the Government have decided, perhaps because of representations made, that they should make changes. At that point there has to be what I may describe as a more rigorous consultation exercise. I hope that that helps the noble Baroness.
    I turn now to Amendment No. 21, which I understand is intended to seek assurance that the advice and support service and procedures needed for those who will be affected by the Bill, are in place before the Bill comes into force. I hope that the Committee will forgive me if I take this opportunity to explain our thoughts on how the Bill might be brought into force. The Committee might find that convenient at this time, perhaps not just in listening to it, but using it thereafter once it has appeared in Hansard.
    I believe that the Committee will be aware that the Government intend to bring into force at the same time that part of the Bill which deals with employment rights and certain provisions of the part dealing with goods, facilities and services. We envisage that this will be some time towards the end of next year. It is also our intention to introduce some months before that the employment code of practice and any necessary regulations. We will, of course, consult widely on both with employers, employer organisations, disability organisations and other bodies.
    In addition, advisory bodies and service providers such as the Employment Service and the Advisory, Conciliation and Arbitration Service (ACAS) will be available to offer appropriate help and advice on the new requirements under the Bill. The Employment Service will provide advice and support to people with disabilities and to employers through its mainstream Jobcentre services and specialist placing, assessment and counselling teams (PACTS). It will continue to provide help to people to get and keep jobs and to get access to training and services. In the case of ACAS, its officials will also be trained and available to provide assistance in the form of conciliation as required under Part II of the Bill. Industrial tribunals are already used by people with disabilities. Where there are access difficulties, alternative arrangements for hearings are made. Tribunals already have discretion to provide communication help for disabled people with hearing, speech and sight impairments. This discretion will be extended to provide some form of personal support for people with mental illnesses and learning disabilities, and we will be consulting appropriate disability organisations about how this might work in practice.

    1697
    We have made clear that we do not intend to introduce initially all the provisions in Part III of the Bill. In particular, we will be introducing over time those provisions which would be the most costly for service providers; those relating to auxiliary aids and to physical adaptations. This is because of potential effects on business and the need for business to have a realistic time to prepare for and to make the changes. We will therefore embark on wide-ranging consultations on issues such as the timing of the introduction of these provisions and on any limits to the expenditure that a business will have to incur in making a reasonable adjustment.
    In the meantime, in time for those provisions that we will be implementing next year, we will be introducing a code of practice on the right of access. The code will offer guidance to service providers on the requirements of the legislation and sound, practical advice on how best to comply. We will ensure that the code is issued well before the first provisions of the right of access are brought into force, so that service providers can familiarise themselves with the right of access and plan any adjustments that will need to be made.
    We will also be establishing a network of advice points to provide advice and assistance to disabled people on the right of access to goods, facilities and services. We are committed to ensuring that disabled people gain the benefit of their new rights quickly and efficiently. We intend the advice service to be readily accessible and locally available, so as to meet the particular needs of disabled people. We are currently exploring how that advice and support might best be provided. I can assure the Committee that disabled people will be able to obtain advice on their rights of access as each of the provisions of Part III are implemented.
    Although the introduction of this Bill will be phased, we intend that the support structure will be fully in place to meet the requirements of the first provisions that come into force. Of course, codes of practice relating to provisions not yet to be implemented will not be in force. And arrangements for advice to disabled people on provisions not yet in force will not be brought into effect either, though they will be introduced and in place in good time for the implementation of those provisions.
    I hope that my reassurances will have convinced my noble friend and those Members of the Committee who are interested, of our commitment to ensure that the proper support, whether provided for in the Bill or helpful to support the Bill's provisions, will not only be introduced in a timely and effective fashion, but introduced after proper consultations have taken place.
    In the light of my commitment to consult and my reassurance on the support and guidance arrangements under the Bill, that they will be in place when the Bill comes into force, I hope that my noble friend will be able to withdraw the two amendments and perhaps forgive me for using her second amendment as a coathanger on which to say a few words about how we intend the Bill to come into force.
    Baroness Hollis of Heigham: Before the noble Baroness, Lady 0' Cathain, decides what she proposes to do about her amendments, may I press the Minister a little
    1698
    on the additional material in his answer which had not been anticipated at this stage. First, on a mechanical point, is he going to allocate additional resources to PACTS and ACAS to deal with the responsibilities for advising under the Bill? Secondly—and we do not disagree with this—we want to see systems of guidance and advice in place so that as and when sections of the Bill come into force there is already in place an appropriate network. Obviously, we want that advice to be in place. We do not want the job of setting up those advice networks to be an excuse for deferring or delaying the implementation or phasing in of sections of the Bill. Can the Minister be more helpful to us? What sort of timescale does he envisage? We are more worried because the network of advice and guidance he expected to be in place already—that is to say, NACAB— is not. Therefore the Minister will have to build a network of advice, possibly from scratch, which could take several years. Given what the Minister has just said, that could mean very significant delays in the implementation of vitally important parts of this Bill. Can the Minister help us on all that?
    Lord Mackay of Ardbrecknish: First, PACTS and ACAS have adequate resources to meet the obligations placed upon them. I cannot go much further. I have already laid out in some detail what we intend to do. We are committed, as I said, to ensuring that disabled people gain the benefit of their new rights quickly and efficiently, but we have to ensure that these things are done in the right order. There is no point in implementing a part of the Bill before the other parts upon which it depends are in place. We have to try to take this in some order.
    Of course the arrangements for the advice to disabled people which the noble Baroness mentioned are not yet firmed. We have explained what we want to do. We are exploring how the locally provided services can be provided. We are sorry that NACAB has decided that it cannot help us in that regard. But we are sure that other people and other organisations will be willing to help us, especially when the Bill becomes law, when those organisations may be more content to try to make the Bill work and to ensure that the system works for disabled people, rather than at present when, perhaps understandably, they are still campaigning on a number of issues, and they do not want to appear to have given away those issues before they feel they absolutely have to.
    Lord Swinfen: Before my noble friend sits down, he said that he hoped other organisations would help with the guidance, and the implementation of the Bill. What organisations does he have in mind that have the skills and expertise and enough branches throughout the UK to give all the advice that will be required?
    Lord Mackay of Ardbrecknish: We may well come to this issue two or three days hence. One does not need to use the same organisation throughout the whole of the country. That is something we are considering. As I say, I believe that there are organisations which will be more than interested in providing the service once the Bill becomes law. Perhaps I may suggest to my noble friend that we cross those bridges when we come to them. Today is not the day to cross that bridge. I believe that there will be plenty of organisations which will be prepared to help and we shall be able to set up what I believe is important;

    1699
    that is, a locally based network. I am well aware of the undercurrent that exists in relation to this part of the questioning.
    Baroness Hollis of Heigham: May I hope that the Minister will tell us, ideally in Committee, what organisations he has in mind? It is crucial. The Minister has just made that clear in an important statement. I do not object to what he is trying to do here. He has made it clear that he will not bring in crucial clauses of the Bill until the network is in place. So we need to know when that network will be in place. For that we need to know what organisations may be willing to provide that network and be in place. The Minister must tell us. As I understand it the reasons for the CAB—I have its statement here—refusing to play the role that the Government intended was not that it has some other agenda and prefers a different Bill, but that it thinks it is important to protect, as it says, its principles of independence and impartiality, which it fears might be compromised if it were to be seen as a government agent in this field. I understand that that is. the basis of its hesitation.
    Given, as the noble Lord, Lord Swinfen, said, that to someone like myself only the CAB would appear to have the extensive local network in place—I cannot think of any other organisation that has—the Government must give us a little more help or tell us when they will give us some help, because otherwise the Minister will forgive us for believing that this will be an excuse for delay and delay and delay and delay of the crucial phasing in of rights for disabled people.
    Lord Mackay of Ardbrecknish: I am not going to accept that from the noble Baroness, because I made it clear early in my remarks in response to my noble friend that we intend to bring into force at the same time that part of the Bill which deals with employment rights and certain provisions of the parts dealing with goods, facilities and services.
    We envisage that that will be some time towards the end of next year. It is our intention—I apologise for repeating myself, but I clearly need to underline the point—to introduce some months before that the employment code of practice and any necessary regulations. I mentioned some other bodies which will be helping and dealing with those matters and which will need to be ready to be up and running when the powers in the Bill come into force.
    I can understand the Baroness wishing to press me, but we will probably be returning to the point about advice services later in Committee. I shall then be happy to go into it in some detail. I shall underline that we want locally based sources which will be available locally for disabled people. That is an important aspect to which I have no doubt we will be returning. I do not have a crystal ball. I do not know who will be prepared to provide the service. All I know is that I am pretty certain that people will be prepared to do it. We will have to take steps to ensure that we deliver the service we want.
    That is not an excuse for delay. I rebut that suggestion by the noble Baroness, Lady Hollis. We intend that the Bill will work as we intend it to work—efficiently and
    1700
    effectively for disabled people. We will bring it in as quickly as we can, consistent with the fact that it is a complicated area and we have to get it right.
    Baroness Seear: Will not the Minister need a variety of different sources for giving advice? When it comes to what employers will have to do and the considerable and expensive adjustments they will have to make, surely that will be a different organisation. I should have thought that the HSE would be the organisation to give a great deal of advice to employers so as to make their premises such as they can be used by disabled people. They are different sources from the sources which will be needed for implementing other parts of the legislation. Is not that the position? A variety of different sources will be needed to give advice to employers and the people who will use the services.
    Lord Renton: My noble friend is fully entitled to bear in mind that the bodies which will be suitable for consultation will vary from time to time. There may be amalgamations. I fully support what he said.
    Baroness Masham of Ilton: I spoke on that very point on Second Reading, but the Minister was not in the Chamber. I have never received a reply to my questions. I feel strongly about this matter if there are to be different organisations. Many organisations throughout the country are short of money. Some of them have already gone to the wall. There needs to be a national body with bureaux throughout the country which are accessible to disabled people or there will be a mishmash of disorganisation which I am sure none of us wants. I hope the Minister takes the point seriously, otherwise the legislation will be a mess.
    Lord Swinfen: My noble friend will realise that all Members of the Committee, and of this place generally, want to ensure that the Bill works properly for the sake of employers as well as for disabled employees. It would be helpful if at some stage in Committee my noble friend were to give an indication of what organisations he is considering to produce the advice, because the Committee will want to be satisfied that for the various types of advice that will be needed—there will be various types and not all one kind of advice—those organisations have the knowledge and organisation, and a wide enough spread, not necessarily throughout the whole country but in various parts, if my noble friend is going to break it up, to make them capable of doing the job that the Government will ask them to do.
    Earl Russell: While the Minister was speaking I was looking at the wording of Clause 22(1) which states:
    "The Secretary of State may make arrangements for the provision of advice and assistance … with a view to promoting the settlement of disputes … otherwise than by recourse to the courts".
    That looks as though we are considering several different sorts of advice. That sounds to me more like the sort of mediation or arbitration which this place has in the past discussed in relation to law centres, which is a very distinct point from assistance. Clearly the Minister is entitled to consider them separately. Equally clearly, we need to get them right.

    1701
    I hope that the Minister understands that our anxiety to get him to cross a bridge, and to understand the structure of that bridge, is because we want to see him safely reach the other side. He may congratulate himself on having brought forward a Bill which the Opposition are eager to see come into force sooner rather than later.
    7 p.m.
    Lord Butterfield: Perhaps I may interject one quasi-medical point. For some time the Nuffield Provincial Hospitals Trust has supported the establishment of groups of people in different counties, in particular the West and the South-West, who are in a position to give good advice to disabled people in their neck of the woods. I am concerned that a subtle form of almost computerised service may be needed to provide names and addresses of the people who can give good advice on specific topics under different circumstances.
    Will the Minister consider carrying out a survey of such groups? They have been in operation for some years and in some parts of the country are regarded as providing extremely good clinical services for disabled people.
    Lord Rix: I hope that the Committee will forgive this commercial. The noble Lord, Lord Renton, will confirm that for a number of years MENCAP has used the Pathway Employment Service. It has been of inestimable value and use to people with learning disabilities. We now have 5,000 people with a learning disability in open employment. The Pathway Employment Service is most efficient and is able to give expert advice and support to people with a learning disability who are able and wish to be employed.
    Baroness Lockwood: I have some sympathy with the Minister in the sense that we are straying towards later clauses. His statement on the amendment indicates the complicated system that must be put into operation in order to implement the provisions of the Bill. It underlines some of the points that many of us made on Second Reading; that we require a body with a strategic role which can look at the whole problem, deal with the various aspects of discrimination, establish its contacts and deal with the appropriate organisations in accordance with the problems that have arisen.
    We must look most seriously at what the Minister has said tonight. We must bear it in mind when we discuss not only Clause 22 but those clauses relating to the National Disability Council.
    Baroness O'Cathain: I thank the Minister for his comments on Amendments Nos. 18 and 21. The Committee has probably lost sight of them by now, with the minor bombshell—perhaps that is the wrong word— that the Minister threw into the middle of the debate. He said, rather elegantly, that he was using the amendment as a coathanger but I believe that it is a little more than that. I also thank the noble Baroness, Lady Seear, for supporting me.
    We are trying to do our best for the disabled in every way. I refer not only to employment, because employment in particular in better and larger organisations is well catered for, but also to the provision of goods and
    1702
    services. If we want the Bill to work we must ensure that the people out there who will make it work—they are the employers, the providers of services and the disabled— know that they have the comfort of consultation on an ongoing basis.
    Although I listened carefully, I cannot understand the mass of objection to putting that on the face of the Bill. However, I was grateful to the Minister for his detailed explanation of the Government's intention about the supporting codes of practice and I take comfort from that. I am also grateful to the Minister for saying that he wishes to maintain and to continue the dialogue. I do not wish to sound ungrateful but I should like to know why the provision cannot be on the face of the Bill.
    As regards the Minister's statement attached to the coathanger of Amendment No. 21, it behoves all of us to read Hansard. We have heard a great deal of detail and I tried to scribble down some of the issues. The comments go a long way towards helping me with the remainder of the Bill and I thank the Minister for that. With the proviso that I should like the Minister to look again at putting Amendment No. 18 on the face of the Bill, I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    [Amendment No. 19 not moved.]
    Lord Renton Lord Renton moved Amendment No. 20:
    Page 2, line 10, leave out subsection (5).
    The noble Lord said: In view of his undertaking, my noble friend may wish me to move Amendment No. 20. If his undertaking is to be fulfilled subsection (5) must be removed in any event. Why should we wait to do so?
    Lord Mackay of Ardbrecknish: My noble friend is being extremely helpful. However, I plead with him to let us leave the matter with my promise to return with suitable amendments. They will of course go a little wider than the first amendment that we discussed and will take in the consequential amendments, which may or may not include that which he has just mentioned.
    I wish to study the matter a little more before my noble friend presses me too far. I hope that he, having made his point, will accept my assurance that we will put forward amendments which will do exactly as I have said and will mean that the negative procedure will come into play.
    Lord Renton: I therefore trust that Members of the Committee will grant me leave to withdraw Amendment No. 20.
    Amendment, by leave, withdrawn.
    [Amendment No. 21 not moved.]
    Clause 2 agreed to.
    Clause 3 [Discrimination against applicants and employees]:
    Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 22:
    Page 2, line 38, at end insert ("and occupational pensions").
    The noble Baroness said: In moving Amendment No. 221 shall speak also to Amendments Nos. 24 and 37. The purpose of these amendments is to write into the present legislation the requirement that there should be no discrimination in pension provision in regard to people suffering from disability. The wording of the amendments

    1703
    is adapted from Part IV of the Social Security Pensions Act 1975, which provides for equal access to occupational pension schemes for men and women. I hope that the Minister will not tell us that the amendment is unnecessary.
    A 1988 Office of Population Censuses and Surveys report found that disabled pensioners had a lower average equivalent income—an average of £91.90 per week— than non-disabled pensioners who averaged £93.70 per week. The 1988 changes to the state earnings-related pension scheme encouraging people to opt out of SERPS—the Minister will know very well what we on this side of the Committee think about that—had a particularly negative effect on disabled people. Disabled workers are often at a disadvantage in occupational and personal pension schemes and therefore rely heavily on SERPS. They lost out in the changes that the Government then made to SERPS.
    At that time the Government estimated that 80,000 disabled people and 30,000 dependants of disabled people would be adversely affected. However, I understand that the Disability Alliance put the figure much higher at more than 1 million.
    We all know that the labour market is changing; employment is now much less secure. Even for those in employment there is insecurity because many people do riot know whether they will still be in employment next year or even next month. Part-time work is much more common and temporary and short-term contracts are replacing continuous employment.
    I deplore those developments, although I know that the Government believe that they are somehow inevitable and even positive. However, they have an effect on pension entitlement. That means that the number of people who do not build up entitlement to a full national insurance retirement pension will grow. That is already happening. For example, in March 1984, 3.49 per cent. of male retirement pension claimants and 10.59 per cent. of female claimants received a pension at a reduced rate. Ten years later, that number had increased substantially. In fact, the number of claimants on a reduced rate of retirement pension grew by 221,000 to just under 1 million in that period.
    Therefore, it is clear that occupational pensions will have to play a vital role in ensuring that people do not have to rely on means-tested benefits in old age. Occupational pensions are largely responsible for the fact that people of retirement age are less likely to be poor now than they were 15 years ago. Therefore, it is extremely important that employers should not be allowed to discriminate against persons regarded as disabled in relation to access to occupational schemes.
    Where membership of a pension scheme is one of the prime non-pay benefits of a job, to discriminate against disabled people in terms of entry would surely run counter to the Government's intentions. Quite rightly, the Bill is designed to require employers to take reasonable steps to remove physical barriers or adjust their practices to enable disabled persons to be employed. That cannot be achieved if disabled people are debarred from participating in one of the chief non-pay benefits available in most good employments. I beg to move.
    Lord Inglewood: I am grateful to the noble Baroness for raising this important matter and I trust that she will find my response helpful.
    Perhaps I may deal first with Amendment No. 22. The purpose of this amendment is to include "occupational pensions" within the defined meaning of "benefits" in Clause 3. I can tell the noble Baroness that Clause 3 is drafted in the same terms as Section 4 of the Race Relations Act 1976. It has never been suggested that that Act has failed to cover entitlement to occupational pension benefits. It is easy to see why that is so. Clause 3 applies both to "terms of employment" and to "benefits", which is already widely defined. A person's entitlement to a pension from his employment will normally be a term of his contract, and even where it is not a term, it is so plainly a benefit that I cannot believe that courts or tribunals would have the slightest difficulty on the point. I cannot agree to the amendment as it would throw doubt on the existing wording of the Race Relations Act, but I hope that that assurance will enable the noble Baroness to withdraw her amendment.
    I turn to Amendment No. 37, which seeks to disapply Clause 5(5) in the case of discrimination relating to benefits in employment. It also disapplies the subsection in relation to occupational payments. The Committee will be aware that Clause 5(5) enables regulations to be made to specify additional circumstances in which less favourable treatment is taken to be justified.
    It may be that the noble Baroness intends that the question of justification of less favourable treatment in pensions should be dealt with separately by regulations made under the new regulation-making power which she is proposing in Amendment No. 24. However, we must take great care to understand the possible effect of this Bill upon occupational pensions, and we have to accept that there will be cases where less favourable treatment will occur for wholly justifiable reasons.
    There might be two kinds of case in which the occupational pension benefits of a disabled person might justifiably be less than those for a non-disabled person working next to him. The first is that pensions are almost always linked to pay. If there is a justifiable difference in the pay received by the two workers—perhaps, for example, because the disability means the disabled person has to work fewer hours—it must be right that the pension can also reflect that difference. I cannot believe that Members of the Committee would wish to require the employer to have to arrange for a full pension in such circumstances.
    The second reason is that the disability may create actuarial risks which the employer or the pension fund should not have to take. For example, depending on the circumstances, we believe that an employer who takes on an employee who is terminally ill can be justified in refusing such a person cover under any scheme he operates for death-in-service benefits. The removal of any justification in the case of these benefits and payments would place quite unwarranted burdens on employers. For that reason, the Government cannot accept this amendment.
    I turn now to Amendment No. 24. This provides a power to make regulations to deal with the detailed issues which may arise regarding the application of Part II of the

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    Bill to occupational pensions. I have already indicated that the Government accept that Part II applies to occupational pensions. Part III indicates that it applies to the provision of insurance services and enables the details to be set out in regulations. We agree that similar provision is required for Part II. We have received representations about the Bill's coverage of occupational pensions and the important issues that may be involved. We are considering this whole matter carefully including when occupational pension benefits of a disabled person might justifiably be less than those for a non-disabled person, in the context of both Part II and Part III, and will take account of the points that have been made by the noble Baroness in the debate today. It may well be that we need regulation-making powers to deal with the detail of such justifications along the lines I mentioned earlier. I cannot support this amendment but we shall consider this matter further and I shall come back to the House on the point at Report. I hope that that gives the noble Baroness the assurance she seeks.
    7.15 p.m.
    Baroness Turner of Camden: I am obliged to the Minister for his response to the three amendments. I am not at all satisfied with some of the points that he made—in particular in regard to the points that he made about the possibility of paying a different pension because pensions would be linked to pay. In most pension schemes it is accepted that a pension is linked to the pay that one receives. Of course, a final salary scheme is designed quite specifically to ensure that it is linked to the final pay. I do not see any problem about that and nor would most people concerned with disability or disabled persons in employment.
    We are concerned about a situation in which a person may be debarred altogether from participating in the occupational scheme that is available to other employees who are not disabled in the same employment. However, I note that the Minister is considering what has been said and is considering the submissions that have been made by organisations concerned with occupational pensions and with disabled people generally who are worried about whether or not they will have access to occupational pension schemes. Therefore, we shall await with interest to see what the Government propose to do on Report and whether they produce the kind of amendments which we believe will be necessary to protect the interests of disabled persons who will otherwise will not, in our view, be protected adequately and have adequate access to occupational schemes. Having said that, I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Lord Addington Lord Addington moved Amendment No. 23:
    Page 2, line 38, at end insert:
    ("( ) An employer shall not conduct or require a medical examination or make enquiries of an applicant for employment as to whether he is a disabled person or as to the nature or severity of any disability prior to an offer of employment unless—

    (a) to ascertain the ability of the applicant to perform job-related functions, or

    1706

    (b) to conduct equal opportunities monitoring, where this information is collected and maintained on separate forms and is treated as a confidential record to be used solely for monitoring purposes.").

    The noble Lord said: This amendment is designed to try to remove one of the glass ceilings which is placed in the way of people with disabilities. Indeed, it is one of the more subtle ways in which discrimination can be applied—that is, by requiring on a job application form the applicant to disclose whether or not he is disabled.
    The amendment provides two opt-outs. The first is in relation to physical requirements. For example, if the job involves lifting heavy objects, and so on. But, as we know, increasingly for most jobs you have to sit down and play with a computer. "Play" is probably the wrong word and I see that the noble Baroness, Lady O'Cathain, gave me rather a hard stare when I said that. Most jobs do not require specific physical activities. They merely require a person to be there, sit down and have an active mind. Indeed, the state of computer technology is such that you do not have to use a keyboard; you can speak into a microphone to operate a computer.
    We are trying to prevent one form of discrimination which takes place. Scope carried out a study of two people who had exactly the same qualifications, one of whom had cerebral palsy. The person with cerebral palsy had one-sixth of a chance of reaching the interview stage.
    Most types of discrimination are based on a misunderstanding of the nature of the disability. I believe that most of the time, the discrimination stems from ignorance rather than malice. If people reach the interview stage, their personality takes over and their disabilities recede. If the Government are prepared to accept an amendment of this nature, they would create a situation in which employers would not be able to hide behind their ignorance and would not be denied the opportunity of engaging extremely valuable employees. That, on top of the benefits, would undoubtedly be there for the person who actually has the disability. I hope that the Government will find it in their heart to accept the amendment, or something very similar to it. I beg to move.
    Lord Swinfen: I support what the noble Lord is trying to do. However, as regards my own organisation, it is possible that what he proposes would cause chaos because we actually prefer to employ disabled people. Therefore, we would like to know, before interview, which applicants are disabled. Somehow one has to overcome that difficulty. It is possible that one would have to issue licences to exempt people from the provision. But, generally speaking, the noble Lord is quite right: one should advertise for people, see from the papers that they submit whether they are the type of people that one wants to employ and then interview them.
    Most of the time, the fact that the person is disabled will come to light in any event at the interview without the question being asked. But in the case of a body which specifically prefers to employ disabled people—for example, there are some organisations which rather like to employ blind telephonists because they are extremely good—we would be putting a barrier in its way. I believe

    1707
    that the noble Lord should look again at the matter and come back from the rather different direction that he has taken to achieve his objective.
    Lord Rix: From the same perspective as that outlined by the noble Lord, Lord Swinfen, I should like to say a few words about the difficulty of the proposed new subsection as regards the British Actors' Equity Association. Before they take part in a film or television programme, actors, especially if they are leading actors, have to acquire insurance. Therefore, they always have to undergo a medical examination before they are offered the job. If they do not pass that examination, they are not offered the job. Although I sympathise with the intention behind the proposed new subsection, I believe that it could, perhaps, cause some further difficulties in the already rather threadbare employment opportunities available for the artistic profession in the theatre.
    Baroness Gardner of Parkes: I support the principle of the amendment. I believe that it is very desirable, as I said earlier on the HIV issue, that people should not have to undergo compulsory testing if it is unrelated to their occupation. However, there are other instances that I could cite. For example, if one wishes to be an airline pilot or something like that, it is most important to have a medical test because the lives of everyone else will be placed in one's hands.
    However, I should like to see an amendment of the type which would cover the situation where a test was not specifically related to the employment in question. For example, I have in mind a case with which I dealt many years ago which concerned the health service. A man had been dismissed because of his health. However, when we were going through the appeal hearing it turned out—only because he never revealed the fact before—that he was a hepatitis carrier. He had been serving meals to very elderly, ill people and those coming into hospital for operations. Therefore he was totally unsuitable for that work. For such a job, it is necessary for him to be clear of all sorts of infections that could be passed on to patients.
    Therefore, there are instances where a test can be required. But I should like to see the principle that the noble Lord has put forward expanded to cover any unnecessary tests. I also accept the statement made by the noble Lord that if the person puts on his application form the fact that he is disabled—and I believe that I said this on Second Reading—he will not be interviewed, while the very same people would offer that person a job if they did not know he was disabled.
    Baroness Jay of Paddington: Like the noble Baroness who has just spoken, we on these Benches also support the principle behind the amendment, but are rather concerned about some of the points raised by the noble Lord, Lord Swinfen, and other speakers. If it is possible, we would like to see an arrangement which would allow for there to be information which is relevant to employment without there being any implication, as the noble Baroness, Lady Gardner, just said, that some irrelevant test may be regarded as a subtle form of discrimination. I do not know whether it is possible for the noble Lord to introduce another amendment, but the principle involved is certainly most important.
    Earl Russell: It is possible that I may be able to help the noble Lord, Lord Swinfen, to whom I listened with great care. Paragraph (a) of the amendment allows employers,
    "to ascertain the ability of the applicant to perform job related functions".
    In the occupation of the noble Lord, Lord Swinfen, understanding disabled people and being able to communicate and share things with them is surely a job-related function and, therefore, would fall within the terms of the amendment.
    I agree with the point made by the noble Baroness, Lady Gardner of Parkes. The key question is: what is a job-related function? All the ambiguity in that respect is in a story that Lord Baden-Powell used to tell of a soldier turned down on an Army medical for having bad teeth. He came back from the medical complaining bitterly that one was expected not only to kill the enemy but also to eat him.
    Lord Inglewood: We have had a most interesting debate on the amendment from a number of different perspectives. I should like to make one point clear before I begin my response. The clause under review relates to people who are already disabled.
    I support the broad intention behind the amendment, which is clearly to prevent medical examinations being required, or questions being asked, where the information obtained might be used to discriminate unfairly against disabled people. I have serious concerns about how that would work in practice. I also do not believe that unnecessary rules and regulations should be imposed on employers. However, I doubt whether specific obligations of that sort are needed to achieve the objective.
    The effect of the amendment would be to make unlawful medical examinations, or inquiries, of an applicant for employment as to whether he is a disabled person or as to the nature or severity of any disability prior to an offer of employment unless to ascertain the ability of the applicant to perform job-related functions, or to conduct equal opportunities monitoring.
    To forbid medical examinations in the manner contemplated by the amendment would be an inappropriate interference, going well beyond the protection of disabled people. The restrictions on questioning are even more far reaching. Almost any inquiry could touch either directly or indirectly on possible effects of a disability, so, if the amendment were accepted, there may be few lines of questioning open to an employer when recruiting that would not carry the risk of a complaint of discrimination being brought against him. I do not accept for a moment that the only questions an employer should ever ask at an interview should be those directly related to essential job activities.
    Moreover, the amendment would often work to the detriment of an applicant with a disability. For example, a prospective employer would not be able to ask questions about whether an applicant needed special arrangements to attend an interview; about the travel arrangements if appointed; or about his ability to use ancillary facilities such as car-parks and rest rooms. Perhaps more seriously, in some industries, the amendment would prevent an employer operating compulsory medical examinations

    1709
    for employees doing work involving exposure to a health risk—the kind of point raised by my noble friend Lady Gardner. Moreover, not all tests and questions are for the employer's benefit. Some are necessary to consider how a person with a disability could best be accommodated in matters that might not be directly related to the job functions. The restrictions imposed by the amendment would not result in good employment practices.
    I see further difficulties with the confidentiality provision. The requirement might conflict with what is best to ensure that steps are taken to safeguard an employee's health and safety. It may be necessary to inform close colleagues who are working alongside a disabled person of the nature of the disability, for example, so that the employer could ensure that in an emergency special assistance can be provided for a disabled person, if that is necessary.
    There are adequate safeguards in the Bill for disabled people. A disabled employee or applicant would be able to pursue a complaint to an industrial tribunal if an employer unjustifiably used information from a medical examination to discriminate against him. That seems to be a most crucial point in the context of the current debate. In the light of the various points that I have made, I hope that the noble Lord will consider withdrawing his amendment.
    Lord Addington: I believe that many of the problems that were raised are dealt with, as my noble friend pointed out, by paragraph (a) of the amendment; namely, the words,
    "to perform job-related functions".
    I believe that the point is covered in many of the grounds already stated.
    The Minister gave a full and interesting reply. It is a matter about which we have great sentiment at this stage. Indeed, we actually believe that the idea is sound. However, whether or not the amendment proposed happens to be the right vehicle does not matter very much because we are only in Committee and can look at it again. I wish to read what the Minister has said, take the opinion of experts in this field and possibly return to this subject. I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    [Amendment No. 24 not moved.]
    7.30 p.m.
    Lord Swinfen Lord Swinfen moved Amendment No. 25:
    Page 2, line 41, at end insert:
    ("() In the case of an act which constitutes discrimination by virtue of section (Discrimination: genetic predisposition), this section also applies to discrimination against a person who, at the time, is not disabled.").
    The noble Lord said: In moving Amendment No. 25 I wish to speak at the same time to Amendments Nos. 67 and 130. In introducing a right for disabled people not to be discriminated against in employment and in access to goods and services the Bill will extend protection to many who have suffered greatly as a result of institutionalised discriminatory practices endemic in society. However, in putting right a wrong, care should be taken that measures
    1710
    proposed are inclusive rather than exclusive and do not themselves create the possibility of discriminatory practices.
    Recent developments in the understanding of the genetic base for a range of conditions means that it is increasingly possible to determine whether or not an individual will develop a disorder before he or she shows symptoms of the disorder; in other words, pre-symptomatic testing can increasingly inform healthy people that at some time in the future they will either become, or run the risk of becoming, disabled. The advent of such testing means that those at risk are able to make informed choices concerning major life events such as the decision whether or not to have children. It also creates the opportunity for those making decisions about those at risk to use the information in a way that disadvantages them unfairly.
    The Bill as it stands will make it possible for a healthy person whose genetic make-up means that he or she will one day have a disability to be treated in a way that would be illegal if he had begun to manifest symptoms. Indeed the wording of paragraph 7 to Schedule 1 to the Bill, whilst recognising the progressive nature of many conditions, and bringing them within the scope of the Bill, specifically excludes those who have not yet begun to show symptoms but who will do so because of their genetic make-up. This is blatantly discriminatory and is surely contrary to the intention of the legislation. Furthermore, it will also increase the numbers of those who find it more difficult to enter the labour market and make adequate provision for themselves and their dependants, with a consequent increase in the likelihood of other problems developing that will need intervention or support from statutory services. Such people are also highly likely to become dependent on benefits for financial support.
    If healthy people who are at risk from genetic conditions feel that they will be discriminated against if they put themselves forward for a diagnostic test which turns out to be positive, then they will be less likely to have the test. This could have severe consequences for their health and that of any dependants who may be born as a result. For example, about half a million people are thought to be at risk from—I shall have difficulty expressing this medical term—familial hypercholesterolaemia. However, only about 10 per cent. have availed themselves of specific diagnostic tests. If detected early enough, a dietary and exercise regime can be introduced that will result in the individual being able to lead a virtually normal life. Without this the individual will almost certainly experience early onset of severe heart disease with consequent severe incapacity and premature death, yet those detected frequently experience significant difficulty in getting work. Their occupational choices are curtailed and they either cannot get insurance or can only do so if they are able and willing to pay significantly raised premiums, or accept greatly reduced cover. It is clearly unreasonable that health decisions should be adversely influenced by people's fear of their possible consequences in other areas of life. If the Bill is to produce the hoped for improvement in the lives of those whose disability is due to a genetic cause, then the position of

    1711
    those in the pre-symptomatic state must be protected, otherwise all that will happen is that the problem will be brought forward and they will be worse not better off.
    Can the Minister clarify the Government's position and make clear that those who are in the pre-symptomatic phase cannot be treated any less favourably than they would be if their condition had advanced to the point whereby it had begun to show external manifestations? As an example, there is a family in Dumbartonshire who I understand are buying a house with an endowment mortgage. It is not clear whether the endowment insurance carries a loaded premium or not. The current total outgoings on the endowment mortgage are some £400 a month. As they were worried about the possibility of the payment of mortgage interest being changed in the income support regulations, they asked their building society to arrange a quotation for insurance cover to pay the mortgage in the event of sickness or unemployment. The monthly premium quoted was £104 which is beyond their capacity to pay. They are worried about the possibility of losing their house as they have adapted it to meet the needs of the husband and daughter who both have epidermolysis bullosa. There are few council houses in the area and none are already adapted. This is a problem that we ought to face in this Bill. I beg to move.
    Lord Addington: I rise to support this amendment to which my name is added. There are few certainties as regards inherited genetic conditions but the likelihood or the certainty of their being inherited should not be used as a means of discriminating against someone. An amendment of this kind is totally in character with the aim of this Bill of preventing discrimination. I hope that it receives the support of the Committee.
    Lord Ashley of Stoke: I wish to support the amendment moved by the noble Lord, Lord Swinfen. I am delighted he did so because it is an extremely important amendment. A little while ago I attended a meeting of the all-party disablement group and I heard a bunch of experts speaking about the problems of those with genetic disorders. I found that discussion very disturbing because people with those disorders are not only facing the probability of developing a serious illness later in life but they are also facing serious discrimination.
    Knowing that the noble Lord himself is a great expert on all aspects of disability, I assumed that he and his colleagues would have made provision for these people. I read through the various debates on this matter and I found to my amazement that the Government are opposing these amendments. I cannot quite make out why they are opposing them. I have read their words but I am still looking for the meaning. Possibly when the noble Lord replies to the debate he will try to convince the Committee on this matter, but I can see no substantial reason why we should not make special provision for people with a genetic disorder.
    I think it is absolutely undeniable that some, although not all, employers, and some insurance companies, will discriminate against people with a genetic predisposition. From their own extremely narrow self-interest some of them are bound to do that, and these are the people who we must prepare ourselves for and for whom we must legislate. This amendment is of crucial importance. I think in the future there will be—
    Lord Vinson: Will the noble Lord give way?
    Lord Ashley of Stoke: Yes, by all means.
    Lord Vinson: In the case of epilepsy if, thanks to the advances of medical science, it was shown that someone was going to be prone to epileptic attack but had, fortunately, up to that point not had an epileptic attack, would it be regarded as discriminatory if the insurance company refused to insure that person, if it was aware of the condition, because the person might suffer his first epileptic attack while driving a motor car? Would the noble Lord regard that as discriminatory or non-discriminatory? I am afraid it is cases like that which are likely to arise. I would be grateful to hear the noble Lord's views on that.
    Lord Ashley of Stoke: I would certainly regard that as discriminatory. Epileptics have been discussing this issue, as the noble Lord probably knows, for some time. The question is whether the Minister will so regard it. Perhaps, having overheard the noble Lord's question to me, he will address himself to it.
    The problem is that when there is a predisposition people are not designated as disabled, but clearly they will be and they are faced with the problem of discrimination. I do not know what the Minister is muttering about, but if he wants to intervene he is more than welcome to do so. When employers and insurance companies discriminate against people on those grounds I believe that we have to take action in this House.
    I was about to say that in future the struggle will be between those who are at risk trying to avoid tests because they are worried that if the results of the tests are known they will suffer discrimination, and on the other hand employers and insurance companies demanding that there should be tests. That is the real problem. They would want the results of the tests to be considered for job evaluation and insurance purposes. Whatever the outcome, those people have no protection if the Minister sets his face against the amendment.
    I know that the Government have tried to justify their stand by saying that it is psychologically damaging to treat such people as disabled. I believe that it is more damaging, both psychologically and practically, to deny those people a job or insurance.
    As scientific knowledge advances, as it is very quickly, this will become a major problem throughout Britain and the world. Many more people will be able to have tests and many more of these problems will be discovered. Therefore, we need to establish a framework for the future. The Government say that this Bill is not the right place to do that. On the contrary, I believe that this is exactly the right place for such a provision because this Bill is concerned with discrimination. The noble Lord shakes his head. It is. The Bill is called the Disability Discrimination Bill. I never knew that one could split hairs like that. This Bill is concerned with discrimination against disabled people. This is an opportunity to make special provision for those people because they suffer criminal discrimination. They are very vulnerable people; they are waiting for an illness, which is a further blow. There is no excuse for the Government refusing them protection.
    Baroness Jay of Paddington: My Lords, I wish to support the amendment for the reasons that have been given so eloquently by the noble Lord, Lord Swinfen, and my noble friend Lord Ashley of Stoke.
    I have one additional concern relating to the impact of discrimination in this field; namely, the area of parental genetic counselling in order to achieve the prospect of a healthy child for parents who have a genetic predisposition. It may sound rather far-fetched, but it is already the case that identifying the gene for cystic fibrosis and replacing it through in vitro fertilisation techniques has meant that healthy babies have been born to parents who might previously have been at risk of producing a child with that particular condition. We should resolutely turn our faces against anything which leads the parents of children who might be healthy to refrain from the kind of genetic counselling and testing which might lead them to produce another generation of more advantaged children.
    The paradox which is possible in the present situation is that where genetic counselling, genetic testing and identifying genetic markers is potentially one of the most exciting and liberating developments in medical science at the end of the 20th century, if it becomes the case that people feel that identifying those markers in their own personal situation will lead to discrimination, they will be less likely to take advantage of those extraordinary scientific advances which may help their own condition and in which medical science may be able to help future generations of children.
    It is sometimes argued that, theoretically, the whole population has the potential for some kind of genetic problem. The issue now is that we are in a situation where science has developed so far that we can talk about specific developments in genetic markers which means that it is not sensible to talk about the whole population being at risk. It is possible to identify people who are at risk. We are beginning to see the results of work now on Alzheimer's disease as well as on other diseases such as Huntington's chorea and cystic fibrosis. It seems to me that it would be very foolish if at this stage we exacerbated the potential paradox of allowing people who may be helped in this way to feel that they will be discriminated against. I support the amendment.
    7.45 p.m.
    Earl Russell: I am grateful to the noble Lord, Lord Swinfen, for introducing an amendment which is not only important but also likely to be a great deal more important in 20 years' time than it is now.
    In supporting the amendment, I must declare an interest. In doing so I should say that the issue of genetic counselling is perhaps slightly more complicated than the noble Baroness, Lady Jay of Paddington, suggested. When my father was in his twenties, which is now about 100 years ago, he was earnestly advised by several doctors that because there was a history of mental illness in the family he should never allow himself to have children. I declare an interest in the view that it is a good thing that he did not take that advice.
    I say to the noble Lord, Lord Vinson, that my grandfather was an epileptic. It never occurred to me for a moment that that was a reason why I should not have a
    1714
    driving licence. I believe that the correct reaction to the noble Lord's point is that if there is any risk of accident sufficient to appear to the authorities a good ground for denying a licence, then the person should not drive. However, if the person is medically fit for a licence, then we should accept that the basic principle of insurance is spreading the risk.
    Lord Inglewood: We have had an extremely interesting and very wide debate. At the risk of being slightly narrow minded, I draw the attention of the Committee to the fact that we are debating Part 2 of the Bill which relates to employment matters.
    The debate echoed a number of points which were raised earlier. I should like to echo a point raised on a number of occasions by my noble friend Lord Mackay; namely, that this is a disability discrimination Bill. It is designed to cover people who would commonly be understood to be disabled. That is someone who has an impairment which has a long-term and substantial adverse effect on normal day-to-day activities. We think that these are the people everyone generally takes to be disabled. We have already included in the Bill the people who would be commonly understood to be disabled: people with severe disfigurements; people with a progressive condition which is in its early stages; and people with recurring substantial effects. However, we have to draw the line somewhere, and we must draw it where there is not and never has been a disability as it is commonly understood.
    The noble Lord argued that people with genetic predispositions suffer discrimination. However, a person with a genetic predisposition is not disabled and therefore that argument is not relevant to the Bill, although it may be relevant to other matters.
    I should like to touch on a point made by my noble friend Lord Swinfen in relation to house insurance premiums. I can tell him that the Government have powers in the Bill to prevent insurance companies discriminating unjustifiably against disabled people. Refusing to insure a disabled person or charging a higher premium than normal where there is no actuarial or other good reason for doing so will be prohibited. However, I have to tell my noble friend that the Government will not require insurance companies to charge lower premiums than the risk insured requires simply because the risk is based on the customer's disability. I am aware of no legislation in the world which would require insurance companies to do that.
    As the debate has shown, there are serious ethical questions surrounding the whole topic of genetic testing. The rapid advance in scientific understanding of our genetic structure opens up a number of possibilities. It seems likely that in the relatively near future it will be possible to identify genetic predispositions in all of us. Does that mean that all of us will be disabled and covered by the Bill? Of course not. It means that scientists will be able to see in advance what conditions we are most prone to should we have the good fortune to live to old age.
    I do not deny that the whole field of genetics needs to be looked at in its entirety. The Select Committee in another place is due to publish a report on the subject shortly. It would be a mistake to pre-empt that debate by accepting

    1715
    these amendments now. We believe that the effect would be counter-productive for people with genetic predispositions and it would serve to undermine the effectiveness of a Bill intended to protect people who have or have had a disability. It is for that reason—I hope that noble Lords understand it—that I must ask the noble Lord to consider withdrawing the amendment in line with what I said.
    Lord Eatwell: Before the noble Lord sits down, perhaps I may ask him to reconsider the proposition that he made about insurance. It is not true that no insurance companies in the world would consider the generality of insurance to be separate from the risk of individuals. For example, in Germany, motor insurance does not consider the specific characteristics of individual drivers. The standard fee is related to the size of vehicle; and that is all. The structure is quite different from that of insurance in the UK. As a result, insurance is more widely held. There is less evasion. The settlement of insurance claims is more rapid; and the cost per driver on average is less because the risk is more widely spread.
    It is an example by which insurance, by not discriminating between individuals, proves to be more efficient. The statement that the noble Lord made about the nature of insurance companies is not true.
    Lord Inglewood: Perhaps I may answer the point made by the noble Lord. We are at cross-purposes. The proposition that I made, and I stick by it, is that I am aware of no legislation in the world that requires insurance companies to make such provision. The noble Lord described a situation in Germany. I have no reason to suppose that what he says is not 100 per cent. accurate. We are talking about legislation, not the commercial practice of insurance companies.
    Baroness Jay of Paddington: At the risk of prolonging this interesting debate, perhaps I may say this. I believe the noble Lord has the point slightly wrong about the whole population being at genetic risk. Specific conditions have been identified in the Bill as being required to be on the face of the Bill as special cases. We debated whether HIV should be added to cancer and the other conditions which are described.
    We can all hope for the day when a genetic marker will tell us whether or not we shall be more intelligent, or will live to 104 years. However, we have already identified genetic markers about specific genetic disabilities which could be included in the Bill.
    Lord Inglewood: I am grateful to the noble Baroness. Undoubtedly in her own right she is a great deal more knowledgeable on these matters than I am. However, the point to which I return is that in the Bill we are talking about when the disability manifests itself. That is the focus on which we have debated the matter.
    Baroness Hollis of Heigham: We have been talking about when the disability manifests itself, or gives rise to discrimination. The Minister repeats a problem that we encountered at the beginning of the debate this afternoon. By focusing exclusively on disability, discrimination will be generated against which other people in similar circumstances will have no protection.
    Baroness Farrington of Ribbleton: In reply to the first amendments debated today, the Minister stated that it was not possible to accept the amendment because the Bill had to deal with matters of fact and not the perception in the minds of employers. It was stated that it was totally unreasonable to legislate on whether the perception of the employer was that the person suffered from a disability so that the employer did not wish to employ that individual.
    The amendment does not refer to a perception but to a specific act: asking for information which will be taken into account. There is no point in asking for the information unless it will be of value. Therefore perhaps I may press the Minister to state whether he considers it unlawful for employers to ask for such information. Will he state quite clearly whether there would be some point along that road at which such unlawfulness would become a risk? The Government state that there are categoric groups of people who can be discriminated against on grounds of their disability.
    In the circumstances debated, we refer to a disability in the future, if there is a genetic predisposition. It is a question of degree, and when. We have referred to illnesses which involve serious disability. The Minister cannot argue both ways. He cannot argue that we cannot legislate for perceptions and then refuse to accept an amendment which deals with a concrete and quite visible situation.
    Lord Addington: Having listened to the debate on the amendment, I believe that both sides are going a long way round the argument. We are referring to information which defines a strong likelihood of developing a certain type of condition. Does the Minister accept that a level of certainty about a condition can be reached where such a condition becomes a factor? That is all we are talking about. We can go round the houses about genetic testing and whether genetic science will change rapidly. We can only deal with the situation which exists at this point in time. Certain tests can take place now which can indicate that there is a strong possibility that in 30 years' time a condition will occur. Does the Minister accept that such an issue sits squarely with the provisions of the Bill?
    Earl Russell: The Minister argued that a genetic defect is not a disability. I have looked at the wording of Clause 1. As a point of law, one could not pronounce on the matter until it had been before a court. But I am not sure that the Minister is right.
    Clause 1 includes the words "physical or mental impairment". Our gene base is physical. If our gene base is impaired, surely within the meaning of the Act (and for once I use the phrase literally) one has a physical impairment.
    I then read the qualification,
    "which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities".
    Parenthood is a normal activity. How far it is exactly to be described as a day-to-day activity, I am not entirely clear. However, I should have thought that within the meaning of the Act, arguing that case in court I might have had a sporting chance.

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    I should have thought that the Minister might be wise to take a little further legal advice on the question. If the Bill is not the right place to make such provision, perhaps he will tell us what is.
    Lord Inglewood: We come back again to the point that I made. I understand exactly why noble Lords feel that the basis upon which the Bill is predicated may be wrong. However, it is the basis on which the Government bring the Bill forward; namely, that for this Bill to apply, there must be a disability in place. We have debated genetic screening and genetic predisposition to certain changes taking place in people at some time in the future. However, so far as involves the here and now, we come back to the point that I mentioned earlier: there is not a disability on which the Bill can bite.
    I wish now to move to the point made by the noble Earl, Lord Russell. We are talking about day-to-day activities now. That factor relates to the point that he made and to the point that I make. I am no geneticist. I do not wish to go down that road. If the genetic condition which the person may have does not have an impact on his day-to-day activities now, it will be outside the scope of Clause 1 of the Bill.
    Perhaps I may conclude by referring to some remarks which the noble Earl made in a previous contribution: we very much like you the way you are.
    Lord Swinfen: Before I make up my mind what to do about the amendment, my noble friend Lord Inglewood advised the Committee that a Select Committee in another place was considering genetic predisposition. It would be extremely useful to the Committee for the Select Committee to report before we finish with the Bill. If he is aware of it, can my noble friend give any indication as to when the committee is likely to complete its work and to report, so that those of us who are interested in the subject will have an opportunity of reading the report?
    Lord Inglewood: The best reply I can give to my noble friend's question is: some time in the autumn.
    Lord Swinfen: I thank my noble friend for that, but it is not helpful. I appreciate that the matter is outside his control. If there is a possibility of asking, through the usual channels, whether an interim report could be produced, I am sure that everyone who has taken part in the debate would find it welcome and useful.
    The point made by the noble Baroness, Lady Farrington, was useful. She said that it might be unlawful for employers to ask whether someone had a genetic predisposition to any disabling condition. I was not sure that we received a satisfactory answer from my noble friend. He has probably not had time to think of it. The whole question of genetics and genetic predisposition is moving so fast that, like me, he will not have had time to catch up with the latest situation. However, I understand that with one of the disabling illnesses to which people can be genetically predisposed—Huntington's Chorea—there is 99 per cent. certainty of a test accurately showing whether or not a person is likely to have the disease. As my noble friend probably knows, it is a hideous disease which produces both a physical and a mental disability which will probably come out in one's mid-forties,
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    sometimes earlier, sometimes later. By that time, the next generation have probably already been born. We do not wish to put people in the position of refusing to have tests to ensure that they do not produce other people who are likely to suffer from the hideous disabling disease.
    The matter of insurance is important. In some respects, I know that the subject terrifies the insurance market. Most genetically predisposed diseases will come on slowly and gradually and there is warning. Very few come on with no warning whatever, so I am sure that provision can be made in some way or another.
    It is getting late; I did not intend to divide the Committee on the matter and I thank all those who have taken part. However, I warn my noble friend that I do not believe that I can let the matter drop. I am liable to come back either with the same amendment or a revised one at Report stage. I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Clause 3 agreed to.
    Lord Lucas: I beg to move that the House be resumed. In moving the Motion, may I suggest that the Committee stage begin again not before 8.50 p.m.
    Moved accordingly, and, on Question, Motion agreed to.
    House resumed.

Licensing (Sunday Hours) Bill
8.3 p.m.
Report received.

Public Offers of Securities Regulations 1995
Lord Henley Lord Henley rose to move, That the draft regulations laid before the House on 10th May be approved [21st Report from the Joint Committee].
The noble Lord said: My Lords, I beg to move that the draft Public Offers of Securities Regulations be approved. In moving the regulations I also wish to speak to the Financial Services Act 1986 (Investment Advertisements) (Exemptions) (No. 2) Order 1995. Both measures were laid before the House on 10th May.
The two measures are part of a package of regulations which modernises United Kingdom law on public offers of securities and simplifies the law governing the issue of investment advertisements. The package offers a number of benefits. It makes clear what information must be disclosed in a prospectus, it removes some types of offer from prospectus law altogether and it makes it easier and cheaper for United Kingdom issuers to offer securities or gain admission to official listing on stock exchanges in other member states.
The overall effect of the measures is the following: first, to bring United Kingdom legislation on public offers of securities in line with the Prospectus Directive; secondly, to revise, extend and consolidate exemptions from controls imposed on the issue of investment advertisements by Section 57 of the Financial Services Act.
First, let me deal with the alignment with the Prospectus Directive which will change the present position in five ways. First, for offers to the public of listed securities falling within the scope of the Prospectus Directive, the person offering the securities must publish a prospectus rather than listing particulars. The key benefit from that will be that prospectuses which have received Stock Exchange approval will be able to be used in other member states, both for public offers under the mutual recognition provisions of the Prospectus Directive and for official listing under the equivalent provisions of the Listing Particulars Directive. The change will also mean that when the person offering the securities is not the issuer, the offeror will become responsible for the prospectus alongside the issuer.
The second major change will be to make offers to the public of unlisted securities subject to Part II of the regulations and the contents requirements of Schedule 1. That will mean that issuers and their advisers will know precisely what information they must provide in a prospectus.
Thirdly, Part IV of the Financial Services Act will be amended to allow a prospectus for an offer of unlisted securities to be drawn up in accordance with the listing rules of the Stock Exchange and submitted to the exchange for approval. That will enable unlisted securities to benefit from the mutual recognition provisions of the Prospectus Directive and the Listing Particulars Directive.
Fourthly, the regulations will ensure that prospectuses prepared in connection with a public offer in another member state will, if approved by the competent authorities in that state, be recognised in the United Kingdom.
Finally, the regulations will ensure that those offers of securities currently covered by Part III of the Companies Act which fall outside the scope of the directive will be subject to Section 57 of the Financial Services Act. That requires investment advertisements either to be published by a person authorised under the Financial Services Act to carry on investment business, or to be approved by such a person before publication.
I turn now to exemptions from Section 57. This second part of the package will consolidate and extend the exemptions from Section 57 of the Financial Services Act made under Section 58(3) of the Act. It will also make some minor amendments to those provisions necessary to take account of the repeal of Part V of the Financial Services Act by the Public Offers of Securities Regulations. In addition, Article 14 of this order introduces a new exemption from the Section 57 approval procedure in three separate but related cases. The first and second of these, relating to prospectuses issued in accordance with Part II of the Public Offers of Securities Regulations and certain advertisements announcing the availability of such prospectuses, will simply carry forward into the new regime the existing exemptions for prospectuses issued under Part III of the Companies Act and for advertisements concerning prospectuses covered by Part V of the Financial Services Act.
The effect of the third exemption, relating to documents required for admission to trading on markets operated by exchanges in member states, is to exempt
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from the Section 57 approval requirement admission documents required for the new Alternative Investment Market in cases where there is no associated offer of the securities to the public.
Taken together, the package of regulations secures a number of benefits. It modernises and clarifies the existing law and ensures that the UK has a body of coherent and comprehensible legislation governing public offers of securities. It enhances investor protection by imposing a general duty on those offering unlisted securities to disclose all material information; it is deregulatory in removing certain types of offer from the requirements of prospectus law; and finally it enables United Kingdom issuers of securities to take advantage of the mutual recognition provisions of the Prospectus and Listing Particulars Directives. We believe these regulations have the support of United Kingdom industry, the City and the stock markets. I commend the orders to your Lordships and I beg to move.
Moved, That the draft Regulations laid before the House on 10th May be approved [21st Report from the Joint Committee].—(Lord Henley.)
Lord Eatwell: My Lords, I am most grateful to the noble Lord, Lord Henley, for introducing these regulations with such clarity. I wish to address myself to the two particular documents in order, and deal first with the Public Offers of Securities Regulations 1995, which in particular establishes the responsibilities of those who would offer unlisted securities to the public. As such, as the noble Lord pointed out, these regulations are designed to ensure that, among other things, a potential purchaser of unlisted securities, other than a number of specific exceptions, receives all the relevant commercial intelligence known to the issuer and required for the prospective purchaser to make an informed commercial judgment as to the value of the securities.
I should like to illustrate, if I may, the characteristics of the relevant commercial intelligence set out in the regulations, and then to reflect upon them. Consider, for example, Regulation 9. It says:
"a prospectus shall … contain all such information as investors would reasonably require, and reasonably expect to find there, for the purpose of making an informed assessment of the assets and liabilities, financial position, profits and losses and prospects of the issuer of the securities …"
Regulation 10 says that where:
"there is a significant change affecting any matter contained in the prospectus"
or
"a significant new matter arises the inclusion of information in respect of which would have been so required if it had arisen when the prospectus was prepared"
the offerer shall publish a supplementary prospectus.
Regulation 11 says that there are some exceptions to this that the Treasury may authorise when the Treasury feels that the omission from the prospectus or a supplementary prospectus of some information is "contrary to the public interest".
Then we are told in Regulation 14 that if these regulations have not been followed and the prospectus does not contain the information which investors might reasonably be expected to be given, then the person or persons responsible for a prospectus or supplementary

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prospectus shall be required to pay compensation to any person who has acquired the securities to which the prospectus relates, and suffers a loss in respect of them. The person who fails to comply with Regulation 10—that is the one about all the extra information—shall be liable to pay compensation to any person who has acquired any of the securities in question and suffered a loss in respect of them.
This is entirely desirable. It is quite appropriate that those who issue prospectuses should be expected to issue all the information to prospective purchasers, and if extra information arises they should provide that too. But it is impossible to read these regulations without reflecting on the conduct of Her Majesty's Government in the sale of the remaining shares in National Power and PowerGen. While it would be inappropriate to debate that matter this evening, I believe it is incumbent upon the Minister to explain to the House why the Government believe that these regulations are appropriate and yet do not maintain such standards themselves. Or, if he believes that such standards are maintained by Her Majesty's Government, why in the case of the National Power and PowerGen issues do the Government claim Crown immunity with respect to compensation to those who have suffered major losses as a result of the failure of Her Majesty's Government disclose information to which they had prior access?
I turn now to the Financial Services Act 1986 (Investment Advertisements) (Exemptions) (No. 2) Order 1995. As the Minister pointed out, it is vital for the successful and honest operation of the securities market that advertisements relating to investments should comply with required standards. I am therefore particularly disturbed by some of the exemptions granted in this order. For example, would the Minister explain to the House why investment advertisements issued for the purpose of promoting or encouraging industrial or commercial activity or enterprise are exempt? While the order makes clear that the body corporate that issues such an advertisement should have no direct or indirect pecuniary interest, I can see no reason why such an advertisement should not be seriously misleading to the public and a proper subject for the Act. And I do not see that the attachment of a health warning to an advertisement is sufficient to protect the public. And of course this order does not apply to an advertisement that applies to the issuing of a prospectus, which brings us neatly in a circle to the questions I have already raised about prospectuses.
Finally, in my view the explanatory notes which are attached to these measures are entirely inadequate, and are designed to obscure rather than to inform. It is entirely wrong that Parliament should be asked to consider such important documents without proper explanation being offered by the Government of their full implications. I hope that the Minister can give the House an assurance that in future the Treasury will be less irresponsible.
8.15 p.m.
Lord Henley: My Lords, I reject the allegations that the Treasury has been irresponsible in these matters. These matters have been discussed in considerable detail
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with all relevant bodies and, as I made clear in my concluding remarks, they have had general support from United Kingdom industry, from the City, from the stock markets and indeed from all those concerned.
Perhaps I may deal very briefly with some of the points made by the noble Lord about the regulations and particularly about his allegation that we did not comply with the regulations ourselves. I utterly reject the allegation that we did not operate appropriate standards when it came to the sale of shares in PowerGen and National Power. As the noble Lord will be aware, this was the subject of a Statement made by my right honourable friend the Financial Secretary to the Treasury only last Friday. As the noble Lord will also be aware, it is the subject of a Question which is to be asked by, I believe, his noble friend Lord Haskel on Thursday of this week. I will address that matter on that occasion.
As my right honourable friend the Financial Secretary made quite clear in his Statement, the Treasury will take the work forward and respond in substance to the Stock Exchange in due course. The Treasury will examine the allegations that have been made. He also went on to say that since the exchange of letters there has been a great deal of misinformed, inaccurate and hysterical comment. He then went on to clarify those particular issues. It would not be right, as I think the noble Lord made clear, for me on this occasion to elaborate or to respond in detail to these points, because they were all dealt with by my right honourable friend the Financial Secretary on that occasion.
As regards the noble Lord's queries about the list of specific exemptions in the second set of regulations, those relating to the Financial Services Act 1986 (Investment Advertisements) (Exemptions) (No. 2) Order 1995, if I may, I would prefer to respond to those in writing with appropriate speed. I hope that those explanations, brief though they are, are satisfactory to the noble Lord and I hope that—I did not hear him say so—since these regulations have been welcomed by practically everyone else and, so far as I know by the Party to which the noble Lord belongs, on this occasion he will welcome these particular regulations.
Lord Eatwell: My Lords, before the Minister sits down, perhaps I should clarify the point I made at the end of my remarks about the explanatory notes. I did not suggest that the Government had not consulted with relevant parties concerning these regulations. I suggested that the explanations which are attached to the measures are inadequate for Parliament to have the opportunity to consider their full import. I really believe that if we are to give proper consideration to complex financial regulations it is incumbent upon Her Majesty's Government, and particularly upon the Treasury, to offer clearer, more extensive and certainly more informative explanatory notes prior to their consideration. Having said that, I agree with the noble Lord that, broadly, these regulations are desirable, subject to the questions that I have asked. I am grateful that the noble Lord will write to me concerning the issue of exemptions. There, I rest my case.
Lord Henley: Before the noble Lord rests his case, perhaps I may make just a couple of points about the explanatory notes. In my experience of orders—and I

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have moved a certain number in my time—the notes to these are fairly full and detailed. I appreciate the point that the noble Lord makes that these are particularly complicated sets of regulations.
Having said that in my view the explanatory notes are lengthy and quite detailed—compared with past regulations, as the noble Lord will see, at well over a page, they are quite long—I will pass the comments on to those who are concerned with these matters. I am sure that they will take note of the noble Lord's point. However, I am sure that someone of the noble Lord's eminence will have had little problem in understanding them. I commend the regulations to the House.
On Question, Motion agreed to.

Financial Services Act 1986 (Investment Advertisements) (Exemptions) (No. 2) Order 1995
8.20 p.m.
Lord Henley: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That the draft order laid before the House on 10th May be approved [21st Report from the Joint Committee].—(Lord Henley.)
On Question, Motion agreed to.
Baroness Trumpington: I beg to move that the House do now adjourn during pleasure until 8.50 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.21 to 8.50 p.m.]

Disability Discrimination Bill
House again in Committee.
Clause 4 [Meaning of "discrimination"]:
Lord Wise Lord Wise had given notice of his intention to move Amendment No. 26:
Page 3, line 16, at end insert:
("( ) For the purposes of this Part, references to an employer who discriminates against a disabled person shall include references to an employer who—

(a) treats a person who has a physical or mental impairment that does not have a substantial and long term adverse effect on his ability to carry out normal day to day activities, as having a substantial and long term adverse effect on his ability to carry out normal day to day activities; and

(b) treats a person who does not have a physical or mental impairment as having a physical or mental impairment that has a substantial and long term adverse effect on his ability to carry out normal day to day activities.").

The noble Lord said: It is unfortunate that this amendment was not grouped with the first amendment of the noble Baroness, Lady Hollis. I could not contact her this morning to discuss it. I was unsure whether or not I could speak to it as it had not been grouped. However, both the noble Baroness, Lady Hollis, and the noble Baroness, Lady Farrington, have raised issues on this amendment which primarily seeks to ensure that a further group of disabled people are protected by the measures in the Bill. At this late hour I do not wish to reiterate many of the arguments that have been put forward. I am sure
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that it will be a great pleasure to your Lordships to hear that I do not intend to move the amendment; rather I will read very carefully what has been said and perhaps come back to it at a later stage.
[Amendment No. 26 not moved.]
On Question, Clause 4 agreed to.
Clause 5 [Circumstances in which less favourable treatment is justified]:
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 27:
Page 3, line 19, leave out from ("if") to end of line 23 and insert ("he shows that one or more of the conditions mentioned in subsection (4) below are satisfied.").
The noble Baroness said: I am sure that your Lordships are waiting in anticipation to see whether I will follow the eloquent path so swiftly followed by the noble Lord, Lord Wise. Alas, I feel that we must visit—your Lordships may say revisit—this issue. This is an amendment about the test of reasonableness. The amendment is concerned about whether, when and under what circumstances it is legal to discriminate against someone with a disability.
We all accept that there will be occasions when it is legitimate for an employer to discriminate against a disabled person. Those circumstances are set out in Clause 5(4). The conditions are: that the disabled person is unsuitable for employment; that the disabled person is less suitable for the employment than another person and that other person is given the employment; that the nature of the person's disability significantly impedes the performance of his duties; or that, in the case of training, the nature of the disabled person's disability will significantly reduce the value of the training either to him or to the employer. Regulations also allow for additional circumstances to be prescribed.
It is regrettable but we all accept that no one sensibly presses that blind people should become van drivers or, perhaps more controversially, that someone with a history of recurring violent schizophrenia should become a teacher of special needs children. We do not ask for positive discrimination but equal rights. A disabled person should not be disqualified by virtue of a disability that is not substantially relevant to the job to be performed. It is important for the Government to understand that under the amendment it will still be open to the employer, as under the race and sex legislation, to choose the best person for the job, so long as in his judgment the employer is not improperly influenced by conditions of the disability, as with race or gender, when these are not relevant to the job under consideration.
So far so good. However, the employer is allowed to discriminate, not if one of the four conditions is objectively met, but if in his opinion one of those conditions is met. If it is not unreasonable for him to hold that opinion, even though he may be wrong to do so, he is allowed to discriminate; in other words, those four conditions are not a test of whether or not he may discriminate but a test of whether or not he considers that he may discriminate. It is not a test of the disabled person's suitability but a test of the employer's state of mind.
I am sorry that the noble Lord, Lord Renton, is not here. We sparred on this issue a little earlier. What we have here is not a relatively objective test as to whether or not the disabled person can do the job, but a subjective test—the very thing that the Government went to great lengths to deplore on the first amendment—of whether or not the employer can hold such an opinion. Even though most people may not hold that opinion, it may still be within the realm of reasonableness. A disabled person's rights to fair treatment have been transmogrified into the employer's right to hold an opinion.
We are very uneasy about this. It would be very difficult for any disabled person to demonstrate to any tribunal that it was beyond the realms of reasonableness for the employer to hold the view that he did, even if the employer objectively was empirically wrong to do so. It is relatively straightforward for a tribunal to judge as an empirical matter whether or not the employer's behaviour is reasonable. What our amendment seeks to do is precisely that. It is much harder to do that if we leave the Bill unamended, because then the test is whether or not it is reasonable for the employer to hold the opinion that he holds. That is an inquiry into the state of mind of the employer—the very grounds on which the Government rejected the very first amendment today. As the Bill stands, one is asking industrial tribunals to adjudicate not on behaviour but on opinions, which is to follow a slippery slope.
In the brief that RADAR was kind enough to provide to me reference was made to the case of Hampson v. DES heard in 1989 in the Court of Appeal. That set out the ground rules for sex and race legislation. In that judgment, Lord Justice Balcombe said:
"It is not sufficient for the employer to establish that he considered his reasons adequate".
Quite so. However, under this Bill without the amendment it will be. I suggest that disabled people are as much entitled to protection in law as is provided for under sex and race legislation. Without the amendment, if the employer thinks his reasons are adequate they will not be so protected. I beg to move.
Lord Addington: The noble Baroness has moved one of the more important amendments that we are to discuss today. If we refer just to opinion we are not even talking about informed opinion. We are referring to prejudice and to somebody who in effect does not know what he is talking about. If this is to be taken into account, we may as well not have large chunks of this Bill, for the simple reason that someone can make a judgment without knowing anything about the matter and just proceed on. If the Government are not prepared to accept this amendment, or something very like it, they will do damage to many of the good points in the Bill.
The Government always tell us that economics dominate everything. The opinion of an employer affects the way that many disabled people perceive their worth in society.
Unless the Government are prepared to accept an amendment along these lines, they are effectively wasting a good deal of their time and ours in putting this Bill on the statute book.
Lord Inglewood: Following the exchange of views between my noble friend Lord Renton and the noble Baroness, Lady Hollis, earlier today, it will come as no surprise if this particular amendment is not withdrawn.
Clause 5 deals with cases in which it is justifiable for an employer to treat a disabled person less favourably. To make a small point—some people might say that it is a pedantic point—the definition of discrimination is to treat a disabled person less favourably without justification. It is not in fact the case that, if actions fall within the scope of Clause 5 of the Bill, that, strictly speaking, can be described as discriminatory. In Clause 5(1) it is necessary that, in the employer's opinion, one or more of the conditions in subsection (4) are satisfied and that it is reasonable in all the circumstances of the case for him to hold that opinion.
A number of points have been raised in relation to that matter. I should like to spend a moment making one or two comments on them. First, it is not in fact the case that the proposition that something is reasonable is not the same as the proposition that something is not unreasonable. Secondly, reference was made to the fact that employers might be able to do something "even though most people do not hold the opinion". The fact that most people do or do not hold a particular opinion has very little bearing in this regard. Finally, we have had some discussion about inquiries into states of mind. It was not made clear whose state of mind was involved. Reference was made to the judgment of Lord Justice Balcombe.
The key words in the Bill as drafted are:
"it is reasonable, in all the circumstances of the case, for him to hold that opinion".
The test of reasonableness here is an objective test. The judgment is not made exclusively from the perspective of any one person. If the matter goes to a tribunal and ultimately to the court, the assessment is made by the person sitting in judgment on whether it is reasonable for an employer in those particular circumstances to have acted in the manner that has been alleged. It is important that we are clear about that. It is not simply a subjective approach to the problem. It is an objective approach, bringing in a test of reasonableness which is a very well recognised test in English law.
The effect of the amendment is to ignore the fact that an employer is entitled to have legitimate opinions about whom he employs. It would make the conditions in subsection (4) become purely factual tests. It wholly ignores the important questions of judgment involved. To my knowledge there is not any wholly factual test of suitability for a particular job. It is certainly not a question of whether someone can do the main functions of a job. Suitability goes wider than that. Several applicants might meet such a test, but the employer still has to choose from them which is the most suitable. That must be a matter for the employer's judgment. This amendment removes the judgment from the employer and gives it to an industrial tribunal. A tribunal would have to decide whether applicant A, for example, was less suitable for the employment than applicant B.
The amendment also takes no account of the facts known to the employer at the time—if a disabled person performs badly at an interview (after any reasonable

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adjustment of course), under these amendments there would still be the "factual" question of whether he (or she) was "really" the most suitable candidate after all—which could be aired all over again before the tribunal. That would be quite wrong.
It is not a matter for a tribunal to make decisions of that sort. It is for the tribunal to decide whether it was reasonable in all the circumstances for an employer to believe that the individual was unsuitable. That is right. After all, we are dealing with the question of whether there was discrimination. We are not asking the tribunal to decide who was the most suitable candidate.
We must all recognise that it is important to create a proper balance between the concerns of disabled people and the legitimate interests of employers to make decisions in the best interests of their business. We shall certainly listen very carefully to the points that are made on this clause. But I cannot accept the suggestion contained in the amendment that tribunals are to pay no regard to the many legitimate issues of judgment faced by employers. There is ample protection for disabled people in the requirement that the employer's opinion must be reasonably held. I hope that that has given some reassurance to the noble Baroness.
Baroness Farrington of Ribbleton: I wonder whether the Minister can be pressed a little further on comparisons with cases which are taken before tribunals on grounds of sex discrimination. It is my experience that the issue that is considered is the issue of the most suitable person to have been appointed to the job. Ultimately, the criteria necessary for consideration as a candidate have to be met by people who are put on a short list. But then further desirable or advantageous qualities which the individual candidates possess and bring to the job, which are not necessary but desirable, are considered in detail by a tribunal. A comparison is made particularly between those qualities which are the desirable qualities for the person making the appointment. Those are then assessed and it is necessary for the employer to demonstrate that there was justifiable choice between the candidate who got the job and the candidate who was unsuccessful.
I cannot see why a different line is being taken in the light of the response that has just been given on behalf of the Government when the issue is one of disability discrimination. Surely the case that needs to be put by the employer needs to be equally strong when the discrimination is on grounds of disability as, for example, when the discrimination occurred on grounds of sex.
Lord Inglewood: I hope that I can be helpful to the noble Baroness. She has raised a question which is of great significance. The starting point of the Bill has been made clear on a number of occasions. We do not consider that the way to deal with discrimination in regard to disability is the same way in which one deals with problems of sex or race. I said that as a back-drop to my further remarks.
So far as concerns this particular Bill, we are concerned to ensure that there is no discrimination against disabled people on the basis of their disability, if I may so shortly describe it. Therefore, it does not follow that if someone
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does not get the job there has been discrimination; neither does the inverse proposition apply, which is that there can only be no discrimination if that person does get the job.
Perhaps I may explain how the process works. It is necessary for an employer to assess the merits of the candidates, however many there may be, as they are. Having assessed those merits, it is then necessary for the employer to "add on" reasonable adjustment. We may come later to arguing exactly what that means, but here we are looking at the concept.
One then adds on, by virtue of the reasonable adjustment provisions, advantages to particular employees who may be disabled. Once one has done that, one has to compare the candidates against each other in the ordinary way, if there were no disability issues present at all. I hope that that describes how these particular procedures would work. That is the basis on which any tribunal, were one to be ultimately involved in the matter, would approach the problem.
Baroness Farrington of Ribbleton: I must press this matter further. In the Minister's answer he said that comparison must be made between the candidates to assess whether discrimination had or had not occurred. Yet the proposals in the Bill do not allow the same degree of examination of that issue to the point of who was appointed and who was not, and whether the judgment on appointment was based on unfair discrimination against someone with a disability. The guidelines would not be as stringent as in a case brought on grounds of sex or race. Surely that process must be the same. I fail to see how the Government can say that they are protecting against discrimination on grounds of disability, but only partially protecting. Surely the stringency should be the same whatever the issue which is the alleged discrimination.
Lord Inglewood: The noble Baroness is obviously much more familiar with sex and race discrimination legislation than I am. I fear it is possible that I may have unwillingly and unwittingly slightly misled her. As regards these provisions, and as far as the test of whether or not discrimination has taken place in the context of an individual, it does not matter about the other people who might be interested in the particular job. Let us assume that we are talking about a job because it makes a description easier.
The issue relates to the individual concerned. If he or she is a disabled person as defined, there is a duty on the potential employer to follow the process of reasonable adjustment. That will vary from individual to individual depending on the nature of their particular disability. The general measure is described in Clause 6. Once that has occurred it is for the potential employer to determine whether or not the particular person fits the case. What the potential employer cannot do is to say that a particular individual is unsuitable because of certain aspects of his or her disability where reasonable adjustment would have ceased to be a problem for him. That is the way in which we approach it. If at a later stage some criticism is made of an employer and the matter goes to a tribunal, the argument will relate to that particular issue. As regards any one individual, the characteristics of anyone else who may have applied for the job will not be directly relevant.
Baroness Hollis of Heigham: That was a very helpful exchange. From what the Minister has said it seems to me that the problem is worse than I had assumed. The Minister seems to be saying, in response to my noble friend, that what the employer can do is to say that X is unsuitable because "reasonable cost" would not make him suitable even though the employer was misinformed because "reasonable cost" would have made him suitable.
If I understand the Minister correctly—we all accept that judgment is involved, and I do not believe that anyone challenges that—he has given any employer carte blanche to parade his prejudice and call it his judgment. I do not see how we can protect, as I am sure we wish to do, disabled people under this Bill in this way.
The Minister referred to the tribunal and said that it would decide not whether a person was the best candidate, but whether discrimination had occurred. As I am reminded, reasonableness is not simply a matter to be determined by a tribunal acting as an industrial jury. The phrase is that it is a "legal term of art" for which there is binding authority in unfair dismissal law requiring an interpretation allowing an extremely wide range of discretion to the employer. "Reasonable" is understood by industrial tribunals to mean something within a band of reasonableness. Only if that action is outside that band of reasonableness can it be characterised as not reasonable.
The noble and learned Lord, Lord Denning, in the case of British Leyland v. Swift (1981) said:
"The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness within which one employer might reasonably take one view; another quite reasonably take a different view".
In other words, an employer's opinion can be said not to be reasonable only if no reasonable employer would have held that opinion. That is the problem we are up against. We have gone down the slippery slope into a subjective assessment of whether all reasonable employers would have acted in that way, and, if even one did, it would be acceptable under the Bill as framed.
We are dealing with what is in the employer's head, which is a subjective test. That is what we are asking that the rights of disabled people should depend upon. Having received some extra paper, I do not know whether the Minister wishes to comment. It would be helpful. It is important to push the Minister further to see what is his thinking before deciding what we do about the amendment, perhaps on Report.
9.15 p.m.
Lord Inglewood: The noble Baroness is trying to push me as far as she can. I fully understand that that is the name of the game. The first point the noble Baroness made was about an employer parading his prejudice. If an employer paraded his prejudice, however wide the bands of reasonableness might be, he would have left those bands behind him.
I return to one of the key features of the way in which the Bill has been drafted. It was a point to which I alluded in my earlier remarks. In simple terms it is that the tribunal
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will not usurp the employer's role. I tried to make that clear in my earlier remarks. The employer operates within a degree of flexibility. I concur with the comments of the noble and learned Lord, Lord Denning, in this context. They struck me as being helpful. They underpin the case that the Government are making. Individual employers, be they businessmen or whatever, will operate within a band which, according to their particular circumstances and approach, they will wish to adopt in conducting the affairs with which they are dealing. That is called judgment. It is called discretion.
Beyond certain limits, one enters territory which any ordinary person, be he a member of a tribunal, a High Court judge, or any other sensible person, would clearly say is unreasonable. What we believe is appropriate in the context of this Bill is, on the one hand, to help disabled people by ensuring that their disability is not held against them in a discriminatory manner, while at the same time ensuring that those people who are responsible for running the business, those people who are employing people, can still exercise that discretion which any reasonable judge of what they were doing would allow them to do. That is the crucial point which is at the core of the Government's approach. I hope that I have described it clearly and in a way which, if not accepted by the Benches opposite, is at least understood.
Baroness Hollis of Heigham: I was disappointed in that reply. How can we ensure a disabled person's rights not to be discriminated against in the field of employment? If two employers are faced with an identical job situation and, let us say, with a person with the same degree of impairment, one could make one decision and the other could make a different decision. Everything the Minister has said suggests that in a situation with two identical job descriptions and two identical candidates in, let us say for the sake of argument, an identical field, one employer could make one decision and another could make a different decision, because, as the noble and learned Lord, Lord Denning, said, there is a band of reasonableness within which one employer might reasonably take one view; another might reasonably take a different view.
The difference between those two employers is not about anything that is objective, it is about their state of mind. It is their perceptions; it is their attitude. It is no good saying it is their judgment or discretion; it is attitude. If whether a person has a case or not depends upon the employer having that attitude, then we have gone down the slope I feared, which is the slippery slope of subjective judgment.
When it suits the Minister, because we are worried about perception, as in the first amendment, or, had we spent a little more time on it, the amendment moved by the noble Lord, Lord Wise, the Government insist we are talking about objective disability. When it comes to discrimination, it suddenly becomes subjective discrimination, because it is all about judgment and the test of reasonableness.
The Government cannot have it both ways, otherwise disabled people will lose out on the test of disability and the test of discrimination. The Government will have set it up in that way. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 28:
Page 3, line 21, at end insert:
("( ) the employer has taken appropriate expert advice as a basis of his opinion; and").
The noble Baroness said: To some extent the amendment follows on the previous discussion. It purpose is to ensure that the employer's opinion about the extent of disability is not merely trivial or based on prejudice; perhaps rejecting a disabled person because his appearance is not deemed suitable for the employment in question. The effect of the amendment would be that an employer would have to seek expert advice on the suitability of the disabled person to carry out the essential duties of the employment.
Under the Further and Higher Education Act 1992 the funding councils for both further and higher education are required to have regard to the needs of students with learning difficulties and disabilities. In order accurately to assess those needs and to make appropriate provision, the funding councils are required to seek expert advice. The amendment would require potential employers to seek appropriate advice in order to arrive at an accurate and informed assessment as to whether a person's disability would be likely to prevent him or her from being able to carry out the duties associated with the prospective employment.
The organisations which specialise in assisting the disabled can provide numerous examples which appear to indicate that what is proposed in the amendment is necessary. Perhaps I may quote an example that I have been given by one of those organisations. Within the past year a partially sighted employee was dismissed from his employment with the National Car Parks organisation because he was unable to carry out his duties with the small screen provided with the computer in the office. Had the employer been obliged to seek expert advice, he would have discovered that the employee could have done the work quite well with a larger screen and, moreover, that the cost of providing the screen could have been borne under the access-to-work scheme.
If we are to take non-discrimination seriously we must ensure that such cases do not happen and that people who could quite well carry out jobs are not kept out of them through ignorance or prejudice. Earlier today we had a great deal of discussion about the organisations to be available to give advice and I hope that we shall not now revisit that discussion. However, it appears that, as regards students, expert advice is available for funding councils under the Further and Higher Education Act 1992 and therefore it ought to be available to give advice to employers to the kind of circumstances to which I have referred.
I hope, in particular in the light of our recent discussion, that this time around the Government will be prepared to lend a favourable ear to what we have been saying. I beg to move.
Lord Addington: I support the amendment for the simple reason that it removes many of my objections to the part of the Bill that we discussed in the previous amendment. Surely, informed opinion is to be preferred
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over uninformed opinion. If an employer is making a decision on the grounds that he knows what he is talking about, as opposed to what he perceives from an uninformed point of view, he is more likely to make a reasonable decision.
A provision such as this should be included in the Bill. We should ignore the idea of acting on prejudice. If we remove the possibility of uninformed prejudice, we shall remove many of the situations in which discrimination is taking place. I hope that the Government will take the proposal on board. If not, they will be creating more situations in which the courts and tribunals must sit. Requiring people to take on board knowledge will help on all sides.
Baroness Gardner of Parkes: I find this amendment rather worrying as it seems almost to indicate that we wish to discriminate positively in favour of disabled people. I do not think that disabled people would want that. This is meant to be a Bill to avoid discrimination, but it should not impose very considerable burdens, and I consider that to have to take advice from an "appropriate expert" would be extremely costly.
In our last debate it was said by the noble Baroness, Lady Hollis, that employers would have different views. I can tell the noble Baroness that experts too have different views, and half a dozen experts would have half a dozen different views. Therefore, that presents a problem.
I have sat on an industrial tribunal for 20 years. Every aspect of every case is considered extremely carefully. In 20 years, I believe that there has been only one case on which there was disagreement among the three members of the tribunal. Usually as the facts emerge, it becomes quite clear cut, one way or the other.
Baroness Lockwood: I am surprised that the noble Baroness, Lady Gardner, regards this as a positive discrimination aspect of the Bill. It merely seeks to provide advice to employers before they take certain decisions which might lead them to an industrial tribunal. In that event, the tribunal would have to decide and give advice.
When we discussed the matter earlier, one problem that was referred to was the fact that if there is no central body to assist individuals, there could be many individual cases going to different tribunals and the different tribunals may make different judgments.
If there were someone or a team of people who were centrally based who could give advice on what is regarded as "reasonable", then the number of cases to go before tribunals would be reduced. But assuming that cases go before tribunals and that, because of the vagueness of the clause, appeals are taken from the tribunals to an appeal court, then you would begin to have a legal code on the interpretation of the legislation.
In that case, it would be extremely helpful for advisers to be available to advise on what was the authoritative interpretation. Inevitably, in the early stages, mistakes will be made. But we want to minimise those, to have what would be a national code on the interpretation of the Act. The proposal made by the amendment would be a great help in that respect.
Lord Rix: Would it not be possible for the amendment to be amended so that it reads that:
"the employer has taken appropriate expert advice from the National Disability Council",
whatever that may end up as being? Surely that is the body to be put in place to give advice on all such cases.
Lord Monkswell: Perhaps we should consider the situation from the point of view of the employer. He has difficult decisions to make when dealing with disability and the employment of disabled people.
As the Bill is currently drafted, the interpretation is that it is down to the employer, in his reasonable opinion, to make a judgment. We must be concerned with a situation where the employer, not taking any advice from anybody, says, "I think this is reasonable". He engages in a course of action; he does not employ the disabled person because he thinks that it is reasonable not to do so; he is then taken to an industrial tribunal. That tribunal then says, "We do not think that what you did was reasonable". Therefore, the tribunal finds against him.
It seems to me that it would be useful for the employer to be able to offer in his defence that he had taken expert advice. That is the way that I would read what is proposed by the amendment. If an employer is faced with a claim of discrimination, it would be a good defence to be able to say that he had taken expert advice regarding the action that he took. I see it as a support for the employer rather than the other way round.
9.30 p.m.
Baroness Gardner of Parkes: I should like to take up the point just made by the noble Lord, Lord Monkswell. I quite agree with him. I think that it would be very desirable for the employer to take such advice. However, I believe that the proposed amendment is placing an obligation on the employer.
Baroness O'Cathain: I should like to support the remarks just made by my noble friend Lady Gardner of Parkes. It seems to me that if we put such a provision into the Bill we would have a situation where, again, we would be loading additional costs on the employer. After all, an employer who runs a business and is used to employing staff must take a reasonable view of employment in every operation, unless he is a real cowboy employer. If he does so, surely, based on his experience and expertise, and his judgment, he is credited with being able to make such a decision. If the matter goes to an industrial tribunal, I am quite convinced that a reasonable employer would obtain expert advice at that stage to ascertain whether or not he had made the wrong decision. However, to say to an employer that he must take expert advice at every stage in such situations would be to put much onus on him as regards extra costs because expert advice does not come cheap.
Lord Ashley of Stoke: I am less concerned with the poor employer, as the noble Baroness put it, than I am with the poor disabled person who may suffer such discrimination. I see that the noble Baroness wishes to respond. I give way.
Baroness O'Cathain: The last thing that I would like the noble Lord, Lord Ashley, to think is that I do not consider disabled people. I am involved in the proceedings solely because I believe that the Bill will enable disabled people to have an able-bodied existence in every way throughout life—for example, in employment, in access to goods and services, and so on.
I sincerely hope that what I said will not be taken to mean that I do not take such matters into account. That is my starting point. However, I am also aware that if employers are overloaded with costs at every turn, their competitiveness will be so eroded that they will not have the ability to employ anyone, let alone disabled people, because that business will not be a success.
Lord Ashley of Stoke: If I may say so, it is a very old story to say that the provision would overload employers with excessive costs and interfere with competition. Indeed, we have been through it many times in both this and the other place. But, in point of fact, that is not possible under the Bill because it specifically says that there must be no unreasonable burdens placed on the employer. Therefore, the noble Baroness can rest a while and not worry about the poor employers because the legislation will prevent any excessive burdens being imposed upon them.
It puzzled me to hear the noble Baroness, Lady Gardner of Parkes, arguing against expert advice for employers. To me, that is a very strange kind of thesis. I do not see how the proposal can be classified as discrimination because employers need expert advice; indeed, it is certainly something which would be wholly beneficial for them. All we are asking is that employers do take "appropriate expert advice". What is wrong with that?
Baroness Gardner of Parkes: I believe that it would be excellent for advice to be available to employers, as the noble Lord, Lord Monkswell, suggested. However, as I see it, the amendment would place an obligation upon the employer to get such advice. That is the difference.
Lord Ashley of Stoke: The amendment seeks to place an obligation on employers because some employers need such advice. I have in mind those who are prepared to discriminate and who will not take such advice. That is why we want to impose an obligation upon them. They are the kind of people who will say, "No one will tell me how to run my business. If I want to discriminate, I will do so". It is because there are such employers that we seek, as reasonable people, to put the reasonable obligation upon all of them to obtain such advice. That is all.
Lord Vinson: Will the noble Lord be kind enough to tell me how many people he has employed in his life and how many problems regarding the difficulty of trying to come to a fair judgment he personally has had experience of?
Lord Ashley of Stoke: I can tell the noble Lord that I was a shop steward for many years—
Lord Vinson: That is not the same!
Lord Ashley of Stoke: I will answer the question in a moment. I learnt that there are some employers one has to talk to with a strong voice. I do not apologise for not having been an employer but I can tell the noble Lord that

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I have had eight years of experience in industry working closely with workers of all kinds and negotiating closely with employers as a shop steward, so I think I know what am talking about.
Lord Vinson: Thank you very much for making that point and thank you for making it clear that you have not actually employed anybody nor gone through the difficulties that that involves. Thank you.
Lord Ashley of Stoke: I am glad to respond to the point because it does not in any way vitiate the points I am making simply because I am not an employer. I think that was one of the cheapest debating points I ever heard in either Chamber. It is of no relevance. I should like to ask the noble Lord—
Lord Lucas: May we return to the Bill please?
Baroness Seear: I would have thought that it was not at all unreasonable that the Government should pay for this expert advice. In the old days one used to get any advice from the factory inspectors. Sometimes it was good and sometimes it was not, but at least one got it for nothing. If the Government want to implement this measure, I see no reason why they should not lay on the available expert advice, if they can find it. I must say I am a bit bothered as to where all these experts are going to come from. To picture the small employer with about five employees—these are the people you will get trouble from—finding the right expert advice and paying for it seems to me to be living in cloud cuckoo land. We want something of this kind to be done, but I am bound to say that I do not think the measure in the form in which it appears here will work. But I do think that at least the Government might take responsibility for the cost of providing advice and should tell us where these experts are to be found. We are inclined in this Chamber to speak as if there were a whole lot of independent experts floating around.
Baroness Hollis of Heigham: There will be!
Baroness Seear: Yes, and three-quarters of them will not be worth the money one pays for them. That is one of the big difficulties. I think the objective behind this issue is right, but we need to think it through a great deal more carefully than it has been thought through up till now.
Baroness Farrington of Ribbleton: I speak as someone who has made many appointments and been an employer since 1977; and I speak as someone who has been taken before an industrial tribunal and cross-questioned on two cases of alleged discrimination. I was found guilty in one of them, although I was not present when either of the appointments was made. Those appointments involved staff who were already in our employment and they concerned promotion, which is a matter which has not been raised so far in our debate. I would say that the matter of what constitutes appropriate advice must be a matter of judgment.
Drawing on that experience, what concerns me is that there was a period of time when a bald assertion used to be made by people appointing head teachers, for example, that a woman head teacher was unable to exert the disciplinary control necessary for a school which contained boys, either a co-educational school or a boys' school. That assertion was made. However, it was
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possible to obtain expert advice that that assertion was nonsense. It was also asserted that it would be impossible for teachers with a fairly severe physical handicap to be able to teach children in a classroom. Expert advice demonstrates that it is possible, all other things being equal, for teachers with quite serious physical handicaps to be good and satisfactory teachers. I am not arguing for automatic appointment in those circumstances.
What worries me about the debate to which I have just listened is that most people who discriminate—in my experience which stretches over many years—do so through ignorance rather than through prejudice. The problem with discrimination through ignorance is, by its nature, that those who are ignorant do not know they are ignorant.
Therefore, the issue is to require people to check what is possible. There are many voluntary organisations which can offer evidence that it is possible for somebody who is blind to be a hotel receptionist, for example. People should also be required to check whether it is possible and reasonable to make minor adaptations to equipment.
It may be that the amendment will not be pushed to a vote tonight. However, I feel that those who believe that there is an army of people who are knowledgeable, well read and up to date in what is possible, or that there is a mass of people out there just waiting to be prejudiced are both wrong. The problem is that we have grown up in a society—and I have spent 55 years in such a society— where the "do they take sugar?" approach permeates our whole attitude. Therefore, we have to require employers who are minded to say that a particular person could not do a particular job because they cannot see, are not physically mobile, cannot hear, or for whatever reason, to check those bald prejudices at the beginning. It is in their interests, but not only in their interests. It is also in the interests of people who are trying to break out of the vicious trap that they have been pushed into.
Lord Carter: Before the Minister responds, perhaps I should say that I am qualified to satisfy noble Lords opposite. I am an employer and I have employed disabled people.
I am not sure whether the Committee is aware that there is a substantial growth area in disability awareness training. If Members of the Committee opposite are worried about the lack of experts who can advise employers about problems relating to disability, large numbers of people are available. They are disabled people.
Lord Rix: I am sorry to intervene again. I must also declare an interest. I have been an employer for 49 years.
I suggested earlier that the national disability council might well be the arm to which the amendment could be referred. Unfortunately, as it is presently constituted under Clause 23(4) of Part IV,
"The power conferred by subsection (3) does not include power to confer on the Council any functions with respect to the investigation of any complaint which may be the subject of proceedings under this Act".
I hope that that is something that we shall consider when the amendments of the noble Lord, Lord Swinfen, are moved on Thursday.

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If that point in relation to the national disability council could be considered closely that would satisfy Amendment No. 28 in regard to the appropriate expert advice. That advice could come from the national disability council itself.
9.45 p.m.
Lord Inglewood: We have had a worthwhile, sparky and useful debate on this subject. It seems to be held in some parts of the Chamber that there is a shortage of experts on this topic in the outside world. There is certainly no shortage of experts in this Chamber this evening.
The effect of the amendment would be that an employer would have compulsorily to seek expert advice every time he had to make a judgment about how to deal with a disabled person for a reason which related to the disability.
Perhaps I can begin by referring to a point raised by the noble Baroness, Lady Seear. In Clause 7 of the Bill, there is a threshold below which Part II of the Bill will not apply. As currently drafted, that threshold is 20 employees. Therefore, the types of case with which the noble Baroness was concerned would probably fall outside the scope of what we are discussing now, certainly in a legal if not in a practical sense.
We do not differ in believing that employers ought to seek help and assistance, if they need to do so, when making a decision about whether less favourable treatment is justified. The duty under the clause is unlikely to be fulfilled in many cases unless the employer is either knowledgeable or seeks advice from a knowledgeable source on disability. However, where we differ is about the need to make it compulsory to seek appropriate advice before he can make the decision.
There are many factors involved in coming to a final decision about, for example, taking on an employee. An employer may or may not need to seek advice about any particular factor during that process. However, a large employer with wide experience of employing disabled people might not need to seek advice because he may already have that knowledge or it may be available in-house. It is not clear though whether that would satisfy having taken "appropriate" expert advice. What does "appropriate" mean in this context? To go back to where I began, who is an "expert"? When all is said and done, one is at perfect liberty to take advice from whomsoever one wishes.
The noble Lord, Lord Rix, raised the question regarding the National Disability Council. I have not been able to check the provisions of the Bill. However, I believe that I am right in saying that the council will not investigate complaints. But it could offer advice and no doubt if it were asked it might have some views. Perhaps I may be forgiven for promoting my own profession. It is always possible to seek expert advice from a lawyer if one cannot obtain it from elsewhere.
With regard to the point made by the noble Baroness, Lady Seear, free advice is normally worth what one pays for it. One has to be a little careful about that.
Baroness Seear: The factory inspectors on the whole gave quite good advice for nothing.
Lord Inglewood: However, there will be much helpful advice available from the Employment Service and placement and counselling teams. No doubt many other bodies will be able and willing to provide effective advice. I refer to voluntary bodies and citizens advice bureaux about which we spoke earlier. It is not for the Government to restrict employers' ability to seek their own appropriate advice, nor indeed to fund all the advice that an employer may feel he needs or wants.
It is clear that there will be many cases, perhaps a majority, in which an employer could fulfil his duty without the need for any advice. In a case where the employer may need advice there are a number of options open to him. The Government believe that the decision as to whether or not advice is needed must remain with the employer, as must the decision as to where he obtains that advice, if he needs it. That seems to us sensible.
As noble Lords will see when we debate Clause 26 later, the code of practice will give guidance on the ways in which an employer can fulfil his duties and will be subject to wide consultations. I hope that that will reassure Members of the Committee. Contrary to what has been suggested, the Bill requires that an employer's opinion must be reasonably held. I do not wish to go back over the debate on the previous amendment. In cases where there is a genuine uncertainty about the effects of a particular disability, tribunals will ask what steps an employer took to examine that issue. As my noble friend Lady O'Cathain said, on occasions there will be an evidential need to show that advice has been taken to establish the position of the employer. On the other side of the coin—it was a point made by the noble Lord, Lord Ashley—the people who most need the advice will not take it. One can take as much advice as one wishes; but one will not act properly on it. That will not advance the case of the disabled person one jot. We believe that the approach outlined is the right way to deal with the problem, and not to impose an unnecessary and burdensome procedural requirement of this kind.
Perhaps I may touch briefly on two further points. The noble Baroness Lady Turner cited a case relating to someone working for National Car Parks. I do not know the details of the case, but it seems to me that on the basis of what she described the circumstances would be discriminatory and the provisions of Clause 3(2) (d) of the Bill would come into effect. There would be a duty in those circumstances for an employer actually to carry out reasonable adjustment.
I wish to touch briefly on the point made by the noble Baroness, Lady Lockwood, about a code. Guidance will be provided on these matters. But it inevitably will be the case that where a new legal order comes into being, it will take time for a code to develop. That is inevitable. Unfortunately, no doubt over time there will be decisions which go to industrial tribunals; and tribunals—and beyond them possibly the courts—will make judgments which will then build up the code. However, that will take place over time. One cannot instantly accomplish that bearing in mind the nature of the judicial process.

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I hope that Members of the Committee will feel reassured by what I said about the practical help and guidance which will be available to employers of disabled people. I do not believe that we should place unnecessary requirements on employers. It is on that basis that I invite the Committee to reject the amendment, if it is put to the vote, or the proposer to withdraw it.
Baroness Hollis of Heigham: Before my noble friend responds to the Minister and decides what to do, I should like to ask the Minister a question. I was surprised by something he said and I may have misunderstood it or there may be some aspect which I did not understand. In response to the noble Lord, Lord Rix, he suggested that there was a body, the National Disability Council, which could help. The noble Lord, Lord Rix, asked whether that body could give advice to individuals, employers and organisations and be the expert body. As I recall, the Minister said that it could do so but it would not have the power to investigate complaints. He gave the impression that the body could give advice to employers and organisations but not investigate complaints. Can the Minister tell me where in Clause 23 or Schedule 3 that power can be found?
Lord Inglewood: In my remarks to the noble Lord, Lord Rix, I said that I had not turned up the relevant provisions of the Bill before I made my comments. Institutionally, the body cannot give advice, but the point I wished to make to him was that if someone were casting around, with nowhere else to go, they might find they could be helped by contacting that body. It would not be able to give expert advice but might help as a longshot on where a person might find it.
Lord Rix: Before the Minister sits down, as far as I read Part IV of the Bill, it seems to lay down that the National Disability Council can only give advice to the Secretary of State. It seems to me to be onerous for a person seeking employment to have to go to the Secretary of State to get matters clarified.
Baroness Hollis of Heigham: That is the point I hope the Minister will address. I can see no powers under Part IV, Clause 23 or the relevant schedule that would allow any direct giving of advice by the National Disability Council to anyone other than the Secretary of State, except through the mechanism, say, of the code, at the request of the Secretary of State.
Lord Inglewood: The noble Baroness is quite right; she cannot see that provision in the Bill and I must have seen the wrong wording. The answer is that the NDC cannot advise on employment matters although it will be involved in issuing codes of practice to businesses on the provision of goods and services. I should not have tried to think on my feet.
Baroness Hollis of Heigham: Given that the Minister accepts that there is a need to give advice, and that in response to the suggestion of the noble Lord, Lord Rix, he accepted that the National Disability Council might be an appropriate body to give such advice, can we express the following hope? It is that when we revisit the subject in Committee when we reach the National
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Disability Council, the Minister will make it clear, as he has done, that he would welcome the council having that additional function.
Lord Inglewood: In my comments, I made it quite clear that the Department of Employment is in a position to give advice. That seems to cover the noble Baroness's point.
Earl Russell: I listened carefully to the Minister's reply. As a Liberal, I can understand the case that he made against compulsion, but there is still a problem. I have not heard an answer to the point made by the noble Baroness, Lady Farrington, that those who are ignorant do not know that they are ignorant. I wonder whether there is a case for reconsidering the wording of Clause 5(1). Perhaps the words which constitute a red rag to some of us on this side of the Committee are the words "in his opinion". I understand what the Minister said, that that is subject to a test of reasonableness. But an employer reading it in a hurry—one is always in a hurry when one has a lot to do—may see it as simply entitling him to think what he thinks. Would it not be better to have a phrase suggesting that the employer must have good cause for believing that one of the conditions in subsection (4) is satisfied? That would give a rather plainer signal to the employer that there is a burden of proof which he must shoulder.
Lord Inglewood: I have a feeling that we are going back to what we were debating three or four weeks ago in the context of the Jobseekers Bill. As I understand the way the Bill has been constructed, the change to which the noble Earl referred would not add anything to what is in the Bill. We are always willing to contemplate the detail of the drafting and we will put our minds to the detailed drafting of the clause. There is nothing that is incapable of improvement. However, I do not believe that the form of words which the noble Earl proposes as an amendment would in any way alter the substance.
Earl Russell: I admit that the change I proposed was cosmetic, but the effect of a cosmetic change may occasionally be interesting.
Lord Swinfen: Before my noble friend replies to that, the court can decide whether there is good cause much more easily than whether someone holds a correct opinion. Opinion is nebulous where good cause is not.
Baroness Farrington of Ribbleton: It is extremely important that we establish beyond any shadow of doubt that ignorance will not be a defence and that somebody saying they had never known anybody who had a serious or difficult disability managing to work in a particular job or particular set of circumstances could not be considered to have good cause. Therefore the onus is on the employers to take advice if they are about sweepingly to use prejudice to rule out of consideration all the suitable people who happen to have disabilities.
Lord Inglewood: I think I can most easily respond to that by simply saying that ignorance is not an excuse. The whole point here is that the person concerned has to act in a reasonable manner. I talked earlier about the band of reasonableness which the noble Baroness, Lady

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Hollis, has referred to, quoting, I think, the noble and learned Lord, Lord Denning. Ignorance is way beyond the band that "reasonableness" encompasses.
Referring to the point made by noble friend Lord Swinfen, I really do not think that applies. Our courts are very experienced and are used to dealing with matters such as these. They can come to these conclusions perfectly satisfactorily on the basis of the wording that is contained in Clause 5.
Baroness Turner of Camden: We have had an extremely interesting debate on what I thought was a very simple amendment. I want to make the point very strongly that in drafting this amendment, we had not in mind positive discrimination. We wanted to ensure that decisions, when they were made by employers, were made on the basis of experienced opinion rather than on the basis of prejudice. I think, as has become apparent during the debate, a number of noble Lords on all sides of the Committee believe that many employers are prone to prejudice in regard to the appointment of disabled people.
I myself for a long while was in charge of staff, though not specifically as an employer, and I always did my very best to abide by the quota system that we then had. Sometimes it was a bit difficult because not all disabled people were willing to register under the quota system; but I, along with many others in the employing situation, did my best to ensure that disabled people did have a fair chance to obtain employment. It is quite true that many employers exist who will give disabled people a chance of reasonable employment.
The problem about legislation is always that you have to legislate for the worst possible people. The reason for legislation is to maintain standards. If all employers were reasonable employers, decent employers and fair-minded employers, we would not need legislation of any kind—just a few injunctions from the Government. We need legislation because there are bad employers, ignorant employers and employers who will probably not abide by legislation unless it has some force behind it. Because of that we wanted to have something written into the Bill which would make it necessary for employers not to rely simply on prejudice or on what they thought to be the situation with regard to the possibilities of the disabled person being able to conform with the requirements of the job, but that they would have to take skilled and expert advice in order to do so. I believe, as my noble friend Lord Carter has said, that there will be plenty of such advice available.
I believe that it is necessary to have some measure of compulsion; otherwise I really cannot see the legislation working in the way the Government say they want it to work. As to the point raised about the National Disability Council, my noble friend Lady Hollis has dealt with that point adequately, although I would point out, as I understand it, that the council will have a relatively small budget: something like £250,000. So it is not going to have very much money available in order to provide the kind of expert advice and assistance that is envisaged in the original amendment.
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Obviously, I shall not press the amendment to a vote at this hour of the night, but I am not very happy about the way in which the Government have responded. I note that there will be a code of practice. I note what the Minister has to say about the case that I quoted, and that a clause in the Bill would have covered the situation in regard to that particular employee. Nevertheless, we ought to look again at the situation with a view to perhaps coming back with something redrafted on Report. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10 p.m.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 29:
Page 3, leave out lines 35 to 37 and insert:
("( ) the disabled person is unable to satisfy an important requirement or qualification relating to the employment; or
( ) the disabled person is less able to satisfy an important qualification or requirement relating to the employment than another person and that other person is given the employment;").
The noble Baroness said: In moving this amendment I should also like to speak to Amendments Nos. 30 to 33, 35 and 36. These amendments all cover much the same kind of ground and have much the same kind of objective. They are concerned with the whole issue of suitability.
The purpose of this amendment is to replace the somewhat open-ended defence as to whether a disabled applicant is suitable with the more job-related criterion as to whether the disabled person is the best person for the job in terms of the job's important qualifications or requirements.
A defence related to whether the employer reasonably believed that a disabled person was or was not suitable could risk allowing an employer to shift the blame for discrimination to the prejudice of customers or to other employees. To allow such a defence is likely to drive a coach and horses through the legislation, and perhaps even bring the law into disrepute. An employer who attempted to defend refusing to appoint a black man to a sales position because the customers would not like it, would clearly get short shrift, and very rightly so because such less favourable treatment would clearly not be lawful. But what about an employer who refuses to appoint a disabled person to a sales post because it might disturb the customers? The employer might well argue that this meant that the disabled worker was less suitable than a successful candidate who was not disabled.
The employer might unfortunately be able to demonstrate that his customers would prefer to be served by someone who was not disabled. What will happen if the employer defends his decision on the grounds that the disabled person made other employees feel uncomfortable? Surely this cuts across the grain of legislation intended to prevent discrimination.
The proposed wording attempts to preserve the merit principle and would not interfere with the right of employers to choose the best person for the job, based on qualifications and requirements laid down.
Similar considerations inform the other amendments which are grouped with this one. Again, we are concerned that there should be appointment on merit, but that people should not be debarred simply because they are disabled and some other kind of excuse be used, stating for example that for some other reason they would be unsuitable. All the amendments in this group cover much the same sort of situation.
The amendment that refers to essential duties, again, refers to duties that are essential to the job. The intention is not to allow a situation in which an employer could discriminate against a disabled employee for not being able to perform what could be regarded as a peripheral function of the job rather than the core requirement. I believe that all the amendments are self-explanatory. They cover the whole issue of whether or not it is reasonable to allow the employer to rely on suitability in the broad terms stated in the Bill, rather than on ensuring that individuals are assessed on their ability to do the job involved and on the merits of the individual in each particular case. I beg to move.
Lord Renton: I wonder if it has occurred to the noble Baroness that the amendments she proposes are contrary to the interests of disabled people. I deal first with Amendment No. 29 which puts the burden of proof on the disabled person to satisfy what is described as
"an important qualification or requirement relating to the employment".
As I read the clause, which is quite complicated, the burden is on the employer. It is not fair to shift the burden of proof to the disabled person as Amendment No. 29 does.
I refer to Amendments Nos. 30 to 32. Those amendments could not be made to the Bill if Amendment No. 29 were to be accepted. I am glad to see that the noble Baroness agrees with me. Those amendments are alternative to Amendment No. 29. I believe that those amendments give the employer better reasons than they give to the disabled person. Referring to Amendment No. 33, quite frankly it is unnecessary and adds nothing to the meaning or effect of the subsection to which it relates. Therefore, I would be astonished if the Government felt able to support any of these amendments.
Baroness Lockwood: The amendments may not be well drafted. I will not argue about that. But the principle behind the amendments is an important one. I should have thought that they would be acceptable to the Government. The Government said in their consultation document that appointments should be made on the basis of the merits of the person to do the job. The principles that my noble friend has elaborated are precisely those; in other words, the person who applies for the job, whether or not he is disabled, should have the necessary qualifications to do it. Maybe the wording of Amendment No. 29 is unfortunate in that it seems to place a responsibility on the applicant, but surely all applicants for a job have to set out their qualifications to do the job. It is on that basis that they would be appointed. Their disability would be taken into account only if it meant that they could not perform the functions of the particular job.
Lord Renton: If the noble Baroness will kindly look at paragraphs (a) and (b) of the subsection she will find that they do exactly what she hopes and believes they should do.
Lord Inglewood: I am grateful to the noble Baroness, Lady Turner, for introducing this large number of amendments in a generalised manner. They all relate to the same point. I hope that the Committee will agree that the appropriate way to respond is to try to deal with them on that basis. I am also grateful to my noble friend Lord Renton who has raised a number of points which I would otherwise have raised. I agree that he would be right to be astonished if the Government accepted these amendments. The Government are not inclined to do so.
The purpose of this group of amendments appears to be to restrict the conditions set out in Clause 5(4) on which less favourable treatment may be justified. It must be remembered that we start from the proposition that the Bill does not make it unlawful to treat a disabled person less favourably than someone else for reasons wholly unconnected with the disability. We all recognise that no matter who the individual—disabled or non-disabled—may be, there will be circumstances where it is entirely appropriate to treat him or her less favourably than others, for example where that individual cannot do a particular job. However, in the case of a disabled person one cannot get away from the fact that it may be the disability which, even after reasonable adjustment, makes him unable to do the job. It would be unreasonable to say that, no matter what the effects of a person's disability, the employer will not lawfully be allowed to take them into account and that if he does so, he will be treated as having discriminated against the disabled person.
Discrimination under the Bill arises only where a disabled person receives less favourable treatment for a reason related to the disability. Clause 5 is concerned with defining the limited circumstances in which employers can be justified in such treatment. I believe that it is important that the employer should be able to make the judgment as to whether an applicant is less or more "suitable" without unnecessary restrictions on the factors that he can take into account. That would be very likely to include whether the individual was unable to satisfy an important requirement or qualification or perform the essential duties of the job or was less able to do so than another applicant.
Simply relying on the concept of "important qualification or requirement" or "the ability to perform essential duties" removes much reasonable discretion from the employer. For example, it is not entirely clear what the noble Baroness has in mind in suggesting the words "important requirement". I presume that they are intended to cover factors such as specific experience. However, that is a vague term which is not defined. It risks causing uncertainty both for employers and disabled people as to what can or cannot be taken into account. There is also a risk that employers would be unable to select the best person for the job if, for example, the disabled person had the "important qualifications and requirements" in that narrow sense but was still less suitable, or even entirely unsuitable, for some other

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reasons—for example, by not having some less important qualification relating to a duty which nevertheless could not be readily transferred to another person.
The proposals in the Bill recognise that, where matters for which an employer is responsible place a disabled person at a substantial disadvantage because of the effects of the disability and it is reasonable for the employer to make an adjustment, he should do so. That is made clear on the face of the Bill in Clause 6(3) and might include, for example, allocating some of the disabled person's duties to another person if that is reasonable for the employer in all the circumstances.
I agree with the noble Baroness that the issue of the performance of unimportant or non-essential duties needs to be addressed. However, the provision to do so already exists in the Bill. An employer has a duty to make reasonable adjustment. If an employee cannot perform certain duties and they are unimportant or non-essential duties, it may well be reasonable not to require him (or her) to do them and they can be reassigned, or in some cases dropped altogether, in line with a reasonable adjustment provision.
However, there may be cases in which it would not be reasonable in all the circumstances for an employer to reallocate even relatively minor non-essential duties. Generally, somebody has to carry out those duties. They do not become irrelevant because an employer is going to employ a disabled person. In those situations it is important that we allow employers the scope to make the decisions which best meet their business needs. It is not an unfettered scope. An employer will need to bear in mind that he may be called upon to satisfy an industrial tribunal that his decision was reasonable in all the circumstances.
In today's competitive environment, we should not in any way restrict employers in recruiting the most suitable person for the job, after taking account of any reasonable adjustment. It is important for the employer and the individual that there is no compulsion on employers to employ unsuitable or less suitable disabled people. To suggest otherwise would be unreasonable. I am sure that disabled people genuinely do not want jobs that they cannot do. This Chamber does not want to force employers to employ people who cannot do their jobs or who cannot do their jobs as well as others, even when all reasonable steps have been taken to minimise the effect of any disability. Disabled people want a level playing field. That is what the Bill seeks to achieve.
We should not restrict employers in making decisions which only they can make in any particular situation. Employers must be free to choose the most suitable person for the job, while making any adjustments that are reasonable. There is sufficient scope in the Bill to allow disabled people to challenge employers if they believe that they have been unjustifiably discriminated against. I ask the Committee to reject the amendments on those simple grounds.
Baroness Turner of Camden: I spoke to this group of amendments in a generalised way because I felt that they covered much the same ground. As I indicated to the noble Lord, Lord Renton, they were in fact alternatives.
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With regard to the points that he made, at present the burden of proof is on the person who is seeking a job. If you are looking for a job, you go along and present yourself with your qualifications and experience. The amendment would mean that the disabled person would simply present himself or herself and say that they could not do the job and would not be bothered whether or not there would be some quite subjective view held by the employer as to suitability simply because of their disability.
We agree absolutely with the Minister that we want people to be appointed for work that they can do. There is no point at all in trying to force disabled people into jobs that they are simply unable to do. I say again to the noble Lord, Lord Renton, who thought that my amendment was not to the advantage of disabled people, that the reason why I tabled these amendments was because I was advised to do so by organisations which have a great deal of experience of looking after disabled people, like RADAR and the RNIB. I am sure that they know what they are talking about when they say that disabled people are concerned about provisions in the Bill which would give the impression that maybe the employer could make subjective and uninformed decisions about their ability to do the job for which they applied.
It is not my intention at this late hour to press the issue to a vote, but this is an important question. We may very well return to it at Report stage when we see what the Minister has to say. I hate the term—
10.15 p.m.
Lord Renton: I am grateful to the noble Baroness for giving way. We must remove the misunderstanding which is in her mind as regards the burden of proof. In the opening words of Clause 5 which we are now discussing, the noble Baroness will see,
"For the purposes of section 4, an employer is justified in treating a disabled person less favourably than he treats, or would treat, others".
That makes it quite clear. Subsection (2) makes it even clearer by using the words,
"Where a duty is imposed on an employer by or under section 6".
There is no doubt whatever that the burden of proof in these circumstances would have to be on the employer. The noble Baroness's amendment shifts that burden to the disabled person.
Baroness Turner of Camden: My understanding is that if an individual felt himself or herself to be disadvantaged and took the case to a tribunal, then the onus of proof would be on the person who brought the case. That would be the disabled person, would it not?
Baroness Gardner of Parkes: This is a very important point which must be clearly established. It makes a very big difference at an industrial tribunal as to which side bears the onus of proof and even in terms of how the case is presented; who has to open and who has to respond. It is very important that we know the answer.
Baroness Hollis of Heigham: This is a situation where it would be helpful to have the Minister's guidance on this matter.
Lord Renton: May I help? Most certainly, when a person takes a case to an industrial tribunal the burden at first is on the plaintiff—that is to say, the person who has made the complaint. But as soon as that person refers to Clause 5 the burden of proof shifts to the employer.
Lord Inglewood: I am very grateful for counsel's opinion!
Baroness Hollis of Heigham: But is that within the bounds of reasonableness?
Baroness Turner of Camden: I shall read Hansard with even greater interest than usual tomorrow morning. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 30 to 33 not moved.]
Baroness Masham of Ilton Baroness Masham of Ilton moved Amendment No. 34:
Page 3, line 39, leave out ("would") and insert ("(in the case of an applicant for employment) would at the time he took up employment").
The noble Baroness said: This is a probing amendment designed to clarify the drafting. Clause 5 deals with circumstances in which less favourable treatment of disabled people by an employer is justified. For such treatment to be justified, an employer has to be satisfied of certain conditions, one of which is that,
"the nature of the disabled person's disability significantly impedes, or would significantly impede, the performance of any of his duties".
There are two possible interpretations of that. The first is that an employer can take a reasonable view of the capacities of an existing employee, or of an applicant for employment, in order to make a decision relating to that person at that time. That is entirely acceptable and sensible.
The other interpretation is that an employer would be justified in taking a view about the future capacities of an employee, or applicant, in order to treat him less favourably, on the grounds that the person's disability might at some point render him incapable of undertaking the job or, indeed, a job to which he might be promoted. That is unacceptable. Indeed, it seems to make a nonsense of the Bill. The whole point is to keep disabled people in employment, doing jobs that they can do at the time. It would be wrong, especially in the case of those with progressive conditions, to allow discrimination on the basis of necessarily uncertain future prognostications. After all, at some point in the future we are all likely to be incapable of doing some jobs.
The amendment changes the drafting regarding the condition in question to read as follows:
"the nature of the disabled person's disability significantly impedes, or in the case of an applicant for employment would significantly impede the performance of any of his duties".
I hope that that is what is meant and that that version will make it clear. The amendment is supported by the Multiple Sclerosis Society and other organisations dealing with various disabilities. I beg to move.
Lord Hamilton of Dalzell: I have been listening to the debate for the whole of the afternoon, and it seems to me that there is one aspect of this matter which is missing. On the previous amendment we debated on whom the onus of proof should lie; whether it should be on the disabled
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person or the employer. When faced by a disabled person and deciding whether he can do the job, the employer is in a quandary. Although he might go to the council and obtain legal advice, what I believe the noble Baroness, Lady Turner, said was that he would start with an assessment.
I am chairman of the Queen Elizabeth Foundation which is a training college for disabled people. We always start with assessment. Having assessed what we believe the disabled person is capable of, we train that person in some expertise and he ends up with qualifications. At the end of the day those disabled people obtain jobs. Even in the recession, 50 per cent. of our people are obtaining jobs.
I note that the object of the Bill is to drum reluctant employers into employing disabled people, but there are many employers who would be willing to employ disabled people if it were not for the uncertainties that exist. The uncertainties which surround the employment of disabled people are caused partly by the stringent regulations which apply to the able-bodied.
It is possible to employ someone, as I did, who happens to go sick from a variety of diseases. For four years, that person went sick for six months. He would return for the statutory three months and then go sick for a further six months. One could not get the doctors to say that he was unfit for work, and one could not get rid of him because what he did was always within the law. The only way of getting rid of that passenger within a small business, which required everyone to be active, was to reorganise the business in order to abolish his job and make him redundant. Such things cause anxieties in the minds of employers.
I have always taken the view that the Bill will do little good because employers will negotiate their way around the regulations if they do not wish to employ disabled people. There is a positive element, which one should examine, which would have been much more productive. For years the Government have run an extremely good scheme called the sheltered employment scheme. It means that when people take on disabled employees they are not employed by the company but by a middle agent. Therefore, if the employees fail to live up to their fitness or whatever they can be passed back to the original employer with no problem.
That scheme has had a marvellous effect because it has enabled employers to take on disabled people who then often come off the register. I wish that the Government would put more money into this scheme because it gets people out of the stocks and into employment and they become taxpayers instead of a burden on the Exchequer. It is an extremely rewarding business. The argument goes around and around but one must understand the problems on the other side of the equation.
Lord Ashley of Stoke: I would not like the noble Baroness, Lady Gardner of Parkes, to believe that I am anti-employer. Some of my best friends are—dot, dot, dot! The essence of the attitude of some of us to the Bill is that most employers are good but some discriminate partially out of ignorance and others partially out of malevolence. It is a small minority but legislation is required to deal with them.

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The noble Lord, Lord Hamilton, misunderstands the purpose of the Bill and certainly misunderstands disabled people generally. He gave an example of an employee going sick as being typical. According to excellent research relating to absenteeism, disabled people have a better record than able-bodied people. His example was by no means typical and most employers recognise that.
We are concerned with the employers who will not play the game and who require legislation to keep them in order. That is the point of the Bill.
Lord Rix: Am I not right in stressing the fact that the Bill involves not only employment but the right of access for disabled people to goods, facilities and services, that it is unlawful to discriminate against disabled people and so forth? This part of the Bill is about employment, but the Bill itself is on a larger scale and that should be remembered when commenting on the various amendments.
Lord Hamilton of Dalzell: Perhaps I may respond to the noble Lord, Lord Ashley. I agree that disabled people have a better record as regards absenteeism, but I do not agree that employers do not have fears when it comes to employing someone with a disability.
Baroness Farrington of Ribbleton: Perhaps I may raise an issue which troubled me when we discussed the legislation preventing, inhibiting and dealing with discrimination on the grounds of sex or race, and it troubles me now. There is the danger that a patronising view will creep across all debates on the issue; that somehow it is about being good to the people who are in danger of being discriminated against.
Frankly, I believe that we should look at the issue in a totally different way. If the person who is best able to do the job is disabled, of a minority ethnic group or a woman, we as a country cannot afford the luxury of losing that skill and having someone less competent doing the job. The issue needs to be set out in that way. I continue to stress my opinion that in the context of that philosophy we are in danger of treating those with disabilities less fairly than those who are discriminated against because they happen to be female or black. This legislation should not be treated as doing good, although moral arguments are important. It should be dealt with on the basis that we cannot afford to waste the talents of so many people.
10.30 p.m.
Lord Inglewood: As the noble Lord, Lord Rix, said, we have had many interesting discussions on the Bill but they may not be relevant to this particular part of the Bill. I hope that the Committee will forgive me if I concentrate my comments on the amendment in question.
As the noble Baroness, Lady Masham, pointed out, the effect of this amendment would be that an employer would not be able to take into account the significant effect of the disability on a disabled person's performance of his duties if that effect would occur some time in the future.
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We all recognise that if we are serious about tackling discrimination against disabled people we must not stop merely at prohibiting less favourable treatment. We must also require employers to take reasonable steps to help disabled people overcome any limitations imposed by their physical or mental impairments. Having done that, however, we must still recognise that some disabled people will, nonetheless, be unable or less able to do a particular job. In those cases, regrettably, we must allow that less favourable treatment is entirely justifiable.
There will be circumstances in which an employer may quite reasonably treat a disabled person less favourably because of an expected deterioration in ability to carry out his duties. In the case of an applicant, I do not consider it right that an employer should always have to take on the disabled person—and have to go through all the administrative arrangements in taking on that disabled person—only to have a perfectly valid reason a short while later for discharging that disabled person or transferring him to another job.
Where the disabled person is an applicant for employment, it is certainly our intention that a significant expected deterioration in performance should be addressed as an issue of "suitability" under Clause 5(4). But that will not necessarily be the case for an existing employee. Let us not forget that the amendment is not restricted to applicants for jobs. It covers a wider ground. The grounds of justification in paragraph (c) could apply; for example, in the case of a decision on what kinds of work to give to a person whose disability is expected to worsen.
I have listened carefully to the points that the noble Baroness has made. I must make it clear that I am not persuaded by this amendment. I recognise the concerns about progressive conditions or disabilities which are likely to worsen, but the answer cannot be to ignore the reality of the situation. How, then, will an employer know how to treat someone lawfully who may not be able to do the job for very long; or someone who may need different adjustments over time; or someone whose productivity declines although the employer is prepared to keep him on? These are the sort of issues on which we expect to be able to give guidance in a code of practice. They are not easy issues and the answers will differ from case to case, so we will not be able to make the position clear for everyone in every circumstance. But we will be consulting employers' organisations and disability organisations and we will hope to go some way to meeting the concerns that underlie the amendment.
I hope that that will provide some encouragement to the noble Baroness and that bearing that in mind, she may feel able to withdraw the amendment.
Baroness Masham of Ilton: I thank the Minister for his reply which will be looked at carefully. We shall see what happens at the next stage of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 35 to 37 not moved.]
Clause 5 agreed to.
Clause 6 [Duty of employer to make adjustments]:
Baroness Masham of Ilton Baroness Masham of Ilton moved Amendment No. 38:
Page 4, line 31, at end insert:
("( ) providing dedicated parking facilities;
( ) providing assistance for him to move from his parked vehicle to his place of work.")
The noble Baroness said: This amendment is straightforward and uncomplicated. The amendment adds two very important aspects to enable severely disabled people to be able to work. Having a dedicated parking place, should it be necessary, and assistance for the disabled person to get from his vehicle to his place of work may be the only assistance that he needs.
Being the founder and president of the Spinal Injuries Association, I know that our members are people who have broken their necks and backs through accident or who have suffered injury to the spinal cord through illness and are paralysed and use wheelchairs. Many of our members are young and may cover a very wide span of professions; for example, teachers, university lecturers, doctors, computer operators, accountants, administrators and so on. Once in the building, such people could carry on with their work. It would be the best thing for them and by far the most economical for the country. We should remember that they are taxpayers.
Many employers are fearful of severe disability, but once they realise what a person can achieve, their attitudes change. To include the amendment in the list of examples is very important, otherwise the need will not be highlighted, which is vital to some disabled employees if they are to be able to take up employment. If a disabled person, using a wheelchair, cannot get into a building, that is an excuse for him to be rejected for employment. I beg to move.
Baroness Darcy (de Knayth): As we are talking about access and facilities, perhaps I may just say how much I appreciate the extra space in the Chamber today. Surely it is an excellent example of reasonable accommodation, at reasonable cost, when we are dealing with a Bill which is entirely to do with disability. Indeed—
Lord Carter: I apologise for interrupting, but would the noble Baroness also expect that such "reasonable" space will remain available for other Bills, or only those concerning disability?
Baroness Darcy (de Knayth): That would depend on the proportion of disabled Peers to non-disabled Peers. I also think that if, perhaps, there were a bunch of amendments regarding the disabled, one would have to do what is reasonable. I shall not commit myself further than that, as I did not have notice of the question. It certainly takes me back 25 years to the "mobile bench of four" when all four of us sat together for the proceedings on the Chronically Sick and Disabled Persons Act.
I support the amendment. As I believe my noble friend said, it is not mandatory; it would only put the options of such provisions in the minds of employers as regards doing something which may be needed. I believe that it is important to include such examples because, otherwise, having seen the other list of things,
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employers may say, "These people are asking for yet more provision", whereas, as my noble friend said, it may be the only help that such people need.
Lord Addington: I should like to support the amendment for the simple reason that it is probably the best and clearest amendment that has been tabled today. We know exactly why it has been put forward and exactly what it would achieve. A person who is confined to a wheelchair is, effectively, only disabled while he has to travel somewhere that is not designed for wheelchair use. The provision would remove the problem of disability. If only all the problems which arise under the Bill could be solved so easily!
Lord Ashley of Stoke: I support the amendment very strongly. Not only is it the clearest that we have seen, but we have also had the best speeches so far in tonight's debates. If the amendment is accepted, it would mean that severely disabled people would be able to use their talents and fulfil their potentialities. That is the great raison d'être of the amendment. I very warmly support it.
Baroness O'Cathain: I should point out that not every place of employment actually has parking facilities. I am just wondering whether the noble Baroness would like to take the matter away and have another look at it. For example, there could be opportunities for disabled people to work with computers in, say, a fashion boutique in the middle of Regent Street, or somewhere, where there would be no parking facilities.
Perhaps there is some way of dealing with the situation whereby there would be the ability to transfer someone from a car which has transported him to a place, without necessarily providing parking facilities. To narrow the provision down in the way suggested might actually cause something of a problem. I am just trying to help.
Lord Swinfen: My noble friend Lady O'Cathain is quite right but at the same time this is purely a list of examples and therefore it would not necessarily be able to be applied to every premises. However, I support the general idea. While I am on my feet and as the mobile Bench has been mentioned, I should just point out, if I may, that Members of the mobile Bench do not just speak on Bills dealing specifically with disability; they speak on many other subjects. There are many other Bills which look as though they have nothing to do with disability but which have a great effect on disabled people. If some alteration to the Chamber could be made for better accommodation of our mobile Members, that would be a good idea.
Lord Inglewood: Let me say right at the beginning that I have considerable sympathy with the intention behind this amendment, as indeed I think everyone who has spoken on this amendment in the Chamber this evening has. However, the amendment, as drafted, can be interpreted as being wide-ranging. For example, where an employer has existing car parking facilities for his employees it might well be reasonable, depending on the circumstances, that he should, under the duty in Clause 6, have to allocate a dedicated car parking place

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to a disabled employee who finds it very difficult or impossible to use public transport. However, I do not think—this is the point that my noble friend Lady O'Cathain raised—that an employer who does not have any car parking places should be required to consider having to provide a dedicated car parking place for a disabled employee.
Although I can see that there would be circumstances when it might be a reasonable adjustment to help a disabled person from a parked vehicle, I am much less clear about the scope of the second example. What sort of steps is it intended the employer may have to take in providing assistance for a disabled employee to move from his parked vehicle to his place of work? Does this mean that an employer has to make arrangements to meet a disabled employee who parks his car two miles away and then provide assistance for him? More fundamentally, I suspect that a person who needs this kind of assistance may have very serious mobility problems which could also require other forms of assistance, making this a minor aspect and therefore not a good example to single out.
I am not persuaded that this amendment should be accepted. Subsection (3) after all only sets out examples of illustrative steps. We must resist the temptation to add an ever-increasing list of examples. That would distort the Bill and could be seriously counter-productive if it seemed to imply the list was intended to be largely exhaustive. We believe these matters are better addressed in the code of practice and I can assure the noble Baronesses that we have taken note of their concerns.
Baroness Hollis of Heigham: Before the noble Baroness tells the Committee what she wishes to do with this amendment, I wish to make two points to the Minister. First, I think he has failed to give due weight to the argument that was made by both noble Baronesses that what they were doing by adding these two additional examples to a list was introducing into, if you like, the mental framework of the employer yet another way in which, at reasonable cost and at reasonable expense, he could overcome what would otherwise be insuperable barriers to employing disabled people. In so far as it adds a different dimension to what may or may not be a hurdle to their employment, that surely should be welcomed.
Secondly, when the Minister gave what I would call his destructive analysis of why this amendment might not be right and said that the parking might be two miles away and how unreasonable that could be, I have to say that every example here is subject to the same sort of criticism, if one wished to make it. That applies to the adaptation of premises, to modifying equipment, how expensive that equipment will be, or how many rooms, floors or buildings away it will be situated. We do not mention that; we do not need to. We are talking about a sensible response to the framework of the Bill. I would have thought that the substantive point being made—I think the Minister ought to take this on board—is that I suspect if the Government had thought of these two examples themselves they would have included them in the Bill in the first place. But because they have not
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been suggested by the Government Benches but rather by the Cross-Benches, and the Government did not think of them, they are resisting them at this point. I think at this stage the Government could say this is a helpful further illustration of a way in which an employer can overcome what would otherwise be an insuperable barrier for disabled people.
Baroness O'Cathain: I hate to prolong this debate, but I hope I can make an additional point. Frankly, looking at this Bill, the more examples one includes, the more people will think, "Oh my goodness!", and ask themselves whether it is worth being an employer. There is an element of that.
Baroness Masham of Ilton: I thank all Members of the Committee who have supported the amendment. I point out to the Minister that it sets out a list of suggestions, as the noble Baroness, Lady Hollis, said, putting the idea into the mind of the employer. These are reasons for turning someone away without even being given the opportunity to be interviewed. It is only a suggestion that an employer "may", not "shall", do this. I feel very strongly about this issue because I know so many excellent and skilled individuals who have broken their necks. All they need is a helping hand to get them in to their place of employment.
I have no intention of dividing the Committee tonight, but I shall certainly bring the matter back at the next stage. I hope that the Minister will think about the matter. Perhaps he will speak to one or two people who are in that position. I can bring them along and introduce them to him.
I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.45 p.m.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 39:
Page 4, line 31, at end insert:
("( ) Where an employer has made an adjustment listed in subsection (3) to enable a disabled person to take up or retain employment with him that adjustment shall be one of the terms and conditions of employment to which the employee is entitled by virtue of his contract of employment.").
The noble Baroness said: The purpose of the amendment is to try to ensure that reasonable adjustments made to enable disabled persons to undertake employment are protected by the acquired rights directive. This is a probing amendment put down in order to obtain from the Government a commitment that disabled workers, especially in the public sector, will not lose adjustments that enable them to retain employment should their employer be taken over or should the service provided be subjected to compulsory competitive tendering.
As the Committee will know, the EU acquired rights directive is given effect in UK law by the Transfer of Undertakings (Protection of Employment) Regulations 1981. The intention of the directive and the regulations is to ensure that any workers whose employer changes as the result of a transfer of the ownership of the business retain their acquired employment rights: their contracts of employment remain and they retain the right

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to claim unfair dismissal or redundancy compensation just as if they had been employed for the qualifying periods fixed by law. In addition, any dismissal that is directly related to the transfer is automatically regarded as unfair. However, importantly, the new employer is in exactly the same position as the old employer with regard to any changes in terms and conditions. There is therefore no guarantee that terms and conditions will remain unchanged. Similarly, an employer may implement dismissals for economic, technical or organisational reasons.
It thus seems to us that vulnerable people like disabled employees need extra security written into legislation. We believe that there is a degree of uncertainty as to whether, for example, adjustments made to enable a disabled person to retain employment would need to be continued by the new employer.
Moreover, should the new employer have fewer than 20 employees he or she will not be required to make any adjustment at all, as we have already heard. Therefore, if the new employer is significantly smaller than the original one the disabled person could be at a significant disadvantage.
The matter could be put beyond doubt by ensuring that this amendment or something like it is included in the Bill. I await the Government's response with interest. I beg to move.
Lord Swinfen: I intervene on this amendment to ask a question of my noble friend the Minister. If an employer removes the reasonable adjustments that have been put in place to enable a disabled employee to undertake his work, would that be construed as constructive dismissal?
Lord Inglewood: I hope my noble friend will forgive me. I did not hear the crucial part of my noble friend's question as to what it was that might be construed as constructive dismissal.
Lord Swinfen: My noble friend was consulting at the time. I intervene only to ask whether, where reasonable adjustments have been put in place by an employer to enable a disabled employee to undertake his work properly and the employer then removed those adjustments for one reason or another, thus making it difficult or impossible for the disabled employee to undertake his work satisfactorily, that could be construed as constructive dismissal.
Lord Inglewood: It is important that we are clear about the nature of the rights of a disabled employee. Those rights owe their origin to statute and depend upon a relationship between the employee and the employer. The fact that they are not contractual with any particular employer means that if the identity of that employer changed the statutory rights as defined in the Bill do not necessarily alter.
The effect of this amendment would be that any adjustment made by an employer for a disabled employee so that he could take up or retain his employment, and which was listed in Clause 6(3), would become a term of his employment contract. As I understand from what the noble Baroness said, the intention underlying the
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amendment appears to be to give a disabled employee a contractual right to the continuation of a measure once taken.
An employer is placed by Clause 6(1) under a duty to make an adjustment if a disabled person would otherwise be placed at a substantial disadvantage by certain arrangements made by the employer, or by a physical feature of premises, and that adjustment would be reasonable in all the circumstances of the case. If in such circumstances the employer does not make an adjustment, he will be regarded as having treated the disabled person less favourably for the purposes of Part II, subject to any justification, and the disabled person will have a right to make a complaint to an industrial tribunal. That right is not diminished once the employer has made the reasonable adjustment. If the employer took away the adjustment leaving the disabled person at a substantial disadvantage once again, that person would again have the right to complain to a tribunal.
I believe that that covers much of the point raised by my noble friend Lord Swinfen. I draw his attention to Clause 3(2((d) which states:
"It is unlawful for an employer to discriminate against a disabled person by dismissing him, or subjecting him to any other detriment".
The amendment would give a further right to a disabled person under the terms of his contract to any such adjustment which has actually been carried out.
There seems to be no reason for this. There is no such dual right in other anti-discrimination legislation, and it could work rather oddly. Imagine a case where any one of a number of reasonable adjustments would remove the relevant disadvantage as well. The disabled person would have no right to specify which one of those adjustments be made. But under the amendment, once the employer had made one of those adjustments the disabled person would have a contractual right to the continuation of that specific adjustment (if it were of a type listed in subsection (3)), even if the employer later wished to substitute it for a different but at least equally effective adjustment. The amendment would also appear to preserve an employee's right to an adjustment even if he ceases to need it, for example because he recovers from the disability.
I turn to the point raised by the noble Baroness, Lady Turner. If there is a transfer of business, the continuation of adjustment must depend on whether that adjustment is reasonable for the new employer; and if a business is transferred as a whole it seems unlikely that the issues of reasonableness could alter.
The noble Baroness also raised the issue of the number of employees falling to fewer than 20. The Government's intention is that small employers should not be covered by the Bill. They would not wish them to be brought in by this or any other route. However, we shall encourage them to follow the code of practice to which we have already referred.
It is not entirely clear why the noble Baroness has chosen to give this special treatment only to steps comprised in the examples set out in subsection (3). If those examples of steps were deemed to be terms of the employment contract once they were made, employers and disabled people may regard this as a signal that those examples have a different status from or a higher status

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than other adjustments that employers may make. We believe it would prove confusing all round and I cannot support the amendment.
Earl Russell: Before the noble Baroness decides what to do with the amendment, perhaps I may probe that reply a little further. It sounded extremely encouraging a lot of the way through, but one has to examine what is not there. There were two crucial sentences I wanted to ask the Minister about. One concerns where the employer changes. I take the point about the rights deriving from the statute, but the Minister's phrase was that the rights do not necessarily alter. That is a long way short of a commitment. Could the Minister change the word order and say that the rights necessarily do not alter? That would be a different and much more encouraging statement.
The other point deals with the employer who has, if I may so put it, gone on a diet. That is, he has changed from being a large employer to being a small employer within the meaning of the Bill. The Minister said that the Government would encourage that employer to go on maintaining the rights or adjustments that the disabled person enjoyed. Can the Minister say how the Government would encourage them?
Lord Inglewood: If we take the hypothetical case where the firm or employer in question goes on a diet, the employee's rights do not change because they are defined by statute as being attached to employers above a certain threshold. If the employer reduces his workforce below that threshold, the effects of the rights that the employee has may vary. As I explained, if the size of the employer drops from above 20 to below 20, then the provisions of Part II will not bite, to the extent that there will be nothing which an employer can bring to an industrial tribunal. If then hypothetically the size of the employer increased, he would be brought back within the scope of the terms of Part II. The employee's right is always subject to the proviso that the employer must be over the size threshold as specified in the Act. I hope that that answers both of the noble Earl's points.
Baroness Turner of Camden: Before the Minister sits down, perhaps I may raise a point with him arising from what he said. He stated that an employee's rights do not change. I am talking about an employer over the size of 20. Is the Minister saying that since the employee's rights do not change, the right that I seek to enshrine in legislation in the amendment is there anyway? For example, if an employer is taken over by another employer and certain adjustments are made for the employee, those adjustments are taken away by the new employer. The employee had a right to those adjustments but if they are taken away and he cannot continue to do the job as a result of the transfer, he can go to a tribunal with the probable prospect of winning his case. Is that what the Minister is saying?
Lord Inglewood: As I understand it, the answer to the noble Baroness's question is, yes. The only possible proviso that I might enter is that, depending on the nature of the employer, the form of adjustment that was reasonable in those circumstances might change. That is a point that I made in my earlier remarks. As concerns the basic proposition, the answer is clearly, yes.
Baroness Turner of Camden: I am grateful to have that remark on record. In the circumstances, I shall look carefully at Hansard tomorrow because it may well be that what the noble Lord said to us tonight to some extent satisfies the arguments that have been made; that is, except when we consider small employers, which is another question altogether to which we must address ourselves later in Committee. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
11 p.m.
Baroness O'Cathain Baroness O'Cathain moved Amendment No. 40:
Page 4, line 31, at end insert:
("( ) The Secretary of State shall make regulations setting out funding arrangements which will assist employers in whole or in part in taking any steps to comply with subsection (1)").
The noble Baroness said: This amendment deals with the issue of costs. I said at Second Reading that I would be pursuing this matter in Committee. In order to comply with the Bill there is likely to be a substantial cost on employers, and I should like to reiterate the point that we cannot really afford to lose our competitiveness. However, that point was dealt with at Second Reading.
Up to now, in the Access to Work programme the Department of Employment has allocated funds so that those who were disabled have in effect an amount of money with which to go to an employer and say, "If you put a ramp here, I have this grant from the Department of Employment." It is estimated that some 10,000 people have been helped in this way in the year 1994–95, at a cost of £14.6 million—an average of about £1500 per person.
The Government have obviously reconsidered this proposal to charge employers 50 per cent. of the cost of an individual's Access to Work grant. In doing this, they have created something encouragingly close to credit for individual employability, and currently this can definitely help a disabled person to get work. The Government are now reviewing Access to Work, and the purpose of this amendment is to seek an undertaking that in some form support for individual employability, to use a horrible word, will remain. It may be even more important when businesses inevitably have other costs to meet in respect of disability as a result of this Bill.
The Government's £14.6 million expenditure on Access to Work represents a small but symbolic commitment that the cost of this important piece of legislation will be absorbed in a balanced way, because there is a feeling that this amount is going to be reduced. I should like to have some reassurance from the Minister on this point. I beg to move.
Lord Carter: I have an amendment down, Amendment No. 44, which is grouped with this amendment and says much the same thing. I do not wish to repeat the arguments put by the noble Baroness, but I should like to raise a point on Access to Work. A member of my family receives the personal reader's allowance and for a long time now I have had the job of filling in the necessary forms.
The new scheme is immensely more bureaucratic than the one it replaces. Under the old scheme which was administered by the RNIB there was one form which had

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to be filled in every 13 weeks. You had to state the bank account once; of course a blind person needed a sighted person to fill in the form for him; and that was it. But now there is a form to be filled in every week, so instead of one form there are now 13. There may be forms for one month perhaps, but at the moment it is immensely bureaucratic and a cheque has to be produced with each form, which means 13 cheques instead of one. Of course I can understand that there may be people who would like this allowance more frequently than once a quarter, but I would just make the point that this is a good scheme. It is a good start, but I think that the new organisation, having taken over from the RNIB, seems to be much more bureaucratic, with many more forms to be filled in. This must be taking up a lot of time of the administrators.
Baroness Seear: I should like to support this amendment, to which my name is added. As I have said before and shall say again, I believe that if we want a decent society we must be prepared to pay for it and not to encourage other people to pay for it. If we want these regulations brought in and help given to disabled people to enable them to get employment, I do not really see that the costs should be laid on the employer. I think the costs should be borne by all of us, the taxpayers, which would relieve the burden on the employers so as to encourage them and make it easy for them to give employment to disabled people. I think the burden should be less heavy on the employer and `more heavy on the taxpayer, unpopular though that remark always is.
Lord Ashley of Stoke: I should like to support the views expressed by the noble Baroness who moved this amendment, and also to support my noble friend over his amendment. I fully agree that it is nonsense to force employers to pay 50 per cent. of the grant. Without any undue boasting on behalf of the all-party group, we saw David Hunt, then the Minister, and pressed him very strongly on this point. We said that he would damage the splendid Access to Work system if he persisted in imposing the 50 per cent. charge on employers. I believe the all-party group had some success in persuading David Hunt. In fact, he later acknowledged that he had been influenced by the representations of the group. We were delighted when he removed that charge from employers, as it was a damaging idea on the part of the Government at that time. David Hunt deserves credit for withdrawing the proposal.
I welcome the amendment. We have to face the fact that the employment aspect of the Bill simply could not be operated without the Access to Work programme. The employers know that. The work of the CBI, and of Susan Scott-Parker of the Employers Forum on Disability, has been very important in encouraging a positive public attitude.
'The Access to Work programme is one of the most important tools in winning co-operation between the state and employers and disabled people. The CBI and the employers' forum want this Bill to be a success. They also, quite reasonably, want assurances that there will be no changes in the funding for Access to Work this year, nor in subsequent years.
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Equally strong in their support for the Access to Work scheme are the disability organisations. Perhaps I may very briefly quote the British Deaf Association, which stated:
"Access to Work has been an extremely important scheme for deaf people, opening up employment opportunities by enabling them for the first time to get Government resourced communication support for interviews and in the workplace".
Previously, employers would not pay for interpreters at interviews. They saw the burden and the cost, and could not recognise the value. Without interpreters, deaf people simply could not get jobs. All the legislation in the world could not alone resolve the problem. The Access to Work provision needs to be continued and expanded. I am delighted to support the amendment.
Lord Swinfen: I, too, support the amendment moved by my noble friend Lady O'Cathain. I believe I heard her aright in that she said that the cost of suitable adaptions might be in the region of £1,500 for each disabled person. My understanding is that the average cost will probably not be more than £200.
The important point is that we should enable disabled people to be employed and at the same time not put an additional burden on employers, and not make the goods that we sell overseas more expensive and less competitive in the world market.
Baroness O'Cathain: For clarification, the figure of 1,500 was the average for last year (1994–95). The noble Lord says that it could be £200. It was £1,500. The total cost of Access to Work was £14.6 million, and about 10,000 people were helped.
Lord Monson: This is surely not only a worthwhile amendment, but a vital one. Clause 6(3) imposes very considerable financial burdens upon employers. Those financial burdens are what distinguish this anti-discrimination legislation from all previous examples of anti-discrimination legislation.
The noble Baroness made reference to modest grants for capital expenditure. But what about current expenditure? For example, subsections (3) (f) and (3) (d) require an employer to give disabled employees time off for rehabilitation, assessment and treatment, and also for training—presumably, on full pay. The Minister will correct me if I am wrong in that assumption. Why should the employer have to pay? Surely, as the noble Baroness, Lady Seear, said, the taxpayer should foot the bill for this particular form of current expenditure.
Earl Russell: I, too, should like to add my support to this amendment. This is part of a long-running argument that has been going on since the passing of the Statutory Sick Pay Act 1991 as to who should pay for social costs on business. I think that this is one issue that the CBI has got right. The normal cost of employing labour is properly that of the employer. It is the cost of doing the job. But where one sets business social rather than economic objectives we should put our money where our mouth is and help business to do what we ask it to do. That seems to me to be equitable, sensible and in our economic interests.
When one considers the question of benefit, no doubt industry will benefit from employing able disabled people whom it otherwise could not have employed. But the main

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beneficiary of more rights for the disabled will be the taxpayer. The taxpayer will no longer have to support people who will be working and themselves paying tax. Since the taxpayer will be getting the chief benefit it makes sense for the taxpayer to pay for it.
Lord Inglewood: I am grateful to the noble Baroness, Lady O'Cathain, for introducing the amendment and for the various comments that have been made. In particular, I should reflect on the comments made by the noble Lord, Lord Carter. I am grateful to him for drawing those points to my attention. When I first saw the amendments I expected that they were intended to probe our intentions for the Access to Work programme. Clearly, that was right. I am grateful for some of the good things that have been said about that programme. It is always gratifying to have good comments made about things that one has introduced. We feel that the programme has had a good first year, and it is gratifying to hear that view confirmed by others.
There has been a debate about costs and expenditure. My understanding is that the average cost of Access to Work grant is £1,700, which can be related to the £1,500 mentioned by the noble Baroness. It is worth recalling in this context that one is talking about seriously disabled people. The figure of £200 mentioned by my noble friend Lord Swinfen arises from the fact that the compliance cost assessment for the Bill has put the average cost of adjustments at that figure. In the context of cost, it is interesting to look at the United States. In 50 per cent. of cases there the cost of making the adjustment is 50 dollars or less, and only 1 per cent. of the total expenditure incurred amounts to more than 5,000 dollars. It is important to place the matter in context.
I hear what noble Lords say about who should foot the bill. However, what one is talking about is the establishment by statute of an obligation on society at large. In general, it is not the case that where individuals or firms have statutory obligations the taxpayer pays for all of them. Put in those terms, that would be a startling development. I was interested in the proposition of the noble Earl, Lord Russell. He said that the effect of this would be that more tax would be collected and therefore the taxpayer should be supported. The effect of more tax being collected from people who would not otherwise pay it is that the tax that others have to pay will go down. I suspect that it all comes out in the wash if that is the way to look at it, which personally I rather doubt.
I understand the probing intent behind the amendments and I should like to register some concerns about them. As drafted, the Bill provides for regulations to be made to cover the matters set out in Clause 6(7) to clarify what the duty to make an adjustment means for employers and when it does or does not arise. Subsection (8) provides that regulations on what is reasonable may in particular refer to the cost of making adjustments.
However, we have no immediate intention of using these powers to make such regulations. We believe that the concept of "reasonable" will ensure that employers are not faced with an undue cost burden in making adjustments, but wish nonetheless to have regulation-making powers available in case that should prove not to be the case. The amendments, however,
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would add to these powers a requirement to make regulations as to circumstances in which government funding could be obtained. This compulsion is at odds with our general approach to other powers in the clause. Amendment No. 44 seems, moreover, to imply a continuing commitment by government to fund certain costs relating to the employer's duty of reasonable adjustment. Amendment No. 40 goes further still and requires government to provide funding to assist employers with their duty. I cannot accept that.
However, let me address the concerns which underlie the amendment. We made it very clear that, after the first year of operation the Access to Work programme, including financial aspects, would be reviewed. That year has now elapsed and we are, therefore, as we undertook to do last year, embarking on a review of the programme. The review will clearly need to take due account of its proposals to require employers to make reasonable adjustment to working conditions or the workplace.
In addition, any funding available to the employer from Access to Work or from any other source would be taken into account in deciding whether something was reasonable. The Committee will appreciate, however, that I cannot commit the Government to open-ended funding of all, nor necessarily any, of the reasonable adjustments that employers will be required to undertake because of the new right. I cannot therefore accept the amendment. Nor do I think it right to pre-empt the review by speculating how adjustments whose costs are not reasonable in the terms of the Bill should be addressed.
I recognise that this may not be the answer for which my noble friend hoped. But I hope that she will accept the assurances that I have given and withdraw the amendment.
11.15 p.m.
Earl Russell: Before the noble Baroness replies, perhaps I could take up one point made by the Minister. He said that it was not normal to create statutory obligations and then for the taxpayer to pay for them. With respect, I am not quite sure that he is right about that. For example, there is a statutory obligation to call the police after an accident. The police are a charge on public funds. So there the state is paying for it. There may be a statutory obligation in time of war to enlist in the Armed Forces. They are a charge on the Crown. The Minister may wish to distinguish the cases. I do not believe that he will find it quite so easy to do as he may think.
Lord Inglewood: I hear what the noble Earl says, but I still believe that the distinction that I made, when taken overall, is a valid point.
Lord Carter: Before the noble Baroness decides what to do with the amendment, perhaps I may take up a couple of points that the Minister made when referring to Access to Work, which I thought were slightly ominous. He said that the review of the scheme had been completed, which we understand. We are not asking him to let us know the outcome of that review. But could he help us by saying if the review includes the question of whether or not the scheme should continue at all? Does the review look again

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at the possibility of employer contribution? Also, is there some suggestion, perhaps, that the scheme might be cash limited?
Lord Inglewood: I am grateful to the noble Lord for asking me a series of quite detailed points about the review. I am not yet in a position to give him an appropriate reply.
We shall also maintain the present arrangements for Access to Work, at least until the review has been completed and the final shape of the new legislation is clear. In practice, should any changes to Access to Work he necessary because of the Bill, we shall probably aim to introduce them to coincide with the coming into force of the new rights. We shall also, of course, continue to operate the full range of other existing services for disabled people.
As regards funding, there has been concern that the Government were in some way prejudging the result of the review, in that published plans show a reduction from last year's expenditure. Last year the Government found additional money to launch the programme. It does not make sense to change the original planning assumptions behind the programme in advance of the review's conclusion. The budget for this year is, therefore, less than last year's. It does not, however, mean that we are currently expecting to introduce an employer contribution during the year. We shall keep expenditure on the programme under a very close watch and, if necessary, consider what steps need to be taken. It is too early in the financial year for me to speculate on what might be necessary. As I said, the review will look at the funding implications to ensure that the budgets reflect the future shape of the programme.
I hope that the noble Lord will find that explanation helpful.
Lord Monson: The Minister did not answer my point about current expenditure as distinct from capital expenditure. Does he agree that, if employers were obliged to give disabled employees an average of two hours a week off on full pay for rehabilitation treatment, training and so on, at average salaries, this would cost the employers between £550 and £600 a year per disabled employee in perpetuity?
It is not a great incentive to employ such people, if the money comes entirely out of their own pocket. Does he agree that that is rather unfair and that something ought to be done about it?
Lord Inglewood: The whole afternoon we have debated this Bill, which introduces the concept that under certain circumstances—those circumstances being where the employer has more than 20 employees—it is appropriate for such an employer to introduce what we have described as "reasonable adjustments" in order to help disabled people.
As regards that, we believe that it is appropriate—as I understand it, it has been accepted on all sides—that if this is something which is in the public interest, those people affected by it will have to help to contribute to the cost.
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As regards many of the points raised by the noble Lord, Lord Monson, they will be offset against tax. That is a substantial reduction in the net effect on the persons concerned of these obligations to which they will be subject.
Baroness O'Cathain: My noble friend the Minister will not be surprised to hear that I am not exactly ecstatic about his response to my amendment. I thank everyone who has taken part in this debate. I wish to make a point about the issue raised by the noble Lord, Lord Monson, concerning training. I would not have gone so far as to look for Government subvention for the training of disabled people because that is a normal cost of business. Employers spend a great deal of money on training for the able bodied and the disabled. I believe that not to be a problem.
But I am worried about access to work. I was quite pleased to hear what my noble friend said as regards the reassurance for the continuation of access to work. However, he made the point that because this Bill has been introduced, the Government cannot accept open-ended funding. But my noble friend is asking business to accept that.
Going back to the point which I made at Second Reading, we have had a very tough time in business. To get into a situation now where there could be very serious cost implications arising from this Bill which would affect our competitiveness, that is not really the best way to go about it. I am very grateful to the noble Baroness, Lady Seear, who supported me on this by saying that, as we all accept, this Bill is a very good thing, and that the cost should be paid by everybody and not necessarily by employers.
I have listened to what my noble friend the Minister has said and I shall read it avidly. I cannot say that I shall not come back to this matter at Report stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ashley of Stoke Lord Ashley of Stoke moved Amendment No. 41:
Page 5, line 7, at end insert:
("( ) as to circumstances in which arrangements for telecommunications provision are to be taken to have the effect mentioned in that subsection;").
The noble Lord said: In moving this amendment, I shall speak also to the new clause in Amendment No. 140. This is an attempt to improve the provision for telecommunications and to amend the Telecommunications Act 1984. Deaf people currently have important problems relative to this Bill.
I want to deal first with the situation of many of them in the future because there is a potential disaster looming for them. There are 7.5 million deaf and hard of hearing people in Britain, which is far more than most people realise. The reason that we are not all conscious of the prevalence of deafness is the achievement of hearing aids. Although they can be imperfect and sometimes infuriating, nevertheless they have enabled very many hard of hearing people—not all—to lead normal lives, and in particular, to have jobs for which their capabilities suit them.
That normal life and those jobs incredibly are now threatened and that is a vital issue for this Bill. Telephone technology is shooting ahead and it will not be long before the mobile phone is the normal phone. What is worrying is that in the future the majority of mobile phones in Britain will be using digital technology. In addition, according to Iain Valiance of BT, the digital, cordless office is coming ever closer.
The implications of digital phones are horrendous for millions of hearing aid users who now manage very well, thanks to BT's efforts to help them to do so. The devastating fact is that cordless, digital telephones cause interference to hearing aids and deaf people using those hearing aids could be prevented from hearing any speech in offices buzzing with these phones. The implications are enormous for millions of deaf people. They can in fact be driven from offices in the future.
I know that manufacturers are trying to overcome the problem by designing telephones to use the smallest radio signal to minimise interference. There is some dispute about the seriousness of the issue, but it has the potential to disrupt the benefits of hearing aids, and that is unacceptable in offices. I should welcome an assurance from the Minister, if he can give it, that in regulations employers will be prevented from using digital cordless telephones which interfere with hearing aids.
A further major problem will arise when we have offices using only digital cordless telephones. That is coming very quickly. Not only do they cause interference, they cannot be used by hearing aid users. It is staggering what so-called modem technology and progress can do. What will happen to their jobs when they cannot use office telephones? They will be cut off from the outside world. Everyone knows that a telephone is crucial for a decent job.
The Bill, which will then be an Act, will be quoted by the deaf jobseeker in the future, and in response employers will say, as regrettably William Hague the Minister has already said to me, "It would clearly be unreasonable to hold up the introduction of a new generation of technology and deny its benefits to all customers by the provisions of this Bill".
I can see the Minister's problem, but in my view it would be equally unreasonable to allow millions of hearing aid users to be pushed out of employment. So this is a no-win situation. The Minister cannot have it all his own way for technical progress, but equally we cannot have it all our own way for stopping progress for deaf people. So there must be some kind of discussion, and give and take. A solution must be found.
Tightening the Telecommunications Act 1984 with these amendments could prevent some of those problems. The amendments specify that newly manufactured apparatus be compatible with hearing aids designed for telephone use. It is not easy to resolve the problem. Unfortunately, there is this fundamental incompatibility between the present hearing aids and new telephone technology. Both sides will have to compromise. Pressures from the strong anti-discrimination requirements of the Bill, and subsequent regulations, coupled with amendments to the
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Telecommunications Act 1984 are the only forces that will ease the problem and prevent major discrimination against hard-of-hearing people.
I am sorry to go on at length at this time of night, but these are fundamental issues which affect millions of people. The issue upon which I have focused will probably surface in the next decade, but we must tackle it now, in the early days, if we are to be successful. More immediately, there are other important telecommunications issues which can be resolved with reasonable attitudes.
Hearing aid users can use modern technology telephones so long as they have what is called an inductive coupling done. That is a small, cheap device which sends out electromagnetic signals that can be picked up by a hearing aid with a T switch. There are several telephones on the market with inductive couplers to be bought or rented at relatively modest prices. If deafness is more severe, extra amplification is needed. Amplifying phones are also available.
Two aspects of the issue are covered in the amendments. The first is that the employer should provide for a hearing aid user a telephone with a coupler, and amplifier, if necessary. The other issue is that we should recognise that couplers cost only 50 pence each.
We should follow the example of the United States, which requires every telephone on the market to have a coupler. That is a small price to pay; 50 pence is a minimal cost. Deaf people could then use all contemporary telephones and they would not have the effort and worry of searching for a usable telephone. That situation would be achieved by requiring telephones to be hearing-aid compatible as specified in the new clause.
I apologise for having spoken at a little length at this hour. However, I wish to make two further points. Those deaf people who have been most damaged by their inability to use the telephone—and I ought to know—are those who are totally deaf or profoundly deaf. At one time, they could use telephones only with the help of another person. Now, thanks to the Royal National Institute for the Deaf and, above all, to British Telecom, every deaf person is able through Type Talk and the Relay System to talk to anyone anywhere who has a telephone.
British Telecom has been magnificently generous with its time, commitment and money in making the Relay System work. I pay warm tribute to it. However, it is a regulatory requirement which runs out in 1997. It is essential that the requirement is continued and extended to include all those operating in the telecommunications market. The new clause provides for that.
Previously, deaf people have suffered greatly from their inability to use the telephone. This Bill, with these amendments, has the power to prevent future discrimination against deaf and hard-of-hearing people. I hope that they will benefit, as will millions of other

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people, from the amendments and the Bill. Again, I apologise for the length of my contribution and I beg to move.
11.30 p.m.
Lord Swinfen: I support the amendment. I do not need to say anything about it because the noble Lord, Lord Ashley, has moved it so well. I should declare an interest as a user of a National Health Service hearing aid.
Lord Inglewood: We are all grateful to the noble Lord, Lord Ashley, for tabling his amendments in this regard. He is a well-known authority on these problems. We are living in a world of increasing technological change, which provides difficulties which in this context must be overcome. I make the obvious point that the technological change can apply both to the telecommunications system and to hearing aids.
The effect of Amendment No. 41 is to enable regulations to be made prescribing the circumstances in which telecommunications arrangements made by or on behalf of an employer may give rise to a duty of reasonable adjustment. In other words, the regulations may stipulate when arrangements of this kind are to be taken to put the disabled employee at a substantial disadvantage as compared with people who are not disabled.
Clause 6(1) is intentionally drafted in general terms which we believe employers will understand. "Arrangements" is widely defined and will cover a wide range of working conditions, including what I might describe as the telecommunications environment in which the person works. I understand the noble Lord's concern that the duty on employers to make a reasonable adjustment should cover adjustments such as preventing new (digital) telephones from interfering with hearing aids and making adjustments to a telephone, or providing a telephone which is compatible for use with a hearing aid. Of course, they are subject to scientific and technological change.
I can assure the noble Lord that the duty of reasonable adjustment already covers such areas. Furthermore, the regulation-making power in subsection (7) (a) already includes the enabling power that this amendment seeks. On that basis, I hope that the noble Lord will reconsider arid withdraw his amendment.
I turn to Amendment No. 140. I must confess to a number of difficulties with the new clause. Subsection (2) would provide for new licences to run telecommunications systems to include a requirement to establish or contribute to a telecommunications relay service, to which the noble Lord referred, for the use of people with hearing or speech impairments. This power already exists under the broadly-drafted provisions of the Telecommunications Act 1984 at Section 7(5) (a). As Members of the Committee are probably aware, Oftel has recently consulted on this issue and will be considering carefully all of the responses. I am sure such well-respected groups such as the Telecommunications Action Group and many others will have responded.
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This measure seeks to impose by legislation what we believe can better be achieved by agreement. Oftel is considering arrangements for relay services. It would be much more sensible to await the results of the consultations and its discussions with operators.
Subsection (3) seeks to amend the Telecommunications Act 1984 to require that:
"newly manufactured apparatus be designed to provide for effective use with hearing aids that are designed to be compatible with telephones".
I cannot accept the burden that this would put on the manufacturing process.
I am sure that we all agree that there are some cases, and telephones are a good example, where a minor alteration at the design stage can save much time and money if, later on, the product has to be adapted or perhaps can negate the need for an adaptation at all. I do not believe, however, that measures in this area are really suited to an anti-discrimination Bill.
The new clause takes no account of the technical feasibility of ensuring that newly manufactured apparatus is compatible with hearing aids which may change in characteristic over time. At present, the only method of improving the performance of commonly-available hearing aids when used with telephones is, as the noble Lord explained, inductive coupling. This works well with traditional analogue fixed-wire phones and a number of models already prove it.
However, this method may not work with handsets using other technologies. Members of the Committee may be aware that there is, at present, such a problem with digital fixed-wire phones. This clause would effectively stop the sale of such handsets and the exploitation of the new technologies involved. Digital technology is flexible and might well give the customer an opportunity to adjust the incoming signal so as to maximise its audibility. When such developments may prove possible it would be foolhardy to inhibit research and development in that area.
The provisions of subsection (3) of the new clause would have a detrimental effect on UK manufacturers, on the growth of the competitive market and on consumers generally. There would be an immediate problem with European competition law in making manufacturers of any product conform to a higher standard which does not apply on the Continent. This could create barriers to trade, contrary to the internal market. I believe that would be unacceptable.
I can reassure the Committee that manufacturers and designers who supply their services directly to the public will be covered by the Government's Bill as service providers. However, it is right, I believe, not to extend legislation of this sort into the design and manufacturing process. It is not the business of government to regulate the design and manufacture decisions of British industry and this could only be achieved at a cost to its competitiveness. It is far better to trust to the market. As retailers and traders begin to get the message about how encouraging their disabled customers makes good business sense, so will the demand for goods which are compatible with the needs of disabled people increase.

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I have set out my objections to Amendments Nos. 41 and 140, but I hope that I have reassured the noble Lord in relation to those matters and that he will feel able to withdraw the amendment.
Lord Ashley of Stoke: First, I thank the Minister for his very full and comprehensive explanation, which I greatly appreciated. I appreciated in particular what he said on Amendment No. 41. I was disappointed by his reply in relation to Amendment No. 140 but I hope that we have begun a dialogue which can continue in the months ahead. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Inglewood Lord Inglewood moved Amendment No. 42:
Page 5, line 11, at end insert:
("(cc) as to steps which it is always reasonable for an employer to have to take;").
The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 44 and 45. We have been giving careful consideration to the regulation-making powers that are already available in Clause 6. The existing powers in Clause 6(7) (c) and (d) enable regulations to prescribe steps which are or are not reasonable for an employer to have to take in specific circumstances. However, they do not confer power to say that it is never (or always) reasonable to have to take a particular step.
Amendment No. 42 would allow regulations to prescribe a step which it is always reasonable for an employer to have to take. Amendment No. 43 would allow regulations to prescribe a step which it is never reasonable for an employer to have to take. Amendment No. 45 would enable regulations in either case to determine the issue of reasonableness by reference to the cost of taking the step concerned.
The Government have made clear from the outset that, while there is no upper financial limit to the duty on the employer to make a reasonable adjustment, should the need arise, Ministers would be prepared to consider setting a financial cap.
The additional effect of Amendment No. 45 is to enable the different approach of setting a general financial limit; for example, by providing that it is never reasonable to have to take a step which would cost more than a specified sum. Provision will also be possible under Amendments Nos. 42 and 45 for matters which will always be reasonable, including reference to the cost involved, although, here too, we have no current plans to make such regulations.
The amendments are necessary to ensure that the duty to make a reasonable adjustment can remain in general terms but that, should the need arise, burdens on employers—and this point was raised earlier during the debate—can be limited or certain adjustments can clearly be prescribed as always or never being reasonable. We have also emphasised on many occasions that no regulations will be made without prior consultation. I commend 'the amendments to the Committee. I beg to move.
On Question, amendment agreed to.
Lord Inglewood Lord Inglewood moved Amendment No. 43:
Page 5, line 13, at end insert:
("(dd) as to steps which it is never reasonable for an employer to have to take;").
On Question, amendment agreed to.
[Amendment No. 44 not moved.]
Lord Inglewood Lord Inglewood: moved Amendment No. 45:
Page 5, line 16, leave out ("or (d)") and insert (", (cc), (d) or (dd)").
On Question, amendment agreed to.
[Amendment No. 46 not moved.]
Lord Gladwin of Clee Lord Gladwin of Clee moved Amendment No. 47:
Page 5, line 20, at end insert:
("( ) Regulations made under section 33, 34 or 35 of the Police Act 1964 shall not discriminate against disabled persons, except in the circumstances described in section 5 of this Act.").
The noble Lord said: The amendment is designed to extend coverage of Part II of the Bill. At present, the Police Service is excluded from the legislation. On Third Reading in another place, the Parliamentary Under-Secretary of State for Employment, Mr. Paice, when referring to the White Paper, said:
"The statement in the White Paper is clear. It specifically said in paragraph 3.9 that the new right
'will cover the public and private sectors, although the Government is considering certain narrowly-defined exceptions for positions with unusually demanding all-round requirements for fitness and stamina'".—[Official Report, Commons, 28/3/95; col. 898.]
I hardly think that the whole of the Police Service is a "narrowly defined" exception.
There seems to have been no consultation whatsoever, so far as I can detect, with the Police Service about its exclusion. Was the Police Service actually sent the consultative document last year? I ask that question because I can find no response in the Red Book from any of the police authorities or the Police Federation. Indeed, I have talked to at least one chief constable and to the Association of Chief Police Officers and they knew nothing about the exclusion, but would probably not be opposed to the Police Service being included.
The Police Federation was, similarly, unaware of its exclusion but now strongly favours constables being included. Of course, the issue was not debated at all in the other place. The only reference to the civilian Police Service appears in col. 895 of Hansard on 28th March. On that occasion, the Minister was introducing amendments at the tail-end of the Third Reading debate to exclude the Armed Forces, fire fighters, prison officers and Ministry of Defence police from Part II of the Bill. The Minister said:
"Hon. Members … may wonder why there is no mention of ordinary police officers.
The answer is that they clearly fall outside the Bill's provisions in any case, and mentioning them would simply cause confusion. They are not covered by part II of the Bill because they do not have contracts of service and, as they are not crown servants"
although I am quoting from Commons Hansard, the grammar at this point seems to go wrong—
"nor are they caught by the special provisions of clause 35".—[Official Report, Commons, 28/3/95; col. 895.]
Of course police forces have fairly stringent medical tests for recruits to the service and no one is saying that a force will be required to recruit or to retain disabled people who, because of their impairments, do not have the physical or mental abilities required for the job. This

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amendment will ensure that disabled people whose impairments will not stop them from performing the tasks of a police constable, and who apply for or seek to retain employment with the police service, will not face discrimination on the grounds of their disabilities.
What about police officers who become disabled during their careers? I wish to quote from a message I received from the Police Federation today because it is concerned about this aspect of the situation. The message states:
"Our main concern is with officers who, either through accident or illness, contract disabilities during their service. They can be medically discharged against their will, on the grounds that they are unable to perform the full range of police duties …
At present, an officer subject to medical discharge may appeal, but only on the grounds that the decision of the medical officer is mistaken, or on procedural points. With a disabled officer, the question is not whether he suffers from the disability, but whether it is reasonable to end his police career because of it. Too often, that decision is taken because the police force has not been prepared to consider retaining a disabled officer, or will not make provision for his employment to continue, e.g. in the case of a disabled person who needs to be in a wheelchair. At the very least, there should be an opportunity for the decision of the chief officer to discharge a police officer to be tested against national standards".
Why should the police be totally excluded from this piece of anti-discrimination legislation, particularly when they are specifically included in the sex and race discrimination Acts? Excluding the Armed Forces is understandable but the blanket exclusion of the whole of the civilian police service, the Ministry of Defence police—and I am not sure what has happened to the British transport police—and all prison officers is a mistake. I hope that the Minister will say that his department is prepared to look again at these blanket exclusions. I beg to move.
11.45 p.m.
Baroness Hollis of Heigham: I wish to support the amendment so ably moved by my noble friend Lord Gladwin. I think we are suggesting here—although we may want to come back to this more broadly—that the police may be in the same situation, for example, as the prison service, although not the same situation as the Armed Forces and possibly not the same as the fire brigade, in that a large part of the service requires physical mobility and physical fitness as an essential part of the job. However, there are other aspects of the service where these are not relevant to the job. I have talked to a Member of this Chamber who has senior experience of policing and I was briefed about some of the jobs that a disabled police officer may well be able to undertake including reception work at the counter, lost property work, information technology work and the like, where a lack of physical mobility or lack—if I may put it this way—of fighting fitness is not relevant. They are not out on the streets.
This is a particular issue both for the police and for prison officers because they are both services in which—if I may put it this way—physical impairment as well as, very often, severe stress may follow from being in situations associated with riots, armed raids and the like. Both services are anxious that officers who incur an
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impairment as a result of, or during the course of their active service, should have the opportunity, where appropriate, to remain in the service in appropriate jobs.
As it now stands, there is a broad assumption that somehow every member of the police force and every prison officer has to be able to patrol the streets and put on their helmets and their shields. That is not the case.
The difficulty is that aspects of both services are increasingly being civilianised. Therefore, many of the traditional jobs that a disabled police officer might have been able to do within the police service are no longer available because they are being privatised and transferred to civilian life and away from the police service. It is therefore even more important that where jobs remain which can be filled by someone who remains in active service but for whom physical mobility and full physical fitness is not required, disabled officers should have access to those jobs and should not find themselves discriminated against in a blanket fashion as is now the case.
We do not argue the case for the Armed Forces. We accept that someone working in the medical services in the Armed Forces may, in the last resort, need to fight. That is not the case with police officers or the prison service. We believe that it would help the morale of those men and women enormously if they knew that if they were to suffer stress or injury in the course of their service nonetheless there remains a future for them in that service. I hope that the Minister can respond positively to the amendment moved by my noble friend.
Lord Mackay of Ardbrecknish: The Committee may be aware that members of the police force have always been excluded from the existing legislation which covers the employment of disabled people—namely, the Disabled Persons (Employment) Act 1944 and the quota scheme which is provided for in it. They are excluded because they are not employees as defined in that Bill: they are office holders. On the same basis, members of the police force are not covered by the employment provisions of this Bill.
It has been argued that the Bill provides employers with adequate assurances that they need only employ disabled people who are suitable for the job. Why then not cover the police? The public must be able to feel confident in those employed in jobs which impact on their security and safety and which have unusually demanding all-round requirements for fitness and stamina. We believe that there are exceptional circumstances which make it not in the public interest for refusal of employment or other treatment relating to disability to be subject to complaint to an industrial tribunal. Decisions on who to employ in such jobs must be left to those who have that responsibility.
Anyone who meets the entry criteria for the police service will be considered for appointment in the office of constable. However, the police are entitled to expect the highest standards of mental and physical fitness, and it would not be in the public interest that their judgment in these matters should be second-guessed by industrial tribunals.
The noble Lord, Lord Gladwin, mentioned counter duty. No doubt for much of the time counter duty is reasonably safe, ordinary and calm. However, there are

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occasions when that interface with the public can become extremely difficult. That does not happen only on television. It happens in reality. On Saturday night I imagine that the counters in certain police stations in some of our city centres are places where a certain amount of physical fitness and robustness may well be necessary.
For the reasons I mentioned, including that example, one must look at the police force as a whole. Police officers have an especially demanding job. The demands on them are considerable.
The noble Lord, Lord Gladwin, does not seek to bring the police within the employment provisions of the Bill. Instead, he seeks to ensure that the police regulations meet the requirements of Part II of the Bill. That would simply shift the problem sideways, by opening up the prospect of challenge to the regulations by judicial review. Those regulations set out clear and justifiable conditions for appointment to the police force, but it is to Parliament that the Home Secretary must be accountable in choosing what those requirements should be, in his judgment of what the public interest requires. The noble Lord's amendment could also have the effect of requiring a wide range of reasonable adjustments to be provided for in the regulations. The Government simply could not accept that it would be appropriate to impose an obligation of that kind on the police force.
I understand some of the points that the noble Lord made, especially about police officers who are injured in the course of their service. However, decisions about continuing to employ such officers and how they could be employed should be treated in the same way as the original decisions as to who to employ and who to take on as a police officer. Those decisions should be left to the senior police officers who have that responsibility placed on them. I do not believe that it would be in the public interest to bring the police force within the scope of the Bill, either directly or indirectly via the course to which the noble Lord, Lord Gladwin, refers in his amendment.
Lord Carter: That is an extremely interesting answer. Perhaps the Minister will help me on this point. Does he agree that in America the situation is no less violent or difficult to police than in this country? In America they have disabled policemen. I have seen them working in wheelchairs. Will the noble Lord explain what seems so impossible? The situation can be handled well in America.
Lord Mackay of Ardbrecknish: I am not sure about the American situation. I do not know whether or not they handle it well. However, in this country the situation is different. Certainly the police force in this country is markedly different from that in America. While it is interesting to look at what others do, I do not believe that we should necessarily follow them.
In our view it is not sensible to impose the same obligations on the police force as we impose on other employers, for the reasons that I mentioned: that the police force is a force of men and women who require high standards of mental and physical fitness. It is difficult to see how one could run a police force in which
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one has to make exceptions or alterations—whatever it may be—for certain people who do not match those criteria.
No one knows at what point in time a police officer who appears to have a job well away from what I may call the front line may be called upon to do a front line activity. That is the bottom line. I speak with a little experience. My late father was a police officer as were two of my uncles.
Lord Monkswell: I had intended to raise the case of Douglas Bader who was a legless air ace. However, I shall not do so.
One of the issues that we need to recognise is that legislation works best when it enshrines good practice. I believe that that would be generally accepted. One of the matters about which I am not sure from what the Minister said, is whether it is a requirement when a policeman becomes disabled that he be discharged; or are policemen and women who become disabled during their service career retained in employment as police officers in the discretion of their chief constables? We need to inquire about the practice in different police forces and whether employment of disabled people as police officers is currently in operation. How does the system work?
Lord Mackay of Ardbrecknish: There are two aspects to the issue. One relates to recruitment. I should have thought that my argument on recruitment is pretty well unanswerable. I believe that the public would rightly expect Parliament to retain that position.
With regard to those police officers who may become disabled during the course of their duty, or indeed because they find themselves with a disability arising from an illness of some kind, or through one of the various conditions about which we have spoken earlier, I believe that in general it should rightly be left to the chief constable to decide the nature of the disability, the rank and expertise of the officer and what can be done to help him to stay in the force if that seems the sensible way forward. To impose obligations along those lines on the force would be quite wrong.
However, I shall ask my colleagues in the Home Office—they know more about the police service than I do—what the position is in order to satisfy the curiosity that the noble Lord raised in me.
Midnight
Baroness Hollis of Heigham: I wish to pick up one phrase. The Minister said "impose obligations", but no one suggests that my noble friend's amendment should be taken out of the context of reasonable costs, suitability and all the other qualifications. It merely proposes that where, in a police constable's or police officer's view, the chief constable is not behaving reasonably in allowing that person to remain in the service, he should have the same rights as anyone else.
Lord Mackay of Ardbrecknish: I have tried to explain that the police force has a different role to play. All police officers can be called upon to undertake all kinds of responsibilities, especially at moments where the police are under pressure such as in riots. It ought to be left to the chief constable to make those decisions. There

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is also the small matter that police officers move from job to job in the course of their career advancement. That must play a part in the considerations.
I return to the point that the police force is in a special circumstance a little like the Armed Forces of the Crown. I believe that it would be wrong to bring them within the compass of the Bill, either directly or indirectly.
Lord Gladwin of Clee: I am grateful to the Minister and other Members of the Committee who have taken part in the debate. I apologise if the wording of the amendment is flawed, but I sought to persuade the Minister and the Government to do something which they patently did not do in the other place. That is, to explain why this enormous service is excluded. When it comes to firemen, the Bill distinguishes between firefighters and people who serve in the fire service. There is reference to their contracts of employment. I do not see why we cannot make the same distinction in the civilian police service, in the Ministry of Defence police service and British Transport Police. The Minister made no reference to my question about the position of the British Transport Police under this legislation.
To pick up the point about my noble friend's curiosity, I understand the Minister's use of the word, but it is not curiosity as regards serving police officers. The answer to my noble friend is that it depends which police service one is with and the nature of the disability. It depends on how one got the disability; if it arises from some fairly high profile accident like a shooting or a car chase, the chances are that the officer will be kept on and found employment. It will certainly not be in the front line, but he will be accommodated. But if you contract a disease and become disabled, as the Minister said—as with the problems talked about today—the chances are that you will lose your job.
I am grateful to the Minister for his reply, which I find deeply disappointing. Clearly, at this time of the morning we shall not divide the Committee; but there should have been consultation with the representatives of the police forces, police authorities, the chief police officer and the Police Federation. It seems that the service is totally excluded, not as regards recruitment but regarding the position of the police officer who is disabled in employment. I fail to understand why he should not have the same rights as are extended across the rest of the nation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness O'Cathain Baroness O'Cathain moved Amendment No. 48:
Page 5, line 20, at end insert:
("( ) Where an employer incurs any costs specifically in order to comply with this section then for all the purposes of the Income and Corporation Taxes Acts those costs shall be treated as revenue expenses of the taxable period in which they are incurred, deductible in computing his profits or gains of that period and liable to income tax or corporation tax as the case may be.").
The noble Baroness said: This is a probing amendment to determine whether contemporaneous tax relief will be available for the extra costs which employers will have to incur to adapt their premises to fulfil obligations in the Bill.
The fear is that for tax purposes the expenditure might not be treated as deductible revenue expenditure nor as expenditure qualifying for capital allowance. It might thus fall into the trap of unrelieved expenditure which I am told is commonly known by tax officials as "nothing". It is equally important that the tax relief should be contemporaneous and not spread over future years when it would be eroded by inflation. It would not be reasonable to expect employers to absorb costs which were then taxed in an unduly penalising way. I hope the Minister can give me some comfort over this, and I beg to move.
Lord Carter: Just on a point of drafting, presumably there must be some expenditure of a capital nature. The last but one line of the amendment talks about the profits or gains of that period—that is, capital gains. If you are talking about revenue expenditure, that means all expenditure, whether it be in the normal accounting sense either accounting or capital: everything is to be treated as revenue; but towards the end of the amendment it talks about profits or gains and of course gains refer to capital.
Baroness O'Cathain: I am very grateful to the noble Lord. The amendment needs to be looked at again in terms of drafting, because in my explanation I referred to both revenue expenditure and capital expenditure.
Lord Inglewood: I hope I can be helpful to my noble friend, although I fear I cannot agree to the incorporation of Amendment No. 48 into the Bill. Changes to tax law are not appropriate to this Bill. They are a matter for the Chancellor of the Exchequer. The relevant forum for consideration of such matters would be the Finance Bill.
However, the noble Baroness will be pleased to learn that I am informed that many of the reasonable adjustments likely to be made by employers under Clause 6 of the Bill will qualify for allowances or for deductions under the normal rules of taxation. For example, the day-to-day running costs of a business are written off for tax purposes when they are incurred. This is the point I was trying to make to the noble Lord, Lord Monson. These expenses would include salaries and wages, rent and rates, maintenance and similar costs. In so far as any expenditure under Clause 6 is a day-to-day cost of running the business, that expenditure could therefore be written off immediately for tax purposes. So, for example, a firm that employs a reader for a visually impaired employee could write off the cost of employing the reader for tax purposes.
I understand that capital expenditure on machinery and plant qualifies for capital allowances at the rate of 25 per cent. a year on a reducing balance, which allows 90 per cent. of the cost to be written off for tax within eight years. Such expenditure under Clause 6, including specially adapted lifts or toilets, specialist furniture or computer equipment, would qualify for machinery and plant capital allowances. Additionally, expenditure on the fabric of an industrial building or structure, or a qualifying hotel, which in effect most hotels are, would qualify for industrial buildings allowances of 4 per cent. a year for 25 years.

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In other words, it seems that employers would qualify for some form of allowance or deductions for much of the expenditure under Clause 6. Therefore, in the circumstances, I hope the noble Baroness will be able to feel reassured and will withdraw her amendment.
Baroness O'Cathain: I am very grateful to my noble friend the Minister. But I have just one problem, which is that normal capital expenditure in a business is used (shall we say?) over nine years. For example, new plant or new machinery would be utilised over that period, and the writing-down occurs over that period. But if you are going to have an adjustment to premises which is a one-off expenditure in order to employ a disabled person, that is not necessarily something that is going to be utilised over nine years. Certainly it is to be hoped the person is still going to be in employment over that nine years, or whatever; but it is a one-off cost which is not undertaken as part of the normal running of the business. My object was, if it were at all possible, to have that written off in the year in which it was incurred. If that could be done, it would be most helpful. Perhaps I may ask the Minister for his view on that, or perhaps he will look at it and come back in due course.
Lord Inglewood: Unfortunately, I am not the Chancellor of the Exchequer, so I am hardly in a position to give the noble Baroness the kind of reply she is looking for. However, I understand the point she is making and I shall certainly reflect on it.
Baroness O'Cathain: I am most grateful to my noble friend the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness O'Cathain Baroness O'Cathain moved Amendment No. 49:
Page 5, line 20, at end insert:
("( ) Before issuing any regulations under this section, the Secretary of State shall consult such persons as he considers appropriate, including appropriate organisations representative of employers and appropriate organisations representative of disabled persons.").
The noble Baroness said: This is coming back to the consultation issue. It is again an employment one, so I think the amendment is correct. The first one should actually have brought in access as well. This says:
".… the Secretary of State shall consult such persons as he considers appropriate, including appropriate organisations representative of employers and appropriate organisations representative of disabled persons."
I beg to move.
Lord Inglewood: I spoke earlier about our commitments to consult widely about material issued under this Bill, be it guidance or codes of practice. Proposals for regulations will be treated no differently; they, too, will be subject to full and open consultation. In the light of this and earlier reassurances, I hope that the Committee will accept that this amendment is unnecessary. I therefore ask my noble friend if she will consider withdrawing it, bearing in mind the assurances that I have given.
Baroness O'Cathain: I thank my noble friend the Minister. He is under no illusion; I should like to have this provision on the face of the Bill. I was not given that reassurance last time round. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6, as amended, agreed to.
Lord Carter Lord Carter moved Amendment No. 50:
After Clause 6, insert the following new clause:
("Deductions from employer's contributions
.—(1) Regulations may make provision for any employer, who employs a person who is a qualifying employee, to make deductions from the employer's contributions payments in accordance with the regulations and in prescribed circumstances.
(2) In this section "qualifying employee" means a disabled person under section 1 of this Act.
(3) In this section "prescribed circumstances" shall include the recruitment and retention of a qualifying employee.").
The noble Lord said: I am not sure that we can deal with this amendment as briskly as we did the last one. However, I shall attempt to be brief.
As Members of the Committee will realise, this amendment puts forward a proposal to extend the employers' national insurance contributions holiday in the Jobseekers Bill to employers recruiting or keeping a disabled employee.
As all who are in the Chamber know—since we all worked on the Bill—the Jobseekers Bill provides for a one-year national insurance contributions holiday for employers recruiting a long-term unemployed person. That Bill defines a qualifying employee as someone who has been signing on for jobseeker's allowance for at least two years. This amendment would enable anyone defined as a disabled person under the provisions of the Bill to be a qualifying employee for their employer to receive a contributions holiday.
During the passage of the Jobseekers Bill, amendments were tabled to extend the definition of a qualifying employee to include a disabled person. I believe that I myself moved those amendments. The proposal was rejected by the Minister on the grounds that the main target group was the long-term unemployed. However, on Report, the Minister stated that he would not rule out extending the definition further in some way if it became clear that there was value in doing so—(Hansard, 16/5/95; col. 542.)
We feel that the disability Bill is an ideal opportunity to raise the matter again, particularly in view of the arguments for limiting disabled people's employment rights because of the additional costs faced by employers—an argument that was advanced. If an NIC holiday is considered to be sufficient incentive for employers to recruit a long-term unemployed person, it is unlikely that it will be any less of an incentive for employers to recruit a disabled person.
To take the average earnings for all occupations, to an employer a year's NIC holiday could be worth £1,217 on female earnings, or £1,657 on male earnings. Those figures are based on the New Earnings Survey and not on contracted-out contributions.
For all those reasons, I hope that the Minister can feel that this amendment would provide a useful incentive to employers to recruit disabled employees. I beg to move.
Lord Mackay of Ardbrecknish: This new clause seeks powers similar to those that were sought during the passage of the Jobseekers Bill in respect of the national insurance holiday. It also appears to aim to provide a financial incentive to employers who take on any disabled person, even those who have not been away from the labour market.
As I said during the passage of the Jobseekers Bill, the national insurance holiday is aimed at helping back into work people who have been capable of work but have not been able to find it. This is where we consider that the need is greatest, and where we feel we must target the resources we have at our disposal, in particular at the group who have been unemployed for two years or more. That does not apply with the same force to disabled people who have not been unemployed for long periods. Of course, disabled people who have been registered unemployed for two years will qualify for the national insurance holiday.
As the noble Lord, Lord Carter, mentioned, during the course of the Jobseekers Bill I pointed out that the powers are widely drawn and that they would enable us to include other groups, including disabled people, if we believed that to be appropriate. As I said, we shall carefully monitor and evaluate the success of the scheme. We do not rule out extending it further in some way if it becomes clear that there is value in doing so. But for now, as I believe I said at the time, we need to introduce the scheme within the cost constraints that apply. That means focusing help essentially on the long-term unemployed.
That argument is the same as the one I have used about the Bill in general. We want to ensure that this is concentrated on the people whom we have set out to help: the disabled. The particular scheme in the Jobseekers Bill has been devised and budgeted for on the basis of helping one particular group of the unemployed, namely, the long-term unemployed. I can do no better than repeat what I said in the course of the Committee and Report stages of the Jobseekers Bill. We want to preserve that concentration. We will monitor the situation. If we want to bring in any other group, not just the disabled, I believe that we have the powers under the Jobseekers Bill to do it. With that explanation, I hope that the noble Lord will withdraw his amendment.
12.15 a.m.
Lord Carter: I think that the Minister's answer can be described as the very faintest glimmer of hope rather than the complete extinction of it. In the light of his answer, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No.51 not moved.]
Baroness Darcy (de Knayth)Baroness Darcy (de Knayth) moved Amendment No.52:
After Clause 6, insert the following new clause:
("Discrimination against disabled persons in partnerships
.—(1) It is unlawful for a firm to discriminate against a disabled person who is eligible to become a partner in that firm—

(a) in the arrangements it makes for the purpose of determining who should be offered the position of partner in the firm;

(b) in the terms on which a partnership in the firm is offered to that person; or

(c) by refusing to offer, or deliberately not offering, a partnership to that person.

(2) Subsection (1) shall apply in relation to persons proposing to form themselves into a partnership as it applies in relation to a firm.
(3) It is unlawful for a firm to discriminate against a disabled person who is a partner in that firm—

(a) by the way it affords him access to any benefits, facilities or services; or

(b) by expelling him from that partnership, or subjecting him to any other detriment.

(4) For the purposes of this section, a firm discriminates against a disabled person if—

(a) for a reason which relates to the disabled person's disability, it treats him less favourably than it treats, or would treat, others who do not have the disability in question; and

(b) the firm cannot show that the treatment in question is justified under subsection (5).

(5) For the purposes of this section—

(a) a firm is justified in treating a disabled person less favourably than it treats, or would treat, others who do not have the disability in question only if—

(i) it has reached a decision that one or more of the conditions mentioned in subsection (6) are satisfied; and

(ii) it is reasonable for that decision to have been reached.

(6) For the purposes of subsection (5) above the conditions are that—

(a) the disabled person is unsuitable for the position;

(b) the disabled person is less suitable for the position than another person and that other person is given the position, or

(c) the nature of the disabled person's disability significantly impedes, or would significantly impede, the performance of any of the duties of the position.

(7) Where—

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

(b) any physical feature of premises occupied by a firm,

place a disabled person who is a partner in that firm, or a disabled person who is eligible to become a partner in that firm and has applied to become a partner or could reasonably be expected to be considered for a position as a partner, at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the firm to take such steps as it is reasonable, in all the circumstances of the case, for it to have to take in order to prevent the arrangements or feature having that effect.
(8) Where a duty is imposed on a firm by or under subsection (7) above, treatment of a disabled person may be justified in accordance with subsection (5) above only if—

(a) the firm has complied with the duty, or

(b) where it has not complied with the duty it would be reasonable for it to have reached the decision that even if it had done so, the treatment would still have been justified.

(9) In the case of an act which constitutes discrimination by virtue of section 28, this section also applies to discrimination against a person who is not disabled.
(10) Nothing in this section is to be taken to require a firm to treat a disabled person more favourably than it treats, or would treat, others who do not have the disability in question.
(11) Subsections (7) and (8) above impose duties only for the purpose of determining whether a firm has discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such.
(12) Regulations under this section may—

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(a) make provision as to the meaning of "arrangements" for the purposes of this section;

(b) make provision as to other circumstances in which a firm is to be taken to be justified in treating a disabled person less favourably than it treats, or would treat, other persons who do not have the disability in question; and

(c) make provision as to—

(i) circumstances in which arrangements are, or a physical feature is, for the purposes of subsection (7) to be taken to have the effect mentioned in that subsection, and

(ii) circumstances in which the provisions of regulations made under section 6(7), (8) and (9) are to be taken as applying to a firm in relation to a position as a partner in that firm as, under those provisions, they apply to employers.").

The noble Baroness said: Partnerships in employment are not covered in the Bill as it stands, as I mentioned at Second Reading. A shorter amendment with the same aims was moved and withdrawn in another place in Standing Committee E on 28th February. This amendment is much longer. It has taken into account some of the worries expressed in the other place and brings it into line with provisions in the Bill relating to employment.
Both the Sex Discrimination Act and Race Relations Act include a right not to be discriminated against in relation to a partnership. The latter Act limits the right to firms of more than five people. However, the Law Society and BMA are currently appealing to the Government to remove the restriction for race. They say that if discrimination is wrong on the ground of sex they can see no reason for not saying that it is also wrong on ground of race. Racial discrimination is either right or wrong, and the size of partnership should be immaterial. Surely, the same is true of disability.
The main groups affected are members of professions which typically operate on a partnership basis: architects, accountants, solicitors, GPs and so forth. I was amazed to learn that some firms had more than 100 partners. In those cases to become a partner is a form of promotion. In instances of discrimination on the ground of disability the career development of the disabled person will be blocked. Surely, that is wrong. It should be remembered that normally somebody applies for a partnership once he or she has been working in a firm for some time and has proved himself or herself in the job. When there is a partnership opening, if the individual is capable of doing the job of a fee-earner in a professional practice there can be no additional criteria to prevent the person from taking the next logical career step. Many firms provide for the retirement of partners through cross life insurance cover. It may be difficult for some disabled people to obtain that, and perhaps it is an area where reasonable adjustments may need to be made. Apart from that, there appears to be no good reason for excluding partnerships from the Bill. I hope to receive an encouraging reply from the Minister. I beg to move.
Lord Carter: I believe it to be a fact that over the years a number of our leading lawyers have been blind. When the noble Baroness moved the amendment it occurred to me that there was one international firm of
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accountants which had 630 partners, some of whom were in this country and others in America. It would be odd if a disabled person was somehow barred in this country but could be employed by the same firm in America under the terms of the ADA. I would be interested to know the reason why the Government felt that they should be excluded.
Lord Mackay of Ardbrecknish: First, let me make clear that the Bill will cover partnerships in their capacity as employers, in the same way as any other employer who has more than 20 employees. Partnerships will also be covered by the access to goods and services provisions of the Bill. The noble Baroness's amendment asks for partnerships to be considered in a third category, that is, the partners themselves.
As the noble Baroness said, in many cases partners are recruited from among the employees of the partnership. In such a situation, becoming a partner is indeed a form of promotion. In that context a person will have already been covered by the disability provisions as an employee of the firm. Indeed, I suspect that, for partnerships, there is no job advertisement or application but that it is a case of a summons to go to see the senior managing partner and being invited to consider becoming a partner. But I have no great experience of these matters. I suspect, however, that that is how it is done. I hope that that kind of career progression—where, as the noble Baroness said, any disabled person has clearly been provided for and allowances have been made in whatever shape or form necessary as for an employee—would mean that at any next stage any misapprehensions or concerns among the partners about the individual's suitability would already have been resolved and the reasonable adjustments would have been made.
A partnership is a business relationship in which the partners invest often considerable resources and share the consequent profit or loss. Partners bind themselves together by an agreement. They are usually personally liable for all the debts of the partnership and an act by one partner will normally bind all the others. It is also a close relationship of trust and confidence and is quite different from the relationship between an employer and an employee.
The new clause proposed by the noble Baroness seeks to deal with the relationship between a partner or prospective partner on the one hand and "the firm" on the other. But as every partner is part of the firm, that division is not a true one. A number of issues stem from the new clause, which we need to consider very carefully. For example, there is the important issue of "reasonable adjustment". This amendment places a duty of reasonable adjustment on "the firm". I wonder whether that is the right approach. It would mean, for example, that a disabled partner has a duty placed on himself for his own benefit, because "the firm" is not a realistic description of a partnership. If one is a partner in a firm, one is not employed by the firm. That is where the pension point mentioned earlier comes in.
Since partners put their own resources into a firm, it is not clear how the question of the cost of adjustment should be dealt with, and in particular to what extent it

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would be reasonable for the disabled person to seek a contribution from the other partner or partners to meet the cost of the necessary adjustments.
We are not aware of unfair discrimination against disabled people being an issue in the context of partnerships. I am not yet convinced by the noble Baroness's arguments that the inclusion of partners in this part of the Bill is necessary. I should need to be convinced both that this is an area where there is unfair discrimination against disabled people and that legislating to prevent it is the best way forward. Clearly, even if I were convinced, I should have to consider very carefully how to proceed in the light of the points that I mentioned about partnerships being quite different from the employee/employer relationship, which is the meat, so to speak, of the rest of the Bill.
I appreciate that this is a serious issue. But I hope that, with that explanation, the noble Baroness will withdraw her amendment. I should be interested to hear, either at the next stage or during the course of the next few days, anything from her as to whether there is a problem and its nature, to see whether I can help her.
Lord Carter: There are two points that occurred to me as the Minister was speaking. It is now common in the large professional practices to have salaried partners. There are just a few equity partners and a lot of salaried partners. I do not expect the Minister to answer me now, but I think that the Government will have to reflect on whether they are employees or partners in the way that he defined.
Also, there is the case of the John Lewis Partnership, which was drawn to my attention by my noble friend Lady Hollis. Every member who works in that firm is a partner. Are they also excluded from the Bill?
Lord Mackay of Ardbrecknish: I should have to look rather more carefully at the John Lewis Partnership before I could answer that question. The noble Lord raised the issue of salaried partners. In some ways I can see why he did so, but it did, perhaps, add to the point that I made; namely, that this is a rather more difficult field than that of the simple employer and employee relationship. I cannot really answer the question about salaried partners off the top of my head; how they are regarded and whether they would come inside the scope of the Bill as it stands. I shall have to take advice about that and about the nature of the John Lewis Partnership. I believe that I know what I mean by partnerships and what the noble Baroness means by that. I shall reflect on those points, check up and perhaps write to the noble Lord about the particular instances that he has raised with me.
Lord Monkswell: Perhaps I may seek a little clarification from the Minister. He seemed to say that in the mechanism of going from an employee of a firm
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through promotion to partnership, the Act would apply because it would be discrimination in terms of promotion. I suspect that that is not what he intended to say, but that is the impression that I gained. In that case the promotion side would be covered, but all that would be left would be discrimination once a person had become a partner. I suspect that the Minister will clarify the situation.
Lord Mackay of Ardbrecknish: In view of the time of night I believe that I was reading pretty carefully from my notes on the subject, so I am sure that I did not say what the noble Lord appears to have heard me say. I believe I said, if I may paraphrase it, that in many cases a person becomes a partner, having previously been an employee. If the person is disabled in the context of this Bill, then accommodation will have been made, if necessary, to have him as an employee. Therefore, any misapprehensions or difficulties which might occur in other circumstances ought not to occur here. In other words, the other partners will be well aware of that person's ability to do the job, and given whatever changes have to be made in the office, if any, they will not be a problem. That is what I was getting at rather than the point that the noble Lord was making and as regards which he seems to have misheard me.
Baroness Darcy (de Knayth): I am not sure that I share the Minister's confidence that I know anything about partnerships, particularly after this debate. As regards the last point about a partner who was an employee previously and therefore the accommodation would have been made, that may be all right. It would be a very great help if something on partnerships was in the Bill. I thank the noble Lord, Lord Carter, for his support. He made some interesting points. I thank the Minister for his full reply and for his offer to exchange information before the next stage. I shall find out a little more about the whole position. We all probably need to find out more. I hope to discuss the matter with him before the next stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Ardbrecknish: I beg to move that the House do now resume.
Moved I accordingly, and, on Question, Motion agreed to.
House resumed.

Children (Scotland) Bill
Reported from the Committee of the Whole House in the Moses Room with amendments.
House adjourned at twenty-eight minutes past midnight.