Disability Discrimination Bill

HL Deb 13 June 1995 vol 564 cc1640-718

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 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 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— 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 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 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 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. 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". 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 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 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.

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 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, 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 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 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, 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 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, 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 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.

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 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 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 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.

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 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 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. 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 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 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.

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 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 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 moved Amendment No. 9:

Page 29, line 13, at end insert:

("Substantial adverse effects

. Regulations may make provision for the purposes of this Act—

1. (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;
2. (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 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 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 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 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.

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.

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 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.

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 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 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 moved Amendment No. 13:

After Schedule 1, insert the following new schedule:

1. SCHEDULE 1A
cc1685-718
1. PAST DISABILITIES 18,113 words