HL Deb 15 June 1995 vol 564 cc1895-954

3.30 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 again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Mackay of Ardbrecknish.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 7 [Exemption for small businesses]:

Baroness Hollis of Heigham moved Amendment No. 52A:

Page 5, line 21, at beginning insert ("Until 1st April 1997.").

The noble Baroness said: This part of the Bill deals with employment matters and, in particular, it excludes small firms with fewer than 20 employees from the provisions of the Bill. I understand that subsequent amendments are to be moved by the noble Lord, Lord Swinfen, which propose bringing small firms within the remit of the Bill on a phased timescale. Obviously, in the absence of anything else, we support that.

However, Amendment No. 52A would not allow small firms to be exempt after 1st April 1997. In other words, after 12 months small firms, alongside large firms, would come within the framework of the Bill. They would not be allowed to discriminate against disabled employees where the disability was not relevant to the job or where accommodation for the disability could be made at reasonable expense.

Small firms represent some 35 per cent. of the labour market, or 17 percent, if the self-employed are excluded. They represent something like 96 per cent. of all businesses. They are the fastest-growing sector of the economy. Between 1979 and 1986, 750,000 small businesses were formed in this country. In particular in the rural economy—for example, Devon, Norfolk and Wales—it is difficult to find any businesses which employ more than 20 people. Almost by definition, larger businesses tend to be in more urban areas. Therefore, to exclude small businesses with fewer than 20 employees means that for large swathes of the country, when disabled people seek work, they will be without the protection offered by this Bill. Is that reasonable? Why should they be excluded?

The figure of 20—firms employing fewer than 20 employees—was imported from the old quota system established in 1944 when the nature of the business structure in this country was very different. That was obviously because, on rounding down, firms with fewer than 20 employees would come to less than one full-time employee, and the 3 per cent, meant that 20 was a good and effective rough and ready figure.

But that has not applied in subsequent legislation. For example, in race legislation there is no minimum quota figure. Major health and safety legislation applies to all firms, irrespective of their size. The Sex Discrimination Act 1975 began by excluding firms with fewer than five employees and I understand that that exclusion has now been abolished.

Therefore, is it reasonable to exclude small firms with fewer than 20 employees? What arc the arguments in favour of it? The first argument which the Government advanced in the other place is that to adapt companies for disabled people's employment is expensive and therefore that would be an unacceptable burden on small businesses; and as small businesses are the seedcorn of the future it is unreasonable to burden them with additional and bureaucratic expenses which they can ill afford and which may therefore strangle their development.

On this side of the Committee we are as anxious as all Members of the Committee to see small businesses flourish. But the costs of adaptation to allow employment of disabled people have often been wildly exaggerated. In the United States, two-thirds of all companies made adaptations which cost less than 500 dollars. It has been estimated by employers that the average adaptation of a company to allow full physical access for disabled people is on average £200. That is the kind of burden that we are talking about. That is the average cost to make small companies physically accessible for disabled people.

What of the secondary costs which small businesses fear—not just the cost of physical adaptations but the personnel costs? I believe that the noble Baroness, Lady O'Cathain, mentioned those on an earlier debate; for example, the time off required for sickness, medical appointments or for coverage. That point was addressed by the noble Lord, Lord Carter, who said that, overall, disabled people have better and more reliable employment records than non-disabled people. A 1990 Devon careers study showed that 93 per cent. of employers found that disabled people performed as well as or better than able-bodied people. They had fought harder for the job and were determined to keep it. Moreover, 45 percent, of employers found the attitude to work of disabled people was as good as that of able-bodied people and 55 per cent. found that it was better. Therefore, only a tiny fraction found the attitude to work of disabled people less acceptable than that of able-bodied people.

As regards attendance—the point raised by the noble Baroness, Lady O'Cathain—70 per cent. of employers found the attendance of disabled people equally good and 26 per cent. found it to be better than that of average able-bodied people. In other words, only 4 per cent. found that there was a problem in relation to personnel issues.

Therefore, the financial costs to provide access are on average about £200, which in any event is covered by "reasonable cost", and the personnel costs of disability are not shown to create the problems which it is perhaps perceived that they do. On the contrary, the attendance, regularity and reliability of disabled people on the whole is better than able-bodied people and those arguments in relation to small businesses are therefore simply not valid. Consequently, the argument to exclude small businesses because we would be imposing an unreasonable cost on them if they were to fall within the framework of the Bill is not true. It does not exist in relation to physical adaptations of premises or in relation to personnel. If we stopped thinking of disabled people as a burden but instead thought of widening the opportunities for employers to invest in human capital, it is clear that disabled people are a very sound investment indeed.

The second argument relates to the views of small businesses. The Government's Red Book, which has a summary of responses at Table 26, shows that, of 250 organisations which commented, 200 did not wish to see small firms excluded from the provisions of the Bill. Within that, six voluntary organisations would go along with excluding small firms but 59 would not. Four local authorities would go along with the exemption but 43 would not. Of course, when one talks about local authorities one must think of contract compliance and cost centres. There are very small subsections within local authorities in relation to which the fewer-than-20 rule would apply. Of the employers who responded, one employer would wish to see small firms excluded and 10 would not. The rest were so concerned about the issue that they did not bother to respond to the question.

Therefore, only one employer favoured the exclusion of small companies while the rest favoured their inclusion or were indifferent. Therefore, evidence from the consultation exercise does not show that small businesses need to be excluded because they are asking for that. It will not be costly and small businesses are not calling for that exemption.

The Government may say that the responses are all from larger firms like the CBI and that "they would call for it, wouldn't they?" It is worth reminding ourselves that over 50 per cent. of the companies that the CBI represents, including the trade associations of small companies, have fewer than 20 employees. Therefore, when the CBI and the Employers Forum on Disability call for small firms to come within the Act they are speaking for their constituency which includes small businesses. We believe that it is not right that a disabled person's access to employment should depend on who employs him and where he lives, as will be the case if the Bill passes unamended.

Nonetheless, we still support the fall-back amendment of the noble Lord, Lord Swinfen. However, we have been swayed on one side by a consideration which was brought to our attention by the Employers Forum on Disability and by the CBI. All organisations are protected from having to make adaptations which are unreasonably costly. If small firms were excluded altogether at this stage, then what counts as unreasonably costly would be determined by the firms to which the Act would initially apply. Those arc the larger firms; that is, those with over 20 employees. When, five or 10 years on, as would be the case under the amendment of the noble Lord, Lord Swinfen, smaller firms were required to make similar adjustments, the concept of reasonableness would have been determined by the larger firms through litigation and through the courts of law and smaller companies would have lost their voice. We believe that that could be to their disadvantage.

It would be much better for smaller firms to be in with the larger firms from the beginning as regards determining what counts as reasonable cost, reasonable access to premises and reasonable personnel costs. I believe that all those factors should be considered together. Therefore, given that fact and given that, in all the circumstances, no firm is asked to do anything that is unreasonably expensive, we do not believe that small firms should be excluded from the Bill. We do not believe that they need the double protection both of reasonable cost and of size. However, we do believe that they may continue to exhibit discriminatory practices unless they are required to comply with the law. We also believe that small companies which want to employ disabled people may fear that they will be undercut competitively without such inclusion.

We believe that there is no justification, when one explores the matter in detail, for excluding small firms from the Bill. On average, the cost of physical adaptations is only £200. They can well afford that. The costs of personnel are not evident; on the contrary, all the evidence that we have shows that disabled people produce more effective, reliable and cost-free services. Finally, all the evidence suggests that small firms are not calling for such an exclusion. Given that fact, let us bring them into the frame from the beginning and ensure that disabled people have full access to employment irrespective of who they work for and where they live. I beg to move.

3.45 p.m.

Lord Campbell of Croy

I am in general agreement with the remarks so eloquently made by the noble Baroness. The amendment would have the effect of postponing the whole of Clause 7 for at least a year. Firms employing fewer than 20 people were excluded under the 1944 Act—and, indeed, have been for the past 50 years— from the quota system. Therefore, we are now considering changes to the quota system which many of us knew would have to be carried out.

As the noble Baroness said, small firms would have had to have been employing 0.04 of a person, or something like that, under the quota system. Clearly, that was not practical. However, small firms are an important sector of the employing community. We are now dealing with a legacy of the quota system. I shall not repeat what I said on Second Reading, but, with the new system being proposed in the Bill, I consider that small establishments should be included in due course, if not now.

Judging from the amendments with which we shall deal later, it is clear that there is a general feeling that some postponement may be necessary but that, in due course, smaller firms should be brought in. In certain circumstances, it may be more difficult for a small firm to make the changes and to expend the money required to employ a disabled person. But, with the principle of reasonableness and reasonable adjustments which runs through the whole of the Bill—and, incidentally, ran through the American equivalent—surely that consideration would be taken into account when a small-firm situation was being considered.

The quota system could not be enforced because only about I percent, of the working population in the country have been registered as disabled people. Therefore, not all of the large employers could possibly achieve the 3 per cent. quota. That is a mathematical fact. I believe that I am politically correct in saying that only a numeracy challenged person would not accept that fact.

We must now consider why disabled people did not register and hope that that will not continue to be the case under the new system. Indeed, we must do everything in the future to encourage disabled people to register. The noble Lord, Lord Ashley of Stoke, and I have disagreed in the past on the matter. In the debate on 22nd May, the noble Lord said that he was blaming Ministers and not the quota system for the fact that the quota could not be reached. He then said that that was the only political comment he would make during his speech.

However, the noble Lord was being unfair to himself. He was not making a party political point. Why? Well, the noble Lord himself had been making exactly the same criticism of Labour Ministers in the other place before 1979. For example, during Question Time in 1978 on July 4th (at col. 215 of Hansard) he made the same criticism. Indeed, the situation has been going on for years; namely, that fewer than 3 per cent.—that is, well under 3 per cent.—of the labour force have been registered as disabled. The Minister at the time, a Mr. Grant, as recalled in Hansard, replied again that it was impossible for firms to employ 3 per cent, and meet the quota because far fewer than 3 per cent. had been registered as disabled. Therefore, the noble Lord was not making a party political point because he had been attacking Ministers on both sides.

My object in reminding Members of the Committee about the latter is to point out that the situation has existed for many years under both kinds of government. The quota could not be enforced because too few disabled people allowed themselves to be registered. Many of them thought that registration would brand them as inadequate and that they would do better by not being disabled, or being branded as such, and remaining outside of the scheme. So the quota scheme pointed in the right direction and provided a target. The difficulty was that the target could not be reached and therefore could not be enforced.

On the question of registration, the National Association of Citizens Advice Bureaux, in a report dated March 1994, discussed at page 33 this most important point. The report stated that disabled people gave, several reasons for regarding the 1944 Act as not just inadequate, but potentially detrimental". The writers of the report were of the view that we must make changes to the system. They went on to point out that there was a "dilemma" for disabled people: Should they register in order to obtain the benefits that registration offers, or does the potential discrimination they may face outweigh any supposed advantages of registration'.' That sums up the problem that has existed for over 20 years. Despite this falling short of the original intention of 50 years ago, some will be sorry to see the quota scheme being replaced, for example MENCAP. The noble Lord, Lord Rix, is in his place and I am sure he will agree with me that MENCAP—that is the organisation dealing with those who have learning disabilities—has found it useful, although it also realises that the target and enforcement were not possible.

I remind the Committee that the 1944 Act was passed during the war mainly to cater for war-disabled people, large numbers of young men in their twenties, including me, who had their working lives ahead of them and who were disadvantaged by disabling injuries incurred in World War II. Their numbers have been dwindling and now almost all, if not all, arc past retirement age. The system introduced by the 1944 Act performed well—not only the quota scheme but other parts of the Act—over many years and in the tasks intended. The situation today is different and radical changes are needed. In making changes small businesses can be included, in my opinion, in future provided the principle of reasonableness prevails.

Lord Ashley of Stoke

I want to stun the noble Lord, Lord Campbell of Croy, by saying that I propose to agree with him on a number of points he has made, as distinct from the usual controversies and arguments between us. In the first place the noble Lord is quite right when he implies that my remark the other day was not, as I said, a party political comment because he is quite right that not only Conservative Ministers but also Labour Ministers have not been enforcing the quota. It is perfectly proper and right to say that. A number of us have been campaigning both against a Conservative Government and a Labour Government both of whom were failing to ensure that disabled people were served properly by enforcing the quota.

The noble Lord, Lord Campbell of Croy, spoke about people being numerically challenged. I would like to argue with him on that but I cannot do so because my wife says that I am numerically challenged. When I try to argue with her about bills or anything else she insists that I am numerically challenged. Therefore I had better not take issue with the noble Lord on that. However, my stand on the quota is that we need to retain it because this Bill is by no means an adequate substitute as it stands. We want to strengthen it. We need to register—the noble Lord, Lord Campbell, referred to that—the number of unemployed disabled people and the number seeking work. But, basically, on this issue of small firms having an undue burden imposed on them, I simply do not see how anyone on the government side can claim that they must exclude firms with under 20 workers because the burden would be an undue and unfair one. That is wholly illogical because under the basic, fundamental, unambiguous terms of the Bill it is impossible to damage small firms.

I am glad to see that the noble Lord, Lord Renton, is in his place because he is always able to quote chapter and verse on particular Bills and amendments. On page 5 of the Bill, Clause 6(7) states specifically that regulations may make provision, as to circumstances in which it is reasonable for an employer to have to take steps". There is also a provision as regards regulations on cost. Therefore the matter of unreasonable costs is quite out of the question. The terms of the Bill prohibit unreasonable costs. Therefore no Minister can legitimately argue that unreasonable costs will be imposed on small firms.

I am sure that in this Chamber and the other place the argument that we cannot afford a measure has been used since time immemorial. I am sure that such an argument was used at the time when people were trying to abolish the slave trade and the employment of young chimney sweeps. I am sure it was argued that we could not afford to do that. It is an argument that is inapplicable to this Bill especially in view of the Government's own assessment that the average cost of compliance would only be about £200. Even if there was this cost, I remind the Committee that this Bill is about unjustified discrimination. Many Members of the Committee will remember the words in the report of the Committee on Restrictions Against Disabled People (CORAD). The classic phrase was: We are not trying to get blind bus drivers or deaf piano tuners jobs". That is a marvellous phrase. It encapsulates all that we are not trying to do.

We are trying to outlaw only unjustified discrimination. In many cases it is simply prejudice that prevents disabled people from doing jobs of which they are just as capable as able-bodied people. I see no reason why small firms should be allowed to indulge their prejudices, especially when large firms cannot do so. In any case when changes are made by these firms under this Bill when it becomes an Act, government assistance will be available. We have already said that the Government's access to work scheme is of tremendous help to these firms. That will help small firms and in most cases there will be no cost to them. I know that some Members of the Committee opposite may argue that some small firms will be unable to compete if they are included in the terms of this Bill. All I can say is that the provisions would be imposed on all firms so that no particular firm would have a specific advantage.

Finally, if Ministers claim that small firms will be asked to observe a code of practice, I would add that this Bill is aimed at the unscrupulous small firms which arc trying to evade their responsibilities and who discriminate, either wilfully or inadvertently. They are the very firms which will not be impressed by a code of practice. The majority of firms which are good firms will accept a code of practice; the bad firms will not. That is why we need this requirement to include all firms regardless of their size.

Baroness O'Cathain

I am not convinced by the argument on costs. As I stated the night before last, the access to work scheme, which has been a great success and has helped 10,000 people, cost £14.6 million, which is an average of £1,460 per person employed. The figure of £200 has been batted about. If the figure were £200, I am sure that small firms would not have a problem on the cost side. However, it does not give me much comfort when we talk about reasonable costs for two reasons: the first is that "reasonable" is not defined—£1,500 could be a reasonable sum to one small firm whereas it could be absolutely crippling to another.

We are holding in our minds a picture of a company or a firm with 20 people. What about a group of perhaps seven or eight people who have got together to create a new business? If they were lumbered—I say "lumbered" advisedly—with a cost of £1,500, it could make the difference between either employing another person, or not going after a certain amount of business, or not succeeding. I would like some clarification from the noble Baroness, Lady Hollis of Heigham, about the figure of £200. How would she cope with the word "reasonable" because, as I say, what is reasonable to one firm may not be reasonable to another?

There is also, of course, a hidden point in that if one cannot decide what is constituted by "reasonable", it is— to use my phrase—a lawyer's charter. One will have to consult lawyers for them to decide what is reasonable and what is not reasonable.

I turn to the second point raised by the noble Baroness in relation to personnel issues. I have not seen the survey she mentioned. At Second Reading I spoke from my own personal experience. I reiterate that my experience of employing disabled people has been as I stated. It may be that I have been extremely unlucky. However, the organisation was big enough to be able to carry the costs. The disabled workers were good workers when they were present, but perhaps they were more disabled than the average disabled person questioned in the survey. I am still anxious about the matter. This is not a cheap point. I could give chapter and verse on individual cases, but this is obviously not the correct place to give names and addresses. I could instance specific cases of disablement, including a person who was HIV positive whose case involved an enormous amount of absence. I did not worry about that, and we had no difficulties about employing someone who was HIV positive.

However, if a small firm employing seven or eight people had to cope with an attendance record like that of the person I have in mind—which was 65 per cent, of the working year—while that was an appalling problem for the individual, it could be a crippling problem for the small firm employing him.

Therefore, on both of those points I should like further clarification from the noble Baroness.

4 p.m.

Lord Mackay of Ardbrecknish

This is an important clause. The noble Baroness explained its effect in the course of indicating what she seeks to achieve with her amendment. In this clause we seek to exempt small firms because we recognise that it is likely to be more difficult and burdensome for them to get to grips with the new right and have available the advice they need in particular cases. Generally they do not have the personnel or in-house specialists who would have the time and expertise to deal with issues such as considering the statutory duty to make reasonable adjustments at the different stages of recruitment, employment and development of a disabled person.

At the outset I should make it clear that cost is not the only burden on a small firm. There can also be the burden of attending to the legislation and bearing it in mind. Many people who run small firms work every bit as hard, if not harder, than the people they employ. They have to seek contracts, chase up money to pay the bills and check the ordering. In addition they have to deal with all the other aspects of running a small firm involving personnel. We ought to consider whether adding this additional provision will place an additional burden on those firms.

It is not simply a financial matter. It is a matter of the added burdens of knowing about the legislation and coming to grips with it and the concept of making the necessary adjustments and what might be reasonable in the circumstances. That is bound to be a much greater burden for a small firm without a personnel department than for a large or medium-sized firm where there is a personnel department.

I should not like an impression to go out from this Chamber that we are content to see small firms treat disabled people without fair consideration, and I hope that no one will say anything that might encourage such an impression. My honourable friend the Under-Secretary of State for Employment said in the other place that of course we do not want small firms to discriminate against disabled people any more than we want large firms to discriminate. Many small firms do employ disabled people. He assured the House, as he had before; that we would encourage them to follow the new code of practice. To that end we will consult them as well in drawing up the code.

It is true that the Bill as it stands covers the great majority of employees in this country. Something like 80 per cent. of employees will be covered by the Bill. So there will be many opportunities for disabled people to seek employment covered by the legislation. In addition, many small firms already happily employ disabled people and I have no doubt will continue to do so.

We are trying to strike a fair balance between what it is reasonable to require on behalf of disabled people and the need to avoid constraining the growth, prosperity and operation of new and existing small firms, which arc so essential not only to the creation of new job opportunities but to job opportunities which already exist in the economy.

The noble Baroness indicated that there was no evidence that small employers wished to be excluded. The Federation of Small Businesses supports the exclusion of small firms. I believe that the federation has a better understanding of the concerns of very small firms than the CBI or the Employers Forum on Disability which, although they may contain a few small firms, are dominated by the big corporate players in the United Kingdom. Therefore we should take account of what the Federation of Small Businesses says.

The amendment provides for the removal of the threshold after 1st April 1997. The noble Baroness indicated that that would give small businesses a year's grace after the enactment and coming into force of the Bill for larger firms, and allow them to get to know their way round the legislation before the clause was removed and businesses, regardless of size, fell within the legislation. However, as my noble friend Lord Inglewood said on Tuesday, we shall introduce the employment provisions towards the end of next year. Thus the amendment would give people only a few months. However, that is not the basis of my argument; I merely point that out to the Committee in case anyone is tempted to think that giving small businesses a year's grace sounds like great generosity on the part of the noble Baroness. In fact, it would be markedly less than a year. Even if it were a year, I believe that it would not be generous to small firms.

We believe that the Bill as drafted—with the amendment that I shall shortly propose to the clause— represents the proper way to move forward. We shall be obliged to review the position in five years time. At that stage, if the Government thought that the legislation was working well, problems had been resolved and the air was clearer, it might be possible to begin to reduce the threshold. That is the proper way to proceed.

I am sure that the noble Baroness is not surprised to hear me say that I cannot accept her amendment. I understand from all that went on in the other place and the debate that we had at Second Reading that this is a matter on which the noble Baroness and other Members of the Committee feel strongly. I feel equally strongly about the need to defend the position of small businesses and ensure that we do not place any more burdens on them, whether in terms of cost or administration, than we absolutely have to. I do not know whether there is any point in my inviting the noble Baroness to withdraw her amendment as I understand that she feels very strongly about the matter. If and when she puts it to the test of the Lobbies I trust that my noble friends will support me.

Lord Carter

Will the Minister be kind enough to comment on a false analogy drawn by his noble friend Lady O'Cathain when she referred to the average cost of £200 and the average cost of £1,500 of the access to work scheme? The figure of £200 per person is the government estimate in the cost compliance statement.

The best way I can explain the false analogy is by way of an example. Somebody I know extremely well, who is blind, under the access to work scheme has a computer which is specially adapted for blind people. That costs £9,000. In addition she has a reader's allowance of £3.50 an hour for 15 hours a week. No employer, large or small, would pay such costs in order to take on a disabled employee. That is why we have an access to work scheme. The Government feel, correctly, that that is the type of cost which should be borne so that that disabled person has a job which she would not have if there were no access to work scheme.

Therefore to compare the £200 per person which would be spread over the small and larger adaptions, with the expensive costs of specialised equipment regarding the access to work scheme is a false analogy.

Lord Ashley of Stoke

Before the Minister responds to those points, will he inform the House whether it is possible for anyone to impose unreasonable burdens on small employers under the terms of the Bill?

Lord Hamilton of Dalzell

The debate about costs for providing equipment to enable a disabled person to work does not describe the full costs to a small business of employing a disabled person. I am involved in the farming business. Nowadays we never specify what the worker will be employed to do because, in a small, struggling business—many such companies have gone out of business during the recent recession—it is essential that everyone should be prepared to turn their hands to anything. Therefore, even if a worker is equipped specifically to do one single job, it does not always suit small businesses to have someone so employed. The employee might have to turn his hand to some other task. If his movement, or whatever it might be, is restricted, he might not be able to comply. However, it would be interesting to have a statistic on how many disabled people are employed by small businesses. I believe that we should find that many are so employed.

4.15 p.m.

Baroness Hollis of Heigham

First, I thank noble Lords for taking part in the debate and welcome the speech of the noble Lord, Lord Campbell of Croy. He made an important point for us about the problems generated by the quota scheme involving an artificial constraint. It is much better to have a comprehensive and inclusive approach so far as is reasonable. I believe that those were his words. I entirely agree with him. I do not wish for one moment to dissociate myself from the Government's position of reasonableness. It would be foolish to close down companies by putting on them burdens which make them buckle under. That would clearly be unreasonable. Therefore the noble Lord's position and ours are very much shared.

The noble Baroness, Lady O'Cathain, referred to costs. I realise that she has much experience in this field regarding disabled people. Does she accept that my noble friend Lord Carter addressed her point? The extra and special costs tend to be funded by the access to work scheme. That is a government cost. The figure of £200 was the Government's own estimate of the average cost of modest adaptions to premises which would be required. I give way.

Baroness O'Cathain

If it were stated that the costs involved in employing a disabled person in a company of 20 or fewer employees would be only £200, that might be acceptable. However, the fact is that the cost is open ended. The noble Baroness has already stated that we do not wish to see firms buckle under. But there could well be a real problem.

Baroness Hollis of Heigham

That is a helpful and constructive response. We share the same objective, which suggests that the answer is empirical. We have evidence not only from Devon, but from Norfolk firms which I consulted on the matter through the county council's rights officer which confirms the Devon experience. There is a distinction between disability and sickness. Disability tends to be a constant and predictable state. Sickness may be a more fluctuating condition which generates additional personnel costs. However, for the large majority, a disability or an impairment is more likely to be relatively constant. Experience in Devon and in Norfolk suggests that not only the financial costs but the personnel costs of employing disabled people are entirely acceptable; and that, far from being a burden on companies, those people have proved to be a form of sound investment because they stay with the company. They do not seek other jobs; they do not move on as they receive additional training; and they feed that training back into the company so that everyone gains.

Associated with that factor was the question asked by the noble Lord, Lord Hamilton of Dalzell, as to how many companies employ whom. The best figures that I have are these. Of those companies which employ fewer than 10 employees, 15 per cent. employ a person with a disability. Of those which employ fewer than 50 employees, 30 per cent. have a disabled employee. In the other tranches, the majority of companies will employ disabled people. Therefore it is clear that, for the most part, disabled people do not find their way into small companies. For example, of companies which employ more than 200 people, 76 per cent. employ disabled people, compared with 15 per cent. of companies employing fewer than 10 people.

Lord Mackay of Ardbrecknish

Perhaps I may be helpful. As I said in my main speech, I should not like the message to go out that small firms do not employ disabled people. Nor would I like it to go out that somehow or other the legislation means that such companies can almost discriminate against them; quite the contrary.

Regarding small firms defined as employing fewer than 20 employees, I am advised that research suggests that somewhere between 25 per cent. and 30 per cent. of disabled employees work in small firms as I have defined them. That seems a considerable number of people, given the fact that 80 per cent. of employees work in firms above that size.

Baroness Hollis of Heigham

I am grateful to the Minister for that intervention. It makes our case for us. If 30 per cent. of firms with fewer than 20 employees can and do employ disabled people, it is clearly a question of coming to terms with modest physical adaptions and the education and information required. Then those firms may freely go on. If such firms can do so, why cannot the other 70 per cent? If smaller firms have almost the same record as medium-sized firms, why do we need to give them the double protection of exclusion as well as reasonable cost?

Lord Mackay of Ardbrecknish

I should learn never to seek to be helpful to the noble Baroness. However, there is a huge difference between a small firm deciding of its own free will in the current circumstances to try to do its best to employ a disabled person and the employer (the owner of a small firm) having to go to all the trouble of knowing, understanding and applying this Bill, which will become an Act. That is the main point of my argument: there is a difference between doing this voluntarily and under compulsion. It is a distinction which may not be too clear to the Opposition, but it is certainly a distinction of which I can assure her that people who run small businesses are only too well aware.

Baroness Hollis of Heigham

The Minister has drawn a distinction which indeed marks a division between us. We do not believe that the right of a disabled person to employment should depend on whether the employer voluntarily wishes to conform to the Bill. That is the question. We do not believe that the decision by an employer to conform to the Bill should be a voluntary activity. The Minister has made my point.

We believe that firms should be required to conform to the law. We have sought to argue that the cost is modest. We want government to be especially helpful to small companies as well as large. We may address that point in subsequent amendments. We therefore believe that the advice and support services which government seek to provide for small companies will be extremely important.

At the end of the day there remains the question which the noble Lord, Lord Ashley, asked. Given that small companies will not be asked to employ anyone with a disability where the disability is relevant to the work and hinders the job to be done—in other words, the disability is irrelevant to the work; the point was again raised by the noble Lord, Lord Hamilton of Dalzell—and given that no company is asked to make such adaptions as would impose unreasonable costs on that company, for the life of me I still do not see why we should exclude small firms at the cost of disabled people's rights. However, it may surprise the Minister that I would prefer to come back to this at Report stage. With the leave of the Committee, I wish to withdraw the amendment.

The Deputy Chairman of Committees (Lord Murton of Lindisfarne)

Is it your Lordships' pleasure that the amendment be withdrawn?

Lord Ashley of Stoke

I wish to put just one question to the noble Lord, because I believe that the House is entitled to an answer. Is it a fact that it will be illegal for anyone to impose an unreasonable burden—

Lord Lucas

I am sorry, but we have passed the point where that can be raised.

A noble Lord

It can be raised on the next amendment.

The Deputy Chairman of Committees

Is it your Lordships' pleasure that the amendment be withdrawn?

Amendment, by leave, withdrawn.

Lord Swinfen moved Amendment No. 53:

Page 5, line 23, leave out ("may") and insert ("shall").

The noble Lord said: I beg to move Amendment No. 53 and at the same time speak to my other amendments, Amendments Nos. 54 and 56. I hope that the noble Lord, Lord Ashley of Stoke, will use this group of amendments to put the question which he was unable to ask a moment ago.

The purpose of the group of amendments is to reduce the size of firm exempted from the employment provisions of the Bill from 20 employees to 10 after five years, to five people after 10 years and to remove the exemption completely after 15 years.

One in six workers is employed in small businesses. The figure is far higher in rural areas; it would be far higher in Wales, Scotland and Northern Ireland. In Northern Ireland, for example, 84 per cent. of firms have fewer than 10 employees, so it is probable that 90 percent. employ fewer than 20 people. That would mean that only 10 per cent. of the firms in Northern Ireland would be subject to the legislation. It is not really on only to legislate for 10 per cent. of people doing basically the same thing and who are involved in business.

Exemption is not offered to employers employing fewer than 20 employees under the sex and racial discrimination laws. Small businesses are the fastest growing sector of the economy. Clause 7, as it stands, would leave small businesses legally able to discriminate against people with disabilities. Clause 6 requires an employer, to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take". Regulations under the clause will enable a limit to be put on the costs that an employer could be expected to meet. Obviously, a small employer would not be expected to have the same financial resources as a larger employer. But where it is reasonable for small employers to make accommodations they should be required to do so.

Most disabled people only require minor adjustments to the working environment. I suggest also that it would be reasonable to look at the turnover of the firm in question because some firms obviously run on a small margin and other firms make vast profits.

During the Second Reading debate in the other place, the Minister for Disabled People, Mr. Hague, agreed that in the United States reasonable accommodation costs nothing in 43 per cent. of cases, because it involved just moving the furniture around or doing something sensible and practical like introducing different working hours. A large proportion of adjustments cost very little".—[Official Report, Commons, 24/1/95; col. 149.] The Government's compliance cost assessment of the Bill, as we heard, is suggested as being £200 which would be a reasonable average of what an employer might be expected to have to pay to accommodate a disabled employee.

In the other place in the debate on the exemption of small firms, Mr. Hague also said that it, reflects the Government's recognition that it may be more difficult and burdensome for smaller firms to get to grips with the new right".

He told the all-party disablement group that small firms do not have the specialist personnel functions. If the Government's main objection is that small firms do not have the resources in terms of personnel, including information, knowledge and expertise, then why could they not follow the CBI's advice and give more support to small firms together with the phasing in of compliance requirements for smaller businesses, as has happened in the United States of America? The CBI argues against the inevitable arbitrariness of the cut-offs and exclusions.

In his response to the Second Reading debate in this House at col. 887 of Hansard for 22nd May, my noble friend Lord Mackay said that the CBI represents few, if any, employers with fewer than 20 employees. He went on to say that he thought that it would be difficult to find many, if any, of those in its membership. It is my understanding that over 50 per cent. of the businesses that the CBI represents, including those through trade associations and employer organisations, are small businesses with fewer than 20 people. He said that 60 per cent. of firms employing fewer than 10 people had disabled employees. That point has already been made today. He said that the Government welcomed that fact and that the Bill would not prevent them continuing to do that. I quite agree. The codes of practice would encourage them to do so. Surely, the fact that so many small employers employ disabled people shows that if employers have the right attitude, then employing disabled people is not a problem for small firms. I beg to move.

Lord Rix

I am happy to support the amendment clearly moved by the noble Lord, Lord Swinfen. Many of the arguments which will be used when we reach the amendment to be moved by the noble Lord, Lord Gladwin, on Clause 34 have already been rehearsed by the noble Lords, Lord Campbell of Croy and Lord Ashley of Stoke. However, I shall return to the quota system in due course when we reach that amendment.

As to small firms, I have to say at the outset that I have known small businesses where the entire workforce—one person—was disabled. The Minister has stressed that many small employers are good when it comes to employing disabled people. But the Government seem to be speaking against many informed organisations, and many organisations are against them, when it comes to the issue of the exclusion of small firms, including many business and employer organisations which might have been thought likely to favour exemption for employers from the new obligations.

I felt some sympathy for the Minister in this House and for his ministerial colleague in another place in trying to defend the exclusion of firms with fewer than 20 employees. I also in my time have had to try to sound convincing on a public stage with a lousy script, but at least I had the advantage of being able to mask that awkwardness by some theatrical business which might not be wholly acceptable in the Palace of Westminster.

Once again, the noble Lord, Lord Swinfen, is being helpful to the Government by taking up their willingness to move forward on a phased timetable and offering them a generously phased timetable for doing so. That phased approach would allow experience of the Bill's provisions to be gained with larger employers. As smaller employers came in, they and their employees would benefit from that experience. However, the test of reasonableness will still relate to the specific circumstances. I see no realistic possibility that what has been required of a very large employer will subsequently be required of a very small employer. Our law and our lawyers are very firm on not following irrelevant precedents.

Given that there are many areas where small employers are the norm and given also that small employers are being created by the break-up—this point is very important at the moment—of larger employees and that many small employers are already abiding by rules from which the Government propose they should be exempted, together with the protection of the "reasonableness" criterion, I support this amendment as one that achieves fairness and logic by generous stages.

4.30 p.m.

Lord Addington

The debate has seemed to revolve around the same idea; namely, why should a small employer be treated differently to a slightly larger employer, and where is the arbitrary line to be drawn? I do not like the clause at all, but these amendments have one thing going for them. They draw down that arbitrary line which we know will act as a staging post to help people to adapt their working practices to new legislation. Thus, the amendments proposed are within the context of the Bill; indeed, they fall within the logic of the Government and suggest measures which should probably have been in the Bill in the first place. Indeed, we are about to debate a government amendment which proposes a review.

We can review things until we are blue in the face. If we do not have the will to change them and we do not accept the terns of logic of any review when it tells us something, things will not be changed. I know that I am jumping slightly ahead of this amendment hut all the amendments are related. Unless we accept the fact that we do not want this type of discrimination, an arbitrary line drawn for whatever reason should be removed whenever possible. We have the safety net of reasonableness placed in the Bill. Given that "reasonableness" is not defined, I suggest that the Government will save themselves a lot of time and effort by coming up with a good definition. If they intend to rely on this criterion, this is the sort of amendment they should welcome. Thus, I support it. If it is not totally within my sentiments, at least it is within the sentiments of the Bill.

Lord Monson

Those who support this amendment, and who supported the previous one, argue that the costs of compliance will be small. An average figure of £200 was mentioned several times. I suspect that capital expenditure is in the forefront of their minds, and that may well on average be as small as £200. It is a one-off, and can be written off over several years.

Baroness Hollis of Heigham

Perhaps I can help the noble Lord. The figure of £200 comes from the Government's own cost compliance statement of the average cost for a firm to accommodate itself to the provisions of this Bill.

Lord Monson

I entirely understand that. I was not disagreeing with the figure £200 at all. However, I believe that the noble Baroness has totally overlooked the question of current expenditure. Under subsection (3) of Clause 6 any employer obliged to incur expenditure under paragraphs (f), (g), (k) and (l) in combination could well find himself not £200, as a one-off, out of pocket, but thousands of pounds out of pocket—over a thousand pounds at any rate—year after year after year after year. For a firm employing 100 people with, let us say, two disabled employees, such costs could perhaps be absorbed. But for a firm with six employees one of whom is disabled, it could make all the difference between profit and loss, between survival and bankruptcy.

The argument against what I have said lies in the idea of reasonableness. But the term "reasonableness" is entirely subjective: I am glad that the noble Lord, Lord Addington, brought that point out. We have no precise definition of what is reasonable. I suspect that its interpretation will depend to some extent on the whims of the Secretary of State of the day. We are in Henry VIII clause territory, so disliked by my noble and learned friend Lord Simon of Glaisdale and the noble Earl, Lord Russell. Until we get a much firmer test of what is reasonable and what is not, I think—

Baroness Seear

I am sorry to interrupt the noble Lord, but surely "reasonable" is a term used again and again at law. It is a matter that the tribunals then decide. Is that not what it is all about?

Lord Monson

It may be. The press have commented on this Bill, saying that it will provide an absolute bonanza for lawyers, and one can see why that assertion is made. In any case, I think that the Government are on the right lines and I certainly oppose these amendments.

Lord Carter

I did not quite catch the paragraphs to which the noble Lord referred, hut there are a number of stipulations under subsection (3) of Clause 6 that would render an employer eligible for the access to work scheme, and the grants will be on a continuing basis.

Lord Monson

I accept that, but I believe it applies to capital rather than current expenditure. Am I not right?

Lord Carter

It applies to both.

Baroness Lockwood

It seems to me that this whole matter is being completely misunderstood. What is reasonable for a firm with 20 employees may be unreasonable for a firm that has six. Therefore, the interpretation of "reasonableness" will be in the context of the size of the firm, the kind of work that it does, and the resources of that firm.

The Minister argued against the last amendment, saying that it would place an unfair burden on small employers, not only in terms of cost but in terms of the burden of actually understanding the legislation and how it would apply. That argument seems to be completely removed by this particular amendment, which provides for a period of time during which the Act will operate enabling us to find out what is and is not reasonable.

I know that many people hope that not many cases will be brought under this Act. I do not accept that the legislation will mean a lawyers' paradise, but some cases will be brought. Their purpose will be to give an interpretation of what is meant. Very early on we shall need an interpretation of "reasonableness". I was sorry that the Minister was not able to accept the last amendment; but I should have thought that this amendment would be very acceptable to him. Even if a small firm does not have personnel resources, the Act will have been operating and lots of guidance will become available over the course of five years, all of which will be of great assistance to small firms. I really do feel that this whole question of reasonableness is being drawn across the scene as a red herring.

Baroness Seear

There is another point. We are all talking as though small firms are manned by people who are absolute dunderheads. A great many small firms now are doing high quality work and employ highly intelligent people. Quite a lot of them are just as capable of understanding what is in the legislation as people in very large firms. I do not know why we should assume that firms are manned by people who are all stupid just because they are small.

Lord Monkswell

One of the points that we need to recognise is that sometimes legislation has untoward effects. Sometimes the results of legislation are not those for which Parliament planned. I wonder whether we might be coming up against a similar problem in respect of this particular aspect of the Bill. So far as I am aware, there is no bar on a firm effectively subdividing itself so that each unit comprises fewer than 20 employees, each individual part of a company being effectively considered as an individual firm within the meaning of the Act and therefore not falling under the terms of the Act. That is my understanding of the way the legislation will work.

On Tuesday the Minister said that the situation for a firm would effectively change if its size went down from 21 employees to 19 and that the legislative regime would be different. I am worried that, because of people's perception that complying with the Act will be onerous, they will seek to evade its requirements and in so doing hinder the operation of their companies by taking action they would not normally take; for example. by not employing an additional employee which would take the company over the 20 employee mark when it would be in the interests of the company to do so, or by engaging in what I might describe as artificial manipulation of the company such as subdividing it into units of less than 20 in order to evade their responsibilities under the Act.

I hope that such things would not happen but we need to be aware that it is a risk. It might happen and it would be detrimental. The reason for such things happening would be the perception that the provisions of the legislation are onerous on business. We need to project the fact that the whole idea of this anti-discrimination legislation is not to put a burden on anybody but to liberate people.

Lord Mackay of Ardbrecknish

Much of this territory was debated on the last amendment. I suspect that we shall debate it twice more today. As the Committee knows, the Bill clearly states that the "20" threshold can be decreased by order. It cannot in fact be increased, which is in line with an amendment that was agreed in the other place. That enables the Government to ensure that changes could be made over time, taking into account the experience gained, as I mentioned, in operating the new right and other relevant circumstances, such as the economic conditions at the time. Indeed, the next amendment, which is in my name, will impose on the Government the obligation to look at this issue in four or five years' time and, one way or another, come before the Chamber with a view.

My noble friend Lord Swinfen with his two amendments seeks to commit the Government and future administrations to making specific changes according to a fixed timetable irrespective of the circumstances of the time. I believe that such an approach would be highly unusual in employment legislation. I must say that I have heard no more convincing argument for going down that road than I heard in the last debate for going down the road of only allowing this clause to operate for just a few months, although I accept that the initial view was that it would perhaps last for a year. Indeed, that is a decision we shall come to shortly if the noble Lord, Lord Addington, opposes the Motion that the clause shall stand part of the Bill. The noble Lord indicated that he does not want any protection at all for small employers from this day onwards or from the day of enactment of the Bill.

I suppose that neither my noble friend Lord Swinfen nor the Committee will be surprised to hear that I do not agree with this amendment either. I believe that the position that we have taken is a balanced position, taking into account the considerable number of employees who will be covered by the Act. Let me repeat that. Sometimes, I feel that people come to the statistics of this matter from an entirely wrong direction. It is not a case of how many firms are covered; it is a case of how many people are covered. Eighty per cent. of employees will be covered by the Act.

My noble friend mentioned Northern Ireland and rural areas. If he checks, I think he will find that there are a considerable number of large firms which operate in rural areas. For example, the local authority is usually a fairly large employer in a rural area, as it is elsewhere. Other examples might be British Telecom, British Gas (in an area where there is gas) or an electricity company. Let me say to the noble Lord, Lord Monkswell, that his machiavellian fears are totally unfounded. One would have to split a company entirely, completely and absolutely, so that it had under 20 people before one would be able to get away with not observing the provisions of the Act.

Lord Swinfen

On that point, what is the position with company groups, where there are a number of small companies which are ostensibly owned by a group but which are in fact operating together?

4.45 p.m.

Lord Mackay of Ardbrecknish

I thought that that was the answer that I gave. A conglomerate or a mini-conglomerate, however one likes to describe it, is considered as one company. I do not think that one can break up one's company into self-contained operating units. One would have to go to the extent of creating absolutely separate and unrelated companies before one would get out of obeying the terms of the Bill. I shall study what my noble friend said to see whether I have fully answered his question. But I thought that I had answered his question quite clearly. I am satisfied that there is no way out of this, apart from going to very considerable expense.

If we look at this matter in terms of cost or of administrative imposition on the individual running the business—the ground which I believe is more important—on either of those grounds, I doubt whether going to the bother of splitting the company, with all the trouble and hassle, as well as legal fees (dare I say it?) involved, would be a very sensible action. I do not feel that the end result of evading this legislation would in any way be worth going down that particular road.

Interestingly enough, the first downward step that my noble friend wants is to 15 employees. While the total number of firms covered by this part of the Bill would increase by over 50 per cent., that step would bring in a lot of small firms with many people running their own business working very many hours. My slight difficulty here is that I have a very close friend who runs a very small business. I can imagine his reaction, when I go back at the weekend and say, "By the way, we have just put some more burdens on you and more legislation that you have to obey." I should get a flea in my ear very quickly indeed. It would not be the cost, as I tried to explain in the previous amendment, though that has an important part to play. It is the fact that there is another piece of legislation to be understood and, more than that, to be borne in mind every time one needs to take on somebody or somebody leaves and he has to be replaced and one realises the parameters within which one would then have to operate.

Lord Carter

If the noble Lord's friend were employing 21 people, how would be explain it to him?

Lord Mackay of Ardbrecknish

I suspect that if my friend's company were to go up in numbers towards that figure, then he would be beginning to be free of the other things he has to do; namely, to work alongside his employees and all that part and parcel of his small business. He would probably concentrate more on the management of the business of which that is a part.

We could have a little argument about whether the number was 21, 20 or 19. If you are agreeing to draw a line—I suspect that many Members of the Committee who oppose me at this moment do not want any line drawn but want any firm, regardless of size, to be caught immediately by this legislation—it seems to me that 20 is a reasonable number.

Lord Rix

I am grateful to the Minister. Perhaps I may ask him one question. Is not the basis of all this an unfortunate idea that people with disabilities who are being employed (or are to be employed) are, frankly, not capable of carrying out the work for which they are employed with 100 per cent. efficiency? That seems to me to lie behind this discrimination. If a person is worthy of his crust, whether disabled or able bodied, he will not be any revenue cost to the company once suitable machinery has been put into place. We hope that access to work machinery and finance will be available. I am a little worried that we are implying that disabled people will, frankly, make inefficient employees.

Lord Mackay of Ardbrecknish

That is not what I am saying. Clearly I am not making myself understood, if that is the implication. I am talking about the burden of obeying the legislation, understanding it, dealing with it and keeping it in mind, especially as it involves this test of reasonableness in what one might do. That is the burden I am discussing, not the point being made by the noble Lord, Lord Rix.

The figures I mentioned earlier in relation to the number of people already employed in small firms shows clearly that the problem posed by the noble Lord does not exist for most small firms. I would not say that there are not a few small firms who would take the view that the noble Lord takes, but that is not my view. I am trying to deal with two burdens: the cost burden, which is of lesser importance, and also the burden of administering the Act, understanding it and keeping it in mind on the few occasions when one employs people.

Unlike a large company where a personnel department probably spends quite a lot of time interviewing and employing people, a small firm with under 20 employees probably does not do that very often. It may have a stable workforce and it may be quite infrequent that it will need to go round the course of taking on a new employee. That adds to its problems. Here we have a little piece of legislation which will not be with the company on a day-to-day basis, perhaps not even on a month-to-month basis. It may have to bring the provisions to the forefront of its mind quite infrequently.

A little has been said regarding the CBI. It seems to be suggested that it represents small companies. I believe—dare I say?—that a little hit of sleight of hand is being practised in saying that. I believe 50 per cent. was the figure given of small businesses belonging to the CBI. That is the way the figure was quoted to me. But that arithmetic is arrived at by counting those small businesses that are members of trade associations and in turn those trade associations are members of the CBI

Lord Swinfen

My noble friend—

Lord Mackay of Ardbrecknish

Perhaps I may be allowed to finish my sentence.

Lord Swinfen

My noble friend will forgive a further interruption but that is in fact what I said. My noble friend accuses me of sleight of hand and uses the figures I gave in trying to show that I used sleight of hand. But they are the figures I gave with that description.

Lord Mackay of Ardbrecknish

I apologise to my noble friend. I did not notice that qualification and perhaps one or two of my noble friends did not either. We were therefore a little puzzled as to how the CBI came to have so many—

Baroness Hollis of Heigham

The same—

Lord Mackay of Ardbrecknish

I wish I could finish my sentences.

Baroness Hollis of Heigham

We are trying to stop the Minister from falling even further into error and are trying to be helpful. The same point was made on the previous debate when we on this side of the Chamber used the same figures in relation to the CBI. The Minister sought to answer the point then. Therefore, not only did he mishear his noble friend, but he forgot what he said the first time round.

Lord Mackay of Ardbrecknish

I remember what I said and I believe I understood what I said. I mentioned the fact that the Federation of Small Businesses supports the exclusion of small firms. I felt that that was slightly better ground on which to stand than praying in aid the CBI which, as we have all agreed. does not incorporate all that many individual small member firms. As my noble friend rightly pointed out—I concur with him—most of the small firms counted in the 50 per cent., which is claimed by the lobby in relation to the CBI, are only indirect members of the CBI through trade associations. As long as we are all clear on that, perhaps I can carry on.

Baroness Seear

I am afraid the Minister seems to be having a bad time. However, I am amazed that he makes such a meal of the fact that the Bill will be difficult to understand. The Bill says that in taking on a new employee one must not discriminate because that person is disabled. I would lay a wager that the small employer who the Minister sees at the weekend—and whom he is afraid to meet this coming weekend—could have the Bill explained to him in 10 minutes flat. He would not have the slightest difficulty in understanding what he must do. Where is the difficulty? I agree that some legislation drives all employers, small and large, absolutely dotty, but this is straightforward. What is the difficulty?

Lord Mackay of Ardbrecknish

The difficulty is twofold. It is not as easy as the noble Baroness makes out. There is the qualification that the employer must not discriminate. However, there is also the fine tuning that he can discriminate if employing a person would mean adjustments to his firm that were not reasonable in their cost. Therefore, other aspects are involved bar the simple statement that he must not discriminate against disabled people. I hope everybody will think about that; it is the qualification that adds to the complication.

While I may explain the Bill to my friend this weekend, it may be some months before he is interviewing and employing or replacing an employee. That must be borne in mind. In any case, it is our view and that of the Federation of Small Businesses, that this is a reasonable line to draw. In a few minutes I shall explain how we will be prepared to review it in four years and then come back to the House in five years' time. At that stage, if it is the view of your Lordships and the Government, I have little doubt that under the powers in this clause we shall be able to reduce to whatever figure it is decided is reasonable. For the moment, we would like to keep it where it is.

I said to my noble friend that I should like to check the question he asked in regard to a company breaking itself up or being part of a group. I answered him but indicated that I would write to him if I was wrong. I can do better than that. I can say that I probably got that wrong. Each individual company within a group is a separate employer. My point is that it would not be sensible for a company to split itself up into groups just to get away from having to apply this Bill. Therefore, that is not a realistic scenario to contemplate.

To return to the legislation in front of us, I have said on a number of occasions—I appreciate that there is a difference of opinion on this—that the smaller the firm, undoubtedly the more difficult and costly it is for the individual who runs that firm to, not just take on board this piece of legislation, but also take on board all the pieces of legislation, some of which the noble Baroness, Lady Seear, described as being "dotty". I believe, therefore, that she is slightly on my side in relation to the generality of this issue.

We must take account of the need to keep down the burden on small businesses. That is a burden not just of cost, but of administration and the knowledge of legislation and so forth. Of course, as the small business grows—as we hope it will do—and grows sufficiently, it will fall to be considered within the terms of the Bill. For all those reasons, which are similar to the ones on the previous amendment, I cannot accept my noble friend's amendment.

Lord Campbell of Croy

I did not interrupt my noble friend because he was coping manfully with many other interruptions. But I should like to ask him—he need not reply now because there will be more debates on this clause—whether his department is watching what is happening in the United States.

None of us wants to impose burdens on small firms. I am sure we all agree with what my noble friend said. But the Americans With Disabilities Act, known as ADA, requires a reduction of the equivalent figure for small firms. That is graduated over a number of years and the first graduation is just taking place or has just taken place. It would be interesting to know whether the British Government are watching what is happening in the United States in this field and whether the small firms there, who again are described as firms which employ a certain number or less of employees, are going through difficulties in the reduction which must take place under that legislation every few years, as is suggested in the amendment. Though I accept all the problems indicated by my noble friend that may arise for small businesses, it would be interesting to compare notes with similar legislation which is ahead of us on this.

Lord Mackay of Ardbrecknish

I am happy to answer my noble friend. The Department of Employment does indeed look carefully at the United States' experience. It is from that experience that we have drawn the average cost figure of £200. I believe I am right in saying that the United States started off with 25 and has now dropped the number to 15. Therefore, while the US approach may be slightly different, it appreciated the need to have a line below which a small firm did not come within the compass of the Act. The United States agrees with us in that regard, although it has done it in a slightly different way and is now down at 15. I am starting at 20. I am suggesting that if in five years' time, after review, the government of the day and both Houses think it is reasonable to go down to 15, that is the right time to do it. But I think that we should start with the line being drawn at 20.

5 p.m.

Lord Monkswell

Perhaps I may ask for some clarification on what might happen once the Bill becomes an Act. Would it be possible for a firm employing fewer than 20 people to have an advertisement for recruits effectively saying that only able-bodied people should apply? Furthermore, would it be possible for a firm employing fewer than 20 people to advertise itself as employing only able-bodied people? What would be the implications and the effect of such an advertisement appearing in newspapers?

Lord Mackay of Ardbrecknish

With regard to the question of my noble friend Lord Campbell about the American Act, the Act did allow for a reduction from 25 to 15 after two years, but, interestingly enough, it has no provision for going any further down than 15, whereas if future governments want to reduce the figure they can use the provisions of this Act. I am advised that the answer to the question of the noble Lord, Lord Monkswell, is that a firm could do what he suggests.

Lord Rix

Just to back up my earlier statement that it might imply that disabled people were not particularly cost-effective or efficient, perhaps I may read briefly from the parliamentary brief given by the CBI. It states: While all firms want their competitiveness safeguarded. few would wish to be seen to occupy a sector where discrimination is tolerated and where individual, talented disabled people might be deterred from employment". It seems that the CBI has the same idea that disabled people might well consider themselves not up to the job if this clause goes through in its present form.

Lord Swinfen

We have had quite a useful debate on this subject and I thank all those who have taken part. In his first intervention the noble Lord, Lord Rix, quite rightly said that I was trying to be of assistance to the Government. If my noble friend has the foresight to accept this group of three amendments he will not need to move his amendment; nor will be have all the hard work of consideration after four years, and presumably from time to time after that; quite apart from the cost to the taxpayer and everything else. The amendments would help over a number of years to produce a level playing field throughout the world of work.

The noble Lord, Lord Monson, was worried about the current cost of employing a disabled person. In my view, that would have to be taken into consideration when the question of reasonableness was being considered: and what was reasonable for one small firm with a very large turnover and large profits might not be reasonable for a firm employing the same number of people with only a very low turnover and marginal profits. That was also brought out by the noble Baroness, Lady Lockwood, who pointed out that reasonableness would vary from case to case.

An interesting intervention from the noble Lord, Lord Monkswell, brought out the fact that each firm in a group was a separate employer. That means not that a firm would split itself up—that would be totally impractical, as the noble Lord, Lord Mackay, suggested—hut that a firm wishing to expand would, under certain circumstances, set up separate firms under one group as separate employers. What would be the position during recession of a firm dropping below the 20 mark and then a few years later, or a few months later, going back over that figure?

The Minister said that something would have to be borne in mind and—I think I have got him right—that it would be a difficult position. But that is in a totally different context from the present position of all employers in regard to the requirements of a fire officer. A new fire officer in an area may have different fads, hut his instructions must be followed, whether one likes it or not, sometimes at costs considerably higher than the figures that have been mentioned in this short debate.

I should like to reflect on what has been said, perhaps discuss the matter with my noble friend between the end of the Committee stage and Report, and possibly come back to the matter at Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 54 not moved.]

Lord Mackay of Ardbrecknish moved Amendment No. 55:

Page 5, line 25, at end insert:

("(3) In this section— anniversary" means the anniversary of the coming into force of this section; and review" means a review of the effect of this section.

(4) Where, before the fourth anniversary, the Secretary of State proposes to make an order under subsection (2), he shall, before doing so, conduct a review.

(5) Unless he has already begun or completed a review under subsection (4), the Secretary of State shall begin to conduct a review immediately after the fourth anniversary.

(6) Any review shall be completed within nine months.

(7) In conducting any review, the Secretary of State shall consult—

  1. (a) such organisations representing the interests of employers as he considers appropriate: and
  2. (b) such organisations representing the interests of disabled persons in employment or seeking employment as he considers appropriate.

(8) If, on completing a review, the Secretary of State decides to make an order under subsection (2), he shall make such an order to come into force not later than one year after the commencement of the review.

(9) If, on completing a review, the Secretary of State decides not to make such an order, he shall not later than one year after the commencement of the review lay before Parliament a report—

  1. (a) summarising the results of the review; and
  2. (b) giving the reasons for his decision.

(10) Any report made by the Secretary of State under subsection (9) shall include a summary of the views expressed to him in his consultations.").

The noble Lord said: After an hour or so on the previous amendment we may well be able to find ourselves in agreement about this amendment. We have listened carefully to the arguments—we have heard them again this afternoon—calling for changes in this clause. I have this afternoon, as my colleagues did in another place, rebutted many of the suggested amendments but I hope that we have not been totally inflexible. Indeed, Clause 7 was amended in another place and that amendment removed the power to raise the threshold from the exemption above 20. In reaching that decision we recognised it was very unlikely that there would ever be a need to raise the threshold above the initial starting number.

My honourable friend the Parliamentary Under-Secretary of State for Employment, when announcing the change, gave an undertaking to bring forward a further amendment. That amendment, which is before your Lordships today as government Amendment No. 55, would require the Secretary of State to review the operation of the clause within five years of it coming into force and give Parliament the opportunity to debate the issue. We will be considering what research may be necessary for that review.

Perhaps I may say to my noble friend Lord Swinfen, who seemed to wish to relieve me of some work in five years' time, that I would be more than happy to come to the Dispatch Box in five years' time and propose whatever changes are to be made in the Act.

Lord Carter

How can the noble Lord he so confident that he will be there in five years' time?

Lord Mackay of Ardbrecknish

My noble friend was clearly confident. I was just thanking him for his confidence. I am sure that the whole House, or at least half the House, will join me in hoping that the noble Lord, Lord Carter, will be speaking from the same Dispatch Box as he is today.

I have made all my points about why we do not think that we should move now from 20. But I understand the arguments. What the amendment does is to ensure that enshrined in legislation there will be an obligation on the Government, four years from the anniversary of the Bill coming into force, to set up a review and, at the five-year point, to come to Parliament one way or another. I am quite sure, having listened to noble Lords who would certainly like me to go a great deal further than this, that the Committee will welcome this small step. I beg to move.

Baroness Hollis of Heigham

In his last sentence the Minister anticipated with wonderful accuracy the position of the Opposition on this. Given the amendments that have so far been moved, we indeed wish that the Minister had gone further, but that takes nothing away from the fact that we welcome this amendment. We are grateful that the Minister in another place felt able to listen to the voices and representations that had been put to him.

Lord Monson

The Minister began introducing the amendment by saying that he hoped that all Members of the Committee would agree with it. I find myself 99 per cent. in agreement with it, but I have one small quibble. Subsection (7) provides that, the Secretary of State shall consult—

  1. (a) such organisations representing the interests of employers as he considers appropriate".
I wonder why that is not further circumscribed by the insertion of the word "small" before the word "employers". As the Minister pointed out when speaking to a previous amendment, the membership of the CBI, and the interests of that membership, are not the same and do not always coincide with the membership of and the interests of the membership of the Federation of Small Businesses or the Institute of Directors. It seems appropriate that the Secretary of State should specifically consult organisations representing the interests of small employers—that is, those employing fewer than 20 people—rather than employers in general.

Lord Swinfen

I am sure that the noble Lord, Lord Monson, knows that a number of very large industries in the CBI are fed by very much smaller firms and would want to be happy that those smaller firms are operating efficiently and looking after disabled people properly. Having said that, I very much welcome the amendment although, in my view, my amendment would have been better—but perhaps I am just being my normal big-headed self.

Nevertheless, I am delighted that the amendment sets the Secretary of State a time limit within which the review must be completed. We so often see Bills provide for reviews to take place but without specifying a time limit, which means that the review drags on and on. I very much welcome that provision.

Lord Rix

I have just one question. If at the end of that period of time the Secretary of State (after his due consultation with both small and large firms, disability organisations and disabled people themselves) decides totally to do away with the embargo of 15, 12 or whatever in relation to small firms, could be so do?

Lord Mackay of Ardbrecknish

I am not entirely sure. I would need time to read both the clause and the amendment. I am advised that the answer is "no", but I shall check and may be able to return to this point later.

Perhaps I may advise the noble Lord, Lord Monson, that, by and large, we shall be talking to small employers. However, we shall also want to talk to those employers who are implementing the legislation because I imagine that decisions will have to be taken with a view to how the legislation is working and what difficulties have been encountered. We shall do that, as well as taking the views of small employers into account. As I said, I shall check the answer I gave to the noble Lord, Lord Rix, when I have had the opportunity to read both the amendment and the original provisions. I am not sure whether I am all that good at reading on my feet, but I think that I have succeeded.

Looking into the future, the legislation provides that the Secretary of State may make orders, but may only go as far as a reduction to firms with fewer than two employees. Perhaps I may describe that as the "irreducible minimum".

Lord Carter

Under Clause 7(2), the Secretary of State may substitute "a different number". Could be substitute zero?

Lord Mackay of Ardbrecknish

I think that the problem—

Lord Swinfen

On the same subject, I do not understand why the figure "two" has been suggested. I should have thought that it should be "one"—with one person employing one other, or employing himself.

Lord Mackay of Ardbrecknish

My noble friend has got in ahead of me. The "two" includes the employer. My noble friend correctly points out that if it were reduced to one—namely, the employer—there would no longer be an employee to come within the scope of the Bill.

Lord Rix

I am grateful to the Minister for that answer and for busking till ready. Perhaps I may make the position absolutely clear from my point of view. If by experience, by lobbying, consultations, and all the other things that will take place over the next five years from the date of the enactment of the Bill, this whole provision in relation to employers with fewer than 20 employees could disappear from the Act, that offers us definite hope for the future.

Lord Mackay of Ardbrecknish

That is exactly what my amendment would allow. I am delighted to give the noble Lord that hope.

On Question, amendment agreed to.

[Amendment No. 56 not moved.]

5.15 p.m.

Baroness Hollis of Heigham moved Amendment No. 56A:

Page 5, line 25, at end insert: ("() Notwithstanding the provisions of this section, it shall be the duty of the Secretary of State to have regard to the needs of employers who have fewer than 20 employees and to make such financial provision by way of grants or loans as he deems appropriate to enable them to meet the obligations to disabled persons which they would have but for the exemption contained in this section.").

The noble Baroness said: I tabled this amendment as a peg, coat-hanger or basis upon which to ask the Minister to place on the record, if he would be so kind, exactly what encouragement, arrangements and financial assistance he will give to small firms with fewer than 20 employees to bring them voluntarily within the law if the Bill is not amended in its passage through your Lordships' House. I beg to move.

Lord Renton

The amendment gives rise to an interesting situation because some types of business—I shall mention one in a moment—would find it exceedingly difficult to employ a disabled person in any capacity. I refer, for example, to the business of operating taxis. It would be very difficult if a number of disabled people applied for employment in a taxi business. Such a business comprises mainly drivers, with a mechanic or two, and it would be difficult for such a business to employ any disabled person. Therefore, it is right that the noble Baroness should have tabled an amendment stating that the Secretary of State is, to have regard to the needs of employers who have fewer than 20 employees". I am glad that she has given me the opportunity to cite an example of where such a special case should be considered.

Lord Swinfen

In the special case mentioned by my noble friend, it would be reasonable not to employ a disabled person.

Lord Mackay of Ardbrecknish

I thank both my noble friends for their valid comments—one in asking and the other in answering. However, as the noble Baroness used the process of moving the amendment simply to ask me a question—I take it, therefore, that the amendment is about to be withdrawn—perhaps I may concentrate on trying to help the noble Baroness on what we intend to do to try to encourage small firms—although outside the ambit of this legislation—to try to behave as we all want them to behave.

I said earlier that my honourable friend the Under-Secretary of State for Employment made our position very clear in the other place. Of course, we want small firms to continue their good record of employing disabled people. We certainly do not want them to discriminate. We shall encourage them to follow a code of practice that we shall be drawing up. In drawing up that code of practice, which, as long as the Bill escapes unharmed from your Lordships' House in this regard, will apply legally only to firms with more than 20 employees, we shall think about and consult not only with such firms or their representative organisations, but also with firms of fewer than 20 employees and their representative organisations. That will mean that the new code of practice will apply not only to firms with more than 20 employees, to which the Act will apply, but that it will be equally applicable as a code of good practice to firms with fewer than 20 employees. I hope that that answer is helpful.

Baroness Hollis of Heigham

That takes us part of the way. Perhaps the Minister could write to me because I should like to know what eligibility small firms will have for any grants or assistance that will be available, as of right, to firms with more than 20 employees. In other words, on the assumption, which I hope is false, that the figure of 20 remains in place when the Bill has passed through your Lordships' House, all of us will have a commitment to bring voluntarily within the framework of the law as many smaller companies with fewer than 20 employees as possible.

The only way we might be able to do that is with a carrot, because there will be no stick. I was trying to discover from the Minister what would be the range of carrots to encourage small companies to come within the framework of the Bill. The Minister gave us an answer about codes of guidance and the like. Perhaps he will write to me about the financial resources available to small firms so that we can see how they may be brought into the Act. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 7, as amended, shall stand part of the Bill?

Lord Addington

I wish to oppose the Motion that Clause 7 stand part of the Bill on the simple ground that I have heard a great deal of talk about how important it is for small employers. We have heard a great deal about the concept of reasonableness. If making reasonable provision and not discriminating against anyone is the concept behind the Bill, surely it should apply to all employers. We have also heard that the concept of reasonableness will not apply as an absolute standard. It is something which applies to individual firms and cases. If that is a valid concept, surely it makes irrelevant the clause under which firms with fewer than a certain number of employees are exempt. If the Government's thinking is correct, the clause is not needed. On those grounds, I oppose the Motion that the clause stand part of the Bill.

Lord Ashley of Stoke

I wish to make two comments and ask the Minister two questions. First, I am sorry to see the Minister clashing with his right honourable friend the Prime Minister, because the Prime Minister has assured us that small firms are at the heart of Britain's economic recovery. He says what wonderful people they are. They are enterprising and leading Britain out of economic despond. But the Minister implies that they are rather dim-witted people who cannot understand the problems involved in taking on one or two disabled workers. So firms with fewer than 20 workers are incompetent. They are helping Britain's recovery, but they are too dim to understand the problems caused by taking on one or two disabled workers. Can the Minister justify that objection and that reason for excluding from the Bill firms with fewer than 20 workers?

Secondly, several people have mentioned the question of reasonableness being difficult. I see no problem. Many distinguished lawyers have been present and they know that the concept of reasonableness is something with which the courts have no problem. If it will cause such enormous problems, then those Conservative Back-Benchers who are complaining should ask the Government not to bring in the concept of reasonableness. I see no difficulty with it, but if they do they should talk to their Minister.

I wish to ask the Minister two simple questions. I am concerned that he is evading my questions. I do not know whether it is because he does not hear me, in which case perhaps I should speak louder, or because he is the skilled politician that we all think he is and is learning to prevaricate and to answer just those questions he prefers to answer.

My first question is partly a general question. I am not sure whether the Minister said that small fines cannot discriminate against disabled people. If he did say that, he is wrong, because clearly they can discriminate. Does he agree that if he did not say it, and if small firms can legally discriminate against disabled people, then that is unjustifiable and morally wrong?

Secondly, the Bill says that no unreasonable burdens should be imposed upon employers. It says in fact that the burden should be reasonable. Will the Minister tell us whether it will be legal or illegal to impose unreasonable burdens on firms when the Bill is enacted?

Lord Carter

I support the noble Lord, Lord Addington, in opposing the Motion that Clause 7 stand part of the Bill. Although we must be careful of anecdotes, perhaps I may declare an interest. I am a director of a company with seven employees, of whom three are full-time and four are part-time. Of the seven, four are disabled. Our experience is interesting. With the small office that we occupy, the cost to us has been comparatively small. We have installed some moveable wooden ramps and moved the position of the electric light points so that those who use wheelchairs can reach them.

For the landlord it is different. It is a building with 100 to 150 people going through it. The landlord has had to put in a ramp to ensure that our employees can gain proper access. He welcomed that, because he said he should have done it before, and he has received a grant for doing it. That is one example.

Perhaps I may give a second one. It is one that I gave on Second Reading. The noble Lord, Lord Campbell of Croy, mentioned his experience in America. A number of the states—it is not federal law—have had laws for a long time with low limits on the number of employees caught by the disability legislation. I said on Second Reading that in California it is six and in New York four. I asked the Minister to comment on that. His reply was 100 per cent. accurate. He said that we were not America. I did not think that the reply added greatly to the stock of human knowledge.

Another interesting point is that, so long as it is not unreasonable, there is in the Bill no exclusion of small providers of goods and services, only small employers. Small providers of whatever size have to meet the Bill's requirements. The point about unreasonable costs was dealt with extremely ably by my noble friend Lady Hollis.

I conclude by saying that if we think it through, the Government are producing a curious argument. They are saying that discrimination is unlawful, except in small firms. According to the Government's thinking, anti-discrimination cannot be an absolute value; it can only be of relative value, because the Government are making it relative to the size of firm. It seems that to the Government costs and inconvenience are more important than the absolute value of anti-discrimination, something in which all of us on this side of the Committee believe. I am pleased to support the noble Lord, Lord Addington. If he decides to divide the Committee, we shall be with him.

Lord Swinfen

The noble Lord, Lord Carter, mentioned small providers. A restaurant of course is a small provider. Under the terms of the Bill, it will have to make access provisions for its clients but not for any disabled member of staff. That is daft. The Bill would be greatly improved if it did not include this clause.

Lord Campbell of Croy

I made it clear that I hope in due course that small firms will be included, but I do not believe that it would be a good thing at this stage of the Bill to take out the whole clause. So I shall be supporting the Government.

Lord Mackay of Ardbrecknish

By this time we are all well aware of what the clause does. It was amended in the other place to ensure that the size of firms which are exempt can be changed, and can only be changed downwards. It was decided that we should start at 20. In answer to my noble friend Lord Campbell of Croy, I have already pointed to the American experience. They started at 25. There was a power to lower the figure. They lowered it to 15, and that is where, so far as concerns primary legislation across the United States, it must stay.

The noble Lord, Lord Carter, reminded me of my answer to him, that this is not the United States. I thought that that was a sensible parliamentary reply: it was absolutely true, and added nothing to the information we all had available.

Of course we look at the experience in other countries, including the United States, but we ought not necessarily to follow them in a slavish manner. I have set out in detail the proper place to start with the boundary, of which the noble Lord, Lord Addington, does not approve. He would say that a firm with only one employee should immediately be covered by the Bill. I am afraid that I cannot agree with him and he will not be surprised to hear that. I have introduced, and the Committee has agreed, the commitment to enact a requirement to review the operation of the clause within five years. That will give us sufficient time to see how the Bill works in firms with 20 or more employees and to take the view of firms with fewer than 20 employees. At the end of the five-year period we shall be able to see where we should go.

I say to the noble Lord, Lord Ashley of Stoke, that I shall not become irritated by his suggestion because that would not help either of us. I thought that he made a nice debating point by implying that I assumed dim-witted people run small companies. Not at all. I suppose that one can say that they are a cross-section of your Lordships' House—and the Committee can come to its Own conclusions on that.

I was making the point that even the cleverest has a great deal to do in running a firm in which usually they take virtually all the management responsibilities and probably take part in some of the work that is undertaken. They are probably involved in finding the contracts, selling the products, chasing up the unpaid bills, watching the books and so forth. I am talking about adding to that burden.

The noble Lord, Lord Ashley of Stoke, asked a question which I thought was a tinge like asking me whether I had stopped beating my wife. He asked whether small firms can discriminate. I would rather put it this way: of course, they will not fall within the scope of the Bill but, as I and others have pointed out, many of them employ disabled people. As I said to the noble Baroness, Lady Hollis, we wish to encourage them not only to continue to do so hut to increase the number of disabled people whom they employ.

I turn now to the imposition of reasonable burdens, although I have forgotten the precise question. I tried to explain that I was not founding my argument so much on the cost, although cost would be a consideration. The £200 is an average cost, which means that some could be above that. However, I accept that if the average cost is £200, the majority will he less than that.

My noble friend Lord Inglewood usually manages to give the Committee legal lectures on the definition of "reasonable". I must rest my case on some of the explanations that he has given from his legal background. We understand what the reasonable costs would be, but I am concerned about the additional burden which I have mentioned.

The noble Lord, Lord Carter, made the valid point, which I am happy to underline, that there may be few, if any, alterations that one needs to make in order to employ disabled people. If alterations are necessary there may be beneficial results. Perhaps building a ramp will encourage disabled customers to deal with one's small business. My noble friend Lord Swinfen is right in saying that the limitations that we are discussing relate only to employment and not to the next part of the Bill, which is the delivery of services. In that respect there is no such limitation.

We have been over the argument. I have made it clear that we shall give every encouragement to small firms to follow in a voluntary manner the guidance in the code of practice on the fair treatment of disabled people. Any employer—be it a large employer caught by the Bill or a small employer outside the scope of the Bill—will be able to obtain from the Employment Service the help and advice that they require as regards employing disabled people.

We believe that drawing the line at 20 employees is a sensible place to start. As I said, 80 per cent. of the employees in our country will be covered by this legislation. I hope that if the noble Lord decides to put the clause to the test of a Division, my noble friends will support me in retaining it as part of the Bill.

5.35 p.m.

On Question, Whether Clause 7, as amended, shall stand part of the Bill?

Their Lordships divided: Contents, 135; Not-Contents, 65.

Division No. 1
Addison, V. Boyd-Carpenter, L.
Annaly, L. Burnham, L.
Annan, L. Cadman, L.
Archer of Weston-Super-Mare, L. Caithness, E.
Campbell of Alloway, L.
Arran, E. Campbell of Croy, L.
Ashbourne, L. Carnock, L.
Astor, V. Carr of Hadley, L.
Astor of Hever, L. Carver, L.
Balfour, E. Chalker of Wallasey, B.
Belhaven and Stenton, L. Chelmsford, V.
Birdwood, L. Chesham, L.
Blaker, L. Clanwilliam, E.
Blatch, B. Clark of Kempston, L.
Boardman, L. Clifford of Chudleigh, L.
Colnbrook, L. Massereene and Ferrard, V.
Colwyn, L. Merrivale, L.
Cork and Orrery, E. Mersey, V.
Cranborne, V. [Lard Privy Seal.] Milverton, L.
Monson, L.
Cranbrook, E. Monteagle of Brandon, L.
Crathorne, L. Montgomery of Alamein, V.
Dacre of Glanton, L. Mowbray and Stourton, L.
De Freyne, L. Moyne, L.
Denton of Wakefield, B. Munster, E.
Dixon-Smith, L. Murton of Lindisfarne, L.
Donegall, M. Nelson, E.
Downshire, M. Nickson, L.
Eden of Winton, L. Norrie, L.
Ellenborough, L. Northesk, E.
Elles, B. O'Cathain, B.
Elton, L. Orkney, E.
Erne, E. Orr-Ewing, L.
Forbes, L. Park of Monmouth, B.
Fraser of Carmyllie, L. Pearson of Rannoch, L.
Fraser of Kilmorack, L. Pender, L.
Gage, V. Plummer of St. Marylebone, L.
Gardner of Parkes, B. Rankeillour, L.
Gisborough, L. Rawlings, B.
Goschen, V. Renton, L.
Gridley, L. Robertson of Oakridge, L.
Halsbury, E. Rodger of Earlsferry, L.
Hamilton of Dalzell, L. Saint Albans, D.
Harding of Petherton, L. Sanderson of Bowden, L.
Harlech, L. Seccombe, B.
Harris of High Cross, L. Shaw of Northstead, L.
Henley, L. Skelmersdale, L.
Hertford, M. Stewartby, L.
HolmPatrick, L. Stockton, E.
Howe, E. Strathcarron, L.
Hylton, L. Strathclyde, L, [Teller.]
Inglewood, L. Strathcona and Mount Royal, L.
Ironside, L.
Jenkin of Roding, L. Suffield, L.
Killearn, L. Swansea, L.
Kinnoull, E. Thomas of Gwydir, L.
Lauderdale, E. Thurlow, L.
Leigh, L. Tollemache, L.
Lindsay, E. Trumpington, B. [Teller.]
Long, V. Ullswater, V.
Lucas, L. Vinson, L.
Lucas of Chilworth, L. Vivian, L.
Lyell, L. Wakeham, L.
McConnell, L. Walton of Detchant, L.
Mackay of Ardbrecknish, L. Willoughby de Broke, L.
Macleod of Borve, B. Wise, L.
Malmesbury, E. Wolfson, L.
Mancroft, L. Wynford, L.
Marlesford, L. Zouche of Haryngworth. L.
Addington, L. [Teller.] Fitt, L.
Airedale, L. Gallacher, L.
Ashley of Stoke, L. Geraint, L.
Beaumont of Whitley, L. Gladwin of Clee, L.
Broadbridge, L. Gould of Potternewton, B.
Brooks of Tremorfa. L. Graham of Edmonton, L. [Teller.]
Bruce of Donington, L.
Carmichael of Kelvingrove, L. Grey, E.
Carter, L. Hanworth, V.
Cocks of Hartcliffe, L. Harris of Greenwich, L.
Darcy (de Knayth), B. Haskel, L.
David, B. Hilton of Eggardon, B.
Dean of Thornton-le-Fylde, B. Hollis of Heigham, B.
Desai, L. Holme of Cheltenham, L.
Donaldson of Kingsbridge, L. Hughes, L.
Dormand of Easington, L. Hylton-Foster, B.
Dubs, L. Jay of Paddington, B.
Eatwell, L. Jenkins of Putney, L.
Farrington of Ribbleton, B. Kilbracken, L.
Lockwood, B. Sefton of Garston, L.
Longford, E. Serota, B.
Macaulay of Bragar, L. Simon, V.
Monkswell, L. Stedman, B.
Nicol, B. Stoddart of Swindon, L.
Parry, L. Strabolgi, L.
Rea, L. Swinfen, L.
Redesdale, L. Taylor of Blackburn, L.
Richard, L. Tope, L.
Rix, L. Tordoff, L.
Robson of Kiddington, B. Turner of Camden, B.
Rochester, L. White, B.
Russell, E. Williams of Elvel, L.
Seear, B. Winchilsea and Nottingham, E.

Clause 7, as amended, agreed to.

5.44 p.m.

Clause 8 agreed to.

Clause 9 [Validity of certain agreements]:

Lord Carter moved Amendment No. 56B:

Page 7, line 22, leave out ("company") and insert ("firm").

The noble Lord said: This is a probing amendment. I am not entirely clear why in Clause 9(5) the specification used is "company" or "companies". I have used the word "firm" which I admit is not perfect. However, there arc many organisations besides companies—connected persons, partnerships with a controlling partner, unincorporated associations and so on. The purpose of the amendment is to inquire why the Government feel that they must refer only to "companies". I beg to move.

Lord Inglewood

As the noble Lord commented, Clause 9 performs the very important function of making void any term in a contract of agreement which seeks to limit the employment provisions of the Bill, including attempts to prevent a complaint being made to an industrial tribunal.

It is clearly right that in general employees should not he able to sign away their rights. However, there is an important and necessary exception made for certain agreements under which people agree not to start or continue with tribunal proceedings. The clause protects the complainant or potential complainant by providing that those agreements are valid only if an ACAS conciliation officer has been involved or the complainant has had independent advice from a qualified lawyer. It is that concept of independence, as the noble Lord, Lord Carter, pointed out, which is addressed in the amendments.

It is clearly unacceptable for the same lawyer to provide advice to both the complainant and the person against whom the complaint is made. Therefore, the clause provides that advice from the respondent's lawyer is not independent advice. It goes further by providing that advice given by a lawyer acting for a person connected with the respondent is also not independent.

Subsection (5) defines what is meant by "connected" where one of those involved is a company over which the other, directly or indirectly, has a control or both arc companies in which a third person directly or indirectly has a control. That is a protection that exactly echoes those in other employment and discrimination legislation.

I understand the point which the noble Lord is trying to make. He is trying to make sure that no one slips through the net in that regard. He is trying to include not only companies but partnerships and other bodies. The amendment as it stands does not hit that particular target because the word "firm" is too imprecise to be used in that context. The concept of control contained in the subsection is inappropriate to partnerships. I understand the noble Lord's anxiety and his wish to tighten up the existing provision. But, as I have said, the current drafting of the subsection is consistent with existing legislation and we have no evidence that the arrangements are not working satisfactorily or that the gap which the amendment seeks to fill exists in practice.

I hope that the noble Lord will withdraw the amendment but if he has evidence of real examples or problems, perhaps he will draw them to our attention and we shall try to address them.

Lord Carter

I am grateful to the Minister. He has answered my point. I was seeking to have on the record why there is the use of the word "company". I shall read what the Minister said and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 56C not moved.]

Clause 9 agreed to.

Clause 10 [Charities and support for particular groups of persons]:

Lord Carter moved Amendment No. 56D:

Page 7, line 29, after ("capacity") insert ("provided that such benefits are not granted by a charity which has an associated organisation which remits profits to persons who are not disabled").

The noble Lord said: This amendment seeks to deal with a particular charity, Motability. However, I was advised when tabling the amendment that if I mentioned Motability and the amendment were accepted, that would make the Bill hybrid and I am sure that none of us wants that. However, I have informed the Minister's Private Office that I am dealing only with the charity Motability.

Motability is a charity and Motability Finance Limited is a private company. When the Motability organisation was set up in the mid-1970s, its aim was to provide disabled people with cars because the Government were phasing out the disabled person's "trike" or "invacar". The leasing scheme operates by the disabled person signing over a sum of social security benefit to Motability Finance Limited. That benefit is now called the disabled living allowance and used to he called the mobility allowance.

In return, for a three or four-year period, the disabled person leases a car which the manufacturer guarantees to service and keep on the road. The problem is that from the outset disabled people have had difficulties with the system. There is a mileage allowance which prohibits frequent use of the car and there are hidden costs. Moreover, only mildly disabled people are able to lease because the scheme does not allow significant adaptation of the car for the use of the severely disabled. Indeed, many disabled people argued that what the scheme was doing was taking a lot of money from disabled people who were then returning used cars in fabulous condition to he resold by the manufacturers.

The response was to introduce a hire purchase scheme which worked in a similar way. A disabled person signed over his benefit and, at the end of the hire purchase, he owned the car. But huge down payments were necessary before a disabled person could take out a hire purchase agreement because the mobility allowance—now the disabled living allowance—did not cover the cost of the repayments.

The other problem was that adaptations to the car meant another massive expense. Therefore, Motability, the charity, became involved in the adaptations. The charity absorbs practically every penny in the charity field in connection with disabled people and motoring. It was supposed to fill the gap and ensure that significantly disabled people became mobile. However, it has not worked out that way. There has been a level of complaint about the lack of service. Most people complained that all that Motability really did was to provide cars for the relatives of disabled people rather than the disabled people themselves.

The current financial position is that each year the Government pay Motability Finance Ltd.—as I said, a private company—£360 million of disabled people's social security benefits. Motability Finance Ltd. is the only lender in the world to have no bad debts. The money is guaranteed by the Government because it is a social security benefit which is paid over. Yet the rates of interest it charges disabled people and its car leasing arrangements are not that advantageous. In addition to the £360 million, the Government also pay Motability Finance and the charity £5.5 million a year to cover their administrative costs.

Two years ago, a disabled person called Mr. Ralph Irwin Brown began to write to Motability, the Minister for Disabled People, and the Chancellor of the Exchequer, asking dozens of questions. I have read much of that correspondence which seems to cross between, "You're giving disabled people a lousy deal" and "Who is making the profits?" and "Where are they going?"

In an interview, Mr. Simon Willis, a director of Motability, said that there was some money available for adaptations. It was significant that after saying that—I am sure that there was no connection—he was moved back to his position in the DSS within a few weeks. It was then said on the disabled grapevine that £10 million was going from the finance company to the charity to help it pay for adaptations to vehicles. I should point out that that happened comparatively recently and not at the time when all the problems arose. The charity then announced that it was setting up a sub-committee of disabled people to look at the service being provided. For years the charity had refused to do so. Those concerned claimed that they were always doing as much as they could with limited resources.

We also know that two weeks ago Mr. Peter Lilley, Mr. William Hague, and relevant government Ministers—in effect, the paymasters of the scheme—decided to send in the National Audit Office. Last Friday, Motability's director of finance resigned. I understand that over the years a number of officials have been alerting the Government that the whole system has been riddled with minor fraud. Although it is not a minor fraud, the most obvious example of that is that certain car manufacturers have been excluded from the scheme—for example, Honda and Renault—while others, like Ford, have entire, very big, departments which are devoted to the work and which employ major advertising agents to handle their publicity.

People are now asking: how far will it go? How profitable is Motability Finance? And where do the profits from that company go? All of us in the disabled world have believed for a long time that if the corporate side of Motability made profits, the profits would go to Motability. But has that actually been happening? How much profit do the clearing banks make from financing the leasing of cars via Motability? It is a very big business for them. For example, 220,000 vehicles, about 5 percent. of the new car market, are involved. One leasing expert commented that people with disabilities are paying about £150 too much per car and that "surplus" profits made in that way amounted to £12.5 million a year over the past few years.

The Daily Telegraph obtained accounts of the partnerships with banks set up by Motability to handle its finances—namely, Barclays, Nat West, Midland, Lloyds, the Royal Bank of Scotland and the Bank of Scotland. Such accounts showed that in 1993 the operating profit from leasing cars was £85.4 million on a turnover of £375 million. Informed sources say that the operating profit last year stood at more than £100 million.

There is also the Motability Tenth Anniversary Trust, formed as a company and a registered charity in April 1989. It appears to have no office or staff of its own, but the DSS contributed £5 million to the trust and nominated two of its trustees. Can the Minister explain why that second charity was formed and why the £5 million was donated to it and not to Motability? Will the noble Lord also confirm that the value of the trust's funds in April 1995 was over £40 million? Further, will the Minister confirm that over £35 million has been received from Motability Finance Ltd. or the banks being a proportion of the surpluses or profits which arc generated from disabled people by their use of Motability HP and lease schemes? Is the Minister satisfied that the sole beneficiary of the trust is Motability, or is there another charity?

From all that I have said, it seems to me that Motability and its associated companies have proved to he a very nice big earner for someone on the back of disabled people. There are many questions that need to be answered. I beg to move.

Lord Inglewood

I must begin by congratulating the noble Lord, Lord Carter, on his ingenuity in tagging the point that he wanted to make on to the amendment. It is, of course, a matter of public interest with which I shall deal in a moment. However, perhaps I may actually talk for a few moments about the subject matter of the clause which I also believe to be most important.

As many Members of the Committee will he aware, there are a number of charities and organisations which help particular groups of disabled people in preference to other groups. Obvious examples are the RNIB, which concentrates its efforts on helping the visually impaired and the RNID which helps people with hearing impairments. Such organisations sometimes wish to employ people with those particular disabilities because of their experience or the techniques they have learned in coping with their specific impairment. They may also wish to encourage the employment of people with such disabilities by setting a personal example of doing so themselves. Clause 10(1) ensures that such activities would not become unlawful where they meant rejecting people with other kinds of disabilities.

As the noble Lord, Lord Carter, said, he advised my right honourable friend's private office that he wanted to talk about Motability. Perhaps I may just make a brief comment or two about Motability in general and some of the points that he made. We will respond in detail to the noble Lord in letter form. I should like to begin by stating that the Motability scheme has been a great success. During the past 17 years, around 500,000 disabled people have become mobile through the scheme. A good many of those people would be unlikely to become mobile without the vehicles obtained through the scheme. Indeed, the keys to the half-millionth vehicle will be handed over by Her Majesty the Queen at the end of July. Notwithstanding that success, we obviously realise that there is no room for any complacency.

Motability is an independent charity which was set up in 1976. It operates under a Royal charter whose governors are responsible for the operation of the scheme. They have a duty to ensure, through suppliers, that they are securing the best value for money for the disabled customer. The organisational and financial arrangements among the department, Motability and Motability Finance Ltd., have been reviewed to ensure that both disabled customers and taxpayers receive the best value for money.

The noble Lord, Lord Carter, referred to the involvement of the National Audit Office. I must emphasise that my right honourable friend the Secretary of State did not ask the NAO to undertake a study of Motability. The office decided over a year ago to look at payments to Motability as part of its programme of reviewing DSS grant-in-aid bodies. Of course, there is nothing unusual in that process. We welcome the study and are fully co-operating with the office.

The noble Lord also made reference to profit levels. While they are matters for which Motability has direct responsibility, I can assure Members of the Committee that there is no question of the banks making £85 million profit. Motability annually reviews the agreed return taken by the banks. The figure quoted is not profit but includes items such as interest on borrowings which amounts to over £1 billion.

The National Audit Office, which is obviously a fully independent organisation, is currently investigating the Motability scheme. We are co-operating fully with its inquiries. I hope that that sets the scene. As I said, I shall write to the noble Lord, Lord Carter, in answer to the very considerable number of detailed questions that he posed. I am sure that the noble Lord will understand why I have been unable to reply to him now with the detail that he seeks.

6 p.m.

Lord Carter

I am grateful to the Minister. I shall not extend the discussion now. It can be seen from the evidence I have now put on the record that there is a situation which needs to be considered. I do not think it was just accident that the National Audit Office examined the charity at this time. I do not wish to refer to all the talk there has been of scandal, misfeasance and the rest of it, but there is much suspicion about what is happening with this charity. It is welcome that the position is being looked at and I hope that now it is in the public domain it will be looked at properly. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 agreed to.

Clause 11 [Advertisements suggesting that employers will discriminate against disabled persons]:

Lord Carter moved Amendment No. 56E:

Page 8, line 26, at end insert: ("() an employer has indicated that a successful application will depend on a medical testing or screening: or").

The noble Lord said: In moving this amendment I wish to speak also to Amendment No. 56F. I am afraid that these two amendments go over some of the ground that we discussed on Tuesday. That discussion is recorded at columns 1705 and 1708 of Hansard. The matter concerns problems associated with medical testing, the screening requirements for certain jobs and the problems which can arise when, through an advertisement or otherwise, an employer indicates that a successful application will depend on medical testing or screening or indicates that non-symptomatic conditions which may lead to future disability will prevent employment.

Amendment No. 56F deals with a more subtle situation; HIV/AIDS is an obvious example. It might also apply to epilepsy or to multiple sclerosis in its early stages. One way to get round this problem as regards advertisements may be for prospective employers to state in their advertisements that their company is a disabled opportunity employer. However, of course all employers should be disabled opportunity employers and they should not need to spell that out. There is a problem here and we are not entirely sure how to deal with it. I am the first to admit that these amendments are not perfect. If the Government could accept the principle of the argument and recognise that there is a problem, perhaps after discussion either the Government or ourselves could return with a redraft of the provision.

The point is to ensure that the Government recognise the potential problem which could occur with advertising and interviews. We are not sure that the Bill goes far enough in this respect. It would be helpful if the Government could tell us whether they think it does go far enough and if so, how. I hope that when the Minister replies he will not say that people can apply to industrial tribunals. Of course they can, hut it is a lengthy and offputting business.

The Bill is intended to end overt discrimination against disabled people but it will still be possible to discriminate against a disabled person at the early stages of a job placement, such as the advertising stage or later. The Bill's provisions depend upon the disabled person being aware that discrimination has taken place, but it will often not be possible for a disabled person to he aware of and to challenge this discrimination. An example of this is the research carried out by Scope in 1990 which showed that people with cerebral palsy were often rejected at the application stage when they were as well qualified as their able-bodied counterpart.

I should make it clear that the amendment does not prevent the use of medical testing or screening but is intended to prevent the requirement that a successful application will depend on medical testing or screening. That is an important distinction. For example, I am advised that Texaco requires every prospective employee to take a medical examination but the employer—that is the company—is never advised by the medical unit of the reasons why a prospective employee failed a medical. There is a problem here. We touched on these matters on Tuesday at an earlier stage of the Bill. As I have said, I am the first to admit that this amendment is not perfect but it is an attempt to try to get round this problem. It would be extremely helpful if the Government could now tell us whether they recognise that there is a problem, and if so— if these amendments are not the right way to deal with it— whether they can make a suggestion. I beg to move.

Lord Addington

This amendment covers much of the ground that was covered under Amendment No. 23 which I moved on Tuesday. This amendment might constitute a better opportunity for including the provision in the Bill as it states what one should or should not be able to do when advertising a job. I hope that the Minister will give us more encouragement than we received on Tuesday, although we did not receive a totally unfriendly response. Does not the Minister consider that this is a good opportunity to give clear guidance on what is and is not acceptable in job advertisements?

Lord Inglewood

As the noble Lords, Lord Carter and Lord Addington, commented, to some extent we are going over ground which we covered on a previous occasion. On that occasion there was a clear difference between us on some aspects of the matter, and I sense things will be no different today. Having said that, I hope that I shall be able to throw some light on these provisions and that that will he of assistance to the Committee because, as always, I am here to try to be helpful.

The key to understanding Clause 11 is that it does not make it unlawful to mention health requirements in a job advertisement because the requirements may be entirely justifiable for the job in question. Employers can be entitled to reject applicants on health grounds. Indeed it may be a legal requirement in certain circumstances not to have a particular health problem in some jobs. Therefore it would be quite wrong to have a blanket ban on employers mentioning health requirements. What is important is to cover the problem of employers trying to dissuade disabled people from applying for jobs that they might be able to do—perhaps with a reasonable adjustment—or stating in advertisements that certain health requirements will be applied and claiming subsequently that the requirements were not applied in practice.

Amendment No. 56F would ensure that industrial tribunals must, in appropriate cases, assume a disability-based reason where advertisements suggest that the employer will not employ a person with a non-symptomatic potentially disabling condition. As we explained on previous occasions, a tribunal can only hear a case brought under the Bill by a person who has or had a disability. Non-symptomatic conditions are not a disability and there will be no cases to which this advertisement could be relevant. As I have already mentioned, we have debated a number of times the merits of covering people with conditions which have no symptoms or effects and we have made it quite clear that that does not fall within our definition of disability. I appreciate that that may not be what those on the Benches opposite want to hear, but at least I have been consistent with what I said before and that is the position of the Government. I do not want to rehearse those arguments again other than to remind the Committee once more that this is not a general anti-discrimination Bill. The Bill is about disablement and discrimination in regard of it.

Amendment No. 56E would ensure that industrial tribunals must assume a disability-based reason in the case of advertisements which suggest that the employer will decide whom to employ on the basis of medical testing or screening. I can see that the purpose of this amendment has more bearing on what we are seeking to do in the Bill. If an employer discriminates on the basis of evidence found from medical testing, that would he caught by the Bill as much as any other discrimination. But we are not seeking to ban medical testing or screening. There are legitimate uses which employers can make of these procedures, as we discussed on Tuesday when we discussed the amendment put down by the noble Lord, Lord Addington, which sought to limit the scope for employers making use of such tests quite considerably. The noble Lord referred to that amendment. However, that is not the same thing as saying that employers must not face certain consequences if they advertise in terms which indicate that applicants must undergo a medical test.

Clause 11 goes a long way—perhaps all the way—to meet the concerns addressed in this amendment. It applies where the terms of the advertisement might reasonably be understood as indicating that applications might be determined to any extent by reference to the successful applicant not having any disability, or not having a disability of the kind the complainant has. In particular I refer here to Clause 11(l) (e). It seems to us that Clause 11 already achieves the result which this amendment seeks. On that basis I hope that the noble Lord, Lord Carter, may feel that his concern has been covered and that he can withdraw his amendments.

Lord Carter

The Minister is absolutely right; he always tries to be helpful but the problem is that he has a varying success rate. His reply was extremely helpful. He has at least satisfied us on the point that he made at the end of his reply as regards what is caught by the clause. Obviously I wish to read what he has said. I think he has answered the problem that we thought we could perceive. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 56F not moved.]

On Question, Whether Clause 11 shall stand part of the Bill?

Lord Renton

Notice has been given of an intention to oppose that Question. I believe that the clause should stand part of the Bill. However, I shall be grateful for clarification because it is ambiguous in its meaning and effect.

Various circumstances are set out in subsection (1). One understands them. However, when it comes to subsection (2) we are told, assuming that a complaint has been made by a disabled person, that: The tribunal hearing the complaint shall assume, unless the contrary is shown, that the employer's reason for refusing to offer, or deliberately not offering, the employment to the complainant was related to the complainant's disability". When I read that I wondered what was to be the consequence of that finding by the tribunal. Was it to be regarded as an aggravation of the complaint or a defence of exemption from it?

I suggest that between now and Report stage the Government should ask the parliamentary draftsman to look at subsection (2) so as to make it abundantly plain and to remove ambiguity. It may be that in discussion of the two previous amendments my noble friend Lord Inglewood made the position absolutely plain. However, both he and the noble Lord, Lord Carter, speak so quickly that I am afraid that my still reasonably alert mind cannot take it in fast enough.

Lord Inglewood

I am grateful to my noble friend Lord Renton for agreeing that the clause should stand part of the Bill. I am also reassured that his mind is sufficiently alert that he has focused on a point that requires serious attention, as he always does in these matters. In the circumstances it would be appropriate to reflect further on the points that my noble friend made. I thank him for making them.

Clause 11 agreed to.

Clause 12 [Discrimination in relation to goods, facilities and services]:

Baroness Hollis of Heigham had given notice of her intention to move Amendment No. 57:

Page 9, line 2, at end insert: ("() specifically by failing to provide the service in the most integrated manner compatible with reasonable costs.").

The noble Baroness said: I had expected Amendment No. 57 to be grouped with a subsequent amendment in the name of the noble Lord, Lord Swinfen, concerned with integration. Perhaps it was our mistake, but the amendments were not grouped. Given the number of significant debates, I shall not move the amendment and shall seek to make my points in the later debate.

[Amendment No. 57 not moved.]

Baroness David moved Amendment No. 58:

Page 9, line 10, at end insert: ("() the provision of services in further education includes provision of appropriate transport for students with disabilities;").

The noble Baroness said: This amendment fills a loophole left by the Further and Higher Education Act 1992. By that legislation local education authorities are required to consider the transport needs of students with disabilities and learning difficulties to and from college. However, they are not required to provide that transport.

There have been a good many problems. The National Bureau for Students with Disabilities receives many calls every year regarding transport problems. It is ridiculous that there are students who are kept out of education because they are unable to get to college because of lack of transport.

I can give one example. Liz is a wheelchair user. She cannot use public transport to get to college because it is not accessible. Neither the college nor the LEA will pay for appropriate transport for her. At the moment Liz is at home, trying to raise the money elsewhere to cover the costs of travelling to her course. That seems extremely unfortunate. I have details of other cases, but I shall not waste the time of the Committee by going into them. I can assure the Minister that a good many people have this problem, as the National Bureau for Students with Disabilities says.

I hope that the Government can be sympathetic to this problem. One would not expect unreasonable costs to have to be met, but I am sure that something could be done that would be within the spirit of the 1992 Act. I know that during the passage of that Bill we were anxious about this situation. Clearly, our worries were justified because of the cases that we have heard about since. Therefore, I hope that we shall have a sympathetic hearing. I beg to move.

6.15 p.m.

Baroness Darcy (de Knayth)

Perhaps I may join the debate rather late and support the amendment, which I was supposed to move. I had a transport and access problem myself and I am afraid that I was not present to hear what the noble Baroness, Lady David, said. I am sure that she said everything that is necessary. I declare an interest in that I am president of Skill (the National Bureau for Students with Disabilities). That is probably the last time that I need to say that, not only today but for a week or a month because otherwise we shall all become sick of it. Skill receives many calls every year about transport problems. It is a real difficulty.

I hope that the Minister will look sympathetically on the amendment, or will at least say some encouraging words about how he might issue guidance or follow up individual instances of poor practice. I support the amendment.

Lord Rix

As the noble Baroness, Lady David, explained, the problem is that the obligation to provide transport is unclear. There are obligations of a kind, or at least powers, under the Education Act 1944, extended by the 1992 Act, as the noble Baroness said. There are obligations or powers under the Chronically Sick and Disabled Persons Act 1970. The first is concerned with the duties of local education authorities and the second with social services departments. The result is that each authority is free to argue that responsibility lies with the other authority, and both arc free to argue that they do not have the necessary funds.

Speaking from the point of view of MENCAP, having once agreed that people with severe learning disabilities should be able to go to college, and having heard the glowing testimonials of many young people in their late teens and early twenties who have been able to take advantage of such facilities, it seems to me right and proper that provision should be made for getting them there when they need either special transport or financial help.

As with other amendments, the existing rules constitute a discriminatory hurdle. As I see it, this is not a hurdle which the otherwise very welcome government amendments remove.

Baroness Farrington of Ribbleton

We on these Benches support the amendment. In speaking in support of the amendment I press the Minister to answer certain questions that need to be answered if the Government do not accept the amendment.

The questions surround the issue of students in further education who are of statutory school age and their entitlement to access to education appropriate to their age, abilities and so on. In many parts of the country, due to the development of tertiary college provision, it is further education institutions which offer the appropriate sixth-form level study. I ask the Minister to confirm that such provision would be required under existing legislation.

Secondly, I press the Minister to support the amendment. There are many courses which are not available to students of statutory school age within the school sector, such as technical education courses and various vocational courses.

I also press the Minister to include students above the age of statutory schooling. Tragically many, particularly but not solely, physically disabled students acquire their disabilities as a result of car or motorbike accidents which occur in their late teens. Therefore, that group of young people is debarred from continuing their education at the statutory school age.

Finally, I press the Minister to consider that denying access because of the difficulty of transport to the further education college may be an unwise financial decision for the Government to take because, through attending such courses, young people who are older students can acquire skills that will allow them to be fully economically active within the community, not only to their own benefit but to the economic benefit of the country. We support the amendment.

Lord Swinfen

I must apologise to the Committee for not being in my place when the amendment was moved, in particular since my name is on the list of those proposing it.

In order not to repeat what has already been said by other Members of the Committee, I simply state that I am strongly in favour of the amendment.

Baroness Masham of Ilton

I add my support for the amendment, particularly for students living in rural areas. Very often there is no suitable accommodation for them so they have to live at home and travel long distances.

In rural areas, too—my own area of North Yorkshire being one—there are no such schemes as taxi cards or Dial-a-ride. That can involve a tremendous extra expense for students who have to attend sixth-form colleges or colleges of further education.

Lord Zouche of Haryngworth

I support the amendment. The inclusion of transport for students with learning difficulties and disabilities within the scope of Part III of the Bill will eliminate the present anomaly where opportunity is an accident of where an individual lives. The division of responsibility between local authorities and colleges can be clarified by regulation. However, the Bill provides an ideal opportunity to resolve a present difficulty: that is, to deprive a number of disabled young people of access to education and subsequent improved employment prospects. Access to education is a fundamental opportunity for those young people to gain an active role in society. I support the amendment.

Lord Addington

Members of the Committee from all sides of the Chamber have put forward a useful amendment. The provision will be of benefit to a group which will gain skills and will therefore not require so much assistance in the future because those people will become employable. They will thus have cash and will be able to purchase services.

Lord Mackay of Ardbrecknish

Perhaps I may start by saying that I am glad that the noble Baroness, Lady Darcy (de Knayth) managed to get here on time. I am not sure whether she was making a point by coming into the Chamber and pointing out to me so forcefully the problem of transport and access. If she were not, it was a reasonably well-accomplished accident, if I may say so.

I recognise the apparent attractions—spelt out by a number of Members of the Committee—of linking access to further education courses with arrangements for transport to those courses, as proposed in the amendment. However, that policy would involve separating the statutory arrangements for people with disabilities from those of their peers. I believe that that flies a little in the face of the principles of the Bill. It also threatens to dissipate what are limited resources.

Responsibilities for all home-to-college transport arc already clear. Under Section 55(1) of the Education Act 1944 local education authorities have a duty to make arrangements for the provision of free transport where they judge that it is necessary in order to enable people to attend colleges of further education. The duty extends to students attending independent schools and colleges, including those for whom the FEFC has purchased provision. In reaching a judgment, local education authorities must look at the circumstances affecting the individual, such as his or her age and the route to the institution.

In addition, Section 55(2) enables local education authorities to pay the whole or a part of the reasonable travelling expenses of further education students for whom free transport is not thought necessary. I hope that that at least helps the noble Baroness, Lady Farrington of Ribbleton, regarding one of her questions.

Free transport can range from the provision of specialised coaches, with escorts, to the purchase of bus and train passes. Often the provision made under Section 55(1) is made alongside and indistinguishable from that made under Section 55(2). Additionally, local authorities are able to develop coherent and cost-effective arrangements not only encompassing public transport, but also provision made by social services departments. For example, they may have a vehicle which they use to transport disabled people to day centres but which can also be used in the event of someone who is disabled needing such transport to attend an FE college.

On the point about keeping a coherent policy, when a person moves from school to college, there will be a continuity of responsibility for his or her transport. That was one of the points made by the noble Baroness, Lady Farrington of Ribbleton. The situation does not only involve moving from school to college. There are also circumstances nowadays in which people who are still at school attend colleges for part of the week for some of their courses. Therefore, I believe that there is a merit in trying to keep all the responsibilities where they are at present: namely, with local authorities.

The noble Baroness, Lady Farrington, can be assured regarding pupils of school age. Regarding her first question, I believe that they are covered. I believe that I have answered the second question about pupils who are partly in college, partly in school, or moving between the two.

The arrangements that we have at present, and the associated economies of scale, would be lost were the funding to be transferred to individual colleges from local authorities. There would necessarily be an increased administrative burden which would further reduce the amount of funds available for the transport.

I understand what noble Lords are saying. In answer to the noble Baroness, Lady David, I certainly look sympathetically at the need for further guidance. I can assure her that I shall also ask the Department for Education to look into any individual cases to which she would like to draw my attention. She mentioned one in perhaps a little more detail. We could certainly look at it.

I do not believe that there is anything between us on what we wish to achieve. I think that it is unnecessary to go down the road proposed in the amendment. I believe that it would be a mistake to dismantle an integrated system and separate disabled students from their peers.

With that explanation, and the promise to consider any specific examples sent to me (which I shall pass on to the Department for Education) and with the fact that the department will look sympathetically at the need for further guidance, especially in the light of any examples, I hope that the noble Baroness will withdraw the amendment.

Baroness David

I thought that it was rather a clever response from the Minister to say that the amendment was going against the principle of the Bill. However, he went on to be a little more sympathetic.

There really are problems. I have another example involving an 18 year-old who had to change a course. She was partially blind and there was not the support at one college. She had to move to a college a little further away. The local authority would not pay travel costs because it was not the nearest college. Local authorities probably differ a little in their responses to cases of need.

I am grateful to the Minister for saying that he will consider giving a little more guidance. That would he helpful. I am grateful, too, that if we have individual cases for consideration, he will consider them or send them to the Department for Education.

I am sure that we should all like to read what he said and hope that he will deal with the guidance problem. Granted that, for the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ashley of Stoke moved Amendment No. 59:

Page 9, line 10, at end insert: ("() the provision of services includes the provision of services to a disabled person representing another person in their capacity of parent, guardian or carer:").

The noble Lord said: I am well aware that the Government seek to confine the Bill to disabled people. However, the amendment seeks to extend the duty of service providers to provide access to goods, facilities and services to parents and carers.

There will be, and have been, cases where an able-bodied person needs the assistance of parents or a carer. A perfect example is of a normal hearing young boy in a court of law, needing the assistance of his totally deaf parents. Because those parents did not have any interpretation, they were unable to help the boy, so we required help for the parents in order to help the boy. It is clear that, if we do not get help for people in that situation or in hospitals, then justice fails to be done. If parents have to give their consent or otherwise to an operation which may be necessary in a short time, then we are in trouble.

The same principle applies to carers. There is a precedent for them because Section 3 of the 1986 Act on disabled persons—a section which was never implemented by the Government—provides that a disabled person has a right to communication support. Section 8 of the Act—also not implemented—extended that right to carers. It is all too easy for us in this House and another place, enjoying the debates and clashes of opinions and views, to be carried away with our words, phrases, speeches, theories, amendments and subsections and forget the realities. The reality behind the amendment is shown from the number of examples produced by the RNIB. The examples deny the pleasant advertising picture of carers being chubby, happy middle-aged ladies, getting a coffee for a smiling disabled person and patting the pillow. I will quote only one of the examples, because of lack of time. A man, Mr. M, is blind and is caring for his wife, who has multiple sclerosis. Imagine that kind of situation: he finds it difficult to obtain information about services for her in a form which is accessible to him.

There are other examples which I have no time to read. They are special cases which require special provision. I know that special pleading is not popular in the House, but such people arc in great need of help under the Bill. I hope that the Minister will be able to give a sympathetic hearing to the amendment. I beg to move.

6.30 p.m.

Lord Mackay of Ardbrecknish

I have given a sympathetic hearing to the points made by the noble Lord and hope that I can allay his anxieties by trying to deal with the general point that he makes.

First, the Bill will prevent discrimination against all disabled people to whom a service is being provided. It will not matter in what capacity a disabled person is acting when an alleged act of discrimination takes place. I will check because it is a serious point and I am trying to make almost a legal interpretation of what is in the Bill. I believe that the example quoted of the blind husband seeking information pertains more to the wife with multiple sclerosis. That would be encompassed by the sentence which I have just read from the brief.

Where a service would normally be provided, for example, to a disabled parent, that service will have to be made accessible. We are content that, where a doctor is treating a young child, he not only provides a service to the child but to his parents as well. That would include such things as the provision of information about the child's illness and facilities for the parent to accompany the child.

The Bill will therefore cover many of the situations with which the amendment is concerned, although I am conscious, from the previous remarks of the noble Lord, that he is concerned about education and the provision by schools to disabled parents of information about their children. It may be parents who are deaf and whose children go to school. The noble Lord wishes to be sure that the schools will be sympathetic to that case.

All education is excluded from the general right of access provisions. However, I am pleased to be able to say that the Department for Education will be consulting on this important issue. Following the outcome, it proposes to revise existing regulations to provide for schools to make information available to parents in accessible formats.

With those assurances and that clarification of what the Bill means, I hope that the position is acceptable to the noble Lord. Perhaps I may go one step further in order to clarify the matter. If we consider carers, if information is made available to other carers, then it must be available in an accessible format for disabled carers. That confirms what I said about the example that the noble Lord gave of the blind husband looking after the wife who has multiple sclerosis. If information is available to a husband who is totally healthy and normal—using that word, I hope, in a positive sense—then the blind husband also should be able to obtain it under the Bill. I hope that those explanations are helpful to the noble Lord and that he will not only be able to withdraw his amendment but will feel comfortable in doing so.

Lord Ashley of Stoke

That explanation is helpful and much appreciated. Although it does not completely meet the points, it is constructive and I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carter moved Amendment No. 59A:

Page 9, line 10, at end insert: ("() the provision of services includes the provision of health care services.").

The noble Lord said: In moving Amendment No. 59A, I wish to speak also to Amendment No. 64, which deals with much the same point. The purpose of the two amendments is to try to get the position clear regarding possible discrimination in providing health care. The duty of a doctor is clear. Helpfully, the BMA has spelt it out in a letter stating that the BMA's policy—and I hope that this will be the professional opinion—regarding access to medical care is as follows: Doctors owe a duty of care to all their patients, and each patient must be assessed individually and share in decisions about treatment options. Treatment offered must be based on clinical judgement and sound scientific evidence of likely benefit. It is unethical to refuse an available treatment to any patient who might benefit from it and who is willing to have it". That is clear, although many of us have anxieties about the attitude of GP fundholders. We expressed that anxiety on proceedings on the National Health Service and Community Care Act 1990. I spoke from the Dispatch Box at that time about our concern that GP fundholders might start to discriminate between patients on the basis of their likely cost. At least the BMA has spelt out clearly that a doctor should not be able to discriminate against disabled patients.

However, there are other areas of care: community care, nursing homes, residential homes, the whole area of healthcare and community care. We wish to be clear about whether all healthcare services, of whatever kind, arc caught by the Bill. The BMA states that its interpretation is that those services are caught by Clause 12(3) (h): the services of any profession or trade, or any local or other public authority".

Amendment No. 64 covers the problem in a different place but it has the same intent. It is based on the fact that healthcare seems to be specifically excluded from the examples which are given in Clause 12(3). Is that exclusion deliberate or an oversight? Is the exclusion acceptable, since our concern is covered in another place in the Bill? The object of the two amendments is to clarify the position regarding possible discrimination in providing healthcare and to ensure that all healthcare services, of whatever kind, are included in the Bill. I beg to move.

Lord Robertson of Oakridge

It is my intention to move Amendment No. 64, which aims to alert all who are concerned with health care and the provision of medical services to the changed situation that will result from the passing of this Bill into law.

My amendment, based on wording suggested by MENCAP, underlines that what is now largely a matter of medical ethics and codes of practice will come under a law that will make it an offence to discriminate against disabled people. Incidentally, I saw the amendment tabled by the noble Lord, Lord Carter, only this afternoon. It seems to me to he a perfectly possible alternative to my amendment. However, I do not wish to comment on it any further at this stage.

One has to comb the Bill very closely to find any references to these subjects. However, Clause 12(3) (h) mentions, the services of any profession or trade, or any local or other public authority". The Minister of State advised me in a letter that this provision extends to include health care and medical treatment. I believe, however, that this is such an important area that there should be an explicit reference to it on the face of the Bill, putting the matter beyond any possible doubt. That is what my amendment is designed to achieve.

In order to inform myself, I wrote to about two dozen leading disability organisations, voluntary and professional bodies. The reactions I received ranged from that of the BMA, which felt that there were no problems of discrimination and was happy with the Bill as it stood, to that of RADAR, which felt that the issue was so big that a separate Bill might be necessary. The director general of one organisation wrote: If you can, through the Disability Discrimination Bill, prevent medical practitioners discriminating merely on the grounds of disability as to whether they treat disabled people or not, you will have achieved a great deal and we applaud your initiative". It is not my intention to make a judgment on the medical profession, nor am I qualified to do so. However, I should like to mention areas of concern that have been drawn to my attention. The first is medical treatment itself. Under the Bill—and this will be absolutely clear if my amendment is accepted—it will he unlawful for a medical practitioner to provide medical treatment to a disabled person other than in accordance with best medical practice solely because that person is disabled.

I have had some examples drawn to my attention of instances of disabled people having difficulty in receiving the same quality of medical treatment as others in society. There seems to be a particularly difficult problem in the case of Down's syndrome children. I have heard of several cases where there has apparently been a reluctance to give them the same treatment as other patients. ASBAH mentioned a young girl client with hydrocephalus and some learning difficulties who complained for some 18 months of pain in her shoulder but whose complaints went unheeded. The neurosurgeon who treated her said that there was nothing wrong. However, with ASBAH' s assistance, another specialist identified a tumour in the shoulder which was then successfully removed. This story supports the concern of MENCAP that disabled people with lesser medical problems unrelated to their disability can have them ignored or played down by medical practitioners.

ASBAH also mentioned problems that were experienced by pregnant disabled women who had been denied access to a similar level of service and choice to that obtained by other pregnant women. Other groups, such as John Grooms and MENCAP, emphasise the difficulties of getting sufficient support for disabled people following medical treatment.

It would not be surprising if discrimination were to creep into the provision of health care. We are all prone to devalue disabled people, especially the elderly disabled. Moreover, there are times when it is perfectly proper for disabled people to be given different treatment tailored to their needs. But, as MENCAP put it to me in a letter, doctors cannot justify denying treatment or offering treatment poorer in quality as well as different in kind from that offered to people in like state without disability". In a nutshell, it is right to question the value of the treatment for the patient, but not right to question the value of the patient to receive the treatment. That is a complicated sentence. It reads like the old joke: whisky when you are well makes you ill; whisky makes you well when you are ill. If you try to say that quickly, you soon get into a muddle. I shall just say the sentence again. In a nutshell, it is right to question the value of the treatment for the patient but not right to question the value of the patient to receive the treatment. My amendment would put that beyond doubt.

My second area of concern is the availability of nursing care and services. To meet the requirements of the Bill, reinforced by my amendment, there will need to be an improvement in the provision of suitable equipment to meet the needs of disabled people. Examples are pressure relief mattresses, inaccessibility of breast screening apparatus and the lack of hoists in outpatients departments. It would give considerable encouragement to disabled people if the Government were to give a lead by ensuring that hospitals and surgeries were constructively encouraged to provide accessible lavatories, clear direction signs, including signs in Braille for the blind and partially sighted, and induction loops for people with hearing impairment.

My third area of concern is access to GP services. Three organisations mentioned problems that have recently emerged of GP fundholding practices not wishing to accept disabled people as patients because of the potential cost of their care and treatment. This Bill—and again my amendment clarifies this point—will make discrimination in this area unlawful. However, that will not necessarily make the problem go away. I hope that a way can he found to help GPs who are under this kind of pressure.

I hope that these observations are helpful to the Committee. While the problems may not he widespread at present, there is a real possibility that, as the number of elderly disabled people grows and medical science allows disabled people to live longer, the examples I have raised will become more prevalent. Although the amendment raises no new issues of principle, mentioning the matter explicitly on the face of the Bill would provide a clear marker for the future. I shall be interested to hear what other noble Lords and the Minister have to say in response.

6.45 p.m.

Lord Swinfen

I very much support the idea behind these amendments. The noble Lord, Lord Robertson of Oakridge, mentioned John Grooms association for disabled people, for which I work. Our experience suggests that discrimination can occur in relation to all services provided by the National Health Service, including general practitioners and therapists. When we opened a number of new homes in the Southend area, one large one and three quite small ones—they were opened, I may say, over a number of years and spread quite widely over the Southend area—we had considerable difficulty in finding general medical practitioners who were willing to have the disabled people in our care on their lists. That appeared to be because they were under the misapprehension that because someone has a physical disability, he or she was likely to be ill more often and therefore to be a greater expense on the practice.

Residents in our Edgeware estate have also been denied community physiotherapy services and equipment, apparently because they live in a residential home. I understand that the local services claim that their budgets are insufficient to meet the costs of providing these services. Talks with other organisations indicate that this occurs in other homes as well. It thus appears to us that there is double discrimination: a disabled person is forced to live in a residential home while at the same time being denied the medical services that able-bodied people could easily obtain. I support the ideas behind these amendments. Whether the wording of either is exactly correct for the Bill, I am not qualified to say, but I believe that we should have, if not one of these amendments, then something similar on the face of the Bill.

Baroness Masham of Ilion

I have my name to Amendment No. 64 but I am just as interested in Amendment No. 59A. In fact, Amendment No. 59A may be the better of the two. The details could then be put in the regulations.

As the Bill stands, health care for disabled people is not adequately written in to indicate the vital need for medical personnel to understand the needs and problems of disabled people, which I am afraid that many do not. The problems seem to be getting worse. We have now before us an opportunity of highlighting some of the problems.

I believe that it will help educate hospital trusts, their non-executive members and the staff who work in the hospitals as well as medical personnel working in the community if the Bill, when it becomes an Act, has the word "health" written into it. I should like to include "dentists" too. Many severely disabled people, particularly those with learning difficulties, have problems finding dentists who will treat them. To illustrate what I mean, I shall give two examples. I hope that the Committee will understand how important is the problem of receiving adequate health care at present for disabled people.

First, I should like to tell the Committee that, as the Department of Health knows, I have been involved with the problem of pressure sores over the years. Last year the Department of Health held a very interesting seminar on the subject. The noble Baroness, Lady Cumberlege, has answered one of my Questions on the matter in the past year. I am sure that she and I are of like mind over this problem.

Pressure sores cause untold misery to the individual and cost the National Health Service millions of pounds in extra expenses, sometimes as much as around £100 million a year, in staff time, operations and medication. My first example is that of my personal friend, the noble Lord, Lord Crawshaw, who was in hospital at the time of the Second Reading of this debate, as I mentioned. The noble Lord has given me permission to tell the Committee what happened to him.

The noble Lord was taken as an emergency patient to a large and well-known teaching hospital near his home in the Midlands. He was running a high temperature and had haemorrhaged. Some noble Lords may not know that the noble Lord, Lord Crawshaw, is a paraplegic who does not feel his paralysed parts. When ill, all paraplegics are very much at risk from pressure sores if they are not turned and given special attention—even nursed on special mattresses, as the noble Lord, Lord Robertson, said. The noble Lord, Lord Crawshaw, developed a pressure sore while he was in hospital. It is ironic that he is a trustee of Smith's Charity which at this very moment is funding a research project on pressure sores. Having stayed extra time in hospital, where his pressure sore was not healed, the noble Lord is at home being looked after by the district nurse. But he may well have to go to a spinal unit to be cured. That is why he is not in the Chamber today. We miss him greatly on the Mobile Bench.

My other example concerns a paraplegic lady, living at home, who became very ill and weak last year. The local doctor did not send her to hospital. She developed persistent diarrhoea. When the community nurse visited, she said that she could only be given a bath every two weeks. She was living with her brother, an alcoholic who had had cancer. She needed constant help, which was not forthcoming. When her own doctor came back from three weeks' holiday, this patient was sent to hospital. She died the next day from an undiagnosed ulcer. The system had let her down.

I hope that the Committee will realise how important it is to have health care written in the Bill. I hope that the treatment of pressure sores will go into the regulations. I want to save the National Health Service money and help disabled people to a better quality of life. Having taken sisters away from hands-on work on the wards and given them administrative jobs has not helped patient care. I hope that the Minister will consult with his colleagues from the Department of Health. As the Committee knows, disability crosses all government departments.

Lord Rix

I wish that I had been able to put my name to either of these amendments. I crave the Committee's indulgence when I speak for a few moments on this matter of unfair discrimination. I do so from a personal standpoint. Some Members of the Committee may feel that, at least within the National Health Service, disabled people will already be protected from discrimination by a system designed particularly for their benefit and by staff who are likely to have their interests particularly at heart. Would that were so.

First, there is institutional discrimination. When I was Secretary-General of MENCAP from 1980 to 1987, a large number of people with learning disabilities were then in large hospitals. It was notorious that expenditure per head on food was a fraction of that spent in general hospitals. I could never discover any reason other than unfair discrimination which would explain the discrepancy. I can only hope that things changed when I became Chairman of MENCAP some years later.

Then there is blatant discrimination based on a sense of priorities which puts people with learning disabilities at the end of the queue. A sister on a paediatric ward to which a child with severe and multiple disabilities was admitted for treatment said, "We really do not have time to look after children like that when there are sick normal children to treat". The high level of untreated morbidity that was found every time that there was a survey of the health of people with severe learning disabilities is a commentary of "Why bother?" on this why-bother prejudice.

A third category of unfair discrimination is the unwillingness to provide the additional support that people with severe learning disabilities may need during treatment. As I said, I can speak from personal experience on this story and the next one that I shall tell the Committee. It concerned an eye operation—she has had several—on my daughter Shelley. It was the first that she was to have and took place some time ago. I was asked to provide the extra nursing cover needed during the recovery period. I had to pay for that. I am happy to say that eventually the health authority reimbursed me but it was after some degree of argument. I can cite other cases where parents have been told by a hospital that they ought to seek private treatment, or that extra nursing cover could not be made available, or that the parents themselves should come in to provide personal care and feeding.

As was touched on by my noble friend Lady Masham, dental problems too provide further occasions of unfairness and discrimination. Many people with severe learning disabilities—my daughter is one of them—cannot cope with dental treatment without a general anaesthetic. It has recently been brought to my attention that troubles with the change of responsibility for dentistry in Northamptonshire meant that general anaesthetics were available only for extractions. I hope that the problem has now been solved, but for some months people's teeth rotted until they had become so bad that they needed those extractions. Again, quoting my daughter's case, she is still awaiting the general anaesthetic at the hospital so that she can have her teeth looked at. That is the state of play that has been going on for some 18 months.

I hope that I have said enough to show why I would welcome assurances from the Minister that the Bill as it stands will prevent the kind of discrimination that I have described.

Baroness Gardner of Parkes

I believe that I am a lone voice on this matter. I feel that the amendment as tabled is probably unnecessary. I believe that the health service should now be doing everything and anything that it can do to help people. Certainly I look to the Minister to confirm that that is so. But so many issues have been raised which are bordering on clinical judgment that this is something about which we must think carefully. The medical profession in particular values its clinical freedom, and the dentists no less so. It is important that one should be able to decide what is best for one's patient. Certainly, more and more negligence claims are being filed as people decide that what the doctor chose was not best for them. If that could be proved, it would be a different matter. However, it is difficult to decide whether a person was discriminated against or whether it was simply that the doctor was a bad judge.

The noble Baroness, Lady Masham, quoted cases where I felt that someone was probably in the hands of a had doctor. I hope that there is sufficient machinery within the health service to deal with that. But I speak particularly because of the comments in relation to dentistry. Dentistry is a real problem. I know that because I have had personal experience of it. The point made regarding general anaesthetic not being available for someone who required it is absolutely right. In my surgery we could and did give general anaesthetic for fillings. I did many thousands of those for all types of people, some of whom had learning difficulties or other disability. They were not all suitable to be treated in an ordinary dental surgery because some required an expert to ensure that the patient did not suffer a heart attack. People with a secondary congenital heart condition had to be treated in a specialist centre.

Lord Rix

I am grateful to the noble Baroness for allowing me to interrupt. The case to which I referred concerns my daughter. She is awaiting admission to hospital to have general anaesthetic because of her general state of health.

Baroness Gardner of Parkes

That confirms what I am saying. Therefore, when the patient comes to the dentist, the dentist must decide whether or not the case is suitable for treatment in the surgery. The noble Baroness, Lady Masham, was talking of dentists in general. I had a number of wheelchair-bound patients. I could not treat them unless I borrowed a surgery which was on the ground floor so that the patient could get into it. My surgery was on the first floor. I had one patient who was almost blind and wore heavy leg calipers. She came to my surgery for years and managed to get to the first floor. We treated her all the time and I have nothing but great admiration for how well she coped with double disabilities when most of us would find it impossible to cope with one.

It is a specific problem because National Health Service dentists, particularly in the cities, can only afford first-floor premises, ground-floor premises being much more expensive. An answer may lie in community dental services providing services of that type. I hope therefore that my noble friend will assure me that this is fully covered and that the National Health Service has such obligations already. I certainly would not want to see discrimination against people with disabilities.

7 p.m.

Lord Mackay of Ardbrecknish

We have had an interesting debate. I have a great deal of sympathy with the amendments and the problems which have been brought to our attention. The amendments appear to have the effect of making it illegal to discriminate against disabled people in the provision of health services. This is an extremely difficult and sensitive area and I can understand the Committee's concern, though my concern changed at one stage during the contribution of the noble Lord, Lord Robertson of Oakridge, when he suggested that we may need another Bill. My heart sank at the possibility and perhaps the noble Baroness, Lady Hollis, shared my sinking feeling. We do not need another Bill, nor do we need the amendments. I hope to be able, not just to persuade your Lordships, but also place on record what the position is.

In relation to the specific examples quoted, it is true that, given the size and complexity of our National Health Service, mistakes will be made. That is a human failing. It happens to the disabled and the non-disabled alike, rather like the rain falling on the just and the unjust. It is not therefore a specific problem for disabled people, though I understand the points being made that may particularly affect them. I shall certainly draw the attention of my noble friend Lady Cumberlege to the examples brought to my attention today.

I said that I felt the amendments were not necessary. As we have consistently emphasised, there are no exceptions to the fundamental principle that the National Health Service is there to provide services for everybody on the basis of clinical need—a point made by my noble friend Lady Gardner. We categorically spelt out in the Patient's Charter the right of every citizen to receive healthcare on the basis of clinical need and not on any other factor. Indeed, the National Health Service Executive produced the Patient's Charter in a number of versions—audio cassettes, Braille, large print, video and British sign language, and in signs and symbols for people with learning difficulties. The charter sets out the standards which people can expect of the NHS, including that the NHS will make it easy for everyone to use its services, including children, elderly people or people with mental or physical disabilities. Since the Patient's Charter was first launched in 1991, considerable progress has been made by the NHS in making services more accessible for disabled people.

The Government have specified the improvement of the performance of the NHS for disabled people as a priority in the priorities and planning guidance for the NHS for 1995–96. There have been great improvements in healthcare over the past 20 years or so and disabled people can now benefit from a variety of interventions. Procedures such as hip replacements, which vastly improve quality of life, are commonplace.

These amendments are inappropriate because questions of medical ethics are matters for the General Medical Council and the United Kingdom Central Council for Nursing, Midwifery and Health Visiting (UKCC) respectively which are independent statutory bodies. The Medical Act 1983 gives powers to the General Medical Council to provide, in such manner as the Council thinks fit, advice for members of the medical profession on standards of professional conduct or on medical ethics", while the UKCC's powers under the Nurses, Midwives and Health Visitors Act 1979 include that of providing in such a manner as it thinks fit advice for nurses, midwives and health visitors on standards of professional conduct". The noble Lord, Lord Carter, quoted the BMA, perhaps underlining the point that there ought not to be discrimination in the health service. I shall go further and quote the General Medical Council, which issued advice on medical ethics in its Blue Book Professional Conduct and Discipline: Fitness to Practise. This states, under the heading, "Principles governing decisions about access to medical care" that, A doctor should always seek to give priority to the investigation and treatment of patients solely on the basis of clinical need". That advice was revised on 23rd May 1995 and approved by the GMC council. Its new guidance is called Good Medical Practice which states: You must not allow your views about a patient's lifestyle, culture, beliefs, race, colour, sex, sexuality, age, social status, or perceived economic worth"— a point alluded to once or twice— to prejudice the treatment you give or arrange". And, You must not abuse your patient's trust. You must not, for example deliberately withhold appropriate investigation, treatment or referral". It continues, You should always seek to give priority to the investigation and treatment of patients solely on the basis of clinical need".

For nurses, midwives and health visitors, the UKCC in its code of professional conduct, issued in 1992, recommended: As a registered nurse, midwife or health visitor, you are personally accountable for your practice and, in the exercise of your professional accountability, must … recognise and respect the uniqueness and dignity of each patient and client, and respond to their need for care, irrespective of their ethnic origin, religious beliefs, personal attributes, the nature of their health problems or any other factor", and, report to an appropriate person or authority any circumstances in which safe and appropriate care for patients and clients can not be provided. This code of professional conduct is issued to all registered nurses, midwives and health visitors by the UKCC. The council is the regulatory body responsible for the standards of these professions and it requires members of the professions to practise and conduct themselves within the standards and framework provided by the code.

Maintaining and defending the highest professional standards in the public interest is a complex and difficult job which goes to the heart of the self-regulatory role which Parliament has already entrusted to the statutory bodies. I do not believe that duplicating that role in another context would of itself add to the consideration that patients are entitled to expect from the practitioners who serve them.

The noble Lord, Lord Robertson of Oakridge, and other noble Lords asked whether GP fund-holders would be able to refuse disabled patients. The noble Lord is correct in thinking that GPs, fund holding or otherwise, will not be able to refuse disabled people because they are disabled. We shall bear in mind the points he raised when we come to issue codes of practice and guidance on the new rights of access.

Perhaps I may sum up my speech by saying that the question which has been raised by a number of noble Lords can be encapsulated as: are all medical services covered in the Bill? Noble Lords may say that I should have answered that question at the beginning and then I need not have spoken for so long. But this is an important issue and I wanted to put a number of things on the record so that the position is clear. To answer the simple question, "Are all medical services covered by the Bill?", the answer is yes. But we believe there is no need to have this on the face of the Bill because we cannot list every possible service in that way. My assurance that the Bill covers all health services given to disabled people is now on the record. I am grateful to noble Lords for giving me the opportunity to make the position absolutely clear. With that explanation and assurance I hope that the noble Lord will be able to withdraw the amendment.

Baroness Masham of Ilton

The Minister mentioned the Patient's Charter. What legal value do charters have? Are they not just words? That is the reason why we want "health" written on the face of the Bill.

Lord Mackay of Ardbrecknish

Of course they are words. So are all the remarks I make. But the point is that they are words that are backed up, first, by the powerful guidance given to the professionals involved in the health service. That is the first very important point. They are also backed up by various aspects of legislation, including the assurance I have just given that medical services are covered by the Bill. I do not think we need necessarily add one because we could add a number of things which are not specifically on the face of the Bill. We could debate at least until the end of the evening on different issues which people would like to see on the face of the Bill. The Patient's Charter helps to guide patients and tells them what their rights are and those rights are underlined and underwritten so far as concerns this Bill and so far as concerns disabled people by my assurance that all medical services are indeed covered by the Bill.

Baroness Gardner of Parks

Perhaps the Committee will allow me at this very late moment to add that the Patient's Charter is very strictly enforced through the National Health Service Executive and, at the moment, the regional health authorities which keep monitoring the results all the time.

Lord Robertson of Oakridge

I thank all Members of the Committee who have spoken in the debate for their interesting contributions. I am grateful to the Minister for his contribution. Perhaps I may pick up one point which he made early in his speech. He said that the two amendments would bring the medical treatment under the law. That is not quite right. The Bill brings the medical treatment under the law. The amendments merely make it clear that the Bill has done that.

Lord Carter

I am grateful to all noble Lords who have spoken in this extremely helpful debate. Their contributions have underlined the need for the discussion we have had and the need for the ministerial assurance that we received. I know I speak for all noble Lords when I say that we are extremely grateful to the Minister for the very full reply he gave and for the assurance that we needed. He referred to medical services. We are talking about health care services, including community care and the whole range. I think it is clear now that our concerns have been allayed and that there is no need for the amendment. However, we needed to have the debate to make sure that it was not needed. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lucas

I beg to move that the House do now resume. In moving this Motion, perhaps I may suggest that the Committee stage begins again not earlier than 8.15 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.