§ 8.45 p.m.
§ House again in Committee on Clause 12.
§ Lord Inglewood moved Amendment No. 60:
§ Page 9, line 11, leave out ("(subject to any regulations)").
§ The noble Lord said: I wish to move Amendment No. 60 and in doing so to speak to Amendment No. 68. Their purpose is to simplify and clarify the wording of parts of Clause 12.
§ Amendment No. 60 removes from Clause 12(3)—the list of examples of services covered by Part III—the words "subject to any regulations". The provision is superfluous and might be read as creating a power to make regulations affecting the examples. The Government have no intention of making such regulations and the amendment clears up any potential for confusion.
§ Amendment No. 68 seeks to make clear that there is a regulation-making power in subsection (5) which can be used to narrow the exemptions for education, transport vehicles and, should further exceptions prove necessary, other services. The amendments improve the wording of the Bill and I trust that the Committee will support them. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 61 not moved.]
§ Baroness Hollis of Heigham had given notice of her intention to move Amendment No. 62:
Page 9, line 25, at end insert:
("() legal services, including the services of any court or tribunal and of agencies of the criminal justice system").
§ The noble Baroness said: The amendment concerns legal services. I am in difficulty because the Committee will understand that there are major debates to come and we shall be sitting here until two o'clock. I therefore feel that we should not move some of the less important amendments so as to discuss the bigger ones more thoroughly.
§ [Amendment No. 62 not moved.]
§ [Amendment No. 63 had been withdrawn front the Marshalled List.]
§ [Amendments Nos. 63A to 64A not moved.]
§ Baroness Hollis of Heigham moved Amendment No. 65:
Page 9, leave out lines 26 to 28 and insert:
("() For the purposes of this Part, references to a service provider who discriminates against a disabled person shall include references to a service provider who—
§ The noble Baroness said: I should like to explore this amendment even at this late hour because it raises an issue on the first section of the Bill. It concerns perceived effects. In the Bill the Government have such a tough definition of disability in terms of substantial adverse long-term effects that many people will experience discrimination because of their partial disability or because of a perception of disability but they will not be protected in the field of goods and services.
§ We argue that if a person had a major disability—for example, an impairment which had a substantial and long-term adverse effect on his ability to carry out daily activities—and because of it he would experience discrimination, he would be protected under the law. However, if a person had a minor disability which did not substantially affect his daily activity but the employer falsely believed it would, that person could experience discrimination and would not be protected under the Bill. Worst of all, if a person had no such disability but had a reputation for it—for example, a mental health problem or a perception about HIV—and experienced discrimination, that person would have no protection under the law. I suggest that if there is one thing worse than being discriminated against because a person has a severe disability, it is to be discriminated against when a person is thought to have a severe disability but does not.
§ In Committee on Tuesday we discussed this problem largely in relationship to employment. Many Members of the Committee on all sides of this Chamber recognised that there was a problem, even if the amendment perhaps did not appropriately or entirely respond to it. The Minister argued on the one hand then that employers were entitled to exercise judgment or discretion. On the other, he argued that he could not in any case enter into the field of perception. That was his argument for asking the Committee not to take the amendment further.1977
§ We did not accept then that the Minister's response was valid in the field of employment. We shall return to it. We believe that it is even less valid in relation to the provision of goods and services. In employment, at least the situation is competitive. A judgment has to be made as to which one out of four or 40 people may get a job. We recognise that an issue of judgment and discretion is more likely to come into play. However, with goods and services the question of competition seldom arises. People do not have to choose one person over another and exercise judgment which makes it difficult to challenge perception. Goods and services are for general consumption. We are talking about access to public buildings, accommodation, employment agencies, places of recreation and the like.
§ There can surely be no justification for discriminating on grounds that judgment be exercised in this field. Whether someone has a substantial impairment, a minor impairment, or merely a false reputation for having an impairment, in none of those cases should discrimination be experienced in the field of goods and services. For those reasons, I beg to move this amendment.
§ Lord Addington
I support this amendment for the many reasons that the noble Baroness stated. If you are providing a service and you fail to serve a customer, you deny that person something absolutely. As the noble Baroness said, there is no chance of being able to come back on this matter on grounds of competence. It is usually a snap decision. Examples are: providing a hotel room, serving somebody from behind a shop counter or something of that type. If a person is denied, he or she has no recompense and their life can be destroyed.
If we put the provisions of this amendment, or something very like it, on the face of the Bill, it would stop people being able to discriminate against a person carrying out the most mundane parts of their life. We are not talking of a job, where there is a structure that can be returned to. It is almost inconceivable to take legal action against everybody who refuses to serve you in a shop. If your local shop refuses to serve you and you take legal action against it, first, the shop may not be there at the end of it and certainly you may have to walk further to get your groceries. This is the type of nasty, petty discrimination that we are dealing with here. I certainly hope that the Government will be able to respond favourably to this amendment.
§ Lord Mackay of Ardbrecknish
I do not intend to repeat at length the remarks made that I made on Tuesday when the noble Baroness sought to extend the coverage of the whole Bill to people who are only perceived to have a disability. Noble Lords will remember that I pointed out that the Government are determined to keep the definition of disability as close as possible to the commonsense view of what constitutes a disabled person. It would be extremely difficult to establish legally what was in the mind of the service provider who is accused of having "perceived" a disability. Any such change would confuse an already complex definition and leave it totally unclear as to who is and who is not covered by the Bill.
1978 As I mentioned on a number of occasions on Tuesday, this is not a general anti-discrimination Bill. In my view, these arguments are every bit as valid for service providers in Part III as they are for employers in Part II. I do not accept the argument that suggests that it is more important to consider what a service provider thinks on the grounds that, unlike an employer, he is unlikely to have details of his customer's impairment, or lack of one. In my view, the fact that he will nearly always he acting on first impressions makes it more important, not less, that we have a commonly understood definition. The absence of material evidence about a person's impairment, or lack of one, would leave service providers more vulnerable to spurious actions brought by people who claimed to have been perceived as disabled. In any case, the very fact that a service provider will usually be acting on the evidence of his eyes will mean that people who have a minor impairment but who are not disabled for the purposes of this Bill, and of course people who have no disability at all, are generally unlikely to be treated any differently than any other member of the public.
Finally, the noble Baroness's amendment would seek to remove the subsection that confirms that the provision in Clause 28 which enables people to bring actions where they have been victimised applies to able-bodied people and disabled people alike. The prohibition of victimisation against those who have, for example, given evidence in court in support of a disabled person who had previously been discriminated against is an important element in the Bill and corresponds to a similar provision in race and sex legislation. In fact one could argue that the provision is all the more necessary in disability discrimination legislation because the victims will often be among the most vulnerable in society.
I do not suppose that I have surprised the noble Lord, Lord Addington, and the noble Baroness by indicating that they have failed to convince me on this issue, just as they failed to convince me on the related issue of employment. I hope, having explained the position and in particular pointed out what I suspect is one of the unintended consequences of the amendment, that the noble Baroness with withdraw it.
§ Baroness Hollis of Heigham
The Minister will not be surprised that again I am disappointed. I thought that with goods and services we had moved into a different area from employment, one where judgment and choice in a competitive situation did not apply. I thought that the Minister would be more supportive of the amendment in this context.
The Minister said that this is not a general anti-discrimination Bill. I agree. But we arc trying to make it a general anti-discrimination Bill in the context of discrimination against those with a disability, whether the disability is substantial or moderate, or whether it is merely the perception of disability, in the field of goods and services. I am very unhappy with the Minister's response. I wish to seek the opinion of the Committee.
§ 8.56 p.m.
§ On Question, Whether the said amendment (No. 65) shall be agreed to?
§ Their Lordships divided: Contents, 94; Not-Contents, 50.1980
|Division No. 2|
|Addington, L. [Teller.]||Jay of Paddington, B.|
|Airedale, L.||Jenkins of Putney, L.|
|Archer of Sandwell, L.||Kennet, L.|
|Ashley of Stoke, L.||Kilbracken, L.|
|Attenborough, L.||Lockwood, B.|
|Avebury, L.||Longford, E.|
|Barnett, L.||Macaulay of Bragar, L.|
|Beaumont of Whitley, L.||McIntosh of Haringey, L.|
|Brooks of Tremorfa, L.||Mallalieu, B.|
|Carter, L.||Masham of Ilton, B.|
|Castle of Blackburn, B.||Mayhew, L.|
|Chandos, V.||Merlyn-Rees, L.|
|Cledwyn of Penrhos, L.||Mishcon, L.|
|Craigavon, V.||Monkswell, L.|
|Dahrendorf, L.||Morris of Castle Morris, L.|
|Darcy (de Knayth), B.||Nicol, B.|
|David, B.||Ogmore, L.|
|Dean of Thornton-le-Fylde, B.||Parry, L.|
|Desai, L.||Peston, L.|
|Diamond, L.||Plant of Highfield, L.|
|Donaldson of Kingsbridge, L.||Ponsonby of Shulbrede, L.|
|Donoughue, L.||Prys-Davies, L.|
|Dormand of Easington, L.||Rea, L.|
|Dubs, L.||Redesdale, L.|
|Eatwell, L.||Richard, L.|
|Falkender, B.||Robson of Kiddington, B.|
|Falkland, V.||Rochester, L.|
|Rodgers of Quarry Bank, L.|
|Farrington of Ribbleton, B.||Russell, E.|
|Fitt, L.||Seear, B.|
|Foot, L.||Sefton of Garston, L.|
|Gallacher, L.||Serota, B.|
|Geraint, L.||Shepherd, L.|
|Gladwin of Clee, L.||Stallard, L.|
|Gould of Potternewton, B.||Stedman, B.|
|Graham of Edmonton, L. [Teller.]||Stoddart of Swindon, L.|
|Greene of Harrow Weald, L.||Taylor of Blackburn, L.|
|Hamwee, B.||Thomas of Walliswood, B.|
|Harris of Greenwich, L.||Thomson of Monifieth, L.|
|Haskel, L.||Tope, L.|
|Healey, L.||Turner of Camden, B.|
|Hilton of Eggardon, B.||Whaddon, L.|
|Hollick, L.||White, B.|
|Hollis of Heigham, B.||Williams of Elvel, L.|
|Holme of Cheltenham, L.||Williams of Mostyn, L.|
|Hughes, L.||Winchilsea and Nottingham, E.|
|Hutchinson of Lullington, L.||Young of Dartington, L.|
|Addison, V.||Denman, L.|
|Balfour, E.||Denton of Wakefield, B.|
|Biddulph, L.||Dixon-Smith, L.|
|Blaker, L.||Downshire, M.|
|Blatch, B.||Ferrers, E.|
|Brabazon of Tara, L.||Fraser of Carmyllie, L.|
|Brougham and Vaux, L.||Gage, V.|
|Burnham, L.||Gardner of Parkes, B.|
|Campbell of Croy, L.||Goschen, V.|
|Chalker of Wallasey, B.||Hamilton of Dalzell, L.|
|Clanwilliam, E.||Henley, L.|
|Cranborne, V. [Lord Privy Seal.]||HolmPatrick, L.|
|Dacre of Glanton, L.||Inglewood, L.|
|Long, V. [Teller.]||Renwick, L.|
|Lucas, L.||Rodger of Earlsferry, L.|
|Lyell, L.||Sanderson of Bowden, L.|
|McColl of Dulwich, L.||Seccombe, B.|
|McConnell, L.||Soulsby of Swaffham Prior, L.|
|Mackay of Ardbrecknish, L.||Strathclyde, L. [Teller.]|
|Mackay of Clashfern, L. [Lord Chancellor.]||Swinfen, L.|
|Marlesford, L.||Trumpington, B.|
|Montgomery of Alamein, V.||Ullswater, V.|
|O'Cathain, B.||Wakeham, L.|
|Renton, L.||Wynford, L.|
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ 9.5 p.m.
§ [Amendments Nos. 66 and 67 had been withdrawn from the Marshalled List.]
§ Lord Inglewood moved Amendment No. 68:
§ Page 9, line 29, leave out ("Subject to any provision to the contrary made by regulations") and insert ("Except in such circumstances as may be prescribed").
§ On Question, amendment agreed to.
§ Baroness Darcy (de Knayth) moved Amendment No. 69:
§ Page 10, leave out lines 5 and 6.
§ The noble Baroness said: In moving this amendment I should like to speak also to Amendments Nos. 70, 90, 91 and 92. Amendment No. 150 does not need much speaking to.
§ The purpose of Amendments Nos. 69 and 70 is to bring further and higher education into the Bill. Without these amendments it would be quite legal to discriminate unreasonably on grounds of disability in the field of education, unlike employment and other services.
§ I should like to say at once that this is a probing amendment to promote discussion and consider why we believe that it is necessary, what is "reasonable" in the field of education and how we could contain costs. That is why I was initially reluctant to group these amendments with the government amendments. However, I agreed, and I shall keep my remarks separate. I hope that they do not seem too muddled or too lengthy.
§ Skill, whose 21st birthday occurs this year, had the opportunity to look back and see what progress had been made over those years. It believes that there has been huge progress and that colleges and universities should not feel too concerned about bringing further and higher education into the Bill. Skill has had letters from further education colleges wanting further education to be included in the Bill. There are many good institutions of further and higher education which make overall long-term strategic plans and meanwhile respond to the needs of individual students. But some other institutions are less good. The government amendments are welcome and go a good deal of the way to cover strategic planning. Amendments Nos. 69 and 70 are needed to help individual students who encounter problems before and after entering college.
§ The Minister may feel that I am applying a belt to his braces, or vice versa, but that is not so. These amendments are trying to prevent the seams splitting, the buttons 1981 falling off and holes developing in the pockets. We need both amendments. I can give the Committee examples of the problems that occur for students in higher education and the reasons why I feel the amendments are necessary.
§ In further education students are still turned away unnecessarily from local colleges because of their disability. Sometimes the colleges are unwilling to make small changes to buildings and there are examples of students not receiving the support when they enter that they were originally promised. In relation to higher education, one medical school has a policy not to admit dyslexic students. One applicant who did not disclose her dyslexia on admission was accepted but was refused modifications to her exams. Those are the sorts of modification that would have been allowed on any other course in the institution. Is the medical school acting unreasonably in those cases? Its blanket policy of discrimination is unreasonable. There are effective and successful dyslexic doctors—that may explain their writing—but that is not the point. The individual student is also experiencing unreasonable discrimination in that she will not be able to prove her worth if she is not given the wherewithal to complete her exam.
§ Many problems are to do with exam time, the difficulty in papers being produced in large print or on coloured backgrounds for people with dyslexia, and separate rooms and an extra invigilator not being made available. If one is given extra time to do an exam, it is disrupting if everyone else leaves half an hour before the end. After five minutes of disruption it is often difficult for the student to settle down again.
§ Everyone is worried about costs. But we must remember that it is only unreasonable discrimination that will be illegal. Only reasonable steps, for example, would be necessary on overall access and, similarly, it would only be reasonable responses to the specific student that were necessary. For example, if a college had just spent a lot of money on strategic accommodation, it may not be unreasonable to refuse entry to an individual student who had high cost requirements. On the other hand, it may be unreasonable to refuse a student who did not require much accommodation. "Reasonableness" must be to do with common sense.
§ I am cheered that the Minister is creating a new Part IIIA, called "Education". It gives us the opportunity to draw up a new definition of "reasonableness" applicable to that part of the Bill and regulations, which could include a scale of additional costs. For example, one may not be required to spend more than a certain amount per student and on not more than a certain number of students per school year. That is something which should be discussed; it may vary with the size of the college, the access and so forth.
§ I turn to the Government's amendments. I welcome the new Part IIIA. To begin with, I welcome the heading because it brings education into the Bill. It is a little move towards what we wanted. Have the Government had any further thoughts on including a more positive, though perhaps still declaratory, statement in the Bill in relation to education? Amendment No. 90 on schools is extremely welcome. It will mainly help people without statements but perhaps we can take this opportunity to do something 1982 for those pupils with statements as well. That is perhaps a conversation for another day before the next stage. I welcome also the amendment in relation to the teacher training agency. That is something we were trying to introduce during the Education Act 1994—I see the noble Lord, Lord Peston, is nodding in agreement.
§ Amendments Nos. 91 and 92, covering further and higher education, will make strategic changes, as I said. They will not provide direct protection for individual students and that is why I feel our amendments are necessary. The amendment requiring the FEFCs to make annual reports is welcome if it means that positive attention is paid to students who have previously been overlooked or seen as unimportant. The amendment requiring colleges to make clear statements about the facilities they offer is welcome because it means that students will be clear about what is on offer. However, it will not prevent colleges from saying that they do not intend to do very much. I would welcome the Minister's assurance that that is not the case.
§ The amendment requiring higher education funding councils to have regard to the needs of disabled students is welcome. It will mean that they have a duty that parallels that of the further education funding councils. Those duties have been seen as important influences by students and teachers since they were introduced. The amendment will also require universities to declare what they will offer disabled students. This amendment, like the equivalent for further education, is welcome, but again it will not guarantee that universities will necessarily improve opportunities. I should like an assurance about that from the Minister as well.
§ I have said quite enough. The amendments are very welcome in as far as they go but they do not go quite as far as I should like. I look forward to a full discussion about how we really could contain the cost. People are worried that it will escalate. I very much hope that we can continue the discussion, perhaps outside the Chamber. If the Minister would indicate at the end of the debate whether he is willing to do that, I should be very grateful. I beg to move.
§ 9.15 p.m.
§ Baroness David
The noble Baroness, Lady Darcy (de Knayth), has given such a full description of what the amendments aim to do and such a very good critique of the Government's amendments that I think it would be redundant for me to go on at this stage before we have heard the Minister's response. All I want to say at this moment is that I very much support her amendments. We are grateful that the Government have produced their amendments and I look forward to hearing what the Minister has to say.
Lord Campbell of Croy
Before my noble friend replies, I wish to ask for clarification about government Amendments 90, 91 and 92. Amendment No. 92 applies to higher education in Scotland. Amendment No. 90 refers to the Education Act 1993, but I am not sure whether that covers Scotland for the purposes of that amendment.
§ Baroness Park of Monmouth
I only wish to say in a very brief intervention that I very much welcome what the Government have done in going so far to try to meet the concerns that we all have. I also very much support what the noble Baroness, Lady Darcy (de Knayth), has said. We need both her amendments and the Government's central proposal. I hope it will be agreed that if there is a very big difference between giving people encouragement to do something and requiring them to do something that will make a big difference to what happens to students. From what I have heard it seems that the cost would not be unreasonable. I hope that that is true. I look forward to hearing what the Minister has to say.
§ Lord Rix
We have moved a long way in a short time in that we can now be debating discrimination within further education against students with a severe learning disability. It therefore seems not unreasonable that, having got this far, we should want to go further.
The remit given to the further education funding council under the 1992 Act is to fund what I might call basic courses where such courses are specifically designed to lead on to further things. That causes difficulties in the case of someone with severe learning disabilities whose current need is to build on the incomplete basic education provided by school and who may or may not be able to move on to other things as other students are. A great deal of energy and imagination has been invested in designing basic courses which come within the terms of Schedule 2. The energy can be much better invested in concentrating on the needs of the students and the ability of the teaching staff to deliver what the students need. The unfair discrimination lies in putting in hurdles under the Further and Higher Education Act 1992 which impede students with severe learning disabilities and do not impede students without severe learning disabilities. The Government's amendments do not resolve this problem because they do not override a barrier which is written in statute.
§ Earl Russell
I should like to congratulate the noble Baroness, Lady Darcy (de Knayth), on the way she has moved the amendment. The cases she has recited cause concern inside universities as well as outside. Something must be done to make sure that we do not get too many of these cases turning up in future.
In anything involving higher education I must declare an interest. I am concerned here particularly with government Amendment No. 91 and particularly with subsection (6) of that amendment. We are offered these amendments on the understanding that they are two competing amendments. It really rather seems to put me in the position of Paris; but I may say that in that contest the Minister is at a disadvantage for whatever his many and great virtues he is undoubtedly not a goddess.
There is something of a history which I am afraid that I shall have to tell the Committee in some of its detail. There is as much concern in the universities as anywhere else to try to do things to help people with disabilities. We are quite used to the idea that academic freedom is subject to the law of the land. It has been that way in cases of racial discrimination and of sexual discrimination. I have never heard any academic voice argue that it should not be so. I hope that that point is 1984 clear. However, what tends to cause us concern is any intervention by outside authority in matters of specific curriculum and academic content. I am not talking only of the Government. There are many things in matters relating to the curriculum that I would not alter on the demand of my own college principal unless he happened to be in my subject, and on at least one occasion I have had to tell him so and he has accepted it.
Universities rely heavily on Section 68(3) of the Further and Higher Education Act 1992, which was carried in the Lobbies on the Motion of the noble Lord, Lord Beloff. It lays down that terms and conditions imposed by the Secretary of State:may not be framed by reference to particular courses of study or programmes of research (including the contents of such courses or programmes and the manner in which they are taught, supervised or assessed) or to the criteria for the selection and appointment of academic staff and for the admission of students".
I hope that your Lordships understand why that is crucial. We were extremely grateful to hear it reaffirmed in pretty well the same words by Mr. Boswell speaking in another place on the 7th of this month. It therefore caused us some concern that initially the wording of the government amendment involved an amendment to Section 68(3). That has disappeared and we are extremely grateful for that, but because we do not understand, and have never understood, why it was there in the first place, we inevitably look the amendment slightly more carefully in the mouth than we would do otherwise. I think that that is understood and accepted.
I am extremely grateful to both Ministers, the noble Lord, Lord Mackay of Ardbrecknish, and the noble Lord, Lord Lucas, and through them to their officials, for a great deal of consultation over the past week which has produced a great deal of improvement. If the final stage of that consultation—or what I hope is the final stage—is taking place on the Floor of that Chamber, I am afraid that that is because we started a little late. On 4th April we gave a warning to Mr. Boswell that there was a problem, and serious consultation began on 5th June, after which we had three different forms of amendment within four days. No wonder we have not quite kept up with each other, although I know that we have all tried extremely hard, for which I am grateful.
I want to ask, with the case of Pepper v. Hart in mind, a few detailed questions about the meaning of the disability statements. First, what is meant in new subsection (4B) by,information of a specified description"?What is meant by "the provision of facilities"? There are two ways in which one could understand that. One could understand that it means information which is crucial to people with disabilities, such as that relating to ramps, lifts, induction loops for the deaf and the provision of braille facilities. All of those things cause no problems. If policy statements on those are wanted, that is entirely agreeable and entirely right and proper. What would concern us more would be if policy statements asked how far each individual course was suitable for disabled students because, of course, we all understand that there is no such thing as a course which is suitable for disabled students, fullstop. It depends on the nature of the course and the nature of the disability—
§ Earl Russell
Yes, as my noble friend Lord Addington reminds me, no doubt on the nature of the student too. But that I think is beside the purposes of the Bill.
For example, one might be entirely happy about a deaf student working with sulphuric acid. One might not be quite so happy about a blind student doing the same. So, if what is being asked for is a list of which courses are suitable for disabled students, the vice-chancellor will have to list 100 courses, cross-referenced to 100 disabilities, and he will forget at least 100 other disabilities. Because we all know every time we go through a list of briefs on disability in every one we pick up several disabilities which we had never previously imagined; we had never heard of them. So that by itself would be a considerable body of work.
But when we get into the curriculum and specific courses, especially specific courses, there is a rather bigger problem. We of course understand, and we accept, the assurances given by the noble Lord, Lord Lucas, writing to me on 8th June:It is not the intention that the higher education amendments will have the effect of compelling institutions to make changes. Institutions will continue to decide themselves what provision they wish and are able to offer".I thank him for those words. We understand them. We accept them.
But of course there is inevitably a pressure. What concerns me is the possibility that the pressure which does, and ought to, exist to make courses more accessible to students with specific disabilities when we can do so might blend with the pressure which is there all the time to reduce costs. For example, if one discusses field trips for geologists, it might be argued, very much in the way medieval history suffers in the politically correct climate of California, that these things should be cut out because they are not quite suited to the people to whom they are to be offered.If we get into that sort of territory, that will cause inside the universities considerable anxiety. If we do not get into the territory of exhaustive paperwork or the territory of pressure on curriculum content, then, if there is any curriculum element in these disability statements, I should like to know what it is for because I do not see it.
The amendments tabled by the noble Baroness raise different sorts of questions. If I may—I have given her notice of this—I should like to ask her a few questions about what is the effect of the amendments. If she cannot answer them instantly, if she says to me, like a Minister, that she will write to the noble Earl, that will be entirely acceptable to me.
First, there is no problem about our being subject in universities to the law of the land. When I wrote a book on academic freedom I put in a whole section arguing that that was the case. One of the reviewers asked whether I really needed to say it. It seemed that I did. Also, there is no problem about being subject to the courts, because the courts do not have an education policy. So that much is all right. But the question of costs, the noble Baroness herself said, is crucial. It is right that universities should be under pressure to spend money—we are under pressure internally whatever happens externally—on better facilities for the disabled.
1986 When we talk about access, we hope that we mean access in the physical sense rather than in the wider intellectual sense. The problem is one of priorities. If I could say what I think in equity ought to be the case, I would be glad to know whether it is the effect of the Bill that it will become the case. Let us take together four possible causes for spending money. First, there is asbestos in the roof; secondly, financial hardship: one has £2,000 and one might save four students from being unable to do their degree work properly. Thirdly, there is the library: 30 per cent. of students unable to complete essays because they cannot get the books; and, fourthly, a need for access by ramps to the main lecture theatre.
What I believe should in equity be the case is that the asbestos should come first on grounds of medical necessity and that the other three factors should count equally. Would it be the effect of coming within the Bill that those three factors would count equally and that they would have to work on the system of Buggins' turn or, by force of law, would one necessarily come above the others? If it is the first, that seems to me to be entirely reasonable and acceptable. If it is the second, that might be a little more worrying and would raise the question of who decides what is reasonable. Two of those three factors are in areas where the Department for Education tends to see no evil. So the question of who judges what is reasonable might be crucial.
Finally—and I am sorry to have taken so much of the Committee's time—I must ask the noble Baroness the same questions that I have asked the Government. Can she give an undertaking that coming within the Bill would not create any pressure to change the content of courses? There will be places where the content of courses may and should be changed in order to make the courses more accessible to disabled students. But that is a decision that must be taken by people qualified in the subject. It cannot be taken by anyone else either inside or outside the university.
If the noble Baroness can assure me that coming within the Bill would not threaten that principle, that would weigh very materially with me and I should feel happy with it.
§ 9.30 p.m.
§ Lord Ashley of Stoke
The Committee will be interested to hear the Government's response to the seminar. We look forward to hearing the Minister's views. I congratulate the noble Baroness, Lady Darcy (de Knayth) on the splendid way in which she introduced the amendments. I was convinced by them and I am certain that the Minister too will be convinced. He was listening to her so carefully.
I wish to focus on Amendments Nos. 69 and 70, which bring education into the scope of the Bill. The importance of the amendments relates to and reflects the importance of further and higher education. It is all too easy to overlook that. Of course, education is crucial because it enables people to develop their capabilities and to obtain jobs. That is important for the person and for the economy. However, we cannot afford to waste the talents of disabled people. The theme of all the political parties is 1987 training and it is especially important that disabled people, because of their physical limitations, train their minds.
Information technology is most significant for the future. There is little that disabled people cannot do in the field of information technology. We now have computers which can literally be controlled with the blinking of an eye. We see disabled people doing that; that is, winking at computers and having them open doors, operate typewriters and so forth. All that is incredible and it represents the kind of world into which we are moving.
But disabled people will require training if they are to take advantage of the great opportunities. They need specialist training in the same way as everyone else. However, despite those facts, education is omitted from the Bill. We know that discrimination is widespread in both further and higher education.
A few universities such as Staffordshire, in which I have declared an interest, have sparkling voluntary initiatives. Other universities such as Durham, Bristol and the Open University have special arrangements such as access schemes for deaf people. But that is patchwork provision throughout the country. Perhaps I may give one example. Deaf students are very under-represented in British universities; there are only 300 deaf students in higher education. Now that figure speaks volumes about the amount of unwitting or deliberate discrimination in British universities, because no one can convince me—and I hope that the Minister cannot be convinced—that all the other deaf people do not have the capacity for higher learning and are not good enough to go to university. Because of discrimination, there are only 300 deaf students in our universities. I hope that the Minister will address his mind to that.
The government amendments tabled by the Minister are merely inching forward at the speed of snails and are totally inadequate. We really need robust and radical change. That is not spelt out yet by the Government. We need to provide disabled people and disabled students especially with the protection of the law.
The universities which are concerned and considerate need appropriate funding. I know from my discussions with various officials of universities that currently they are so badly squeezed that making provision for disabled students is very difficult. No one suggests that there should be a massive investment programme overnight, and I am sure that the Minister is glad to hear that, but we are hoping for massive investment in due course and the sooner the Government can begin, the better. There is no difficulty about over-burdening the universities—I am sure that someone will raise that point—because colleges and universities are well protected by the "reasonable" clauses of the Bill.
I conclude by saying that, unless we include education in this Bill, gifted disabled students will suffer discrimination on the same monumental scale that they have been suffering for past decades. They will be denied the opportunities to which they have as much right as any other people.
§ Lord Addington
Most of the problems which disabled students face relate to actually getting to a university. Higher education establishments and 1988 universities are able to offer flexibility to disabled students because those establishments have academic freedom. Many higher education establishments have proved to be extremely flexible because they have that ability. When establishments grant their own degrees they can make their own rules and, therefore, disabled students can be accommodated. The higher education sector has certainly shown a great deal of goodwill in that regard—and certainly for many dyslexics. Indeed, that flexibility was shown to me. We should bear that in mind when considering these amendments.
§ Baroness Farrington of Ribbleton
From these Benches, we too congratulate the noble Baroness, Lady Darcy (de Knayth) on her presentation of the amendments and the way in which she has probed the Government on their intentions in this area.
Many of the points which need to be made have been made already by previous speakers. In particular, I wish to support the points made by my noble friend Lord Ashley. It is extremely important to recognise that the first hurdle is by far the greatest hurdle for students with disabilities.
All human beings tend to under-achieve their maximum potential. But the ability of those with severe disabilities, many of whom have been denied access to mainstream education, to achieve degree-level status in the courses which they follow once they reach university has been proven time and time again.
In speaking to these amendments, in particular I should like to endorse the reference made by the noble Baroness, Lady Darcy (de Knayth) to non-statemented special needs. That is a category of special needs which has often been overlooked and which is unprotected by the statementing procedure. Among that group of potential students there are many who are falling far short of the opportunity to achieve their full potential.
From these Benches, we welcome the new Part IIIA, which puts education on the face of the Bill. But we still have a deep anxiety that the fundamental civil rights of those seeking the right not to be discriminated against in the provision of education are not being addressed by the Government. It would be churlish not to recognise that the Government have moved their position. However, we shall read extremely carefully the Minister's justification for not including education in full as a service.
I have heard the Minister speak on several occasions about the difficulties and the costs. I can do little more than echo the words used in a previous debate by the noble Lord, Lord Campbell of Croy. He said that the whole content of the Bill deals with and stresses the fact that the justification is that reasonable action is taken and that reasonable decisions are made. The principle of the Bill, based as it is upon that concept of what is reasonable, surely cannot be denied in relation to such an important route to full participation in life as the access to education.
As I said, we believe that the Government have moved. We hope that they will move further. We look forward to hearing and reading in detail the Minister's response. But we may perhaps return to the matter on Report.
§ Earl Russell
Before the Minister replies, perhaps I may take a few seconds of the time of the Committee to respond a little further to the noble Lord, Lord Ashley of 1989 Stoke. Like the noble Lord, I was distressed by his figures regarding the number of deaf students in universities. But, of course, universities can only admit those who actually apply. In disability, as in race, one always has to ask whether the winnowing process may be going on lower down. The only quantitative measure of discrimination is to take the percentage of applicants and the percentage admitted. With disability, both of those are identical within two decimal points, at 2.7 per cent. Therefore, there are many factors to blame. I do not think that it is lack of goodwill; at least, I hope that it is not. If the noble Lord can show me any case where it is, I will be happy to take the matter further in any way that I can.
§ Lord Mackay of Ardbrecknish
I am sorry that the audience appears to have vanished from the Chamber. Indeed, I was rather looking forward to performing to a full Chamber for the next half hour or so. But, there we are, I shall have to make do with the season ticket holders, if I can so describe those Members of the Committee who are usually with me during the long hours on the Bill. I am delighted to see that the noble Lord, Lord Ashley, has returned to the Chamber. I was somewhat worried because I was deprived of the chance of responding to him on his previous amendments. I thought that we had, perhaps, lost him overboard. However, I am delighted to see that the noble Lord is back in his place and pushing me as hard as he can.
Unfortunately for the noble Lord, Lord Ashley, my attention was drawn to an interview that he gave in the BBC's, "See, Hear" programme earlier this year, when he spoke to a Canadian MP, who I believe was deaf. I suspect that the noble Lord gave the game away on that occasion. However, the noble Lord allows me to look at and listen to his speeches and they give me a slight feeling that he is trying to push me further than he expects, or even wants, me to go. The noble Lord said:I believe in demanding everything and letting Ministers try to knock you down. Then you reach something satisfactory for the people concerned".Therefore, in future, when the noble Lord tries to appeal to my conscience and I knock him down, I shall not feel as guilty, because I shall realise that that is not just what he expects but that he will probably think that the position we arrive at is a reasonable one.
I should say first of all that I am grateful to the noble Baroness, Lady Darcy (de Knayth), for agreeing that her two amendments and mine should be in the same group. I think—especially given the hour—that that prevents our having two debates reasonably close together where we would have covered almost the same ground. I hope she will accept my thanks because if this had not happened I would then have had to make two long speeches. That is all right for me but the Committee might have found the sound of my voice a little wearing by the end of the evening.
We have considered carefully the arguments both in this Chamber and in another place, and indeed the discussions which have gone on outwith either Chamber, for including further and higher education within the scope of Part III of the Bill. I reassure the Committee that we place a high priority on widening access, but we must consider the practical effect of including further and 1990 higher education in the Bill. The inclusion would at a stroke undermine the strategic role that the councils play. Each institution would have to consider adaptations without any regard to provision elsewhere. That would inevitably lead to piecemeal arrangements and a dissipation of scarce resources. It is not a result which I believe the Committee would wish to see.
I recognise of course the appeal of an argument which cites the difficulties experienced by some individuals under the current arrangements and suggests that were further and higher education to be included within Part III of the Bill these might be overcome at a modest cost. First, while the cost of some alterations may be modest, in aggregate they will be significant and will consume resources which might be spent to even greater effect as part of a coherent programme. Certainly, it would be a delusion to believe that resources will be available to fund both approaches. And the view that such changes may be contained in regulations, perhaps under Clause 14(4) or 15(6), is mistaken. Those regulation-making powers refer to circumstances in which a provider of services is to be taken to be justified in treating a disabled person less favourably or to circumstances in which it is not reasonable for a provider of services to have to take steps. How is one to describe such circumstances, given the diversity of curricula and practices, the range of resources available to institutions, and the current state of adaptation of buildings? The regulation-making powers reflect, rightly, a different approach and are not intended to cover the situation where the funding councils play a strategic role.
I know there is an argument that the threat of court action will ensure that laggard institutions will become more responsive to the needs of disabled people. If the aim is to secure access, the existing complaints procedures in FE, strengthened by the government amendments, will give the further education funding councils the power to ensure that colleges make available adequate information and the provision set out in them. The councils' planning and reporting arrangements, also strengthened by the government amendments, provide a complementary security at national level.
In proposing her amendments the noble Baroness, Lady Darcy (de Knayth), asked for reassurance about the disability statements in FE. FE colleges and the councils already demonstrate the progressive improvement in facilities. I anticipate that statements on the part of the colleges will show further improvements. I wish to emphasise to the noble Baroness that FEFC annual reports are not just retrospective, they are also prospective; in other words, they look at the plans for the future. Before I leave the amendments I should say that some of the points the noble Lord, Lord Rix, made are perhaps more relevant to Amendment No. 149 which is not to be taken today and will be discussed on 27th June. However, I shall certainly bear in mind the points he made.
Against the background that I am afraid that I cannot accept the amendments in the name of the noble Baroness, I wish to explain our proposals for addressing what we accept is a problem to which we should attempt to find a solution. Therefore, I should like to explain the thinking behind the government amendments and the way in which they build rationally upon existing provisions.
1991 The Further and Higher Education Act 1992 set out the framework for further education for students with learning difficulties and disabilities, which I am assured is referred to as SLDD. As I remember from my sojourn in it, the world of education is littered with acronyms. The Act requires the further education funding councils to act in a strategic manner to secure sufficient and adequate provision of further education, taking due account of the needs of the population in terms of location, equipment, aptitudes and abilities. They have particular responsibilities in respect of students with learning difficulties and disabilities.
The FEFCE has set in place three complementary mechanisms for discharging that comprehensive legislative duty. First, it requires colleges to submit strategic plans, including analyses of local needs. Secondly, the council's funding methodology has been designed to take into account the particular needs of students with disabilities. Thirdly, the FEFCE's inspectorate includes a specialist team with specific responsibilities for reporting on the quality of provision for disabled students in FE sector colleges and also that funded by the FEFCE in the independent sector.
Of course, we recognise that these mechanisms are still bedding in: but the FEFCE is not complacent. It has demonstrated its responsiveness by adjustments to the recurrent funding methodology for the next academic year so that colleges will be able to claim up to £8,800 per student (and more in some cases) to cover a wide range of additional costs arising from the education of students requiring extra support.
The council has conscientiously tried to plan for the longer term through its committee on learning difficulties and/or disabilities. That committee, chaired by Professor Tomlinson of Warwick University, has been assiduous in collecting evidence from all with an interest in education and disability issues, in seeking the views of disabled students and in trying to map the true extent of need.
The FEFCE's commitment to the needs of students with learning difficulties and disabilities is clear. It builds rationally on the legislation to secure the most effective use of resources which, as we all—or at least some of us—acknowledge, are finite. We all wish to see them used to secure real gains for students with disabilities.
I turn to Amendment No. 91. Subsections (1) to (3) would place a duty on the funding councils to require individual colleges to produce, as a condition of grant, information on their facilities for education for students with disabilities. We envisage further consultation with the councils prior to prescribing the frequency and content of the statements in regulations. Information is likely to include physical access, the provision of specialist equipment, facilities which may help students with particular disabilities, admission policies, counselling and welfare arrangements.
I envisage that that amendment will highlight the good practice already in existence in many colleges in the sector and encourage other institutions to emulate it. It will also help students with disabilities to make informed choices about further education. Moreover, not only will they know what they are entitled to expect, they will also be able to seek redress from the councils on the rare occasions when provision fails to meet expectations 1992 raised by the information. Where other measures fail, the councils will have the power to demand repayment of grant from colleges which fail to meet the new legislative requirements.
Subsection (4) of Amendment No. 91 builds upon the strategic role of the further education funding councils. This will place a duty on the councils to produce an annual report to the Secretary of State on the progress made during the year in the provision of further education for students with disabilities and the councils' plans for future provision. We envisage the FEFCE drawing on existing review and planning mechanisms as well as the new information generated by the first amendment and the work of the Tomlinson Committee.
My noble friend Lord Campbell of Croy asked me about the position of Scotland. Indeed, he noted that the amendments apply only to England and Wales. As regards further education in Scotland, colleges are already required by statute to submit development plans which include information on the provision made for students with learning difficulties and disabilities. This information is used by my right honourable friend the Secretary of State in preparing his annual report to Parliament. Ministers propose in future to make it a condition of grant-in-aid that information on such provisions for students on special programmes and students receiving extended learning support be included in the annual reports that colleges are required to produce.
Although no one asked me, I am sure that Members of the Committee will be interested in the structures and funding mechanisms for further education in Northern Ireland. It means that the changes proposed in England and Wales cannot be applied directly in Northern Ireland. Ministers will, however, consider the proposed further education amendments when detailed legislation is being prepared for the incorporation of further education colleges in Northern Ireland. The FE and HE charters for Northern Ireland, which will be published later this year, will contain a requirement for colleges to make available information on disabled access. Existing powers will permit the Secretary of State to attach conditions to the payment of grant, and it is his intention to do so. I hope that that answers my noble friend Lord Campbell of Croy.
In the case of higher education, subsection (5) of Amendment No. 91—and its parallel in Amendment No. 92 in the case of Scotland—strengthens, by putting a duty on the funding councils, the present position which is that the Secretaries of State give guidance to the funding councils that they should have regard to the needs of disabled students. In responding to that guidance, the funding councils have undertaken various initiatives which have been welcomed by the sector. Subsection (6) of Amendment No. 91 ensures that disabled persons and the funding councils have access to information about what provision is available.
In respect of subsections (5) and (6) of Amendment No. 91, and the points made particularly at Second Reading by my noble friend Lord Beloff, I can assure Members of the Committee that we have taken very seriously the commitment we gave to consult higher education representative bodies.
1993 Those bodies saw no difficulty with subsection (5). However, as the noble Earl, Lord Russell, explained to us, both today and at Second Reading, the ideas underlying subsection (6) caused some difficulty. It was indicated in another place that it was originally intended to give the Secretary of State an unambiguous power to require the funding councils to require disability statements. That generated much discussion.
In order for the originally intended power to be unambiguous, we concluded then that it would be necessary to qualify Section 68(3) of the Further and Higher Education Act. That is because Ministers are barred by that section from framing terms and conditions of grant with reference to courses, staff and admissions, and it might be held that requiring information about provision for disabled persons would fall foul of that. However, the representative bodies, supported eloquently by the noble Earl, Lord Russell, argued strongly that Section 68(3) should remain untouched. I gather that some Members of Committee have a special affection for that section, as I suspect that my colleague at the time suffered the same fate at the Dispatch Box as I suffered a little while ago. I appreciate that noble Lords are sensitive about their victories over Government when there are suggestions that the Government might make changes in their previous victories. Therefore we sought an alternative route.
I am grateful to the noble Earl for expressing his thanks to my noble friend Lord Lucan.
§ Baroness Hollis of Heigham
Does the Minister agree that that is the problem with the missing votes tonight?
§ 10 p.m.
§ Lord Mackay of Ardbrecknish
Yes, that is true, I must ask about the matter. It was my writing I misread—my misfortune.
I am grateful to the noble Earl for expressing his thanks to my noble friend Lord Lucas, and the officials at the department as well as my honourable friend Tim Boswell, the Minister responsible for higher education matters at the department. We sought an alternative route and considered an amendment to Section 65 to achieve an equivalent effect through the funding councils' own powers to impose conditions of grant. We consulted further about the drafting of an amendment to Section 65, and subsection (6) of the amendment now tabled takes into account further discussions with representative bodies, as the noble Earl recognised.
The representative bodies have also sought clarification of the intended scope of the information in the statements. The noble Earl asked me about that. The intention is that the statements would assist disabled students and funding councils generally in understanding the provision available for education and research in the particular institution. The drafting of the amendment is designed to secure that. The statements would thus go wider than simply including information about physical facilities. It will be a matter for the funding councils, in consultation, to determine how to specify the information needed in the statements to achieve that in a viable and 1994 cost-effective way. I should stress that the provision of information will not ipso facto require any changes in the nature of the facilities offered by the institution.
I hope that the Committee will support these higher education amendments and the associated amendment relating to the teachers' training agency. They offer an alternative, flexible and preferable approach to including further and higher education within the ambit of Part III of the Bill rather than the amendments put down by the noble Baroness, Lady Darcy (de Knayth).
Perhaps I may turn to Amendment No. 90, which I also tabled. It amends the Education Act 1993. The Government seek to build substantially on a measure which has already been widely acclaimed—the requirement on all schools to make plain their policies towards pupils with special educational needs.
One of the major themes in the Education Act 1993 was that mainstream schools should play their full part in providing for pupils with special needs at every stage; and that a school's duties should be clarified through the code of practice for the identification and assessment of such children. That has been achieved and your Lordships have received and ratified that code. Local accountability is ensured through the requirement on schools to formulate and publish information about their policy for children with special needs, keeping parents and prospective parents informed. The publication of SEN policies will help to prevent the possibility that parents could feel inclined to send their child to a special school on the basis that they did not know enough about the SEN provision in local mainstream schools.
We now want to extend and strengthen that very successful initiative. In another place, the Government listened carefully to concern about the appeals arrangements for pupils with SEN. Some appeared to feel that although the 1993 Act provided a specific appeals structure for pupils with statements it did not provide a similar safety net for those pupils without statements. I should like to make it absolutely clear at this point that the 1993 Act contains significant measures for pupils without statements. Only about 2 per cent. of children require statements of special educational need, though about 20 per cent. of children have SEN at some time. The code of practice covers all pupils with SEN, not just those with statements.
However, we have looked closely at the appeals mechanism for pupils without statements and are satisfied that we can improve the situation for those pupils and their parents through the amendment. We aim to place a duty on the face of the Bill for governors to publish information about, first, the arrangements for the admission of disabled pupils; secondly, the steps taken to prevent disabled pupils from being treated less favourably than other pupils in the school; and, thirdly, the facilities provided by the school to assist access for disabled pupils.
While we stand firm in maintaining the exclusion of education and protecting the recent legislation, we recognise the strength of feeling displayed during debates which has called for an acknowledgment that unjustifiable discrimination cannot be condoned in schools. That is why we have taken the step of making this amendment in primary legislation.
1995 Schools which are inaccessible to disabled pupils will have to admit it. The need to do so will be a spur for them to consider how they might become accessible cost effectively. We have already advised them that they may be able to do that, perhaps through flexibility in their own budgets or, if they are grant-maintained schools, by direct application for capital grant to the funding authority. Now, of course, the new schools access initiative will be able to make improvements and assist the general accessibility of all schools. The Government published a consultation paper on the initiative on 29th March and propose to make £10 million available in 1996–97 to fund imaginative and cost-effective projects to increase both physical and curriculum access to mainstream schools. It will be invaluable in helping to consolidate our recent measures in special education, including the code of practice.
Amendment No. 90 will also provide practical strengthening of parents' rights. Once a school has specified under this formulation the arrangements it has in place to avoid discrimination against disabled pupils a dissatisfied parent could make the school's non-compliance with its stated policy a central issue under the existing appeals arrangements whose autonomy and independence is ensured by the recent codes of practice and the addition of a lay member.
Amendment No. 90 will also specifically require schools to set out their policies of non-discrimination against pupils with disabilities. Schools should not merely pay lip service to the integration of disabled pupils; rather they should do everything they can to achieve genuine and full integration. I am convinced that this measure will encourage such integration, underpinned by the statutory duty to integrate pupils within mainstream schools as far as is possible.
The Committee will, I am sure, see that these are very significant measures which, without creating large burdens on schools and authorities, will do a great deal to focus creative thinking in our schools, promote a better deal for many disabled children and accelerate further the trend to greater integration in mainstream schools.
The purpose of Amendment No. 150 is simply to make the entry for the repeals schedule which is needed as a result of Amendment No. 90.
I apologise for having spoken at some length but as these are important new clauses the Committee would rightly expect me to explain them in some detail. Also, of course, it will enable Members of the Committee to read in Hansard exactly what I said, thereby allaying, I hope, any fears. I trust that the noble Baroness, Lady Darcy (de Knayth), will accept that while I am not going for what I described to her as the "belt and braces" solution—I am not sure whether mine is the belt or the braces—I very much hope that, whichever it is, the solution is sensible and realistic in all the circumstances. I hope that she will withdraw her amendment. If perchance—who knows?—it is put to the vote, I hope that my noble friends will support me against it and that subsequently they will support me when I put my amendments to the Committee. I am pretty certain, however, that my amendments will be widely and warmly welcomed by the Committee, and I commend them.
§ Baroness Farrington of Ribbleton
I wish to press the Minister on one aspect of his comments on his Amendment No. 90. I seek an explanation, if not tonight then at some other time, as to why, unlike all other parts of capital funding of school building projects, it is proposed in the draft setting out for consultation the expenditure of £10 million capital grant for 1996–97 that matching funding should be sought from a non-statutory source. It strikes one as unfair that funding for building needs should be met only in those schools that are able to raise funds from voluntary contributions or voluntary organisations. That does not seem equitable.
On access and the whole issue of higher and further education, I ask the Minister to consider, within presumably the coherent programme the Government seek, as opposed to what the Minister described as the piecemeal approach—I understood, though perhaps I got it wrong, that he was talking about a coherent programme—perhaps developing different facilities at different universities to allow student choice. That is fine for students who are able to leave home and students who are of standard entry age. However, an increasing percentage of students are mature students or students who have physical problems which do not allow them to leave home. Therefore it is important that all higher education institutions are adapted as quickly as possible to take the widest range.
Also, our universities and colleges are an access point for many local employers. Again, it is critically important because employers will not send people to go on short training as readily as they will send them to the local facility.
Finally, perhaps I may ask the Government to consider the fact that, by treating this area of capital funding separately from credit approvals in the normal education budget allocations that are made at budget time, they are still ducking the issue of the local priority that is given to credit approval expenditure. Current government levels for education building spending only allow basic need in the overwhelming majority of cases, and basic need is the highest priority.
But surely the situation is that for each student or pupil who is denied access it is 100 per cent. denial of access for that individual. We are not dealing with a marginal effect. For those students and pupils, the resources ought to be as available as though there were no place available for them physically within the school, because literally that is the position. Therefore, the roof over their head must include the ramp to the door as being equal and not inferior in terms of government priorities when allocating funds for school building.
§ Earl Russell
I am most grateful to the Minister for the trouble that he has taken and the care with which he has responded to a long series of points. I hope that I shall not be taken to be ungracious if I press him just a little further. There are questions to which I would very much like the answers but I have not yet heard them.
First, I should like to know what is meant by the word "facilities" referred to in Amendment No. 91 (new Section (6)). Could the Minister answer that with the case of Pepper v. Hart in mind? We have no argument about physical provisions for access. That has been clear 1997 throughout the debate. But the Minister said that the Government want further information beyond that. The heart of my concern throughout has been that I have wanted to know what further information the Government want beyond that point. That is the crucial question for determining whether this will involve any intrusion—or indeed serious intrusion—into areas of academic judgment.
I must confess that I simply did not understand what the Minister said on that point. He said that the Government wanted information on physical facilities and on provision for education and research for disabled people. I believe that those were his exact words. But I cannot work out what those words mean. In putting on a course, one does not provide facilities for disabled people "full stop". One may be able to provide facilities for one kind of disabled people in one course and for another kind of disabled people in another course. One needs to know the specific course and the specific disability. Is the Minister in fact asking us to match course to disability across the field of every single course taught in every university? If he is saying that, does he realise what a burden of work he is setting for us? If he is asking something else, I should like to know what and I should like to know why.
I should also like to know what the word "research" is doing in the amendment. In my subject, the university does not provide facilities for research. The facilities for research are the British Library, the Public Record Office and the County Record Office, all provided by other authorities. Therefore one cannot require universities to provide facilities for research, least of all before one knows what research is wanted. I do not understand what the word "research" is doing in the amendment. I am sure that the Minister could put my fears to rest very quickly if he could make clear what he wants. If he can do that, there will be a great effort on our part, if we can, to give him what he wants. But we need to know what it is first.
§ 10.15 p.m.
§ Lord Mackay of Ardbrecknish
It may be helpful for me to respond to the two interventions asking about some of the detail on the points I made. I can begin with the noble Earl, Lord Russell. Being reminded by the noble Earl about the case of Pepper v. Hart, I shall be a little cautious. I shall certainly make sure that I read the exchange we have had. If there is anything I feel I can add, I shall write to him and I have no doubt that the noble Earl will approach me if he thinks there is anything, on reflection, that is not quite right.
I may be repeating myself, but it is the best I can do. The intention is that the statement would assist disabled students and funding councils generally to understand the provision available for education and research in a specific institution. I imagine—I will check that I am right about this—that if a student is looking for a Ph. D course or postgraduate degree, he will need to research where it is available. That is the research we are talking about. It relates to the availability of a course in a university to a disabled student.
1998 In relation to the statement, I was asked about my remark that it would go wider than simply including information in relation to physical facilities. I said very clearly that it would be a matter for funding councils in consultation with the universities to decide together what facilities they are referring to. It will not be up to the Government. We are asking the funding councils to do that and are not expecting to do it ourselves. I am advised that the education research I quoted—perhaps I was wrong in my definition of it—comes from the existing Act. I shall check on that and write to the noble Earl if he does not mind.
Turning to the points made by the noble Baroness, Lady Farrington, we want the £10 million to buy as much as possible. The schools access initiative proposes that schools should harness community involvement, in part through funding, but also through co-operation in partnership. However, the consultation paper makes clear that additional funding is not essential. I hope that that helps the noble Baroness.
I hope that we will have a coherent programme; that is the object of my amendment. While at some point in the future it may be possible to reach the position where every course is available in every institution of higher education, the reality is that it will take some time to reach that situation. While I appreciate that some students are a long way from any university, the increased number of universities throughout the country—thanks to the policies of this Government—means that there will be a number of universities within easy reach of the great majority of potential students. That does not mean all of them, but the chances are that, if they have to leave home to go to university, then they will have the full range of universities to look at to find the one that most suits them from the point of view of their disability, the courses provided, and so forth.
With the increasing number of universities we have around, I do not actually think that that will be a huge problem, although I appreciate that it could be a difficult problem in certain instances. But I think we have to, dare I say, walk before we can run. I am not sure whether the noble Baroness was inviting me to contemplate that whatever is demanded will be paid for. The reality of government is that that commitment can never be given. I very much hope that the higher education council, the FEFC, the schools and the £10 million will be able to progress this matter—we all want to see it progressed—as quickly as they possibly can, using the resources, which are always tight, in the most efficient manner.
§ Baroness Farrington of Ribbleton
I must press the Minister slightly further on this. If the Government's assumption is that this category of need is different in kind from others so that this one ought to attract community involvement, it really is unjustifiable and actually makes the case for this being a right that is included among the services rather than tacked on to the end. I was certainly not suggesting that the Government should meet all need in all ways. But it is the case that the Government accept that there is a statutory requirement to provide a roof over every child's head in order that they can have education. It must be the case, therefore, that if education were included as of right to 1999 be free from discrimination on grounds of disability the Government would have to accept that a large start could be made for little in excess of £10 million. Surely that is not too much to ask for a basic civil right for people with disabilities.
§ Earl Russell
I must confess to being extremely disappointed by the Minister's answer on the word "facilities". I entirely take his point that what information is asked for will be decided by the funding council. But he is here conferring vires on the funding council. He is giving it power to do something. When one creates a power one must understand what the scope of that power is so that one can say what is within it and what is beyond it. If the Minister is really telling me that he is creating vires without understanding their meaning, when we meet again on Monday I shall be questioning the vires he creates in that Bill with a great deal more care than I intended to do yesterday.
§ Lord Mackay of Ardbrecknish
I shall try again. The word "facilities" was prefaced by the word "physical". Perhaps I missed out the word "physical" in my second attempt to help the noble Earl but in my first attempt to help him I hope I said "physical facilities". On the point raised by the noble Baroness, Lady Farrington, I am not entirely sure where she is coming to me from. If we are talking about the £10 million, perhaps I may say to her that I shall reflect on what she said and bring the matter to the attention of my colleagues at the Department for Education and ask them to write to her. It would be foolish if we made any suggestion to the outside world that somehow we can have unlimited resources. I am afraid we cannot. If the noble Baroness talks to her honourable friend Gordon Brown he will tell her that that is now the name of the new Labour Party.
§ Baroness Farrington of Ribbleton
I must come back on one point. If it is reasonable to provide a legal requirement on employers in the private sector, it might possibly be a case of what is sauce for the goose is sauce for the gander—for the Government to accept their own liability when it comes to the provision of resources for education.
§ Earl Russell
I trust that I shall not be misunderstood if I thank the Minister warmly for getting "physical".
Baroness Darcy (de Knayth)
I thank all noble Lords for contributing to this useful debate and for having given such serious consideration to my amendments. I am grateful for the strong support that I have received from all sides of the House. Although that support was particularly strong from some sides, I shall not single out any particular noble Lord.
However, as the noble Earl, Lord Russell, gave me a priority shopping list, perhaps I may briefly answer a few of his points. He gave the examples of asbestos, financial hardship, the library and ramps. I agree absolutely that asbestos would probably be the most important. The noble Earl said that he would be happy if the other three were regarded as equal. I might be a little harder and say that the library might be more important. I suspect that the noble Lord, Lord Carter, is disapproving because of the answer that I gave the other 2000 day about reasonable accommodation in the Chamber. If a library was in jeopardy, I would deal with that before turning to ramps. We must remember that disabled students are students and need to read, to eat, and to have lodgings.
Who decides what is "reasonable"? We shall have to work out the answer to that. The noble Earl asked for an undertaking that nothing in the Bill would pressurise a university to change the content of a course. I should think that such a decision would be entirely for the university. However, it might be legitimate to ask a university to ask itself whether there was another way of arriving at the same course with the same content and of the same standard. We could ask universities to think about that.
The noble Baroness, Lady Park, for whose support I am extremely grateful, said that what I was asking for did not seem too expensive. She hoped that it would not be too expensive. There are about 50,000 disabled students in higher education at the moment, with about 100,000 in further education. Those figures are guesses which may be on the high side, but we have made great progress and much has been done. We cannot predict demand, but my point is that we can contain the cost. We must do that.
The Minister will not be at all surprised that I found his reply disappointing, although I am grateful for the time that he spent on it. He said that, at a stroke, the amendments would undermine the strategic role. That is not the case. The Minister said that he was not sure whether he had applied the belt, the braces or both. I ask him to look to his buttons, seams and pockets.
The Minister was rather disparaging when I said that we could do this by regulations and by a definition of "reasonableness". He wondered whether that could be done in Clauses 13 and 14 in relation to goods and services. My point is that the Minister has created Part IIIA (on education), which gives us a whole new set of regulations and definitions. The noble Earl, Lord Russell, said that there has never been any trouble with the Sex Discrimination Act or the Race Relations Act in that regard. That is true. Both the Equal Opportunities Commission and the Commission for Racial Equality say that the educational provisions are much more tightly drawn than others and that there has not been any trouble. I suggest that the fact that the Minister has created provisions on education now presents us with an opportunity.
The Minister has not given me anything like an open door, but I ask him whether he will not open the door a chink. I know that I said that this was a probing amendment, but perhaps it could be regarded as a prodding or a nudging amendment. Can we have a little open chink of door so that we can continue this discussion seriously outwith the Committee?
§ Lord Mackay of Ardbrecknish
Perhaps I may advise the noble Baroness that, whatever I say, I think that we shall have discussions outwith the Committee, so I shall give in gracefully on that. Of course, we can continue to talk and I shall continue to talk to my right honourable and honourable friends who are more 2001 involved than myself in some of these matters at departmental level. The noble Baroness may not thank me for that—
Baroness Darcy (De Knayth)
I do thank the Minister for that, and beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 70 not moved.]
§ Clause 12 agreed to.
§ 10.30 p.m.
§ Lord Monkswell moved Amendment No. 71:
§ After Clause 12, insert the following new clause:
§ ("Access to polling station
§ .—(1) In exercise of his functions under paragraph 25 of Schedule I to the principal Act, the returning officer shall have particular regard to the accessibility of polling stations to disabled persons.
§ (2) The returning officer shall carry out an annual accessibility audit of each polling station, and shall consult thereon such organisations as appear to him to be representative of disabled persons in his area.
§ (3) Following the audit pursuant to subsection (2) above, the returning officer shall designate such polling stations as appear to him suitable for use by disabled persons and shall publish, in at least two newspapers circulating widely in the constituency, a local radio station and otherwise as he considers fit, a list of his designations.
§ (4) A polling station shall not be so designated unless the returning officer intends to provide at least one wheelchair-accessible polling booth, with a ballot box being placed at a height that a person in a wheelchair can reach unaided; and it shall be the duty of the returning officer to make such provision at each designated polling station.
§ (5) The returning officer shall take such steps as are necessary to ensure that—
- (a) at least half of the polling stations for which he is responsible shall be so designated within two years of the passing of this Act; and
- (b) all polling stations shall be so designated within five years of the passing of this Act.
§ (6) Details of the designated status (or otherwise) of a polling station shall be provided by the returning officer on all official poll cards.
§ (7) The Secretary of State shall by regulations require each returning officer annually to report to him the results of the review of polling districts and the suitability of access for disabled persons to polling stations made pursuant to subsection (2) above, and shall lay before Parliament a summary report of all such reviews.
§ (8) The Secretary of State shall by regulations provide for returning officers to provide equipment to facilitate access by disabled persons to designated polling stations, but no equipment shall be provided under this subsection which requires any permanent modification to the structure or fittings of the polling station without the consent of the owner or any lessee of the building.
§ (9) Any costs incurred under subsection (1) above shall constitute expenses incurred by a returning officer for the purposes of section 29 of the principal Act.
§ (10) A registered disabled person may apply to the returning officer to vote at a designated polling station not less than one week before the election and, on receipt of such an application, the returning officer shall allot that person to the nearest designated polling station in that constituency to the address at which that person is registered.
(11) In this section—
registration officer" and "returning officer" have the same meanings as in the principal Act;
accessibility audit" means an assessment of the practicability and convenience of access and use, with particular emphasis on access and use by those who have physical or mental disabilities;
the principal Act" means the Representation of the People Act 1983.").
§ The noble Lord said: I apologise to the Committee and to the Minister for not being in my place when Amendment No. 63A was scheduled to take place. One of the glories of the Chamber is that we cannot predetermine the time when matters come up. That inevitably leads to some minor disasters on all sides.
§ This is very much a probing amendment to try to ascertain the Government's views on the subject. The amendment would ensure that polling stations were made accessible to disabled people. It would require access audits to be carried out and the designation of those polling stations which are fully accessible, and to publicise the fact. It would also ensure that a phase-in for full accessibility was planned: half to be accessible within two years and all to be accessible within five years.
§ The right to vote is a fundamental expression of citizenship within a democracy. The act of voting is among the most potent expressions of the right to self-determination and freedom to choose that an individual has. However, in a country that prides itself on its democratic system, many disabled people are excluded from the democratic process, primarily because of the inaccessibility of polling stations.
§ Physical and other access problems are widespread. That has been highlighted by the findings of Polls Apart, which was a survey of access to polling stations conducted during the 1992 general election by the Spastics Society. The Spastics Society is now called Scope. Most polling stations are situated in public buildings such as schools, community centres and public halls. Yet the overwhelming majority proved to be inaccessible to people with mobility difficulties.
Disabled people have the right to vote, but the Bill does not help to make that right a practical reality. Polling stations are supposed to be sited, where practicable, in accessible venues; yet only 12 per cent. of polling stations were fully accessible at the last general election. Furthermore, the provisions in Part III to ensure access would not necessarily apply, because Clause 15(2) provides that adjustments have to be made or service providers can:
provide a reasonable alternative method of making the service in question available to disabled persons".
§ The Government will argue that there is an alternative to voting in person which overcomes the problems of lack of access, and that is the postal or proxy vote. However, disabled people do not view postal or proxy votes as a reasonable alternative. Disabled people feel that it is important to vote in person, and that elections are an opportunity to participate in an important public activity. They want to cast their votes at the polling station and experience the excitement and sense of commitment that that involves.
§ Disabled people do not like the impersonal aspect of postal or proxy votes and, most important, believe that it represents yet another way in which disabled people are excluded from the mainstream of political life.2003
§ The Government provide grants towards the cost of temporary ramps to be used at parliamentary and European parliamentary elections, but not local elections. Grants are not available towards the cost of permanent ramps. It seems shortsighted to encourage the provision of temporary ramps when permanent ramps work out cheaper in the long run. There would, for example, be no storage problems between elections, and it would further our goal of providing an environment which is accessible to disabled people.
§ In the White Paper the Government stressed that the elimination of discrimination against disabled people cannot be realised overnight. Disabled people recognise that they must move forward with a realistic timetable and practical measures to tackle discrimination. The amendment accepts that approach. I recognise that not all polling stations can be made accessible overnight, and for that reason there is a phase-in of designated polling stations. That should be viewed as a temporary measure. The aim is to ensure full accessibility where disabled people can vote at the local polling station alongside everyone else.
§ The first step is to establish the number of polling stations which are accessible. That audit should be done in conjunction with disability organisations, which will be able to give practical advice about the problems which disabled people face. On the basis of that audit, the returning officer will be better placed to remedy the access problems.
§ Disabled access to polling stations would also prevent discrimination against disabled candidates for election. Having been a candidate, as have a number of Members of the Committee, I know that it is important to be able to go into the polling station, talk to the polling clerks, find out whether they have any problems and try to ensure that they are solved. It also reassures one's supporters that the election is being conducted fairly and everything is open and above board. Both disabled candidates and disabled electors would be helped by the measure.
§ Perhaps I may give an example of how the physical situation of the polling station can have a significant effect. I was a candidate in a local council ward in Manchester. After my election I noticed that at one of the polling stations the turnout was significantly less than expected. Although the polling station was situated in the middle of the area, it was on the fringe of the residential area. On the other side of that area was a Tesco's superstore and no one was living there. For some people living on the estate, voting entailed a significant walk down a difficult, dark track. Obviously that put people off going to the polling station to vote.
§ Following my intervention at the town hall, a polling station was sited in the middle of the estate rather than on the edge. The result was that in the subsequent election the turnout increased dramatically. I am not sure what effect that had on the result but I know that it enabled more people to contribute and be part of the electoral process. We should welcome the idea that more people can take part in the process and, on that basis, I beg to move.2004
Lord Campbell of Croy
I understand that this is a probing amendment and that its purpose and results would be helpful on the days of parliamentary and local elections, which occur about once every two years. But I must say at the outset that I disagree with the noble Lord.
As a disabled person who was a Member of Parliament, I consider that postal voting is the answer for disabled people. My experience is that it has been extremely satisfactory. It also caters—I hope that there is not going to be laughter about a very serious subject.
§ Baroness Hollis of Heigham
I hope that the noble Lord will forgive me. The joke, or the line, which immediately crossed our minds was the way in which the votes had been cast for the noble Lord and the governments who have followed. It was in no sense a reflection on the noble Lord.
Lord Campbell of Croy
I do not follow what the noble Baroness says, but I shall expand on the matter. Of course, it was more than 21 years ago that I was in the other place but my experience goes back 50 years. I was just saying that postal voting caters for the very severely disabled—those who cannot even use wheelchairs or be carried into a polling station. I am particularly concerned about those who are paralysed or completely incapacitated.
Postal voting brings the polling booth into your home. You really cannot do better than that. I can speak from personal experience because, as I said, I have been disabled for the past 50 years. That has been to different degrees. For the early part I was in a wheelchair; later, I graduated to crutches and then sticks. I had to go back to a wheelchair at times. Therefore, I have experienced the different forms of locomotion. I have always used postal voting.
I am glad to say that during the four years when I was Secretary of State for Scotland I was encouraging all the disabled people north of the Border to use postal voting as their way of voting in elections. Certainly, my constituents were glad of the advice I gave them because they knew perfectly well that I was disabled.
The important factor is whether the system of postal voting is working efficiently. In its early years—I am talking about the late 1940s and the 1950s—it did not work well but it should now be a very good system. I recommend it to disabled people.
The principle of goods and services is that if it is difficult or impossible for a disabled person to go to the normal place where they are provided they should be delivered to his dwelling. That happens now in the United States under the American legislation. That is what happens with postal voting. The voting procedure can be followed in the disabled person's own home.
In general, I urge other disabled person to concentrate on the real and implacable ways in which they are disadvantaged. I advise them not to give much time to areas where there is an adequate alternative. In this regard, there is an adequate alternative.
While I speak for myself, I believe that I speak also for other disabled people when I say that we have to plan in advance our daily lives. I have to do that every single day. For example, we must think about what we 2005 are expected to do; what we can do; and whether there will be help to put on our appliances and shoes and socks when dressing, or whether we shall need to bring with us the special devices we have for doing those things. The programme for the whole day or week must be examined. Because I am especially concerned about severely disabled people, I hope that we shall concentrate on areas where adequate alternatives do not already exist. There are a great many other fields in which we should be trying to help disabled people because there are not alternatives. But, certainly in my experience, the voting system provides an adequate alternative which, despite laughter from the Opposition Front Bench, has proved extremely satisfactory.
I accept that this is a probing amendment and that the noble Lord moved it in order to obtain a response. I have made my response absolutely clear; there will be no doubt about that. But the amendment might send—fortunately, I do not believe that it will do so at this late hour of night—the wrong message to disabled people and give them the impression that postal voting is not a satisfactory alternative. I would absolutely deplore that because in recent years it has been the basis of enabling people to vote who are extremely disabled; for example, those who could not get through the door of a polling station even if there were a ramp. It also helps others because I have not found a single disabled person who has been refused a postal vote. The system covers a whole range of disabilities. Therefore, I sincerely hope that the subject will not be pursued because there are many other matters of far more importance to disabled people.
§ 10.45 p.m.
§ Baroness O'Cathain
I support everything said by my noble friend. However, the point should also be made that voting has been made even easier for disabled people by virtue of the introduction of the continual or running proxy postal vote. It means that, at every election, you do not have to go back and request a postal vote thus going through the palaver of getting forms. Such forms automatically come to you through the post.
If my noble friend the Minister has any influence, will he please try to make that service more well known? For six years I have had to organise postal votes for my husband who is very seriously disabled. It was only during the last council election that someone tipped me off that there was such a running vote, provided that you get signed confirmation from your doctor. It is joy indeed; from now on I shall not have to do any more of that. I shall just have to make sure that the vote is sent off in the post. It is not something that is well known, but I believe that it should be.
Baroness Darcy (de Knayth)
I entirely understand what the noble Lord, Lord Campbell, is saying; namely, that for those people who cannot get out of their homes, or for whom transport is so difficult that they have to rely on other people, the postal vote is very valuable. However, I prefer voting in person. Last year I went to a nearby primary school. It was inaccessible because it had railings and there was a step into the school. There was a form in that respect and we filled it in. In fact, 2006 they were delighted. I am ashamed to admit that I did not get back to vote this time, so I have not checked on the situation. But I shall do so.
Very often, voting does take place in schools; indeed, it is quite a good idea to install a permanent ramp in such buildings. Again, it is reasonable accommodation. Some places may just need a wooden, temporary ramp which can be removed but which will serve its purpose at times—and not just for voting—when people seek to use those facilities. I support the amendment.
§ Lord Mackay of Ardbrecknish
As we have just dealt with an education amendment I thought for a moment or two that, if we had still been at school, I might have given the noble Lord, Lord Monkswell, 100 lines for being late when the amendment was called in its proper position. I would have told him that he could not have the "sweeties" of my words of wisdom having come late to the sport. Of course, I am well aware of why he was late—
§ Lord Carter
I should just like to point out that the amendment has been called in its proper position.
§ Lord Mackay of Ardbrecknish
I believe that it was grouped with a previous amendment, which, for some mysterious reason—which I shall probably be up all night trying to work out—was withdrawn. So we are back to dealing with it.
The noble Lord's proposal is for things like an annual accessibility audit, reports to the Secretary of State, newspapers and radio adverts; and, indeed, the provision of wheelchair-accessible polling booths in every polling station, no matter how remote a possibility it might be that a wheelchair user would want the use of such facilities. The noble Lord is really asking us to take steps which are both unreasonable and unnecessary. His requirements overlook the fact that local authorities are already under a statutory duty under the Representation of the People Act 1983 to keep polling places under regular review. One of the factors that they must consider is the question of accessibility for disabled people.
I believe that the noble Baroness, Lady Darcy (de Knayth) mentioned schools. Of course, polling stations are not the buildings themselves; indeed, they can be an area within the building where voting takes place. For example, a school may be designated as a polling place but the polling station may be a classroom within the school. The Spastic Society's report entitled, Polls Apart, provided an extremely valuable and critical survey of the problems faced by many disabled voters at the 1992 election. Following that report, the Home Office held a number of meetings with the Spastic Society (now Scope) and provided revised guidance to returning officers on the particular needs of disabled electors and on how to reduce the problems that they face when voting. The success of that revised guidance is apparent in the increased take-up of grants towards the purchase of temporary ramps.
The requirements of the new clause apparently ignore the statutory responsibility already placed on councils to keep under review the designation of polling places and the advice given to returning officers as to accessibility factors to be taken into account. Those factors are 2007 detailed and were drawn up in association with Scope. It is surely right that the review is carried out at local authority level and reported to the local council. It is at local level that people are best placed to consider how provisions for disabled people can most effectively be made and how discussions with interested groups can best inform that process. I can only reiterate what my noble friend Lady Blatch said in a recent debate on electoral registration initiated by the noble Lord, Lord Monkswell, when she said that the Government take very seriously their responsibility towards disabled voters. We will continue to support councils and local administrators with the necessary funds, advice and guidance to meet the needs of disabled voters.
I do not believe that the new clause is in the least necessary. I want to underline the point made by my noble friend Lord Campbell of Croy about the importance of postal votes. Disabled people, of course, have the right to vote and that right to vote is now accommodated via the postal vote which is an extremely useful means of getting people the vote. The idea that people are deprived of the vote because they cannot get to the polling station is, frankly, cloud cuckoo land. I certainly hope that that is not the message that goes out from this Chamber. We want to encourage people who are unable to attend a polling station on the day of a vote for any reason to vote by post and to apply for that.
I have a postal vote for those elections I am allowed to vote in because I am here and not in Glasgow. I never feel I have been deprived of my vote just because I vote for the candidate of my choice a day or two before polling day. I also have never found any difficulty in deciding who I should vote for a day or two before polling day. Having been given the opportunity to make this commercial, I am happy to say that I was among perhaps a small band of Conservative voters at the previous local government election who voted for a candidate who won a seat on the new Glasgow unitary authority.
§ Baroness Hollis of Heigham
I would like the Minister to cherish that experience; it may be a fairly rare one for him!
§ Lord Mackay of Ardbrecknish
Of course I cherish it, and I look forward to retaining my excellent councillor for many years to come. Therefore I have no great difficulty about postal votes. I think they are a good thing. They are the way for some people to vote. I underline what my noble friend Lady O'Cathain said about what I think she described as rolling postal votes. I shall certainly bring to the attention of our noble friend Lady Blatch the points she made about the need to make the availability of that service more widely known. For all these reasons I do not believe that this is a sensible amendment. I hope the noble Lord will withdraw it. Just in case he is tempted to have another little walk down the Lobbies, I trust my noble friends will support me.
§ Lord Monkswell
I think there is general agreement that this is a probing amendment on which the Committee will not divide. I would point out to the 2008 Minister, however, that he criticised me a little for moving the amendment. I draw his attention to the groupings list which states:Although every effort is made to secure agreement to these groupings, they remain informal and not binding. It is therefore open to any Peer to speak to an amendment in its place in the Marshalled List".That is all that I have done this evening.
§ Lord Monkswell
I can appreciate the comment about 100 lines. There was many an occasion at school when I had to take 100 lines, but it did not seem to change my response to things. That may say something about the Government's views on crime and punishment. I thank those Members of the Committee who have contributed to the discussion. I wish to make a few comments in response. First, I accept entirely the point made by the noble Lord, Lord Campbell of Croy. Postal and proxy votes are essential for those people who cannot get out of their own homes. As the Minister said, the extension of postal voting to a wider circle enables people who are away from home on business or holiday also to have a postal vote.
I take the point of the noble Lord, Lord Campbell of Croy, that he found them entirely satisfactory—no doubt having won elections on the basis that a majority of his electors saw fit to vote for him and he has ensured that he has a vote that is reasonable. But we need also to be aware of the wider generality of the problems of disabled people.
Lord Campbell of Croy
I am grateful to the noble Lord for giving way. I would not wish him to misunderstand me. I did not say that the result was satisfactory. When I was Secretary of State for Scotland I did for disabled people what it has just been suggested the Home Office might do more of in England and Wales. Over 21 years ago there were four years in which I was able to ensure that almost all disabled people in Scotland knew that they could have a postal vote and could get a continuing one. I did not mind which way they voted.
§ Lord Monkswell
I shall believe the noble Lord, even though few Members of the Committee on this side of the House believe him.
The case that the noble Baroness, Lady O'Cathain, raised obviously has our sympathy. I was also very glad to hear the comments of the noble Baroness, Lady Darcy (de Knayth), and I thank her for them.
Turning to the Minister's response, I was flabbergasted when he seemed to suggest that it was not necessary for service providers to make provision for the prevention of discrimination against disabled people unless they knew that such provision was needed. If one extended that philosophy right through the Bill there could be a very powerful argument for nothing to be done at all, because every service provider could turn round and say that they did not expect a disabled person to turn up and ask for a particular service. It is a very thin argument.
2009 The Minister has identified, quite correctly, that it is down to local authorities to make provision for the electoral system within their areas. He said that the Government make funds available. The Government do not make funds available to provide disabled access to polling stations. They provide some funds to enable temporary provision to be made, but not all access can be resolved by temporary provision. As I said in my opening remarks, it is not necessarily cost-effective to do that on a temporary basis. The Government have a responsibility nationwide to ensure that everyone has the best facilities possible to enable them to vote.
I am sorry that the Government have not seen fit even to reconsider their attitude to this issue. This is a probing amendment. We have heard the Government's response. No doubt all Members of the Committee will read the response in Hansard. In the meantime, while assuring the Minister that we may need to return to the matter, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 13 agreed to.
§ Clause 14 [Circumstances in which less favourable treatment is justified]:
§ [Amendment No. 72 not moved.]
§ 11 p.m.
§ Baroness Hollis of Heigham moved Amendment No. 73:
§ Page 11, leave out lines 15 to 19.
§ The noble Baroness said: I move Amendment No. 73 in the hope that the Minister will give the assurances that we seek.
§ The Bill as drafted allows service providers to charge disabled people more for any goods or services adopted or adapted for their use. That could mean that a disabled person who is blind could be charged for alternative formats such as braille regarding railcards and so on. Those who are deaf could be charged for a signer. I understand that the Government assure voluntary organisations that that should not happen, that the clause covers only exceptional circumstances such as special clothing, special shoes and so on.
§ We are worried by the provision. We all accept that an impairment becomes disabling largely because of the physical and social circumstances in which people find themselves. We fear that some of the costs of overcoming the limitations of their physical and social environment may be offloaded on to disabled people.
§ We do not expect the amendment to be costly. We believe that it has major symbolic value. The provision states basically that disabled people are not a burden but full citizens with full rights, including the right to have access to services, just as their fellow citizens do. I beg to move.
§ Baroness Gardner of Parkes
If the amendment were successful, it would cut right across my next amendment. That amendment suggests that on an actuarial basis more should be charged.
§ Lord Swinfen
I support the amendment. I believe that if the subsection were not in the Bill and the noble Baroness moved an amendment to put it into the Bill, my noble friend on the Front Bench would be likely to describe it as a wrecking amendment.
§ Lord Mackay of Ardbrecknish
I am grateful for the opportunity to clear up any misapprehensions about the purpose underlying this subsection. Clause 14(3) (d), which the amendment seeks to remove, is required to protect those businesses which provide special or adapted items for disabled people from accusations of unlawful discrimination where they charge more than they would charge another member of the public for a standard item. An example would be a tailor who has been asked by a disabled person to make a suit of an unusual pattern or using an unusual fabric. Such a task might take longer and require a special order for equipment and materials. It is reasonable that he should be able to charge more, just as he would charge more to any other person who wanted a special item made.
I have listened to the arguments put forward by Members of the Committee. My honourable friend the Minister of State gave a commitment that this subsection would not give businesses the opportunity to load opportunity costs on to a disabled person or allow service providers to charge more to a disabled person where they have to make their services more accessible to suit his or her disability.
In pursuance of this commitment, we have checked the drafting of this subsection very carefully. On the first of those concerns we are content that it would be unlikely to operate to allow a service provider to pass on to a disabled customer a potential loss of profit. However, we are less content that the present wording of Clause 14(3) (d) would prevent a service provider from passing on to a disabled person an amount equivalent to the expenditure he has occurred in making his service accessible to him in accordance with a duty imposed by the Act. It is certainly not our intention that, for example, a large organisation which had to produce information in an alternative format for some of its disabled customers should be able to charge them more for it.
Consequently, for the sake of clarity we shall be bringing forward an amendment at Report stage which will confirm that any increase in the cost of providing a service to a disabled person which results from compliance by a provider of services with a duty imposed on him by Section 15 shall be disregarded for the purposes of this subsection.
I hope that that allays the concern expressed by the noble Baroness and by my noble friend. I hope, too, that I have explained why it is important that the provision should not be lost from the Bill. I hope that that reassures the noble Baroness and that she will be able to withdraw the amendment.
§ Baroness Hollis of Heigham
I am delighted with the Minister's response and we look forward to his amendment. We appreciate the moves he has made in that direction, and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.2011
§ Baroness Gardner of Parkes moved Amendment No. 74:
§ Page 11, line 20, at beginning insert ("Subject to subsection (4A),").
§ I wish to speak to Amendments Nos. 74 and 75 together. The amendments concern the insurance industry. Clause 14 defines the circumstances in which the provider of services is justified in treating disabled people less favourably. Subsection (4) includes a recommendation making power to allow the Secretary of State to specify the circumstances other than those on the face of the Bill where such treatment would be justified. The subsection makes specific mention of providers of insurance services as being likely to need such regulations.
§ The amendments seek to limit the scope of the regulations as they might apply to providers of insurance in one specific sense. That is that any special circumstances in which less favourable treatment in the provision of insurance services is allowed under the Act should be justifiable on objective actuarial or other criteria. To put it more bluntly, the amendment seeks to ensure that no regulations are made which simply exempt insurers entirely from the provisions of the Act.
§ Why is that necessary? I am afraid that the insurance industry's record, although improving, is not good on dealing with those who are disabled, particularly through HIV or AIDS. Before my noble friend tells me that the Bill is not concerned with the rights of those with HIV but with the disabled, I hasten to remind him that HIV leads to AIDS. In the past, in order to try to identify at an early stage anyone who might be at risk of becoming an AIDS case, the industry would almost certainly have discriminated against them by demanding tests. That, of course, is no longer so. As I mentioned at an earlier stage in the Committee proceedings, the British Association of Insurers has now adopted a voluntary code under which that is not done.
§ I do not wish the Committee to misunderstand the issue. The amendment is limited, it does not seek to ask insurers to insure the uninsurable or to force them to take on uneconomic business. There are, however, circumstances where people with other disabilities need insurance and where a blanket exemption for the insurance industry would be unreasonable discrimination. To give the Committee a concrete example, in the past some insurers have simply refused travel insurance to people disabled with HIV. That could be understood if it were a concern about healthcare costs involved in a person becoming ill with HIV while he or she was away. But surely, most people have themselves, or know someone who has, lost a suitcase at an airport. Why should someone who has an incurable illness or a disability not be able to obtain travel insurance that excludes the conditions due to and specifically related to the illness for something such as the loss of his or her luggage?
§ With short-term travel insurance, even against healthcare costs, a disabled person might well find themselves to be insurable although at a higher premium than that set for other people. Premiums should be set according to objective criteria on a purely actuarial basis. I believe that the insurance industry has every 2012 right to assess the risk that it is undertaking and to determine which specific exclusion related to a precondition it would wish to impose on someone taking out a policy.
§ However, the clause worries me because I fear that it gives a blanket exemption. After what my noble friend said on the previous amendment, I hope that when he brings back an amendment on that matter he will also take this point into consideration. I beg to move.
§ Lord Rix
I need to begin by declaring a non-pecuniary interest, in that I am chairman of MENCAP City Insurance Services. It is a company which we established precisely because people with learning disabilities and their families were finding it so difficult to get a fair deal in the existing insurance market. The creation of the company has, I think, acted as something of a goad to the insurance market elephant, making it a little more responsive to the disabled part of the market.
My contacts in the insurance industry before and since the setting up of MENCAP City Insurance have given me the realisation that in some instances discrimination is based not on actuarial tables or painful commercial experience, but on what I can only describe as prejudice and ignorance. It really is quite extraordinary how usually well-informed people can blunder into ill-informed decisions—though I suppose that I should not be totally surprised when immigration rules of certain world powers have apparently been based on the assumption that Down's syndrome is a contagious disease!
The amendments tabled by the noble Baroness is inoffensively broad. It meets the Minister's point that actuarial evidence is not the only sort of reasonably objective evidence. Discrimination would, under the amendment, not be unfair where it can be justified, but would be unfair where it cannot be justified. I find it very hard to see any objections to that approach, and accordingly I support the amendment.
§ Lord Swinfen
I shall be very brief. As it is getting late, I shall not produce examples. I very strongly support the amendment moved by my noble friend.
§ Lord Addington
Very briefly, I associate myself with the sentiments of the noble Lord, Lord Swinfen. I hope that a measure as reasonable as this is not needed in the Bill; but if it is, I wholeheartedly support it.
§ Lord Clifford of Chudleigh
On the subject of services and insurance, we are aware that risk is involved; that discrimination—premium setting—marks the quality of the insurer and of the underwriter. It is painfully clear that, like or not, Father Time, age and disease do not discriminate: we shall be, or are, struck by both inevitabilities.
Many disabled people, and those over the age of 75, are subject to discrimination should they wish to travel a long distance—let us say, from England to Scotland—by train, boat or air and, when they reach their destination, wish to hire a car. Although the Association of British Insurers has warned its members of the implications of the Disability Discrimination Bill, it 2013 simply cannot direct its members to adopt a common approach towards the disabled, or to those over the age of 75, who drive a car.
In mentioning cars, I beg the Committee to digest the following information from the Association of British Insurers, which I received this morning. It may be of interest to the Committee that there is a 30 per cent. chance of claim in any one year in relation to drivers aged between 17 and 24 years of age, but an 18 per cent. chance of a claim in any one year in relation to those over the age of 70. It is also of interest to note that inquiries have been made and it is understood that,market practice is that where an individual aged 74 or over seeks to hire a car the hirer will request clearance from the insurer".That presumes that the person arrives during working hours, not at a weekend. Otherwise, how can a person who is over 75 be insured when hiring a car?
Whether it be on business or holiday, a disabled person is subject to discrimination when hiring a car: It may be felt reasonable by the car hire company to impose a substantial increase of premium payment or—to use a verb coined in the Committee stage on Tuesday—it may "perceive" the risk to be unacceptable.
The distance between London and Edinburgh is 378 miles. Many people travel there and to other parts of Scotland by train. Imagine how much more exhausting it is for those over the age of 75 and for those who are disabled but can drive. But Her Majesty's Government's attitude toward the rail network in the United Kingdom has put the rail services—and so the British Government—top of the pack as discriminators.
The franchising director for the rail services has had the subsidy for ScotRail reduced sufficiently to force the motor-rail services to Scotland to stop. At present, were the Government to return just £7 million of the deducted subsidy, the franchising director could include Motorail in the privatised sale package, market it more fully, make a profit margin and make disabled drivers happier.
Perhaps we should remember that the blind cannot discriminate about the colour of our skin and the deaf cannot decipher our race from our tongue. The only discrimination shown by the disabled is appreciation of the degree of help received. Let us not discriminate against that.
§ 11.15 p.m.
Lord Campbell of Croy
The noble Lord, Lord Clifford, has gone rather wider than the amendment, which my noble friend Lady Gardner so concisely told us was limited in scope. I understand what she is aiming for. But I hope that my noble friend, in replying from the Front Bench, can dismiss any impression that the regulations will include blanket exclusions. Clearly, some people are worried about that.
I hope also that, when my noble friend replies, he will confirm my understanding that it is the intention that before regulations are drafted there will be consultation by the Government with the disabled organisations concerned and with the Association of British Insurers. This is a field in which the technical details need to be worked out in full with the Government by the disabled 2014 organisations and the insurers. One hopes that then regulations of the right kind will emerge after the Bill has been enacted.
This is a case—I mentioned it on Tuesday—where those concerned, including the disabled organisations, hope that too much will not be put into the Bill in the next two months which would prejudge all the consultations and work that they feel will have to go into the vitally important regulations which will come later.
§ Lord Mackay of Ardbrecknish
We recognise that some areas of service provision are complex and may present particular difficulties when we try to include them in the right of access. One such area undoubtedly is insurance.
The business of the insurance industry is to calculate risks and set premiums to correspond with those risks. Insurers necessarily treat people differently on the basis of the risks that they present. They treat us differently when it comes to house insurance as regards where our houses are located and treat us differently when it comes to car insurance with regard to where we live, and therefore where the car has its overnight accommodation.
Nevertheless, we have been convinced that disabled people, when they seek insurance cover, sometimes face unfair discrimination, whether in the form of a loaded premium or a refusal to provide cover at all. We want to ensure that the treatment of disabled customers is based on a reasonable assessment of risk rather than on any prejudicial assumptions of the insurer.
Officials in my department have had discussions with a number of organisations involved in the industry. So too have representatives of groups of and for disabled people. I think it would be fair to say that all parties see the benefit of a flexible framework for eliminating unfair discrimination in insurance.
I shall spare the Committee a talk about professional actuaries. All I will say is that any actuary I know is extraordinarily clever and usually a mathematician, which by definition means that they are more than just extraordinarily clever. It is an extremely complex business. All actuaries approach it with a great deal of intellectual rigour. Members of the Committee should not play down the seriousness with which they deal with their decisions. After all, if they get them wrong and the insurer is no longer able to pay out on claims, then all those who insured would suffer. It is not a business without a major downside if actuaries are forced to make decisions which they would not make in the light of their intellectual judgments and based on the scientific and mathematical evidence they collect.
We believe that there is only one workable way to outlaw unfair and unjustifiable discrimination in the insurance industry; that is, through regulations after full consultation with the insurance industry and groups representing the interests of disabled people. We are also keen to learn from the experience of the operation of the Australian Disability Discrimination Act with regard to insurance before we ourselves regulate. We will of course ensure that guidance and codes of practice are available before the regulations come into effect so that insurers and consumers know where they stand.
2015 Regulations will also allow us to cover all eventualities. It may be that over time they need to be amended if there are practical problems in their implementation. It is in the interests of insurers and consumers for the Government to be able to make such changes. For that reason we took the decision to make regulations, which can be more easily adapted than primary legislation. The main disability groups indicated that they have no difficulty accepting regulations, yet the amendments before us this evening would restrict the flexibility of the regulation-making power.
I can assure my noble friend that we will take her anxieties and those expressed by other Members of the Committee into account when drafting the regulations. However, I do not believe that the approach of her amendment would be workable or sufficiently flexible to deal with this complex area. For that reason I cannot possibly accept it. I hope that, after hearing my explanation, my noble friend will withdraw the amendment.
§ Baroness Gardner of Parkes
I thank all those who supported the amendment. It is an important matter. The fact that on the face of the Bill at the moment is the phrase, "for example, insurance services" drew my attention to this issue. The clause as it stands may lead one to think that insurance people will not be bound in any way by the Bill. It looks like a blanket exemption. I am therefore considerably reassured by what my noble friend said on that point; that is, that the regulations will look to see that the insurance industry does not act unreasonably. Perhaps I can discuss that with him between now and the next stage of the Bill.
I emphasise once more that my intention is not to ask the insurance companies to do something against the interests of their industry. As the noble Lord said, it treats people differently. I wrote that down. He said that it should treat people differently. I do not agree. I believe that it should treat everyone the same way on the basis of assessing each case on its merits in the full light of an honest declaration by the party of what adverse condition he or she is suffering from in terms of disability or ill health. We are aware of famous cases in America where, when word got around that HIV infection was spreading, large numbers of people immediately rushed to take out insurance. The insurance industry was badly caught. On the whole, however, if someone fails to declare a condition of which they are aware, that is fraud and invalidates the insurance. So the insurance industry is protected against fraud. I am saying that it should be able to look at each case on its actuarial merits and then assess what premium should relate to that. To that extent I believe that each person should be treated the same. He or she should be treated as a possible customer and offered insurance cover to suit his or her requirements.
This is a very important issue and one which we shall have to discuss further. The noble Lord said that he himself will be looking further into it. I shall have to persuade him of my view. Meanwhile, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 75 not moved.]2016
§ Baroness O'Cathain moved Amendment No. 76:
Page 11, line 24, at end insert:
("() Regulations may make provision as to the minimum level of adjustment required to freestanding and automated facilities which provide goods or services to comply with section 15.").
§ The noble Baroness said: This may seem a small point but it is easy to overlook the ever-increasing automation of services, as I mentioned at Second Reading, from cash machines to vending machines. This has led to a significant improvement in all levels of service.
§ The purpose of the amendment is to ensure that definitive regulations are drawn up under the legislation establishing clear standards for such facilities which will set the minimum that needs to be done for the life of the machine. There is a danger that if the commitment is too open-ended and further adjustments to machines can be demanded their economic viability will be drastically reduced. We need to ensure that in prescribing what businesses must do under the legislation these requirements are not counterproductive and that when regulations are drawn up consideration will be given to alternative ways of delivering the service. It would be a waste and indeed contrary to the spirit of the legislation if, as a result of a lack of clarity, there were fewer such facilities after its introduction than before. Instead we need to ensure that these facilities are as accessible as they reasonably can be and that they form part of a movement towards better services for all customers, including disabled people. I beg to move.
§ Lord Swinfen
This is a sensible amendment. The noble Baroness and the Committee will already know that British Telecom is putting automated telephones at a height that can be used by people in wheelchairs and some vending machines have already been fixed at that height. But it would be wrong to insist on adjustments to vending machines where a certain amount of pressure was not required to produce the goods they sell. If someone was to brush lightly past with their coat he could discharge vast amounts of chocolate or whatever it happened to be when no one had put in any money. As the noble Baroness said, one has to be very sensible. It is a matter of common sense. I am glad that it has been brought to the Committee's attention.
§ Lord Mackay of Ardbrecknish
This amendment draws attention to a number of problems. As I have explained, Clause 15 is intended to apply, with very few exceptions, to service providers right across the economy. In covering such a wide range of goods, facilities and services, we are bound to encounter a few sectors which present particular problems in implementation. This is one such area. We intend to deal with such difficult areas by means of regulation after full consultation with those having a particular interest or experience of that service provision. We already have adequate regulation-making powers within the Bill to deal with this kind of difficulty.
I do not want to be drawn down the route of adding regulation-making powers to deal with each area of service provision that we anticipate might not be straightforward. I am therefore unable to accept my noble 2017 friend's amendment. However, I recognise that the issue of automated service provision is one for careful consideration, not least because vending machines and other such facilities represent an important sector of service provision. Banking services provided through ATMs are a particularly good example. I cannot remember when I last went into a bank to get money; I think that many people are in the same position. However, the issue of accessibility to automated facilities is problematic, not least because it raises the question of the manufacture of the machines. As noble Lords will be aware, the Government do not believe that the Bill can or should cover the manufacture of goods.
I have listened to the comments of both my noble friends and can assure them and the Committee that we shall take the matters raised into account when seeking to regulate in this area. I firmly believe, however, that the regulation-making power in the Bill already allows us to make provision for that area and, as I have said, I think that it would be wrong to set about introducing powers to deal specifically with each potentially difficult type of service. With that reassurance, I hope that my noble friend will withdraw her amendment.
§ Baroness O'Cathain
I thank my noble friend for his reassurance. I am particularly reassured by the fact that he has reminded us of the manufacturing aspect, which I think is particularly worrisome. In those circumstances, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 14 agreed to.
§ 11.30 p.m.
§ Clause 15 [Duty of providers of services to make adjustments]:
§ Lord Swinfen moved Amendment No. 77:
Page 11, line 40, at end insert:
("where it is not reasonable under all the circumstances of the case for a provider to make provision under paragraphs (a), (b) or (c)").
§ The noble Lord said: In moving Amendment No. 77, I should like to speak also to Amendments Nos. 78, 79 and 82. I had intended to deal with the amendments separately, but at this hour of the night and for the convenience of the Committee, perhaps it is wiser to deal with them all at once.
§ Amendment No. 77 is designed to ensure that an alternative means of providing a service is pursued only as a last option. The aim of the legislation must be to ensure that disabled people have similar opportunities to anybody else to take part in ordinary life. There will be occasions when the "separate-but-equal" approach is justified; for example, for a number of reasons parents may opt to educate a disabled child at a special school in preference to a mainstream school, but that should be on the basis of an informed choice, not because it is the only available option.
§ However, Clause 15 raises the issue in a narrower context; for example, when barriers in the built environment prevent a disabled person from getting into the premises where a service is provided. In such 2018 circumstances, provision of an alternative service must be a last resort, to be considered only when alterations to the building are unreasonably difficult.
§ Amendment No. 78 is a probing amendment, trying to find out the Government's intention concerning the application of the right of access created by Part III to historic buildings. Where alterations to premises are required to facilitate access for disabled people, there may in some instances be a degree of conflict with the desire to preserve the fabric of an historic building. An automatic exemption granted to all historic buildings means that many disabled people are unable to visit historic sites. It also deprives them of the use of the many public facilities operated from listed premises, which are now used as hotels, town halls, banks and theatres, for example.
There has been growing recognition in recent years that that is not a tenable position. Recent government planning advice exemplifies an important shift in attitude, stating:
It is important in principle that disabled people should have dignified easy access to and within historic buildings. If it is treated as part of an integrated review of access requirements for all visitors or users, and a flexible and pragmatic approach is taken, it should normally be possible to plan suitable access for disabled people without compromising a building's use of spaces and may achieve the desired result without the need for damaging alterations".
The amendment would require regulations to provide guidance on that crucial issue. The value of a framework which included consultation with building users when faced with tough decisions about access cannot be over-emphasised. It enables decision-makers to avoid the passions of the competing interest groups and to emerge with a coherent set of priorities. I suggest that the essential starting point in drawing up such guidance should be an examination of the building's function. The goal should be to achieve the most dignified access consistent with the building's function. Dignified access should be integrated as far as possible and not around the back with the dustbins.
§ A different approach would be appropriate for historic house museums. In that case the preservation of the building is the key to the function of the site, but the visiting public are an essential strategy for maintaining the building's use.
§ I could continue on the amendment, but as it is late I will not. However, my noble friend Lord Montagu of Beaulieu has asked me to say that he supports the amendment and that English Heritage is in favour of it. I have also had a letter from the noble and learned Lord, Lord Jauncey of Tullichettle, who rightly advises me that at a later stage of the Bill I shall have to include a reference to Section 52(7) of the Town and Country Planning (Scotland) Act 1972 because at the moment my amendment deals only with England, and historic buildings legislation deals with Scotland too.
§ The next amendment in the group introduces the concept of transitional or action plans drawn up by service providers themselves, implementing access over a number of years. As in Australia, these plans would be voluntary but could be used in defence of a claim made against the service provider. The Bill includes a duty for businesses to take reasonable steps to remove physical barriers and provide communication and other 2019 auxiliary aids. As access is one of the most fundamental causes and manifestations of discrimination against disabled people, it is a provision that needs careful planning.
§ Forward-looking service providers in this country are already familiar with the concept of planned access improvements and many businesses already prepare access strategies. Under the Citizen's Charter all local authorities are required to audit access provision in their buildings open to the public and some are already using these audits as a basis for planned improvement programmes.
§ The fourth and final amendment in the group is designed to remove the cost cap of access provision. It is a probing amendment only. Clause 15 relates to the duties of service providers to make adjustments so that disabled people have access to their services. That may be done by changing policies and procedures; improving physical access arrangements; and/or providing aids to communication and other auxiliary aids.
§ Subsections (8) and (9) provide for a prescribed maximum expenditure to be calculated according to the circumstances, length of time, type of service and premises and as yet unspecified criteria. The cost cap may well prove to be irrelevant to forward-looking businesses, many of which are already investing money to make their services more accessible, recognising the competitive advantage of so doing. For less enlightened service providers, the overly complex formulation for the cost cap could provide the ultimate excuse for inaction and an effective deterrent to successful negotiations for disabled people seeking access improvements.
§ A similar formulation for the removal of physical barriers in buildings to allow access for disabled people without a cost cap is used in the Chronically Sick and Disabled Persons (Amendment) Act 1976, and in Part M of the building regulations. Neither has had a detrimental impact on businesses. I beg to move.
§ Baroness Hollis of Heigham
I support Amendment No. 77 and I shall speak also to Amendment No. 78. Amendment No. 77 relates to integration, and, as the noble Lord, Lord Swinfen, said, we are trying to avoid a "ghettoisation" of facilities—an apartheid of provision. We seek within the framework of reasonable cost for the provision for disabled people to be integrated and not segregated. Perhaps I may put that at its most basic: if non-disabled people are able to enter a building through one door, we should avoid expecting disabled people to enter through another door, round the back by the dustbins and the lavatories. Their entrance should be both easy and dignified.
It is worth reminding ourselves that often in the process the benefits spill over on to a much wider group of people than those with a physical disability. For example, when one replaces a heavy internal fire door with an automatic door it is not only disabled people who enjoy better mobility within the building but it is valuable for women with children and pushchairs and for the elderly. Similarly, if a main entrance is unsuitable for disabled people we should consider 2020 whether a different entrance which is fully accessible should become the main entrance for everyone. Again that would help other people.
As regards the planning of domestic housing, if instead of only some houses being built to mobility standard, all were so built, such homes could become lifetime homes, whatever people's circumstances. Building houses to mobility standard is infinitely cheaper than subsequently adjusting and widening doorways, adding extra insulation and all the other things that are needed for disability sufferers. Amendment No. 77 has our strong support.
I wish to speak briefly to Amendment No. 78. It relates to a difficult topic but I believe that the difficulties recently described in the press were greatly exaggerated. I speak as a former English Heritage Commissioner and someone who has been actively involved in conservation in my own city. We all accept that when dealing with listed buildings the principles of conservation must be paramount. Planning consent for any alterations will and must be required. Listed buildings are crucial to our sense of place and to our city streetscapes. Disabled people as much as others are entitled not to have their listed buildings disfigured.
I believe that most disabled people agree that when someone in a wheelchair goes out in the countryside they do not expect to have tarmac paths because the roughness of the path is part of being in the countryside. However, the principle of conservation as found, which is the principle of modern conservation, means that one does not strip a building back to its original date of use but one accepts and reads the accretions to that building which have come as a result of adaptations and changes as society has changed. In other words, the history of a building as well as its aesthetics is part of the conservation principles that we are examining. There is no reason to believe that access is not part of the adaptation of buildings, with the fabric continually renewing itself.
It is also worth emphasising that far more can be done to make listed buildings accessible to disabled people than is often believed. The fabric of listed buildings need not be untouchable. In my city, for example, we have attached a short-rise lift to our medieval public hall, which is a Grade I listed building. Bad adaptations disfigure a building but good adaptations do not need to. Winchester Cathedral, for example, has installed a platform lift in its north transept so that wheelchair users can have access to the choir, can enjoy the ceilings and so forth. It has received the full support of English Heritage.
I could give many more examples of which I am aware where adaptations have worked within the fabric of a Grade I or Grade II listed building. As the Norwich Disability Access Officer said, there is usually a way. Too often, private owners of listed buildings believe that they will not be given planning consent for alterations when, with discussion with the conservation architects and disability access officers, they could find a way of access.
Often Tudor houses serve as museums. By definition, there is limited internal physical access. The answer may not be to try to make the physical fabric move but to make the displays move so that on a rotating basis the upstairs displays are brought downstairs, amplified 2021 with videos and the like. Everyone may then enjoy all the artefacts and objects held by the museum, even though they cannot gain full access to the fabric because it is a sensitive building.
Equally, the noble Lord, Lord Swinfen, was entirely right to say that, where a listed building houses a function for which public access is vitally important—for example, a housing benefit service or a post office—and that building cannot be made accessible, then that function should be transferred to another building. That is what we should seek to do in those situations.
But, of course, the sad truth is that most public listed buildings are held by local authorities as owners of the last resort and seeking a function of last resort. Again, my city owns—so to speak—something like 30 mediaeval churches, not all of which have adequate access. We have found uses for almost all of them, ranging from tea shops to scout clubs to brass rubbing centres and martial arts clubs. It is no kindness to anyone to say that because, for example, 5 per cent. of the population cannot gain access to those buildings, the other 95 per cent. should not and that the building should remain unused, fall into disrepair and possibly be vandalised.
I take a great deal of interest in these matters and I regretted very much the exaggerated response of a member of the Georgian Group in his article about this Bill published in British Archaeology. He said that it was a time bomb and gave such examples as Hadrian's Wall having to have lifts and tarmac surfaces and said he thought that the damage which would result to monuments would be devastating. That was an absurdly exaggerated response, if only for the practical reason that it is beyond reasonable cost.
The author of that article insisted that disabled access officers were too often extraordinarily doctrinaire and that the fabric of a listed building or monument would have to give way to doctrinaire access officers. I remember once visiting some early eighteenth century weavers' cottages to hand over a cheque on behalf of English Heritage. When I came to the little room which was the kitchen, in that eighteenth century weaver's cottage was a 1950s black plastic and chromium bath. I said merrily, "Well, now, with this cheque, you will be able to get rid of the bath, won't you, and use the kitchen as a tea room?" "Oh no", they said, "We're not allowed to. We have been told by the conservationists that this 1950s chromium bath is an essential part of the history and palimpsest of this building, so this 1950s chromium bath must remain in this early 18th century weaver's cottage". That was absurd, doctrinaire and equally unreasonable.
I hope and expect that both English Heritage and the Department of the Environment would issue appropriate design guidance. We want a commitment to the integrated use and enjoyment of cultural, civic and historic buildings and monuments for all people. A way usually can be found if people are sensible, respect the 2022 buildings but think imaginatively about ways in which to overcome the problems of access and internal usage. I support the amendment.
§ 11.45 p.m.
§ Baroness Stedman
I support these amendments. At this hour, I shall not repeat what has been said so competently by the noble Lord, Lord Swinfen, and the noble Baroness. However, there are a few questions as regards cost capping at which we should ask the Minister to look.
How is a business's ability to pay going to be calculated? Rateable value would not take into account the differing financial positions of a large superstore or a small village shop. Service providers are to be able to stagger their service improvements over a number of years. How will the cost cap take that into account? Will the cost cap apply only to the alteration to buildings or to every aspect of the service provision such as, for example, the production of information in an accessible format, staff training and time taken in formulating company policy? No other equal opportunities legislation—either in relation to race or gender—is subject to a cost cap. The low ceiling of a cost cap may encourage service providers to do a bit of window dressing rather than tackling what are the priority access improvements. Therefore, how will the Government ensure that the improvements will be made and how will the cost cap work?
§ Baroness O'Cathain
I am concerned about Amendment No. 82, which seeks to take away the prescribed maximum, or the cap, on expenditure that a provider of services must spend. That prescribed maximum is an important way of satisfying the natural concerns about overspend that businesses have. To remove subsections (8) and (9) would make it an open-ended commitment and could result in a parsimonious approach; or, indeed, looking at ways to get around it being considered by the provider of services. So I have a genuine concern in that respect.
§ Lord Addington
I support the amendments tabled in the name of the noble Lord, Lord Swinfen. I must apologise to the noble Lord for missing the first part of his introductory speech, but I am afraid that messages have to be passed on and, when you are the only Member on the Bench, you have to leave the Committee to deal with them.
Basically the suggested provisions are very reasonable. Once again, I hope that the Government will adopt a favourable attitude. I should tell the noble Baroness, Lady Hollis, that I actually recognised one or two of the things that she described when talking about a certain church in Norwich. Indeed, I was playing quite a nice game in trying to think exactly where was the church that had become a boxing hall and the other that had become a tea-shop. I believe that Norwich has one thing right as regards using its old buildings.
Lord Ingle wood
We have had a useful and wide-ranging discussion on the amendments. While, obviously, it is getting late, I should like to take just a little time to explain the position, which I hope will satisfy a number of concerns that have been expressed.
2023 The integration of disabled people into society is an aspiration which we all share. The Disability Discrimination Bill will, over time, result in dramatic changes involving millions of people taking positive action to make that integration a reality. Although the word does not appear on the face of the legislation, it is quite right that integration is part and parcel of the duty that we owe to disabled people in creating a more accessible environment. But, as Members of the Committee will agree, the Government also have a duty to ensure that legislation allows a sufficient degree of flexibility for service providers to develop their own solutions to accessibility problems—solutions which, of course, meet the needs of disabled people but which are also practical and relevant to the business and affordable.
The key objective of the goods and services provision in Part III is to ensure that services are not impossible or unreasonably difficult for disabled people to use. Clause 15 sets out the broad framework within which that will be achieved by changing policies, practices or procedures, by supplying aids to communication or by taking steps to negate the effect of physical barriers. That is a crucial part of our policy.
Within that framework, it will be up to the service providers themselves to decide how best their services can be adapted to meet the needs of actual people as long as, by doing so, they are made reasonably accessible. In our view Amendment No. 77 runs contrary to that principle. It would mean that in many cases businesses, especially small and medium-sized businesses, would be prevented from looking at ways in which their services could be adapted to suit disabled people by delivering them in a different way.
We think that that would be too strict a limitation on business. Further, as my honourable friend, the Minister for Disabled People, has said on a number of occasions (and as was set out very clearly in the cost compliance assessment which accompanied the Bill), the legislation has been deliberately drafted in a way that ensures that sensible, low-cost accessibility solutions are encouraged wherever possible, so long as they are reasonable. The amendment could impose much unnecessary cost on businesses in situations where to contemplate expensive building work which might be considered reasonable in its own right would be to fly in the face of common sense if, as a prior option, a work-around solution could not be considered as well.
Obviously, I want to make it quite clear that there will be occasions when physical alterations will be the only reasonable solution because physical access to premises is a fundamental attribute of the service. I am thinking, for example, of restaurants, theatres, art galleries and so on.
It would clearly not be reasonable for the proprietor of a cafe to suggest that a take-away meal was a suitable alternative to making an adjustment to the layout or construction of his premises which would allow disabled people to enter. Further, the mere fact of physical access would not be enough. The means of entrance must be reasonable.
2024 It would not be reasonable—to refer to the example given by the noble Baroness, Lady Hollis—to expect a wheelchair user to have to negotiate the rubbish bins and general detritus of a back alley to be let into a restaurant via the kitchens, but there will be instances where such access is not essential to the service on offer. For example, as regards a theatre ticket office of the sort one sees in the West End, a wheelchair user may be unable to get into the shop because of a steep step at the entrance and asks whether the shopkeeper would consider purchasing a portable ramp. The ramp may cost £200 or £300; not a trifling amount but not an excessive amount of money either, and possibly a reasonable expense for the service provider to be put to. However, as an alternative, the ticket agency is prepared to provide a free phone ordering and tickets by mail service. This is an obvious and sensible solution to a practical problem which will provide the disabled person with reasonable access to the service and be of benefit to many others as well, but a solution which would be denied by this amendment.
I sympathise with those who want to see a more accessible physical environment sooner rather than later; indeed this Bill will do much to bring this about, but we have to face the fact that the building stock in this country is old, two-thirds of it being built before the turn of the century. We will not have fully accessible buildings overnight and if the Government try to force businesses to provide them that will fail. It is the businessmen of this country who will provide access to goods and services for disabled people, not politicians. We know that the great majority of service providers wish to play a part and we owe it to them to provide a sufficiently flexible regulatory framework to allow them to get on and do the job. I hope that what I have said will help satisfy and reasssure those noble Lords and noble Baronesses who have expressed concern on this point.
I now turn to Amendment No. 78. As has already been said by others, I am aware of the concern over how listed properties will be treated under the Bill. I hope to explain matters and clear up a lot of the misunderstandings and the difficulties. The Disability Discrimination Bill affords a good deal of protection for service providers and employers who occupy listed buildings. Clause 32 provides that nothing done to comply with other legislation, whether passed before or after the Bill, shall be made unlawful by the Bill. This means that if a service provider is unable to carry out works because in doing so he would be breaching other legislations, he cannot then be in breach of the disability Bill in respect of that particular act. So if, for example, listed building consent to replace a medieval archway with a pair of sliding doors was refused, the service provider who then declined to install the new doorway could not be held to have discriminated against a disabled person for whom the building remained consequently inaccessible. In other words, Clause 32 will prevent people having to act without listed building consent in order to comply with the Bill. The same principle will apply to scheduled monuments. However, I must make it clear—
§ Lord Swinfen
If my noble friend will allow me, I do not really want to interrupt the flow of his argument and I quite see the point that this Bill, when it becomes an Act, will not override previous legislation, but what will be the position with subsequent legislation?
Lord Ingle wood
I have covered that point. It is mentioned in Clause 32—which is a short clause—which states:Nothing in this Act makes unlawful any act done—in pursuance of any enactment".It is quite clear that the provision both looks forward and back.
I wish to elaborate further so that there is no misunderstanding about what this provision means. I must make it clear that this provision does not amount to an exemption for listed buildings. In our view, it is right that material adjustments for which listed building consent would be granted will have to be considered. We are going back to the point that the noble Baroness, Lady Hollis, made when she talked of some examples in Norwich. I am rather sorry that my noble friend Lord Mackay is not in his place because I am sure he would be terrified at the thought of her going to the martial arts centre with regard to the next time they face each other across the Dispatch Box.
§ Lord Inglewood
A good "big un" is always better than a good "little un". The aim must be a workable system by which the need to apply for listed building consent can be avoided in cases where it is obvious that an application will be refused. Great strides have been taken in recent years to make historic buildings which are open to the public more accessible. English Heritage and local authorities have considerable experience in advising owners how to adapt historic buildings to meet these needs without detracting from the intrinsic value for which the building is protected.
English Heritage is currently producing guidance on how to approach proposals for making historic buildings and monuments more accessible to disabled people and will be co-operating with the Centre for Accessible Environments in holding seminars later this year to bring those with responsibilities for access together with those, such as local authority conservation officers, dealing with listed buildings. That guidance could prove to be a very valuable tool to disabled people, employers, service providers and their advisers when it comes to resolving any disputes which may arise in this area. It could be that the national disability council will wish to incorporate some or all of that guidance into its codes of practice.
I hope that I have been able to demonstrate why the amendment is unnecessary. I hope that my noble friend may consider withdrawing it.
Turning to Amendment No. 79, I listened with interest to the arguments in favour of transition plans and I found myself in sympathy with much of what was said. The transition plan idea is certainly worth considering. I am aware that the Australian 2026 anti-discrimination legislation contains a similar provision, and a good place to start would be to seek information from Australia on how well the scheme operates over there.
There could be difficulties. Who, for instance, would decide whether the plans were bona fide? We would want to avoid the necessity of parties having to go to court to establish that. Also, how much leeway would companies be allowed if, for example, following a downturn in the business cycle, a trader did not have sufficient resources to carry out the improvements scheduled for a particular year? And, of course, we would need to decide whether disabled people whose disabilities were not fully catered for in the plan could bring actions against the service provider.
Nevertheless, any idea which seeks to offer some incentive to business to approach accessibility in a structured way is well worth investigating, and we shall continue to look very closely at what might be done.
However, we are not yet at a stage where we could be certain about the proper form of words that would need to be put on the face of the Bill, or whether we could make use of secondary legislation. Therefore, if my noble friend and the noble Baroness whose name is also down to the amendment would consent to withdraw it, I will undertake to take the matter away and consider where the best way forward lies.
Finally, I should like to turn briefly to Amendment No. 82. The power to set a financial limit on the cost of meeting the duties to make adjustments is an essential one if businesses and service providers are to have confidence in the legislation. The Bill has been designed to ensure that the move to a more accessible environment will not place undue burdens on those who will be responsible for delivering its provisions. In forming our proposals we have taken account of the understandable concerns of the business community that the legislation should not be unrealistically ambitious. I believe that the Bill strikes a fair balance between the needs of disabled people and the perfectly respectable need of a business to make a reasonable profit.
In our view, the ability to set a financial limit is a crucial element in that balance in that it gives certainty to business. That was a point to which my noble friend Lady O'Cathain drew our attention. However, turning to the point raised by the noble Baroness, Lady Stedman, we recognise that there are a number of ways in which a test of affordability could be fashioned: different ways in which the size or value of premises or the size or status of businesses can be assessed in order to produce a variable but easy to understand measurement. We have not as yet formed any firm views as to the best way forward. The Government will consult fully with businesses and organisations of and for disabled people alike on whether a financial cap would be helpful and, if so, how it would be calculated.
The provisions of subsections (8) and (9) inject the legislation with a crucial measure of flexibility. The limit could, for example, cater for aggregate amounts of expenditure incurred in different cases, so that a service provider could consult a local access officer, plan a series of improvements to improve access over a period of time and be reassured that, just because individual 2027 elements of that plan did not come up to the financial limit, he could not be required to make further alterations. That would account for the wide variety of modifications that might be considered: for example, installing a ramp, widening doors or perhaps removing obstructions from corridors or shopping aisles. Such a provision would be a fair way of ensuring that a service provider who planned ahead would not run the risk of having greater liabilities than a service provider who chose to delay taking any action until forced to do so by the threat of legal action.
The financial cap remains an important part of the government proposals. To prevent unwarranted burdens being placed on business we must be in a position to control the application of the legislation.
Members of the Committee having heard my explanation of the Government's position, I very much hope that my noble friend Lord Swinfen will feel able to withdraw his amendment. I hope that I have covered the points and given reassurance.
§ Lord Swinfen
My noble friend has given a full and interesting answer to all four amendments, providing a certain amount of encouragement. However, there is a certain amount in his reply that I am not sure I like. However, I shall read carefully what he said. It is possible that I may come back to the matter at a later stage of the Bill. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 78 and 79 not moved.]
§ Lord Inglewood moved Amendment No. 80:
§ Page 12, line I, leave out subsection (4).
§ The noble Lord said: In moving Amendment No. 80, I speak briefly to Amendment No. 81. The effect of the amendment is to remove from the face of the Bill the subsection which exempts those service providers whose buildings comply with Part M of the building regulations from the requirement to make physical alterations to their premises. We have done this because, as we now believe, the provision does not wholly fulfil the Government's policy intention. But, as I shall explain, we have not abandoned our view that service providers need to be protected from double jeopardy. It may assist the Committee if I take a few minutes to explain some of the background.
For noble Lords who are unaware, Part M has operated since 1988 as that part of the building regulations which sets out what is required in the way of access for disabled people. It applies to all new non-domestic buildings and most extensions. It requires reasonable provision to be made so that disabled people can gain access to and make use of buildings including, for example, lavatories and, if relevant, audience and spectator seating. It requires facilities to be provided both for wheelchair users and for those who have impaired hearing or eyesight.
The Government take the view that service providers should be able to rely on Part M of the building regulations as representing a bona fide national standard of accessibility for disabled people. That is why we decided to include a subsection which exempts from the 2028 duty to make physical alterations any service provider whose premises have already complied with Part M. It is only natural justice that a service provider who sets up in a new building which complies with building regulations should be entitled to believe that his premises have been certified as accessible. Can it really then be reasonable for a court, in enforcing the Disability Discrimination Bill, to decide otherwise?
However, we now recognise that the subsection as drafted is something of a blunt instrument and that the problem needs to be tackled in a rather more sophisticated way. We know that there will be some buildings which complied with a version of the building regulations, perhaps as long ago as 1988 but which would no longer meet the requirements of the latest version. Those buildings might lack suitable accommodation for those with sensory impairments, provision for which did not figure in the early versions of the regulations. That could result in cases where a service provider might escape a duty to make an adjustment to cater for the real needs of a disabled person on what would be little more than a technicality.
This would not only be galling for the disabled person but also for any service providers who, in exactly similar premises, apart from the fact that they were built in, say, 1987 rather than 1988, would have to make an adaptation. Their building would pre-date the building regulations and could thus not claim the benefit of building regulations exemption. In fact, a case can be made for extending the coverage of an exemption to cover any feature of a building which comes up to some other nationally defined standard—irrespective of the age of the building and irrespective of whether it has ever had to comply with Part M. Not only would this put service providers in older buildings on the same footing as those in new ones, which would be equitable; it would also encourage more service providers to undertake accessibility improvements in advance of the commencement of the duty to make physical alterations.
There is much to consider here and we have yet to reach any definite conclusions on the matter. This is very likely to be one of the areas where, probably in the early part of next year, we shall be consulting with business and organisations of and for disabled people to hear their views on the best way forward.
But it is clear that the issue is too involved for simple treatment on the face of the Bill and that it would be better to use the regulation-making power available in Clause 15(6) of the Bill and pursue the point in secondary legislation where we shall have the latitude to do justice to the subtleties of the problem.
Perhaps I may briefly comment on Amendment No. 81 standing in the name of my noble friend Lady O'Cathain. We believe it to be unnecessary both because we have given a commitment to regulate in this area and because the existing regulation—making powers in Clause 15 are sufficient for the purpose.
I very much hope that with what I said earlier I have been able to inspire a sufficient degree of trust in our intentions to persuade my noble friend that she might withdraw her amendment. Nonetheless, I beg to move Amendment No. 80.2029
Baroness Darcy (de Knayth)
I wish briefly to support the amendment. I believe I put it down first and was pleased that the noble Lord, Lord Mackay, added his name to it. I only wish that he had managed to add his name to Amendments Nos. 69 and 70. However, he cannot be perfect, I suppose.
The noble Lord, Lord Inglewood, said that a building that did not conform to Part M would have been built earlier but sometimes buildings which supposedly conform to that regulation do not. In some local authority areas, officials are lax in applying the rules and in other areas they are not quite aware of what is needed. Anyway, I am delighted to support the amendment.
§ Baroness O'Cathain
Having listened to the Minister, I am prepared not to move my later amendment on the basis of the assurance he gave.
§ On Question, amendment agreed to.
§ [Amendments Nos. 81 and 82 not moved.]
§ Baroness O'Cathain moved Amendment No. 83:
Page 12, line 47, at end insert:
("() Before issuing any regulations under this section, the Secretary of State shall consult such persons as he considers appropriate, including appropriate organisations representative of employers and appropriate organisations representative of disabled persons.").
§ The noble Baroness said: The concern is simply that without the requirement in the amendment, a costing figure in regulations or the formula for calculating it, which are important ways of delivering the clarity which the service providers require, could be changed arbitrarily. If it were decreased, it would be to the detriment of the disabled and if it were increased dramatically and suddenly, it would be to the detriment of business and customers, including the disabled. I beg to move.
§ Earl Russell
At this time of night, I hope it is sufficient reason for supporting the amendment to say that it would save a vast amount of parliamentary time.
§ Lord Inglewood
My noble friend's amendments seek to ensure that before issuing regulations under Clauses 15 or 19 of the Bill the Secretary of State shall consult with appropriate organisations representing employers and disabled people. A similar amendment has already been considered in relation to another part of the Bill and I can only reiterate what I said. I can assure the Committee that the Government intend to consult fully with interested parties before exercising the regulation-making powers contained in the Bill. This is likely to involve consulting with groups of and for disabled people and those representing the interests of business. However, I cannot agree that the Secretary of State should be under an obligation to consult with specified categories of people regardless of the subject of the regulations to be issued.
I believe that these amendments are unnecessary. The Government have made clear all along their intention to consult fully before using the powers in the Bill. Indeed, such consultation will be crucial to ensure that the regulations are fair and workable. I hope that that will provide some reassurance to my noble friend and that she will consider withdrawing the amendment.
§ Baroness O'Cathain
I did not think I would get far on this amendment. I have the reassurance; I still wish it had been on the face of the Bill. I should have linked Amendments Nos. 83 and 87. I shall not move Amendment No. 87. I beg leave to withdraw Amendment No. 83.
§ Amendment, by leave, withdrawn.
§ Clause 15, as amended, agreed to.
§ [Amendment No. 84 not moved.]
§ Clause 16 agreed to.
§ Clause 17 [Exemption for small dwellings]:
§ Lord Inglewood moved Amendment No. 85:
§ Page 14, line 40, after ("person's") insert ("spouse,").
§ The noble Lord said: In moving Amendment No. 85, I wish also to speak to Amendment No. 86. The amendments seek to clarify the exemption of "small dwellings" from the provisions on sale and letting of premises. The measures, including the small dwellings exemption, mirror those in sex and race discrimination legislation.
Clause 17 sets out the exemption for "small dwellings" from the provisions in Clause 16. These will make it unlawful for a person with the power to dispose of premises to discriminate against a disabled person.
In the provisions relating to the small dwellings exemption, the person with the power to dispose of the premises, or whose consent is required before premises can be disposed of, is referred to as the "relevant occupier". One of the conditions for the small dwellings exemption to operate is that the "relevant occupier", or a "near relative" of his, must actually live on the premises in question.
"Near relative" is defined in the earlier anti-discrimination legislation as including, among others, a person's "spouse". However, in recognition of those couples who live together before marrying (or who do not intend to marry), and in line with more recent legislation, the word "partner" has been added.
These two amendments define "partner" as the other member of a couple consisting of a man and a woman who are not married to each other but are living together as husband and wife. The need to identify whether someone is or is not a partner arises only if the "relevant occupier" is not actually present on the premises at the point in time when discrimination is alleged: for example, where he or she was temporarily away on business.
It might seem a contradiction for Clause 17 to talk about partners "living together" when in order for this provision to operate they would actually have to be apart, but I can assure the House that, just as we would not expect married couples to spend 24 hours a day, seven days a week in each other's company—that is certainly true of anyone coming up to London to this House, attractive though that prospect may be to some, though, I hasten to add, not to me—the same would apply to an unmarried couple temporarily separated.
These amendments clarify the small dwellings exemption from the general provisions relating to the sale or letting of premises and I commend them to the House.
§ 12.15 a.m.2031
§ Earl Russell
In relation to Amendment No. 86, I congratulate the Minister on having removed one unnecessary regulation-making power.
§ On Question, amendment agreed to.
§ Lord Inglewood moved Amendment No. 86:
§ Page 14, line 43, leave out ("has such meaning as may be prescribed") and insert ("means the other member of a couple consisting of a man and a woman who are not married to each other but are living together as husband and wife").
§ On Question, amendment agreed to.
§ Clause 17, as amended, agreed to.
§ Clause 18 agreed to.
§ Clause 19 [Circumstances in which less favourable treatment in relation to premises is justified]:
§ [Amendment No. 87 not moved.]
§ Clause 19 agreed to.
§ Clause 20 agreed to.
§ Clause 21 [Validity and revision of certain agreements]:
§ Baroness O'Cathain moved Amendment No. 88:
§ Page 16, line 13, leave out subsections (3) to (6).
§ The noble Baroness said: This is a complicated amendment. It deals with the fact that if something is "void" it cannot be made "voidable". Subsections (3) to (6) of Clause 21 provide that if such a clause is found, a person can go to court and have the provision made void; that is, removed or modified. If it is already "void", it cannot be made void. Clearly, under Clause 21(1) the provision in the contract would be void anyway. This is a legal point: something that is void cannot be made void again; it was discriminatory in the first place. This is a point of tautology, a lawyer's point. I beg to move.
§ Lord Inglewood
I suppose, as one of that species, I had better speak to this amendment. Obviously my noble friend's amendment seeks to remove from Clause 21 the ability of either a county or sheriff court to replace or modify contract terms that have been made void due to the fact that they frustrate the operation of Part III of the Bill. I have listened carefully to why my noble friend thinks that this is necessary, but I have to confess that I am not convinced by her arguments. The crucial point here is that the contract is made and it contains within it various provisions. Certain of those provisions—the terms of the contract —are void, so far as they purport to do the matters described in Clause 21(1) (a) (b) or (c). But under the latter part of the clause, it is possible for an application to be made either to the county court or to the sheriff court to have the void clauses (they still exist; they are merely void) modified so that they can take effect in a manner which is to the benefit of those who have entered into the contract.
I believe that the point made by the noble Baroness is based on a misunderstanding of the nature of the contract and the way in which contract law works. Against that background, I hope that I shall be able to persuade her that these subsections are an important part of the Bill. They introduce an important and significant element of flexibility into this particular piece of 2032 legislation. I see that the noble and learned Lord, Lord Templeman, nods his head, which is a very encouraging sign from my point of view.
§ Lord Templeman
Perhaps I may be permitted to tell the noble Baroness that it is a thoroughly bad point.
§ Lord Inglewood
The noble and learned Lord has put it rather more bluntly and more succinctly than I should have done, but we have come to the same conclusion.
§ Amendment, by leave, withdrawn.
§ Clause 21 agreed to.
§ Clause 22 [Advice and assistance]:
§ [Amendment No. 89 not moved.]
§ Clause 22 agreed to.
§ Lord Mackay of Ardbrecknish moved Amendment No. 90:
§ After Clause 22, insert the following new clause: