Disability Discrimination Bill

HL Deb 27 June 1995 vol 565 cc608-80

3.10 p.m.

The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

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

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 23 [The National Disability Council]:

The Chairman of Committees (Lord Boston of Faversham)

In calling Amendment No. 101, I should inform the Committee that if it is agreed to, I cannot call Amendment No. 102.

Lord Swinfen moved Amendment No. 101:

Page 17, line 5, leave out subsection (2) and insert:

("(2) It shall be the duty of the Council—

1. (a) to work towards the elimination of discrimination; and
2. (b) to keep under review the working of this Act, and when they are so required to do so by the Secretary of State or otherwise think it necessary, to draw up and submit to the Secretary of State proposals for amending this Act.

(2A) In discharging the duties set out in subsection (2) the Council shall have the following powers—

1. (a) to investigate such complaints as are made to them of failure to comply with any provision of this Act in an individual case, and where it seems appropriate, conciliate in relation to such complaints:
2. (b) to provide assistance, including legal and financial assistance, to disabled persons in enforcing their rights under this Act;
609
3. (c) to carry out investigations with a view to determining whether the provisions of this Act are being complied with;
4. (d) to undertake or assist (financially or otherwise) the undertaking by other persons of any research and any educational activities, which appear to the Council necessary or expedient for the purposes of subsection (2).").

The noble Lord said: In moving this amendment, I shall speak at the same time to Amendments Nos. 104, 108, 109 and 114 to 118 inclusive. Also grouped with those amendments are amendments tabled in the name of my noble friend Lady O'Cathain; namely, Amendments Nos. 103, 106 and 110. I understand that some Members of the Committee have indicated that they might wish to take Amendment No. 106 separately.

The amendments are designed to extend the powers of the National Disability Council. The purpose of the first amendment, Amendment No. 101, is to change the role of the council from being merely advisory to one with enforcement powers. The amendment broadens the role of the National Disability Council. As currently drafted, the council has power only to advise the Secretary of State on matters relevant to the elimination of discrimination against disabled people, measures which are likely to reduce such discrimination and matters related to the Act.

This amendment would give the council important new powers which, in my view, are essential to ensure that the law is properly implemented and the rights of disabled people safeguarded. The new powers are, first, to draw up proposals for amending the Act if the council considers any part of it not to be working as intended; secondly, to carry out investigations into complaints by an individual person and, where appropriate, provide conciliation; thirdly, to provide assistance to disabled people, including legal and financial assistance, so that they can enforce their right not to be discriminated against; fourthly, to initiate investigations into companies' practices, as it considers necessary; fifthly, to undertake or commission research; and, finally, to undertake or commission educational activities.

Disabled people are excited by this new Bill. They hear what the Government say about wanting to eliminate discrimination and they have high expectations. They will want information about their rights and advice on what to do if they feel that they are being discriminated against. The law is complicated. Different parts will come into force at different times. The very important principle of reasonableness means that different levels of access will apply in different situations. Codes of practice and regulations will be there to help clarify duties, but many disabled people will be unsure of how to interpret them in their particular situation and they will not have the overview that is available to the council.

So where can they go for help? The Government propose that disabled people who feel that they have been discriminated against in the area of employment should take their complaints to the Advisory, Conciliation and Arbitration Service, whose conciliation officers will be able to offer advice. If that fails, the disabled person must go to an industrial tribunal, for which there is currently no legal aid available. If they feel that they have been discriminated against in the area of goods and services, the Government propose that they should go to the local citizens advice bureau. Unfortunately, that idea was rejected by the National Association of Citizens Advice Bureaux. However, under the Bill the matter can go to court, which is a daunting experience for anyone and surely "an option from which many disabled people, without the support and backing of an authoritative body, are likely to shy away.

The enforcement body set up under other laws aimed at eliminating discrimination—the Race Relations Act and the Sex Equality Act—are able to give help to individuals who feel that they have been discriminated against in the areas of race and sex. Why should people with disabilities, many of them with sensory impairment which makes it difficult for them to have access to information and advisory services, have less support to tackle discrimination against them than people from ethnic minorities or women?

The broader role of the commissions in being able to initiate investigations into companies and practices where they suspect that discrimination is taking place is of key importance. Such investigations are able to focus on key areas and issues. They generate a lot of publicity. They make businesses, many of which wish to comply with the law but fail to do so through ignorance, aware of discriminatory practices. Where businesses are reluctant to comply with the law, a commission can force them to provide information. An individual disabled person would not be able to do that. Where necessary the commission is able to take legal proceedings. Often that is not necessary. The threat of being taken to court is enough to make many companies change their practices.

Finally, the amendment would give the National Disability Council the power to carry out independent research and undertake educational activities. In the Bill as currently drafted, the council can only undertake research commissioned by the Secretary of State. The educational role is of paramount importance. Employers and service providers will need advice. They have made clear that they are very concerned about whence that advice and information will come. The Employers Forum on Disability, in its summer update, said: Employers need consistent expert advice and support. Experience suggests that credible, workable and enduring anti-discrimination legislation needs the underpinning provided by an authoritative central body".

The educational role is very important, but obviously it is of little value if businesses fail to follow advice. In its second review of the Race Relations Act, the Commission for Racial Equality said: Our promotional work is greatly strengthened by the awareness of employers that, if it fails, formal investigations are possible. Our guidance and codes are heavily based on the information that has come to us through formal investigations and individual complaints".

I turn to Amendment No. 104. Subsection (4) of this clause (page 17, line 16 of the Bill) prevents the Secretary of State from giving the council powers to investigate complaints. That is obviously incompatible with Amendment No. 101, to which I have just spoken. One of the most important powers that Amendment No. 101 gives to the council is the power to investigate complaints.

I come to the purpose of Amendments Nos. 108 and 109, and also Amendment No. 110 in the name of my noble friend Lady O'Cathain. Subsection (9) of the clause prevents the council from giving advice on employment matters. Under the Bill as currently drafted, the council has powers only to advise the Secretary of State about discrimination in the area of goods and services. The power to advise the Secretary of State for Employment about employment, self-employment and training of disabled people rests with the National Advisory Council on the Employment of People with Disabilities, a body which is already in existence. That means that there will be two separate bodies advising two different Ministers in two different departments with two sets of civil servants about discrimination against disabled people. Most businesses will be service providers and employers. They will have to consult with two entirely different structures.

NACEPD has a very low profile and is not known to employers. It has only 2.75 staff units and does not have its own budget. It currently advises the Minister through its quarterly council meetings and provides periodic reports of its activities to him. It is not independent. If the Minister rejects its advice, it is not able to promote its views.

NACEPD does not have a remit to combat discrimination or to monitor legislation. Even if it did, it would not have the resources to be able to tackle discrimination against disabled people by employers in the same way that the existing commissions can. In its response to the Government's consultation last summer, NACEPD called on the Government to set up a single authoritative body with enforcement powers to cover all aspects, including employment. The Government have so far ignored that advice.

The purpose of Amendment No. 114 is to enable the council to appoint its own staff. Amendments Nos. 115 and 116 enable the council to have financial independence. Amendment No. 117 seeks to remove the power of the secretary of State to make supplementary regulations in regard to the provision of information to the council, the commissioning of research, the appointment of any person as an adviser and the payment of expenses incurred by the council.

Those four amendments ensure that the council is an entity in its own right, with sufficient resources to carry out its responsibilities. The Bill, as currently drafted, means that the Secretary of State can provide the council with staff as he considers appropriate. The proposed budget for the council is only £250,000, which will pay for very few staff. On such a small budget and with only a few members of staff, the National Disability Council would be extremely limited in what it was able to do. With the broader powers given to it under Amendments Nos. 101, 104, 108 and 109, it would need sufficient resources and staff to carry out its key role.

The National Disability Council's budget of £250,000 is ludicrously small when compared with the budgets of bodies set up under previous discrimination Acts. As I understand it, the Equal Opportunities Commission has a budget of £7 million and the Commission for Racial Equality one of £15 million. The lines deleted by Amendment No. 117 enable the Secretary of State, by regulation, to make provisions in relation to information given to the council by the Secretary of State, the commissioning of research by the Secretary of State, the circumstances in which the council may appoint an adviser, and payment of expenses incurred by the council. That regulation-making power would not be needed if the other amendments were accepted, giving the council more powers and resources, thereby making it more independent of the Secretary of State.

The purpose of Amendment No. 118 is to provide for regulations to be made governing the carrying out of the council's investigations and enforcement powers. The new clauses provide for regulations to be made governing how the council carries out those powers. Through the regulations the Secretary of State can specify how investigations are to be carried out, the circumstances in which the council can make recommendations and issue non-discrimination notices following investigations and the arrangements whereby the council may refer cases of discrimination to an industrial tribunal or court. By enabling the Secretary of State to prescribe such regulations, the clauses will ensure that the National Disability Council is not able to abuse its powers and act in a heavy-handed or inappropriate way.

Not included with this group of amendments but which are connected to them are Clauses 26 and 27. Those clauses give the Secretary of State the power to prepare codes of practice in the area of employment. Under the Bill as currently drafted, the National Disability Council does not cover employment and therefore the Secretary of State must have the power to draw up codes. However, Amendments Nos. 108 and 109, to which I have just spoken, amend Clause 23 so that the National Disability Council can cover employment matters and therefore the council and not the Secretary of State would draw up codes of practice covering employment. The Bill as currently drafted enables the council to draw up codes of practice under Clause 24, but that is only for goods and services. I beg to move.

Baroness Darcy (de Knayth)

I add my warm support to these amendments, particularly those to which I added my name and also Amendment No. 108, to which there was no room to add my name. The amendments were clearly and comprehensively explained in detail by the noble Lord, Lord Swinfen, and I should like to go back briefly to look at the evidence on the need for a strong body.

Way back in 1982, when the Committee on Restrictions Against the Disabled was conducting its investigations, members visited both the CRE and the EOC. They also sought information on the experience in other countries. The evidence collected led CORAD to recommend that, with anti-discrimination, there should be a regulatory body or Commission with powers to investigate, conciliate and if necessary take legal action on individual complaints of discrimination; to recommend guidelines on reasonable affirmative action required to accommodate disabled people and to promote the integration of disabled people into society".

What is important is that CORAD found that in every case where such legislation had been passed an enforcement body had been necessary. It concluded that a commission or council with powers to help individual disabled people enforce their legal rights and powers to undertake general investigations was vital to the success of any legislation to eradicate discrimination against disabled people.

As the Bill stands, the NDC lacks those powers. As the noble Lord, Lord Swinfen, explained, it is predominantly an advisory council. It is unable to investigate individual cases, to conciliate, to take legal action on behalf of an individual and, very important, to undertake general investigations to determine whether someone is following the procedures that might lead to discrimination. With regard to the first three shortcomings, the Government recognise the need to help disabled people who are subject to discrimination. As the noble Lord, Lord Swinfen, said, in the field of access to goods and services they asked NACAB to do the job, which felt that it could not agree to it. As the noble Lord said also, where will disabled people go for advice if the amendments are not accepted?

I was not encouraged by the Minister's words on the first day of Committee. He said: One does not need to use the same organisations throughout the whole of the country. That is something we are considering".— [Official Report, 13/6/95; col. 1698.] We need clear, firm, reliable advice and information, not advice the quality of which may vary in different parts of the country according to which organisation may be proffering it.

As to the question of investigatory powers, one of the most important means of amicably—I stress "amicably"—improving practice in commerce and industry in relation to disabled people would be to empower the NDC to undertake general investigations. It would be both an efficient and cost-effective means of advising and educating firms and businesses as to how they can benefit both themselves and disabled people by avoiding discriminatory practices. As it stands, Clause 23 falls short on all four of those counts. That is why I hope the Committee will support the amendments.

Lord Rix

I am by nature an optimist and therefore I hope that our brief sojourn into the territory of Clause 23(4) of Part IV of the Bill in Committee on 13th June (col. 1739), guided perhaps inadvertently by the noble Lord, Lord Inglewood, is but a harbinger of good tidings to come as we debate the amendments of the noble Lord, Lord Swinfen, in regard to the National Disability Council.

On paper the National Disability Council looks significantly different from the commission for which some of us have argued over months or indeed years. I suspect that it is popularly perceived among those who are concerned, but who have not read the Bill, as having rather less relevance to the day-to-day business of disability and discrimination than the City livery companies have to the day-to-day business of manufacture and trade. I would give it rather more credit for a potentially useful role. However, the noble Lord, Lord Swinfen, provided the Government with a helpful prompt to think again about a central clause and a central schedule in a major Bill.

The Government do not, I imagine, want their Bill to be or be seen to be a pussycat where a tiger is needed and are concerned to face a future debate about the renewal of their party mandate with the credit of having at least taken a serious swipe at unfair discrimination. That credibility seems to turn in large measure on Clause 3. Moreover, there must be some question about the ability to attract the best people to serve on the council if that council is popularly perceived as being of very limited usefulness. In short, and despite what I take to be the Treasury concerns about opening a pandora's box, I think that the Government need to move at least some way down the road that the noble Lord has invitingly marked out for them.

The amendments that we are considering say that disabled people are important, that the barriers society places in their way are substantial, that the task of removing those barriers is a high priority and that we need to dedicate to that task resources adequate for its completion. That approach to the issue seems to me to be wholly logical. The opposite approach, of sticking with a council which has been so heavily and so widely criticised, seems not to be logical. Saul would have had even less credit for his contributions to the major debates of his day had he sent David into battle with Goliath armed with a sling but with a strict ban on the use of pebbles.

If we do not make any progress today I hope to come back to your Lordships at a later stage with some ideas for a more modest strengthening of the council. However, I hope that we can make progress today in the interests of the Government, who deserve credit for turning into the paths of righteousness if not yet into the ways of peace, in the interests of building the sort of partnership that can be built around this Bill and, above all, in the interests of the disabled people whose rights we are debating and whose cause we all support.

3.30 p.m.

Lord Campbell of Croy

I am glad to follow the Biblical references of the noble Lord, Lord Rix. After two previous very long days in Committee on the Bill, some of us felt rather more disabled than we were before. I expect and look forward to another long day, moving on into the night.

My noble friend Lord Swinfen has very clearly explained the purpose of his amendments. As your Lordships know, I have been involved in this subject for a very long time. The Private Member's Bill which I introduced in another place in 1968, 27 years ago, was entitled The Disablement Commission Bill. It would have established a commission with very much less power and fewer functions than the National Disability Council. That did not save it from being opposed by the Labour Government of the day. After its Second Reading debate it was defeated by only four votes. I have a copy of it with me. Its last clause stated: This Act may be cited as the Disablement Commission Act 1969". I am afraid that that was not to be. The Bill had seven sponsors, including Mr. James Griffiths, who had been in a Labour Cabinet, Lady Vickers and—a very important sponsor—the noble Lord, Lord Ashley. He and I are the only two survivors of the eight who at that time introduced and sponsored the Bill.

The noble Lord and I have been involved in this subject over the years. We do not always agree on the means to achieve our goals but it is interesting for the record that we are the survivors of that Bill. I had been in Parliament for nine years; the noble Lord had been in Parliament for two years. But as far back as 1968 we worked together in raising the subject of disablement and pressing the government of the day to take it up. At last this is happening. A government are taking up the subject.

As regards Amendment No. 101, it would add enforcement powers and additional functions to the council. The Government's proposals in the Bill are for an advisory body only. The comparisons which have been made in the past with the commissions dealing with equal opportunities and race are not valid. Even in these days of sex change operations, discrimination, if it occurs against women or men, does not raise doubts about their gender. It is a single, straightforward condition. In contrast, the range of disabilities is vast. There are many kinds of physical disability, including degrees of sight and hearing, and of mental illness and learning difficulties. There are also huge differences in degree, from the very severe—people who are completely immobilised—to the very slight, though, of course, I quickly point out that even the loss of one finger can be very damaging for someone who is a professional pianist. I shall not dilate upon this subject because I initiated a whole debate in the House on 14th December last about the many different disabilities which we must consider. The information is set out in the record and can be looked up.

The proposed body—the council—will be considering situations involving, for example, the completely bed-bound and very severely disabled immobile person as well as the outwardly able-bodied suffering from mental illness or dyslexia, blind persons and the aged, who are by far the largest group where goods and services are concerned and who are disabled by arthritis or other afflictions which arrive normally late in life. Those categories are very different from each other. The Equal Opportunities Commission starts with the simple fact that a person is female or male. Similarly, with regard to the Race Relations Commission, which was referred to at earlier stages of the Bill, although there are several ethnic minorities, the commission deals with situations and problems which are shared by them all. I must declare an interest. I have been for many years the patron in chief of the Scottish Pakistani Association. The Pakistanis are the largest ethnic group in Scotland. Under race and gender it is not normally necessary to determine first whether someone is eligible under the Act. Under this Bill the definition "substantial impairment" and other parts of the Bill will have to be looked at very carefully to see whether someone qualifies at all to be considered under its provisions. There is also a completely new concept of "reasonable adjustment", which most of us have welcomed as a way of dealing with disability problems. But that again is something quite new in this field.

I incline to the view that an advisory body is more appropriate in this Bill in the widely varying circumstances and the miscellaneous conditions of disabled people whose problems are not just of access but of a hundred or more different kinds. An important point is that the NDC proposed in the Bill can offer advice to the Government on its own initiative. That advice can be on discrimination in general concerning disabilities and on the operation of the Bill when it has been enacted. If the Government resist the suggestions of the council or take a very long time to respond, there appears to be nothing to prevent the NDC from making its views public while preserving the confidentiality of any individual case. I should be grateful if my noble friend the Minister could confirm whether that is so. That would certainly bring public pressure to bear upon the Government. One would hope that that would seldom be necessary and that good relations would subsist between the council and the government of the day.

The NDC as proposed by the Government raises some questions. First, I am concerned whether it will have adequate resources and whether facilities will be available to it; for example, when it needs to commission research into a particular matter and where government assent might be withheld in reasonable cases. We hope that the Government will give an assurance that there will be no withholding of assent unless they were quite ridiculous proposals.

How will the NDC work—my noble friend raised this point—with the existing National Advisory Council on the Employment of People with Disabilities, which is due to be wound up in due course, according to Clause 33? Will the NDC then take over some or all of that council's responsibilities in the employment area? I shall want to receive assurances from the Government on these questions in considering their proposals for the council. I accept the Government's proposals for the new body in general, but I believe that these questions need to be answered and we want satisfactory answers.

Baroness Flather

I too added my name to the amendment of my noble friend Lord Swinfen. I am very grateful to him for dealing with all the details of the clause. It is very helpful that I do not have to do so. I wish to make some broad-brush remarks because I believe that I am in a unique position to make them. I am a woman and from an ethnic minority. I am a primary carer for a very disabled husband. Therefore, I can tell Members of the Committee here and now that I have personal experience of all three areas of concern. I am very disappointed that my noble friend Lord Campbell of Croy believes that there is no connection between the two commissions and what we are now talking about.

We are not talking about the commissions or the structure but how to do away with discrimination. That is the basic, underlying reason for our talking about these issues. Social legislation never comes about ahead of need. We all know that, lawyers only too well. It comes long after the need has been established. The need for something to be done for people with disabilities is well and truly established. We are into our third race relations Act. The first had very limited powers and did not work. The second separated the promotional role from the legal role, which also did not work. Why are we going down the same route and not learning from the experience of the other commissions?

As far as the Equal Opportunities Commission is concerned, I believe that people have benefited greatly from Article 119 of the Treaty of Rome and the European Court of Justice. So it is always the threat, if not the fact, of legal action which makes people think about issues. The only area where there has been a quota is that of disability. What has it meant? It has meant that nobody has bothered about anything. It has been the most negative feature of all the different administrative measures that could have been put forward.

Now that we are considering this matter we should be looking at what works and not saying, "Let us do this now and then, if it does not work, we will tinker with it". Why not look at everything and see what works best? Let us look at examples from other countries. Let us look at examples from the United States where such provisions work. It is always the threat of having to do something, otherwise one gets into some kind of trouble. The most vulnerable group, which we are talking about today, is the least likely to be able to put its own case forward as substantially as one would like.

3.45 p.m.

Baroness Hollis of Heigham

We are all grateful to the noble Lord, Lord Swinfen, for moving Amendment No. 101 so clearly. I wish to speak to the proposed group of amendments with the exception of Amendment No. 106 which, as the noble Lord, Lord Swinfen, said, will be moved separately at our request.

The Bill is a major advance for disabled people, in theory. So much of it is good. The Government could end this Session and we could leave your Lordships' House knowing that we had passed a landmark Bill for disabled people—remedying wrongs, affording rights and integrating disabled people as never before into a full life in our society. That would be a good thing for us to have done this Session.

It will be done in theory but not in practice because the wrongs remedied will too often continue and the rights afforded will too often not be enjoyed. Why? Because, as the noble Baroness, Lady Flather, so eloquently told us, the Bill provides no proper means of enforcement. It is a paper Bill which will raise many hopes subsequently to be dashed. The gap between the promises of the Bill and the reality that it will achieve, I fear, is going to be very wide. A Bill which is not enforceable is not enforced whether it is factory and mines legislation or health and safety legislation. We know that to be true.

No one expects customers in a restaurant to sue the owner for a dirty kitchen because we expect the environmental health officer to do that. No one expects a shopper in a supermarket who has an underweight piece of cheese to take on the supermarket. We expect the trading officer to do that for us. No one here who is involved in an instance of dangerous driving expects personally to prosecute another driver. We expect the police to do that for us. If local residents fear that a chemical factory is discharging into a river we expect the environmental health officer to take up the issue. In other words, we expect in all areas of our life to have an enforcement agency ensuring that the intentions of the Act are enforced.

That is our experience in every walk of life except, apparently, when we are dealing with disabled people and their rights and remedies for their wrongs. Disabled people are often poor, isolated and in poor health. They will have to fight their claims through the courts and tribunals themselves. If they cannot do that or do not do so, their rights will remain paper rights in a paper Bill. We fear that that is what the Government's Bill will leave us with. Why?

When one looks at the Government's proposals in the Bill, there is a set at the top and another at the bottom. At the top the Government are proposing to add a second advisory council to an existing one—in other words, one for goods and services in addition to the one which already exists for employment, even though most of us will never have heard of it. Therefore, we shall have two advisory bodies reporting to two different Secretaries of State, backed by two different Civil Service departments, issuing two different sets of guidance. The result which employers fear is contradiction, incoherence and lack of clarity.

The Bill is split down the middle at the top. For example, let us consider an hotel. If the owner is dealing with issues of physical access for employees, he will come under the Department of Employment and that advisory body. But if that same hotel is dealing with means of access for disabled customers, it will come under the National Disability Council and a different Secretary of State with different guidance and requirements as to what makes for physical access. That cannot be sensible.

That is at the top of a split Bill. At the bottom it is also split. Disabled people will have to pursue their employment rights through a tribunal and the rights to goods and services through the courts. If they struggle through the system we may find a dozen different cases, all simultaneously contesting the one point—say, controlled epilepsy. There may be a dozen different judgments. As the Law Society said, its prime concern is the absence of any body to co-ordinate cases which reach industrial tribunals and the courts. It fears that there will be contradictory signals coming from different cases as they go through the system. Again, that is a recipe for confusion, contradiction and incoherence. To add to the list we not only have split advisory councils at the top and split roots at the bottom, with no legal aid or financial support for people to contest their cases, but no feedback between the two. We fear that, as things stand, the result will be a costly and confusing shambles.

As employers' organisations have said, without the National Disability Council, with powers such as those proposed in Amendment No. 101, we shall have law by litigation. No one will know where they stand, what to do, where to turn or what is needed. The Government's own red book on the consultation exercise showed that over three-quarters of those who responded wanted a body with powers such as those outlined in Amendment No. 101. None of us minds what the body is called, but we need a central authoritative body with powers to give advice, information and guidance. It needs powers to monitor legislation and to investigate, conciliate and, if necessary, to prosecute complaints. It needs powers to carry out research and to bring test cases to clarify the law. It needs the power to take up third-party complaints. We want a strong friend.

On 27th March in the other place, the Minister said that he would prefer one body for the UK rather than separate bodies for England, Scotland and Northern Ireland. He said: There are considerable benefits in one organisation taking a consistent approach in advising on the elimination of discrimination—for example, in ensuring that the best and most effective practice can be shared".—[Official Report, Commons, 27/3/95; col. 789.] Quite so. If Mr. Hague, the Minister in the other place, argued for one body for territorial reasons, do not his arguments apply for one body for policy reasons? What are the Government afraid of?

We know what employers want. They have told us. The Employers Forum on Disability was set up in 1986 as a self-help group for major companies which wanted to share best practice on recruiting disabled staff. It has 134 members and a list of them reads like the FT share index. Apart from the local authorities, building societies and banks, its members include Boots, BP, British Airways, BT, Coca-Cola, Esso, Grand Metropolitan, Guinness, IBM, ICI, Sainsbury, Kingfisher, Marks & Spencer, McDonald's, Mobil Oil, Reuters, Sears, Shell, Smithkline Beecham, Tate & Lyle, Taylor Woodrow, Texaco, Unilever and Whitbread. They all want to have a statutory commission. Perhaps I should add that that organisation's members also include the Metropolitan Police, the Lord Chancellor's Department, the Inland Revenue and the Minister's own Benefits Agency—

Lord Mackay of Ardbrecknish

I am listening with interest to the noble Baroness, but I do not think that she can assume that because those organisations subscribe to that body they necessarily subscribe to the views that she has quoted.

Baroness Hollis of Heigham

The organisations which belong to the body pay for, run and own it. They are the stakeholders. The body claims to represent their views. I understand that it may be a little inconvenient for the Minister to have the Benefits Agency included, but I promise the Committee that those are the organisations which founded that body which speaks for their views—

Lord Mackay of Ardbrecknish

Perhaps I may point out to the noble Baroness that democratic organisations which represent people may speak for the majority, but that does not necessarily mean that they speak for absolutely all of their members. I cite as an example her own Front Bench with regard to the European Union, and the position of the noble Lord, Lord Bruce of Donington.

Baroness O'Cathain

I thank the noble Baroness for allowing me to intervene. Like the noble Baroness and, I am sure, other Members of the Committee, I received a Peers' briefing from the forum this morning. It has looked at all the amendments that we are considering today and states: We would encourage Peers to support amendments tabled by Baroness O'Cathain on behalf of the CBI which seek to clarify and strengthen the role of the National Disability Council". It does not say anything about abandoning the National Disability Council. I feel strongly that statements are being made on behalf of companies which have not investigated or examined this position. Indeed, they have not given credence to it. I have found from all my investigations leading up to this debate that what the noble Baroness has been saying is absolutely not the case. I know that the forum would ideally like a body such as the CRE or the EOC, but what it has actually said is that the Bill provides the ability to strengthen the NDC and NACEPD. We should go ahead and do what the Bill is supposed to do, which is to enable disabled people to lead able-bodied lives as far as possible.

Baroness Hollis of Heigham

The noble Baroness appropriately read from the briefing from the Employers Forum on Disability, which asked Peers to support the amendments that she has tabled. I refer to Amendments Nos. 103, 106 and 107. However, the noble Baroness did not read the next paragraph which I am sure that the Committee will wish to hear. It states: We would also encourage Peers to support amendments tabled by Lord Swinfen and others which will strengthen the investigatory and enforcement powers of the NDC, including amendments 101"— that is, the amendment that we are now discussing.

Baroness O'Cathain

I thank the noble Baroness, but the fact is that the forum wants to strengthen the NDC. That is the point to which I wish to speak. It is being said that we need a commission, but the Employers Forum on Disability is not saying that. It says that we need to strengthen the provisions. That is what we are all saying and we are asking the Minister whether the council can be strengthened.

Baroness Hollis of Heigham

I think that I made the point that we do not care what its name is; what matters are its functions. Speaking for its members the forum says that it wants to strengthen the investigatory and enforcement powers of the NDC. It supports Amendment No. 101, which we are currently discussing. That is what it has said. If the noble Baroness continues to read the briefing she will see that I am in no sense misrepresenting its views. I am happy for other noble Lords to have a copy of the briefing if they want, but I believe that it may already have been sent to other noble Lords. The Employers Forum on Disability has 134 members with a total of more than 2.6 million employees, representing some 12 per cent. of the working population. I have to say—although I leave it to others—

Lord Mackay of Ardbrecknish

I thank the noble Baroness for giving way again. She is obviously keen to represent that particular body, but can she give the Committee an assurance that all of the companies that she quoted actually agree—

Baroness Hollis of Heigham

What I have done is to list the bodies which set up that organisation and for which the organisation speaks. When I asked the director of that organisation whether she represented the views of those bodies, she said that that was her job. Perhaps your Lordships have heard to the contrary, but as the Bill went through the other House I did not receive any representations from any of the organisations in the forum dissociating themselves from the views of the forum. They would have been perfectly entitled to do that, but given that they did not, surely we can assume that the Employers Forum on Disability is doing what it says and speaking with the employers' voice—

Baroness Gardner of Parkes

I am sorry to have to ask the noble Baroness to give way, but one of the firms that she quoted was Texaco. In earlier debates I pointed out that Texaco insists on HIV testing, so I find the noble Baroness's point surprising. It throws into doubt my assessment of whether those people are all supporters of what she is saying.

Baroness Hollis of Heigham

The noble Baroness is absolutely right. I understand that a number of organisations, including British Airways, may do the same thing, but that is because of the effect of medication, for example, at altitude. It is not the case that they dissociate themselves from the disability council, which should have powers not only of advice and research but of investigation and enforcement. That is the purpose of Amendment No. 101. Unless any of your Lordships have heard to the contrary from companies which that body represents, and that they are dissociating themselves from that body, I am afraid that the evidence is with the Employers Forum on Disability. I give way to the Minister.

Lord Mackay of Ardbrecknish

The noble Baroness is trying to reverse the onus of proof and I am afraid that she cannot do that. The fact is that if she does not have a specific letter from those companies and organisations, she cannot pray them in aid. She can pray in aid the overarching body, but she cannot pray in aid individual companies. I assure the noble Baroness that some of them do not subscribe to the view that she attributes to them.

Baroness Hollis of Heigham

The evidence is that that body, set up by those organisations, expresses their views. That is the evidence that we have. Therefore, the assumption and presumption that reasonable people may make from that evidence is that those companies express the view that is put forward in their names. Only if your Lordships have evidence to the contrary of companies explicitly dissociating themselves from that view would the argument lie the other way. The burden of proof lies with the Minister.

I repeat that that body was set up by those companies and represents their views and that, together, those companies employ over 2.5 million people. The organisation is saying that the cost of a central authoritative body is outweighed by its advantages. It lists the advantages. It quotes also W. H. Smith and IBM as calling for such an organisation. And their reasons? They wish to see less litigation, with its attendant concealed costs to employers as each case is fought on its merits. They wish to support a central disability organisation—one body with powers to make the Bill work—because they think that it will lead to reduced dependence upon state benefits for disabled people, a greater tax take for the Exchequer and reduced bureaucracy. The EFD believes that it would generate greater employer good will because of easier and speedier access to advice and guidance. It believes that it would reduce discrimination against disabled people.

The EFD goes on to say that it is precisely because there is no such national authoritative body that it had to be founded in 1986. In the absence of evidence to the contrary, a central disability organisation is what these major organisations want; it is what disabled people want. We are entitled to put to the Government a very simple question: will the Bill work without a commission such as is outlined in Amendment No. 101?

I am sure that every one of us in this place wants the Bill to work. I do not believe that there is any difference between us on that. We want it to work, but will it work without such a commission? The Government are willing the ends but not the means. The whole history of our social legislation—the noble Baroness, Lady Flather, was right—shows that if you set up policy objectives without the means to enforce them—if you will the ends but not the means—and do not have an enforcement agency standing at the back, then the Bill will remain a paper Bill.

As it stands, the Government's advisory body has the power to do everything except make a real difference. The amendment is a test to see how much we all want the Bill. I support it.

4 p.m.

Baroness O'Cathain

I shall speak to the amendment standing in my name. The noble Baroness, Lady Hollis, is right: everyone wants the Bill to work. The problem is that some of the arguments that are going on at the moment detract from the overall basis of the Bill, which is that we want it to work.

In my Amendment No. 103 I am dealing with functions. I could not care less where the functions lie for this council. I am much more interested in whether they operate effectively. I believe that the NDC, as proposed, could and will work, depending upon the will for it to work. It is not a matter of confrontation. There must be a high level of commitment on all sides. It depends also on the ability to make it work. So it has to have the necessary authority. The body itself has to have an adequately strong membership. It has to have the functions and, of course, the resources.

I want to deal with just two of the functions: the research function and the education function, with which Amendment No. 103 deals. If the NDC was allowed to commission its own research it would exist as a body of authoritative research which people would be able to use if there were a dispute.

While doing some preparatory work on the Bill, I was greatly heartened to read on the Americans with Disabilities Act, the US Equal Employment Opportunity Commission document entitled Your Responsibilities as an Employer, from which I should like to quote: The Commission also recognizes that differences and disputes about the ADA requirements may arise between employers and people with disabilities as a result of misunderstandings. Such disputes frequently can be resolved more effectively through informal negotiation or mediation procedures, rather than through the formal enforcement process of the ADA. Accordingly, EEOC will encourage efforts to settle such differences through alternative dispute resolution, providing that such efforts do not deprive any individual of legal rights provided by the statute".

If there are problems, people who feel that they are discriminated against should be able to call on the NDC, which, with the research that it has commissioned, should be able to point out the advice that such people should have. Points were raised by previous speakers which I should like to question. One related to the CABs saying that they would not give advice. A document I received from the CAB during the past three or four days said that of course it will give advice but it will not say that it is statutory advice. No one who goes to a CAB asking for advice on these issues will be turned away.

Secondly, the noble Baroness, Lady Hollis, said that employers fear the legislation and have no faith that the organisation will work. I have been briefed by the CBI. It does not fear that the NDC will not work, provided that it is strengthened. There are two sets of employers with apparently two different views. A great many of the companies named by the noble Baroness are members of the CBI. In this, I suppose you have got to pay your money and take your choice, but I believe that employers are not fearful of this organisation working provided that it has enough functions.

I turn now to the point about the commission versus the NDC. I drew up a list of what I call debits and credits of the work undertaken by the CRE and the EOC and whether that work would be undertaken by the NDC. The monitoring of legislation is undertaken by both the EOC and the CRE. My amendment suggests that the NDC has a role in monitoring the legislation, bringing advice to the Government, and saying, "It's not working here, please can we amend it in such a way?" That would be undertaken anyway under the NDC.

Both the CRE and the EOC work towards ending discrimination. Certainly the NDC has as its remit to do that and to oversee the aims of the legislation. Parliament itself has a role to play in this, given the expertise and public concern about which we know. The EOC and the CRE exist to promote equality of opportunity. That is of course needed with the NDC, but the NDC will oversee and publish an annual report. It will draw attention to all those issues. It will undertake research and educational activity. That is a point upon which I think the NDC needs strengthening. We have been promised that the NDC will be able to commission research. So long as it is independent research in which people will have faith, I do not believe there will be any problem.

The NDC will produce an annual report, as do the two other commissions. It will issue draft codes of practice like those two commissions. NACEPD will also do that. On information and advice to filter weak claims, it requires a good infrastructure for that to happen. I believe that the secretariat needs strengthening. But we are already being told that ACAS can give advice in relation to disabled people in employment. We need to know who will give advice in relation to goods and services in this area. I should like to pursue that issue with my noble friend the Minister.

The CRE and the EOC help reach settlements. The NDC should be able to do that in the terms of giving advice. Both the CRE and the EOC provide general information and give guidance and advice on key issues. Again that is something that the NDC will be capable of doing. They both conciliate. That again is something that the NDC could do.

There have been arguments about formal investigations. The NDC does not envisage having a formal investigation role. I do not believe that it is necessarily required. It is not an ideal tool. It can have many drawbacks. The desired effects can be achieved by other means; for example, by referring to a whole caucus of high-quality authoritative research. Similarly, I do not believe that it need necessarily serve anti-discrimination notices. Desired effects can he achieved by other means. What people, employers particularly, are looking for, is, as has been already stated, consistent advice.

If the NDC is sufficiently beefed up, has sufficient powers and respect and has the commitment, I cannot see that it will not fulfil all the functions that are now being fulfilled by the EOC and the CRE.

Lord Carter

I am obliged to the noble Baroness for giving way. She spoke about employers and their wishes. We have discussed the Employers Forum on Disability and whether it could speak for all its members. I believe that the Minister raised that matter. I took the trouble to leave the Chamber and telephone a representative of the forum. I was told that every member, including all those mentioned by my noble friend, was consulted on the Government's consultation document. The vast majority supported the line that the forum has taken on the need for the council. I telephoned only five minutes ago and was told that all its members stated that they were entirely happy for the employers forum to speak on their behalf.

Baroness O'Cathain

They were probably not asked whether, if there was a sufficiently strong NDC with strong powers—

Lord Carter

Every member was asked in detail to comment on the Government's consultation document. The great majority came down heavily in favour of the briefing given by the employers forum and all said that they were happy for it to speak on their behalf. The noble Baroness should let the forum and the members decide what they want to say instead of deciding for them.

Baroness O'Cathain

I am not trying to decide for the employers forum. I was merely drawing attention to the fact that there is another side of the argument. Some employers and members of the employers forum to whom I have spoken would be happy for the National Disability Council, if sufficiently strengthened, to give such advice, so long as it was consistent advice. I shall make additional suggestions about the amalgamation or overlap between NACEPD and the National Disability Council. There is a danger of having two bodies, one for employment, which is NACEPD, and another for access, which is the NDC.

Once the legislation is enacted and the regulations are agreed and begin to work, it may well be that NACEPD could be subsumed into the NDC in order to make it a proper National Disability Council. But that is further down the line. I believe that to throw out the Government's suggestion of an NDC at this stage and to set up a whole new superstructure of a commission is not what employers require.

4.15 p.m.

Lord Ashley of Stoke

Perhaps I may contribute to the debate and answer one of the points made by the noble Baroness, Lady O'Cathain. I wish, first, to speak to Amendments Nos. 101 and 108. I was unimpressed with the point made by the noble Baroness. I believe that my noble friend Lady Hollis was right to say that terminology is not important but the meaning and thrust of what we are discussing are crucial.

The noble Baroness appears to be implying that no organisation should speak for its members unless every member has signed an affidavit to that effect. That is the equivalent of a football supporters' club saying, "We believe that this should be the policy for this club", and someone else saying, "You have 30,000 members. Have you asked them all whether they support that policy?". That is an absurd proposition and I cannot agree with it. The heart of the argument is our proposal for the National Disability Council. Whether we call it a commission or not is irrelevant.

I wish to compliment the noble Lord, Lord Swinfen, on his presentation of amendments to the Bill. Coupled with the speech of the noble Baroness, Lady Flather, that represents significant support from the Conservative Benches for amendments to the Bill which will strengthen the Government's hand. The noble Lord and the noble Baroness are aiding the Government by proposing amendments and they are helping the Minister. We too will lean over backwards to help him. That is why we are being so diplomatic in putting forward these proposals.

The Bill should be a landmark Bill, but as it stands it will not and it cannot be that. It fails to provide a council or a commission which will give it a strong backbone. That is its problem. It is impossible to argue legitimately with the Law Society's view that it is unfair and unjust to introduce statutory rights which disabled people cannot afford to have enforced. The Law Society made a most strong statement.

Perhaps I may quote to the Minister one other authority; I use the word "authority" with a small "a". I refer to one of the finest and most eloquent Conservative Back-Benchers ever to sit in the other place, Alan Howarth. He said: To create rights without providing the means to sustain them is a hollow act". He is not a raving socialist or a severely disabled person but a healthy, articulate, balanced and loyal Conservative Member of Parliament. That means that the amendment should not be brushed aside; it is put forward in all good faith. Many disabled people do not have the means, some do not have the determination and many do not have the knowledge or confidence to fight discrimination. The Bill will give them only superficial protection if the individual is not supported. I have no doubt about that.

The commission's investigations into individual cases and its support for those going to the courts would ensure that they focused on the relevant and important issues. A strong commission would provide the resources to argue the case, which is profoundly important, and people would be able to obtain the vital information.

That is important because the legislation will be new and there will be areas of uncertainty. We need to establish legal rulings in crucial areas. However, this is not a once-and-for-all Bill. It needs changes and improvements not only to help individuals but in respect of general strategic issues. I am sure that the Minister will recognise that. It is important to have a body conducting an independent review, observing which part of the legislation is going well and which is failing and seeing where problems exist for disabled people, employers, companies and service providers. If the commission can help individual disabled people, employers and the institutions that is fine; let us do what we can about that. It is necessary to have a strong commission which will identify trends in attitudes and practices, which are the driving forces for extending future opportunities and for providing the right ones. If those aspects are in question we can do something about that.

Often disabled people lack confidence. A strong commission would give them that confidence because they would know that there was a powerful body ready, willing and able to fight for them. I do not refer to people who have lost an arm or to people such as the noble Lord, Lord Campbell of Croy, who is one of the finest battlers for disabled people that the House has known. I refer to severely disabled people who cannot fight for themselves. They need a champion and they do not have one in this Bill. They have a weak advisory body which has no real powers, independence or ability to fight cases through the courts. That is not good enough.

We are asking the Government to change their mind. We are not asking for an empty government organisation but for an organisation that is truly independent. Such an organisation would ease the pressure and frustration for disabled people. It would lead to fruitful discussions instead of angry demonstrations outside Parliament, and all of us would benefit from that. Without such an organisation and without an independent review, which this organisation could provide, the Government will be blindfolded and unable to assess the success or failure of their policies. That is not a very dignified posture for any government. I am sure that the Minister wishes to be dignified.

The independence of this council is vital if it is to be effective. It needs the resources and powers to be independent. However, I wish to say to the Minister in all good faith that I am receiving the impression from government spokesmen—not the noble Lord, Lord Mackay, but some of his colleagues—that they are tending to patronise disabled people. The noble Lord, Lord Mackay, does not do that but some Ministers are beginning to do so. The "Does he take sugar?" syndrome is beginning to display itself. I am sure that the noble Lord, Lord Mackay, would wish to dissociate himself from that.

For example, when the Minister was pressed in another place about providing powers for the council and to commission research, he replied: It will also be assisted by research commissioned on its behalf'. Is that not marvellous? We cannot have the commission itself looking into the problems of disabled people by disabled people for disabled people. That research will have to be commissioned. That is rather like patting their heads; like patting the heads of people in wheelchairs. That is simply not good enough. We must allow that independence and assume that people can do the job for themselves. We must assume that they have the pride and capability to carry it out. The Minister would be well-advised to accept the amendment and to give disabled people what they are seeking.

I conclude with this thought. This Bill is put forward by the Government as an attempt to combat discrimination. We know that it is well-intentioned but we feel that it needs strengthening. We have tabled those amendments which we hope will be accepted. Perhaps I may illustrate my attitude to the Bill by using the analogy of the Grand National. This Bill is saying that disabled people are able to enter the race of life in our society and they are welcome to do that. This Bill will enable them to jump the first big hurdle. But then, by refusing an effective law enforcement body, the Government have removed the jockey. They have kicked the jockey out of the saddle. Disabled people will be moving without direction and inevitably they will be the losers. When that happens—and I do not say if it happens—the Government will be condemned publicly instead of acclaimed publicly for their Bill. Ministers are heading for a disaster of their own making. The most calamitous mistake to be made is the failure of Ministers to include those provisions. They will regret it if they fail to accept the amendments and I hope that they will consider carefully to see whether or not they can accept them.

Lord Wyatt of Weeford

Before the noble Lord sits down, is he aware that when the Grand National fiasco took place, a brilliant man raced across the course twice and stopped the horses jumping the first fence, the horses having been egged on by the animal protesters? That gentleman was receiving a disability pension but it seemed to me that he was not suffering from a great deal of disability.

Lord Addington

After that discussion by the racing fraternity, perhaps we may return to the Bill. There has been a great deal of argument about who does and who does not support the amendment. I do not intend to go down that road because it makes absolutely no difference.

The amendment provides a coherent structure. It gives a real functioning heart and soul to the Bill. It means that there will be a body which gives guidance on the legislation and makes it effective. It gives direction and it will enable changes to be made when they are needed.

It provides also the ability to co-ordinate any legal action which is needed in the courts. Therefore, there will be direction, enforcement and education. Most of us agree that most types of discrimination are due to ignorance. If all those elements are combined, the Bill will be made very much better and more effective.

One historical analogy which may be used is in relation to legislation on factories. I believe that it was about 200 years ago that the law said that people who worked in factories must not be mistreated and one inspector was employed to ensure that that law was observed throughout the whole country. Unless there is an enforcement agency, the legislation will not work because people ignore what is not in front of them. If something is not relevant to them, they ignore it. Unless provision is made which gives people the drive and ability to make note of what should be done, it will have no effect at all.

Also, these amendments remove the confusion arising out of having two bodies. All matters are brought together. Unless that is done, the Bill will achieve only part of its objective. The noble Baroness, Lady O'Cathain, said that if we work together and co-ordinate matters, the legislation may work. That is true. But these amendments mean that that will happen and I do not believe that we should take the risk that it will not.

Lord Milverton

I support the amendments in the name of my noble friend Lady O'Cathain. They seem to be far more sensible and practical. I have given the matter some thought but I cannot support the amendments in the name of my noble friend Lord Swinfen.

My wife pointed out to me recently an extremely striking letter in The Times, written by a disabled person. It was not, as some Members of the Committee may have thought, that that person was hoping that all the amendments put forward would be accepted. Strange as it may seem, that disabled person said that he had a disability and he accepted it. Unless we are careful, disabled people, whom we want to help, will feel that they are being patronised. It is no good being too heavy-handed. Something may be provided in legislation but, in the end, there must be a willingness and a sensitivity to bring that about.

I believe that we may be too heavy-handed and, therefore, we shall not help disabled people. Reliance must be placed on sensitivity and understanding to bring about reasonableness. Until that reasonableness comes from every single person from every single spectrum of outlook and creed, there will be endless, ineffective legislation.

As regards protesters, I shall not say what I think of the many protesters that there are in the world today. One wonders what they are doing, or trying to do, in life. I support my noble friend Lady O'Cathain, but I cannot support the amendments in the name of my noble friend Lord Swinfen. I am sure that the Minister will give a good reply. I support him and what this Disability Discrimination Bill seeks to achieve. I think it is good.

4.30 p.m.

Baroness Lockwood

I support the amendment moved by the noble Lord, Lord Swinfen. I suppose that that will come as no surprise to the Minister and Members of the Committee as I have consistently argued during the passage of the Bill for a central, independent body to be charged with the responsibility of overseeing the operation of the new Act and to be given the necessary powers and resources to do so.

The amendments in the name of the noble Lord, Lord Swinfen, set out a whole range of functions for the proposed National Disability Council. The council could select which of those functions it would deploy at certain times so as to deal with the issues with which it will be faced. I support the amendments based on my experience when I was chairman of the Equal Opportunities Commission. I know from that experience that there will be, both initially and from time to time when codes of practice or new statements are made, a whole range of inquiries coming to the council asking for advice and interpretation on what is meant.

Therefore, I believe that it is important to have a body which can build up such expertise and which is capable of seeing what the trends and main issues are so as to be able to give that help and advice. In order to do that, I hope that the council will have the ability to conduct research and to have independent research undertaken. It should have the ability to help individuals pursue cases, not in a confrontational way but in order to help it understand just how the Act is operating. In so doing, it would strengthen its own position in giving advice in the future.

I was chairman of the Equal Opportunities Commission from 1975 to 1983. I must point out that the commission was not in a confrontational position, although it did take legal action. Most of its time was spent in helping, advising, guiding and providing information which helped to educate. I foresee the proposed National Disability Council doing much the same.

The noble Lord, Lord Campbell of Croy, said that there was a difference between disability and sex and race discrimination. Yes, there is a difference; indeed, it is a very considerable difference. But there is a considerable difference between sex discrimination and race discrimination because they are separate issues. However, there is one overriding factor which is common to all three, as was pointed out by the noble Baroness, Lady Flather—namely, the issue of discrimination. When the National Disability Council is established, I hope that it, along with its staff, will soon become expert in matters of disability and in the operation of other laws affecting disabled people, and that it will see discrimination in the light of that expertise.

I understand that the Minister may have some reservations about having a council with legal powers because of the costs involved in disability discrimination. However, I suggest to the noble Lord—we have debated the matter many times in this Chamber—that there is a cost attached to disability and that that cost will apply, whether or not the amendments are accepted.

Just over a week ago I read in the Daily Telegraph about a deaf woman who had won her case against the Government, thus enabling her to claim disability living allowance to help provide her everyday social needs. Such cases will occur whether or not we have a disability council with enforcement powers. Surely the Minister will agree that we must have confidence that the Bill provides that, in order to win, one has not only to prove discrimination; one has also to prove that it would not be unreasonable for an employer or a company to carry out certain changes involving cost.

I suggest to the Minister that the test for reasonableness is a very tough one in the context of the Bill. I hope therefore that he will not feel that the proposal for assisting the disabled would increase costs—costs which are necessary and which, I suggest, would have to be spent in the long run. Despite the exchanges that have taken place, I hope that the Minister will take a more favourable attitude towards the amendments which I believe could strengthen and make more effective the legislation that he is seeking to get through.

Lord Gisborough

I support the amendment to bring in a central, one-stop shop to administer the workings of the Act which at present are split between two departments of state. Such a central authoritative body would help in mobilising the goodwill of employers, which is most important if the spirit of the Bill is to be adhered to rather than meeting with just bare compliance. It becomes much easier for employers to deliver the opportunities for disabled people if they can refer to consistent and one-stop advice. Such a body could monitor the working of the legislation; it would be able to give better information to disabled people; and it could try to sort out some of the problems that will inevitably develop.

The cost of such a central body would be offset and probably outweighed by savings in reduced litigation, better employment opportunities, reduced state benefit, a greater tax take from those disabled who became employed, reduced bureaucracy and greater employer goodwill. Finally, I hope that the Government will be able to give an assurance that at least as much will be spent on the implementation of the Bill's provisions in respect of the proposed National Disability Council as has been spent on the quota system which proved to be a failure.

Lord Lester of Herne Hill

Members of the Committee will be most grateful to the noble Lord, Lord Swinfen, for tabling the amendments and for the powerful, well-informed and eloquent manner in which he introduced them. Conscious as I am of time, perhaps I may make just a few remarks, drawing on my practical experience as one of the architects of the sex discrimination and race relations Acts and someone who, as an advocate, tried to make the legislation work.

I strongly support the amendments because I believe they will lead to wiser, more effective enforcement of the legislation and will ensure that the legislation is more user friendly. That seems to me extremely important. When I left the Bar in the mid-1970s to advise the then government on the sex discrimination and race relations legislation, it was clear that earlier attempts to legislate—namely, the attempts of 1965 to 1968—had failed precisely because too much reliance was placed on individual enforcement and too little on strategic enforcement. People had sought to bring forward fanciful cases; unnecessary legal costs had been incurred; and there was great confusion about how to give effect to the legislation.

In the mid-seventies, with the support of all parties in both Houses, legislation was put in place to give effect to the principle of equal treatment without unfair discrimination. This Bill admirably extends that principle to another kind of unfair discrimination. However, the underlying problem applies to all kinds of discrimination—how can the ordinary individual, whether it be an employer, employee or anyone else, understand his or her rights? How, if necessary, can they be enforced? And what bodies can there be to filter out frivolous complaints, give proper advice and assistance in key test cases? It seems to me that those considerations apply every bit as much to this Bill as to the other body of law that we have in this country, including the Northern Irish legislation on religious and political discrimination.

What worries me about the Bill as it stands is that, as has been said, it is a much more complicated piece of legislation than any of our existing discrimination laws. It will lead to costly and protracted litigation, especially if there is no public body able to give advice and to help the courts and tribunals in their daily work. We have no legal aid in industrial tribunals. Disabled people on the whole are under-represented in trade unions, and if they are not employed they will not be members at all, and there will be no other body to take up cudgels on their behalf.

The Committee may think that that would be a bonanza for members of my profession or that public expenditure would be huge. I remind the Committee of the figures. In the case of the Equal Opportunities Commission for Great Britain, which deals with half of the population of the country—namely, the female half, as well as the other half—the total amount spent on providing legal assistance per year has never exceeded £600,000 and last year it was about £300,000. Those figures are much smaller than the cost of fighting a case all the way to the House of Lords on some point of law and then having to pay the costs of both sides. The figure for the Commission for Racial Equality is higher, but has never been higher than about £800,000.

It seems to me that it would be cost-effective if there were a body able to give modest assistance of the kind that those bodies now give and advise employers, employees and others. That would be a really cost-effective way of plugging the gap in the legal aid provision and trying to reduce frivolous, unnecessary and vexatious litigation. That is why I feel very strongly that, of the amendments tabled, those dealing particularly with advice and assistance deserve to be supported.

I am somewhat less enthusiastic about any open-ended research function because that could be expensive and not necessarily cost-effective. That is not to say that it is not important, but as a matter of priority I would focus on the points that I raised.

I very much hope that the amendments will be treated sympathetically by the Government. It is in their interests as well as everybody else's that courts and tribunals are not overwhelmed by unnecessary litigation, and also that the public at large receive proper advice.

4.45 p.m.

Lord Renton

I agree with much of the aims expressed by the noble Lord, Lord Lester. However, he has not convinced me that the means he suggests are the right ones.

This has been the most important debate that we have had during the Committee stage, and I shall detain the Committee for a very short time in order to put the matter into a somewhat different perspective from that which has so far been mentioned.

We all want to see the provisions of the Bill enforced. Indeed, we have passed Clause 8, which enables industrial tribunals to enforce the provisions of the Bill in relation to employment, and Clause 20, whereby the civil courts will enforce them in relation to access and so on. There will be appeals from either of those bodies.

The Government have it in mind that the National Disability Council shall advise them and have continuous oversight of the way the Bill is working, including the work done by tribunals and the courts. However, the Government have decided, wisely in my opinion, that the NDC should not interfere or be given additional functions enabling it to interfere with functions with respect to the investigation of any complaint which may be subject to proceedings under the Act. However, my noble friend Lord Swinfen wishes subsection (4) of Clause 23 to be left out. That could result in a serious overlap with jurisdiction in relation to the investigation of complaints. The National Disability Council will not be a judicial body. It will be a lay advisory body, as I understand it. My noble friend Lord Mackay of Ardbrecknish may correct me if that is not right. It would create confusion if we were to accept subsection (2A) (a) of Amendment No. 101, which gives the council the power: to investigate such complaints as are made to them of failure to comply with any provision of this Act in an individual case". That is an overlapping of the jurisdiction of tribunals and the courts.

Lord Lester of Herne Hill

I am grateful to the noble Lord for giving way. The power proposed in the amendment is not for this to be a judicial body but for it to be an administrative agency, as is the case with the EOC and the CRE, able to investigate complaints and, where necessary, support proceedings. It is not to be a judicial body of any kind.

Lord Renton

It is very difficult to imagine how it will be able to investigate complaints without considering the evidence offered in respect of those complaints and without considering the relevant provisions of the Bill, unless it will exercise a proper judicial function.

Lord Swinfen

Will my noble friend give way?

Lord Renton

I am trying to be brief. We have gone on for a very long time. I was reluctant to speak at all. I decided to keep an open mind about this matter until I heard the debate. Having heard my noble friend Lord Campbell of Croy and my noble friend Lady O'Cathain. I believe that the powers already contained in the Bill, perhaps amplified in the way that my noble friend Lady O'Cathain suggested, would be far better than risking a duplication of the jurisdiction of the courts. For that reason, with great respect to my noble friend Lord Swinfen, and knowing how zealous he is in helping disabled people, I hope that he and those supporting him will realise that they may not be doing the service to disabled people that they intend. They may be creating confusion.

Lord Swinfen

Before my noble friend sits down perhaps I may say that although I am not a lawyer I should have thought that the police, who have powers to investigate complaints under various Acts, act in an investigative role and not in a judicial role. That is what I intend in the drafting of the amendment. As I said, I am not a lawyer and I may have got my drafting wrong.

Lord Renton

My noble friend refers in his amendment to individual cases, and if he reads the rest of that subsection he will see that the opportunity of investigating a complaint goes as far as the courts will go.

Baroness Masham of Ilton

I wish to support the amendments, and in so doing I wish to read a postcard which I received this morning from a member of the public in Cornwall, who writes: The Disability Discrimination Bill needs an enforcement agency … The Disability Council will just be another talking shop, full of 'ifs, buts and maybes'. We hope the Government will recognise this omission and act constructively".

Last Sunday evening I had a call from a member of a disability group in Northallerton in North Yorkshire telling me that the Hambleton District Council was to remove a taxi man's licence because he was disabled. I was told that the taxi man had held a licence to drive a taxi for three-and-a-half years without any problems. He had passed his advanced driver's test. The man had lost an arm while in the Army. I asked why Hambleton District Council wanted to remove his licence. I was told that the official concerned did not like disabled people. I do not know whether that is fact because the issue is so recent and I have not been able to check on it, but that is what I was told.

I then asked whether the case had been taken to the local Member of Parliament. The honourable Member of Parliament happens to be the Minister for Disabled People, William Hague. I was told that he had fobbed the case off saying that it was up to the Department of Employment. But surely if the taxi driver does not have a licence to drive a taxi, the Department of Employment cannot do much—or can it?

Who will sort out those problems? Does it not show that there is a need for an agency which has expertise, is independent and can sort out all the varied and complicated issues with some clout?

I found the contribution of the noble Baroness, Lady Flather, most interesting. I hope that the Government will consider what she said. The noble Baroness may agree with me that the problems of gender and ethnic minorities are not half as complicated as those of the disability issues. One of the biggest issues is this: who are disabled people and who will be covered by the Bill?

Earl Russell

Before touching on what I was going to say, perhaps I may respond briefly to the noble Lord, Lord Renton. He has touched the hub of the central issues. He suggested the danger of a concurrent jurisdiction with courts. If the commission (as I hope that it will become) were to listen to the evidence, as I agree it must, surely it would no more conflict with the courts than a solicitor does when he takes the proofs of witnesses. The hearing would be preliminary to referring a case to court if need be, or exercising conciliation. The role would be similar to that which the Equal Opportunities Commission discharges with distinction.

To enforce any such provision one needs specialist knowledge. As the noble Baroness, Lady Masham, illustrated, one needs specialist knowledge as regards disability more than with any of the other areas because of the number of different types of disability and the jigsaw problem of matching them to specific employments. Therefore the need for a specialist body in the area of disability is even greater than in race relations or sex relations.

In 1563 the Lord Keeper, Sir Nicholas Bacon, summoned the Parliament at the end of its Session for a headmasterly talking-to. He reproved it for passing large numbers of laws without thinking how they were to be executed. He said that it was like buying new gardening tools and never using them. If we do not pass Amendment No. 101 we shall be wide open to that reproach.

I have also been considering how Clause 23 and Schedule 3 to the Bill came to be drafted as they are. The noble Baroness, Lady Darcy (de Knayth), may remember moving what I believe was the first amendment that I ever heard accepted by the Government in this place. It was in a debate on the Education Reform Act 1988. It sought to remove a clause from the qualifications for membership of the National Curriculum Council which disqualified anyone who became disabled or was otherwise incapacitated from carrying out his duties. The noble Baroness, Lady Hooper, agreed instantly to remove the provision. On the next Bill, we immediately found a clause with identical wording. On the noble Baroness's amendment, it was instantly removed. We then found it a third time. The noble Baroness asked whether the Minister could investigate whether there was any common source for those clauses. I have since heard it suggested from a very good source that there are such things as model clauses for drafting provisions for Acts of Parliament. Therefore the question arises: what model clause has the draftsman used for drafting Clause 23 and Schedule 3 to the Bill?

To anyone who has sat through the vast series of education Acts since 1988, the answer is painfully obvious. It is the model that was used for the Universities Funding Council in the Education Reform Act 1988. But that is the wrong model. The provision was for a different duty. That Act was for the administering of funds. If one considers Section 131(4) of the Education Reform Act 1988, the first duty that it lays on the council is to be responsible for administering funds made available to the council. It is essentially an administrative model which has been spatchcocked into an advisory function, to which it is not entirely appropriate, in a situation where what we really needed was enforcement.

Lord Zouche of Haryngworth

I support my noble friend's amendment. The National Disability Council in its present form is quite inadequate because it has no enforcement powers. My noble friend's amendment shifts the role of the council from being advisory to one which involves taking action to fight discrimination.

All disabled people welcome the Bill. Let us give it some teeth. It will be sad if the National Disability Council continues in its present form. It simply must have an adequate secretariat with an adequate budget so that it is in a position to investigate all cases, not just a few, and to give advice when required, with authority to use enforcement powers if and when necessary. I support the amendment.

Lord Monson

The noble Baroness, Lady Lockwood, and the noble Lord, Lord Lester, among others, extolled the Commission for Racial Equality and the Equal Opportunities Commission. They put them forward as models which ought to be followed in the Bill. However, I wonder whether they have read a recent newspaper interview with the distinguished dean of one of our better known medical schools. He expressed the view that race relations and equal opportunities legislation were making it much more difficult to recruit medical students of the right calibre. No longer was it possible to offer a place to a white male who was perhaps academically slightly less qualified than a female applicant, or one from an ethnic minority, but who was nevertheless much more sensitive, much more empathetic with patients and generally had a much better bedside manner than the technically slightly more qualified applicant, because if the medical school were to do so it would fall foul of anti-discrimination legislation.

5 p.m.

Lord Mackay of Ardbrecknish

This has been an interesting debate, but running through it is a point which worries me. Some people who support the Bill say, on the one hand: "This is a landmark Bill"; yet on the other hand in their speeches they do as much as they can to diminish it. They say that it will not work, it will not do the job and they devalue it. It seems to me that they are playing a dangerous game when they approach the issue of a commission with that argument.

I say to the noble Lord, Lord Ashley, that I am always impressed when Opposition members quote a Government Back-Bencher as being among the finest and most able of people. That usually means that the Back-Bencher has decided not to support the Government but the party opposite on a certain issue. I am afraid that I do not fall for that, and nor, I suspect, do many of my noble friends.

The proposals in this Bill have been carefully formulated to meet the needs of disabled people, business and government. They recognise that each of these groups has different needs and seek to provide for them, building on existing expertise and using tried and tested mechanisms. We see no benefit in creating another bureaucracy while the necessary functions can be delivered more effectively by other means. Most importantly, we think our three-pronged approach, which provides a powerful body to advise government, information for business and disabled people and conciliation, advice and support to help resolve disputes, is best suited to meeting the needs of all concerned.

There has been a heavy concentration on employment, but the Committee should remember that the Bill concerns goods and services as well. In all cases, it is not about equality but about doing things to help get rid of inequality, to help people carry out a job and be provided with a service when, without those changes, they would not have such help. So it is not strictly a case of, "You must not discriminate"; it goes a step further and states: "You must do things, change things"—procedures, buildings or whatever it may be—"in order to help someone who would otherwise be discriminated against".

I suspect that the calls for a commission which I have heard today stem in part from a failure to perceive the major difference between what we propose for disabled people and the legislation that was passed in the 1970s, over 20 years ago, on sex and race. Speakers also do not understand the valuable role which we envisage that the National Disability Council will have. The council will have an influential and practical role in helping us towards a society in which disabled people no longer meet barriers to integration. It will be influential because it will be the primary source of advice to government on general issues and on whether the legislation is meeting its aims. It will provide advice both on its own initiative and when asked to do so by the Secretary of State. It will be practical because it will prepare codes of practice which business and disabled people will need to implement the legislation. We also envisage that the council will work closely with senior civil servants in developing regulations under the right-of-access provisions in the Bill.

An important part of the NDC's duties will be to keep under review the operation of the Act with the exception of aspects relating to employment. I shall return to the role of NACEPD later. Should the council find that particular groups of disabled people are having difficulty securing their rights—for example, from examining the information collected by the advice and support service—there will be a number of courses open to it. It may want the Secretary of State to commission research or to take evidence from the advice service and speak to representatives of business to identify the root of the problem. In any event, we would expect the NDC to make recommendations to government about how any problems could be overcome. The flexibility provided in the regulation-making powers contained in the Bill and the provisions for codes of practice are intended to allow the policy intention to be clarified if a particular problem arises without the need for cases to be tested through the courts. The council will have a central role in this process of clarification and refinement.

The council may also wish to take a lead in persuading industry to provide for the needs of disabled people, in a similar way to the National Council on Disability in America. This would be particularly useful in the areas of accessible design and labelling of products which cannot be dealt with by rights-based legislation. The NDC would also be able to work on other aspects of business not covered by this legislation to encourage voluntary codes of practice.

Perhaps I may turn to some of the amendments and take, first, the research amendment and the points made by my noble friend Lady O'Cathain. I can assure the Committee that the NDC will be able to ask for research to be commissioned on its behalf by the Secretary of State. Such research will ensure that it is fully informed.

The arrangements proposed in the Bill will allow the NDC to draw on the professional expertise of analytical services staff already employed by the Government, to commission independent research and to co-ordinate the use of research from reliable sources.

Earl Russell

Perhaps I may ask for a small but important clarification. The Minister said that the council may ask the Secretary of State to commission research on its behalf. Is the Secretary of State bound to accept the request?

Lord Mackay of Ardbrecknish

No, he is not bound to accept it. He must weigh all the suggested research projects that come to him against the amount of money he has in his budget for research and against the other projects which seek research money. So one has to be realistic about it. I presume that the noble Earl would like unlimited money to be devoted to the organisation to allow it to carry out any research it wishes, without considering the competing demands. However, the Government already collect a wealth of information through research which the NDC might find useful. If it had to rely solely on research commissioned in isolation, there would be a significant risk that it would either be unaware of important information or would duplicate that already available.

The NDC can also advise the Government on educational material. That is an area where much work is already being done by government departments and the voluntary sector. To avoid duplication, it seems wisest if the NDC, with an independent eye, identifies what more needs to be done and provides advice.

We are committed to supporting the implementation of the Bill with a wide-ranging programme of awareness raising and information provision. I shall speak about that when we reach another amendment.

I turn now to the changes proposed in Amendments Nos. 108, 109 and 110. They would leave substantial potential for duplication between the NDC and the National Advisory Council on the Employment of People with Disabilities. My noble friend Lord Swinfen cast doubt on the independence of NACEPD. I assure him that it is independent. It has prominent members who would object to the suggestion that they did not act independently in giving advice or considering issues. Its views on last year's consultation document, to which my noble friend referred, are in the Library. From time to time NACEPD also issues a report on its activities. So my noble friend is being unkind when he questions its independence.

Let me say right away that it is not our intention that the NDC be precluded from considering the adequacy of anti-discrimination provisions in the field of employment, where that is appropriate, as an aspect of its broad overview of anti-discrimination measures. Ministers can ask it to do so and the NDC can advise Ministers that it wishes to look at particular aspects of the employment provision. But to provide for it to act on its own initiative in that area, as the amendment would do, would risk confusion and give the wrong signals.

So long as NACEPD or a successor body exists, that body should lead in giving advice on all employment and training matters. We of course recognise that there will be a need for the advisory bodies to keep in close contact where they provide advice on aspects of the Bill which might affect businesses in their roles as both employer and service provider. I can assure the Committee that my right honourable friends the Secretaries of State for Social Security and Employment will be asking the councils to do that and to ensure that there is a full understanding between the councils. It is very likely that in appointing members to the NDC, the Secretary of State will seek to provide some common membership.

Clause 23(9) (b) refers to provisions of the Bill dealing with employment which it will be natural for NACEPD to be concerned with in line with its existing responsibilities. All the members are appointed because of their knowledge and experience of employment and disability issues. NACEPD has developed considerable expertise over the years. It has advised Ministers on issues such as the Employment Service's code of good practice, the disability symbol and the Access to Work scheme. It will continue to monitor and advise on the wide range of employment and training help provided to disabled people. Most immediately, we need NACEPD's help on issues to do with the Bill, including the new employment code of practice which we discussed at the start of the first day in Committee.

Baroness Hollis of Heigham

Will the Minister confirm that NACEPD stated that it would wish to see its own abolition and to be overtaken by a statutory commission?

Lord Mackay of Ardbrecknish

We shall discuss a later provision which, were it to be used, could be used to wind up NACEPD. I am just about to come to that point if the noble Baroness will contain herself. Many people have advised us on what should be done and that a commission is needed. We listened to the advice. We have listened to the advice of those who do not want it. We made our judgment, as governments are supposed to do. I do not expect noble Lords always to agree with judgments that the Government make, but that is what governments are there for.

Baroness Hollis of Heigham

Will the Minister answer my question?

Lord Mackay of Ardbrecknish

I have answered it, and I am just about to add to that answer. We are not locked into the NACEPD arrangement for ever. The Bill provides in Clause 33 for the statutory powers in the 1944 Act, under which NACEPD is established, to be repealed, and for people to be appointed to advise generally—that is to say, on a national basis—on employment issues. We intend, however, that NACEPD should continue in its present form until at least the expiry of the terms of office of current members, when the position would be reviewed. That would be until 30th June 1997. That answers the question put by my noble friend Lord Campbell of Croy.

I hope that the Committee will agree that these arrangements provide for the NDC and NACEPD to fulfil the advisory role to government in much the same way as a commission. They are intended to harness the authority, experience, good will and resources of government, business and voluntary organisations to achieve our aims. In this new and sensitive area we need independent bodies whose members have the right mix of experience and skills to give balanced and practical advice. Government do not intend to wash their hands of this Bill once it has come into force, as some Members of the Committee might be tempted to think having listened to some of the speeches. When the council's advice has been accepted by the Secretaries of State, it will be promulgated and implemented with the full backing of government using all the mechanisms across the public sector, including the resources of the Disability Unit, which works for my right honourable friend the Minister for Disabled People and the network of services provided by the Employment Department.

I turn to some of the other aspects that were raised. We do not believe that creating a commission as proposed in these amendments is the best approach to meeting the needs of disabled people or business, and for three fundamental reasons: it would not work; it risks a backlash; and it would not fit the social context of the late 1990s.

In an exchange earlier an attempt was made to persuade the Committee that the majority of employers were in favour of a commission. There was an exchange about the Employers Forum on Disability. I welcomed the emphasis by the noble Lord, Lord Carter, in his intervention that the great majority of members of that body said that they were in favour of a commission. My point was, however, that not all of them said so. Therefore, it is not possible to read out a list, claim that it comprises every single one of them and then say that it is the great majority. That was my only point.

Lord Carter

Will the Minister give way? He knows what I said. When the Government negotiate with the National Farmers Union, do they ask the NFU whether it has asked every farmer in the country whether that member supports NFU policy, or any other organisation that comes to them?

I telephoned the employers forum, and I repeat what I said: every member of the forum, including every company—all the large organisations that were quoted by my noble friend—were consulted on the Government's consultation document. Every one was consulted. The great majority entirely supported the outcome that is in the brief in front of us; and in addition every one of them said that they were happy for the forum to speak on their behalf.

5.15 p.m.

Lord Mackay of Ardbrecknish

Of course they are happy that the forum speaks on their behalf; they have all joined it in order to make it easier to recruit, retain and develop disabled employees. That is perfectly laudable. The noble Lord repeated and underlined the point that I am making. He said "the great majority". You cannot, as the noble Baroness tried to do—I should not have intervened had she not made a clever little attempt to suggest that some organisations within my own department disagree with the Government's policy; that is why I was brought to my feet. It is not true that every organisation is asking for this—the great majority may be but not every one. That is my point.

I return to organisations. I suggest that there are other organisations involved, not just this particular one. We have to be careful not to form the impression that a majority of businesses want a commission. The Forum of Private Business, an organisation that tends to represent, if I may so describe them, the Davids rather than the Goliaths of the business world, expressed its firm opposition to a commission. The Institute of Directors was equally forthright. The CBI, while it has called for clarification of certain functions, has not called for a new enforcement body such as would be created by Amendment No. 101.

I mentioned three reasons. The first is that a commission would not work. Anti-discrimination legislation in the field of disability is not the same as sex and race legislation. One vital difference arises because both the existing race and sex legislation cover all racial groups and both sexes. The Acts governing these areas make it a duty of the commissions to promote equality of opportunity between men and women and to promote equality of opportunity and good relations between persons of different racial groups generally. I note with interest that the amendments we are discussing today, which draw so heavily on the sex and race legislation, do not seek to place this duty on the council. Perhaps my noble friend recognises that there is indeed a considerable difference between race and sex on the one hand and disability on the other.

If we accept these amendments, we should not be setting up a body with a fundamental duty to promote equality of opportunity between able-bodied and disabled people. It would be a powerful executive body charged with the explicit duty to act in the interest of disabled people, without any statutory responsibility towards the interest of the rest of society. I believe that this would undermine and endanger our aims. A commission also runs the—

Baroness Masham of Ilton

Would it not be possible to incorporate the employers and everybody else? That is what is wanted.

Lord Mackay of Ardbrecknish

I am not too sure in what way. The NDC will include people drawn from the employers, as it will those drawn from the disabled and others who are interested. They will be involved in the NDC.

A commission would also run the risk of creating a backlash. The provisions in this Bill go much further than the sex and race legislation. The sex and race legislation requires essentially that the same service is extended to people without regard to their sex or racial origin. The provisions in this Bill require a service provider to make additional arrangements, if that is necessary, to ensure that a disabled person can access the service. This might take the form of providing extra services, a sign language interpreter for someone who is deaf, or altering the building from which the service operates. What we are requiring in this Bill is that service providers not only stop discriminating in the sense of the sex and race legislation, but that they change the way in which they offer services to overcome the problems that disabled people encounter.

Similar issues arise for employers, who will be required to consider providing extra supervision, changing the premises or allocating some of the disabled person's duties to another person. It is about the employer making different or additional provision to enable a disabled person to carry out the job; and in some instances it might require other employees to change the way they work or to take on extra duties. These are substantial differences that set the boundaries for eliminating discrimination against disabled people much wider than those for sex and race. They need be reflected in the arrangements that we make for ensuring that the policy intention of this Bill is carried through without encountering a backlash.

My noble friend Lady Flather asked me to look at the United States, saying that a commission works there. I fear that my noble—

Lord Ashley of Stoke

I am most grateful to the Minister for giving way. Will be kindly explain the concept of backlash, given the fact that a commission as proposed by the amendment would pursue only those who actively discriminated against disabled people? It would not in any way affect people who did not discriminate.

Lord Mackay of Ardbrecknish

I do not want to rehearse an argument that we had late last Tuesday night, but I should have thought that anyone listening to the small debate that we had on taxis, and realising that it would perhaps have been a rather larger debate had it been held earlier in the day, would appreciate that in that narrow field there would be the danger of a backlash. We saw just that problem occurring there. Some of us have a briefing from organisations in which I at least believe that one can see the danger of a backlash and a need for us to bring everybody with us if we are to improve the day-to-day living of disabled people, not just in special areas but everywhere.

In response to the point made by my noble friend Lady Flather, I feel that she misunderstands the American experience. There is no independent enforcement agency in the United States covering all aspects of the Americans with Disabilities Act. There is the Equal Employment Opportunities Commission, but that is hardly an example to follow. Perhaps I may quote from a recent report published by the Millbank Memorial Fund: Backlogs of complaints at the EEOC have been problematic for years and are increasing. EEOC' s inventory of pending charges grew to 85,212 through March 1994–20,000 more than the previous year. The average time to process a charge rose from 274 days to 293 days in the same period".

I turn to the matter of test cases. I believe that test cases and formal investigations have little general application in the area of disability. Disabled people come in groups of one. The language itself is misleading us into perceiving disabled people as a single group with the same needs. That is not the case. What an 18 year-old with epilepsy needs is different from what an 80 year-old with chronic arthritis needs. Even with the same impairments, there will be significant differences in effect. Somebody losing his hearing in his sixties faces very different challenges from someone who is born deaf. While a central body taking test cases to court may be able to set helpful precedents on behalf of women, there seems little scope for it to do the same for disabled people, who form such a diverse group. Similarly, a company's policies, practices and procedures will rarely disadvantage disabled people as a whole.

Earl Russell

I am grateful to the Minister for allowing me to intervene. He is quite right about the variousness of the cases. But does not that strengthen rather than weaken the need for a central body with specialist knowledge?

Lord Mackay of Ardbrecknish

There is a body with specialist knowledge; namely, the NDC. We are talking about investigation at this time. I was going on to say that we believe that the mechanisms that we have provided will largely replace the need for formal investigations. In any event, interestingly enough, those are used very rarely by the existing commissions. The EOC commenced only one investigation under that heading in 1993.

My final objection to a commission stems from the different social context in which we are introducing this legislation from that which operated in the 1970s. I shall resist the temptation to list all the deeply held beliefs and policies of the 1970s which have now been discarded in the 1990s. People are very much more aware now of their rights than they were then. That has been achieved in part by the huge growth in the voluntary sector in the past 20 years. There are hundreds of organisations, both voluntary and in the public sector, with considerable expertise in providing information and advice to disabled people. Nothing similar was available in the 1970s to help women or people with different racial backgrounds. I believe that the correct approach is to build on the important foundations that we have and to develop them further. In particular, we need to provide advice locally which gets to the root of problems without delay and ensures that disabled people get the help they need to secure their rights.

One can establish centrally the elaborate framework of rights required to span the wide diversity of disabled people's needs. But, frankly, a set of general rules will get us only so far. We need a local service to get close enough to the local issues to resolve individual cases.

I hope that I have shown that a commission would not work and demonstrated that the council will perform admirably the task of advising the Government. I should now like to explain how we propose to help individual disabled people. Our aim in providing conciliation and support services is to offer mechanisms for resolving disputes quickly, efficiently and cost-effectively without lengthy litigation and at the local level where the problems arise.

We intend to set up under the Bill advice services to support rights of access to goods and services which will be equipped to provide a face-to-face service to individuals and resolve disputes at local level without the need for more formal action.

The Employment Service will provide advice to individual employers and disabled people on the proper application of the new employment right. Where a claim of discrimination has been or could be made against an employer, a disabled person will be able to seek help from an ACAS conciliation officer. The advice and support services will explore the facts in individual cases and standard questionnaire procedures will be provided to aid the processes and ensure a common approach across the country.

The procedures at industrial tribunals and small claims courts, where we envisage that most cases will be heard, are relatively simple and inexpensive. It costs nothing to take a case to a tribunal and only a few pounds to go to a small claims court. Both mechanisms are designed to be used by individuals without legal representation, with the tribunal or judge specifically charged to draw out the facts of the case. Some 90 per cent. of cases under the sex discrimination and equal pay legislation are already taken to industrial tribunals without the aid of the Equal Opportunities Commission. Therefore, it is misguided to think that individuals will be unable to secure their rights without the aid of a commission. That was what the noble Baroness, Lady Hollis, tempted us into thinking.

I am sorry to go on, but there are other amendments in this group. I now turn to Amendments Nos. 114 and 115. They would provide the council with funding to meet the responsibility of appointing its own staff and those associated with its other duties. Amendment No. 116 concerns financial records and Amendment No. 117 removes regulation-making powers from the Secretary of State. I believe that the amendments are unnecessary. The arrangements in the Bill are in line with those made for other advisory bodies, such as the Disabled Persons Transport Advisory Committee and the Social Security Advisory Committee. They will be the most appropriate for the kind of council that we believe should be established.

I believe that the provisions in the Bill will set up arrangements which best serve the needs of disabled people, business and government. The National Disability Council will be an influential voice, ensuring that we keep working to eliminate discrimination against disabled people. It will report publicly to Parliament through its annual report, thereby drawing attention to its concerns and any areas where it considers that its advice has not been heeded. Again, I believe that that answers a point made by my noble friend Lord Campbell of Croy.

It is mistaken to think that the provisions in the Bill offer less protection to disabled people than has been given to women and ethnic minority groups. Indeed, we are giving them more. The Bill requires much more than equal treatment for disabled people. It requires business to make jobs and services accessible by making changes which accommodate the needs of the individual disabled person. The Bill's provisions are enforceable through courts and tribunals, although we hope and believe that the conciliation, advice and support services will be effective in resolving disputes before formal action is necessary.

These amendments would not provide disabled people with a better service. They would be costly and set up another central bureaucracy and policing force which might well jeopardise our ability to take society with us in removing discrimination against disabled people.

I cannot recommend that the Committee should accept these amendments. I do not know what my noble friend intends to do. Perhaps I should invite him to contemplate what I have said and the strength of my arguments and ask him to withdraw his amendments. I hope, if he feels that he cannot do so, that my noble friends and other noble Lords who have been convinced by my arguments will support me in the Lobby.

Lord Swinfen

Before I make up my mind on what I intend to do—I have a feeling that my noble friend Lord Mackay and I are still some distance apart—would my noble friend be prepared to meet me between now and Report stage so that we could consider whether we can thresh out this matter a little further and come to some kind of understanding?

Lord Mackay of Ardbrecknish

I am always happy to meet my noble friend and discuss the issues. But if I were to meet him, I should endeavour to persuade him that I am right. I should not hold out any hope that he would be able to persuade me that he is right.

Lord Swinfen

I am sure that my noble friend would endeavour to use his powers of persuasion on me as I would try to use mine on him. Having had that assurance from my noble friend, it is fair to let the Committee know that I advised him earlier that I did not intend to test the opinion of the Committee on this amendment. It is a very important matter and it should not be dealt with in a great hurry.

I do not know what my noble friend Lady O'Cathain will do with her amendments. She may agree that my amendment covers the same ground. However, if she decides to move her amendments I shall support her in the Lobbies. My noble friend will make up her own mind in due course.

My noble friend Lord Campbell of Croy said that he felt that disability discrimination was different from race and sex discrimination. Of course it is, but the principle is the same. One discriminates in employment against someone when one takes into account factors such as race, sex or disability and not the competence of the person to do the work.

The National Disability Council only has an advisory role. It has no powers to advise individuals or employers, only the Minister; it has no power to carry out independent research and very little in the way of resources; it also has no independent members of staff and no powers with regard to employment.

I thank all those who took part in this debate. It has been extremely useful. I intend to come back to the matter at Report stage and therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.30 p.m.

Lord Mackay of Ardbrecknish moved Amendment No. 102:

Page 17, line 9, at end insert ("and persons who have had a disability").

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Baroness O'Cathain had given notice of her intention to move Amendment No. 103:

Page 17, line 13, at end insert: ("() The Council may assist (financially or otherwise) the undertaking by other persons of any research, and any educational activities, which appear to the Council necessary or expedient for the purposes of subsection (2).").

The noble Baroness said: Having received assurances from my noble friend the Minister I shall not move this amendment.

[Amendment No. 103 not moved.]

[Amendment No. 104 not moved.]

Lord Swinfen moved Amendment No. 105:

Page 17, line 18, at end insert: ("() In discharging its duty under subsection (2) (a) of this section, the Council shall have a particular duty to advise the Secretary of State on the measures necessary to prepare for the repeal of section 29(6) (a) of the National Assistance Act 1948 and for the conferring on social services authorities of the power to make cash payments to a disabled person in lieu of the direct provision of services under section 2(1) of the Chronically Sick and Disabled Persons Act 1970.").

The noble Lord said: Amendment No. 105 relates to a different matter. It is a probing amendment.

In April 1988 the Disablement Income Group, with the then Department of Health and Social Security, set up the Independent Living Fund to administer cash payments to severely disabled people to assist with the costs of personal care and domestic assistance. That followed the replacement of supplementary benefit by income support which effectively ended many payments previously made to disabled people in respect of their additional disability costs. By the time the fund closed at the end of March 1993, 21,500 severely disabled people were receiving payments which averaged £105 per week.

The earmarking of cash payments to disabled people by the Independent Living Fund raised the profile of this whole area of provision. Since then, disabled people have been actively involved in promoting and developing cash payment schemes with their local authorities. However, because of the illegality of direct payments from local authorities to individuals, those schemes have taken the form of indirect payment schemes which have used third party organisations to support user-managed care. The latest research report by the Disablement Income Group—An Opportunity Lost? Social Services use of the Independent Living Transfer—revealed a notable increase in the interest shown by social services departments in third party personal assistance schemes.

Third party organisations are increasingly being used by local authorities as legally acceptable mechanisms for making direct payments to individuals who wish to purchase their own care. Most of the recent schemes studied by DIG channel local authority money through a voluntary organisation which provides a support system rather than just "laundering" the money. Providing personal assistance support services is an important adjunct to any direct payments scheme. The research also confirmed that there is widespread support among local authorities for changing the law to allow for direct payments.

Clearly, several issues need to be resolved as the framework for direct payments is created. Those include consideration of how the money will be audited and how support structures for recruitment and management of individual employees can best be provided. Questions will also arise concerning eligibility, financial ceilings and thresholds, and the interface between nursing and personal care. Then there are a whole series of issues concerning the employment conditions of personal assistants, including their status in employment terms and the obligations of individual employers who would be the disabled people concerned.

All those and more will need to be resolved before a framework can be established. Nevertheless, in my view it is crucially important that those moves are legislation-led, which is why the new clause is so important. I believe that my noble friend's department has been working on this matter and I hope that he can give me and others in the Committee some assurance that it is moving forward. I beg to move.

Lord Rix

I suspect that the Minister, when he replies, may be minded to say that the principle of direct payments to disabled people has been accepted; it is now being developed by officials and fits a little uneasily into a Bill dealing with discrimination. I therefore want to take the opportunity provided by the noble Lord, Lord Swinfen, to anticipate unfair discrimination in this area.

While it may be true that the standard model of support for people with learning disabilities is a staffed group home and local authority day centre, that is not the whole story. There are already within the existing rules service brokerage arrangements which put the funding into the hands of advocates, supporters, parents and so forth who are close to disabled persons and who make it their business to understand their needs and secure tailor-made solutions to those needs.

Just as people with severe physical disabilities may need a partner, advocate or agent to help them handle the sometimes complicated business of being a disabled person, so may someone with severe learning difficulties. If and when direct payments begin, I hope that the scheme will not discriminate against people with learning disabilities, but that they will be included in the scope of the arrangements. That option will provide advocates, carers and brokers with the opportunity to agree with the disabled person in the light of what they are known to enjoy and to dislike, in the case of those unable to speak, what would be the most appropriate, and then to go out and buy it.

The heart of community care is assessment of individual needs, followed through into individual support packages. That is as true for people with learning disabilities as it is for people with physical disabilities. Anything that moves us closer to securing that, such as direct payments and service brokerage, is to be commended. That is why I support the amendment of the noble Lord, Lord Swinfen.

Baroness Darcy (de Knayth)

I give my wholehearted support to this amendment and added my name to it. As one who has been involved for what seems like many years fighting long and hard to achieve this aim, I support it and hope that the Minister will be able to say something encouraging to us when he replies.

Baroness Hollis of Heigham

We also strongly and warmly support the amendment. It will allow local authorities, where they deem it appropriate, to pay cash rather than provide services to their disabled clients. Why? There are two broad reasons.

First, it places the disabled person at the centre of the care system rather than making him or her dependent upon it. Direct payment means that services are fitted to the needs of the client because the client purchases them, rather than fitted to the needs of the service. For example, someone with severe spinal injuries may be dependent on help to go to bed. If that person is dependent on a service being provided by the local authority, then that person would have to fit into the timetable of the person provided by the local authority. If it is said that the disabled person must go to bed at eight o'clock, nine o'clock or 11 o'clock, then that is when they go to bed. Whereas, if the disabled person is purchasing the services she or he will determine when they go to bed, when they get up, and whether or not they go out. The services are tailored by her or him to meet her or his needs rather than to fit inevitably the needs of the providers. That allows the disabled person to enjoy the spontaneity in her or his life that we all take for granted.

Because a disabled person would employ the carer if there were cash payments she or he would control what the carer does. That is important. As an Independent Living Fund client said, if you are paying for it, you can get what you want. When we are talking about quite intimate tasks—toileting and the rest—it is appropriate that the disabled person should choose because she or he can pay the person who performs those services rather than be dependent on a kindly flow of strangers who may change from week to week.

Therefore, the first reason for supporting the amendment is that it puts the disabled person at the centre of care and ensures that she or he gets the services that she or he wants at the times she or he needs them and provided by the people she or he chooses to suit her or his needs. By definition, if a local authority is doing it for the disabled person, she or he is dependent on what the local authority can do at any particular time.

The second reason for supporting the amendment is that it offers better value for money. If a disabled person can make a direct payment, she or he can use that sum of money to float a whole network of care, formal and informal. She or he can pay the petrol, can offer a bottle of wine, can provide chocolates, can meet expenses and as a result get very many more hours of support and care for the same sum of money than she or he would get if those services were provided by an individual. The same money can be stretched because the disabled person can broker it around a whole network of people, some of whom will be paid by the hour, some of whom will be paid expenses and some of whom will not be paid but will nonetheless get the occasional gift.

That is why the amendment is so warmly supported by all the disability organisations, by the local authorities and by the Association of Directors of Social Services. Indeed, as the noble Lord, Lord Swinfen, said, local authorities are so keen to provide this additional service that around two-thirds of them have set up trusts to launder the money. The local authority pays the money to the trust and the trust pays it to the disabled person. It is not legal at the moment to make a direct cash payment—I forgot, it is not legal in England but it is perfectly legal in Scotland. Perhaps the Minister can tell us why it is legal in Scotland but not legal in England. That means that we must provide the system which disability organisations and local authorities urgently want.

What are the objections to the amendment? Some time ago the noble Lord, Lord McColl, introduced a direct payments Bill into the House. The opposition was said to be the Treasury which had insisted that local authorities provide services and that the DSS provide cash and that the lines between the two should not be confused. That argument would be a little more powerful were it not already the case that those lines are confused. Local authorities already pay cash to foster parents; they already pay cash to children leaving care; they already pay cash to voluntary organisations to aid disabled people. Most of them—two-thirds of them at the last survey—were already paying cash into trusts in order to make direct payments to disabled people.

No one suggests that direct payments are suitable for everyone. Perhaps one person in a thousand is receiving care services in the community and perhaps only one-tenth of those in turn might want direct payments. Many elderly people might much prefer services rather than cash. No one is saying that they must have cash. Very often the people asking for this right will be younger people with spinal injuries who managed their own affairs but following a traumatic accident are unable to do so. They would be able to take control over their own lives and be independent. Direct payments would empower them. As Sir Peter Large once said: Direct payments makes the difference between a life in which most of your choices are made by others and a life in which you can mostly choose for yourself". That is the difference which direct payments would make. I know which choice all of us would prefer. With this amendment we can offer that same choice to disabled people.

5.45 p.m.

Lord Campbell of Croy

The noble Baroness, Lady Hollis, has touched on the point I was going to raise. I am afraid that I have not had time to give my noble friend the Minister notice of it and I quite realise that he may need time but it is my understanding that direct payments are legal in Scotland. That is because the Scottish legislation concerning local authorities is different and the whole administration by the Scottish Office of local authorities is different. I supported in principle the Bill introduced by my noble friend Lord McColl a year or two ago and I made the same inquiry then. My understanding is that direct payments have worked quite well in Scotland but the Scots make up only one-tenth of the population of the United Kingdom. If the system is working there I hope that the Government will look sympathetically at changes south of the Border, though I would not wish to interfere with what is going on south of the Border.

Lord Mackay of Ardbrecknish

To allow direct cash payments to be given to disabled people in lieu of community care services is indeed the Government's aim and we have already announced that we intend to introduce legislation to achieve that south of the Border. As my noble friend Lord Campbell of Croy and the noble Baroness, Lady Hollis, mentioned, those facilities are already available in Scotland. It means that if someone prefers this option he or she would take on the responsibility for buying his or her own care package with these payments. That would give people more choice, more independence and more control over their lives. For example, they could employ their own care assistant and choose exactly when it would be most convenient for an assistant to help them. This initiative is a logical extension of the Government's policy of giving more power to the users of public services, a guiding principle for the Government seen most clearly in the Citizen's Charter initiative. I was delighted by the powerful endorsement given by the noble Baroness, Lady Hollis, to these government principles.

Baroness Hollis of Heigham

If the Minister baits me he can hardly expect me not to respond. We have debated this issue on at least two occasions to my knowledge and it may be very many more. Why has the Minister for Health firmly resisted this proposal in the past? Why are the Government now changing their mind? We are absolutely delighted that they are, but why has it taken so long? Many of us fought hard when the old ILF was scrapped to make sure that the continuation fund could fulfil the same role. Let us welcome the belated conversion, but let the Minister be a little wary of claiming too much credit for initiating that which for so long he has opposed.

Lord Mackay of Ardbrecknish

I was just pointing out that this is but a small part of the Government's total overall principle of giving people choice—like buying their own council houses, dare I say, on which I crossed swords with some on the Benches opposite yesterday. However, I leave that aside.

Unfortunately, I have to say to my noble friend—I do not think he will be surprised—that I cannot support this amendment which attempts to specify exactly how legislation should be changed before it is clear what legislative measures are needed. It may be that more legislation is needed to create an efficient direct payments system than is specified in the amendment.

The Department of Health is currently looking at what legislation is needed to allow local authorities to make cash payments to disabled people. There are some complex technical issues to be resolved. The Department of Health is taking this forward in co-operation with local authorities and representatives of disabled people themselves. For example, one of the complex issues which has to be addressed is the one raised by the noble Lord, Lord Rix. That is the role that a third party might play in assisting recipients to manage their direct payments. That is but one of a number of complex issues which are being addressed.

We recognise the value and importance of consulting disabled people themselves about how this work is taken forward. The necessary preparatory work ought to be carried out before the legislation is changed. However, by asking the NDC to report on the necessary measures to introduce direct payments, we run the risk of duplicating the role of a separate technical advisory group which the Department of Health has set up. This group is assisting in the work of taking forward legislation to allow direct payments.

The British Council of Organisations of Disabled People, the Disablement Income Group and the Royal Association for Disability and Rehabilitation (RADAR) are all represented on this technical advisory group. Therefore, there is already a means through which disabled people can influence the development of this important policy. Having explained what the situation now is, and where we are with the development of this policy, together with the assurance I have been able to give my noble friend that we intend to introduce the necessary legislation to achieve the ends that we all agree, I hope that he will be able to withdraw his amendment.

Lord Swinfen

Before I do that, can my noble friend say whether he is in a position to give any sort of tentative timetable?

Lord Mackay of Ardbrecknish

Convention has long dictated that Ministers do not attempt to say in which Session of Parliament legislation will be brought forward.

Baroness Darcy (de Knayth)

Before the Minister sits down, the preparatory work has taken quite some time, has it not? It was in 1990, during the passage of the National Health Service and Community Care Bill, that the Secretary of State, Mrs. Bottomley, more or less indicated in the other place that an amendment would be forthcoming. My noble friend on the mobile Bench and I pursued it in this House. There have been five years for this preparatory work to be undertaken. Has the Minister anything to say on that?

Lord Mackay of Ardbrecknish

I do not have anything to add without breaching the convention which I mentioned to my noble friend. All I can say to the noble Baroness is that I shall chide the Department of Health when I return to Richmond Terrace.

Lord Swinfen

I am delighted to hear that my noble friend will bring pressure to hear where it is most effective in order to speed up this matter. With those words I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness O'Cathain moved Amendment No. 106:

Page 17, line 18, at end insert: ("() The Council may, on request or otherwise, give employers and disabled people such advice as it thinks appropriate on matters concerned with or affecting or likely to affect disabled people. () The Council may publish general advice on matters concerned with or affecting or likely to affect disabled people.").

The noble Baroness said: The main point of this amendment is that it is very important to give access to authoritative, consistent and informative information, support and advice to all three constituent groups that we are talking about at the moment—that is to say, the disabled, employers and providers of goods and services. The advice has to be really consistent and authoritative on their rights and obligations.

The amendment draws on the wording of ACAS's powers to give advice. One way of ensuring advice is provided would be to attach this function to the NDC. But it could be done elsewhere, and other specialist agencies could be best equipped to do it. ACAS, for example, is held in very high regard by employers and it is reassuring that it will be delivering some of the services under this Bill.

What is essential is the key function of ensuring that the right information and advice is available. This can be delivered through the existing institutional framework proposed in the Bill. But some reassurances are necessary that this delivery will happen.

Information and advice, of course, comes in different forms, but needs to include written materials and guidance, and the codes themselves. It should include information and advice, perhaps available from telephone helplines or one-stop shops, on specifics of legislation; for example, on the formula needed to calculate whether an adjustment falls within the cost ceilings set in the regulations. It also needs to include very specific advice or information on detailed issues of adjustment in specific cases, which can only realistically be given by specialists.

Other important support will need to come in the area of conciliation, which I have referred to already. ACAS on employment and the CBI have been assured that some other body could have the role on access. But the information and advice must clarify what the new law requires; how it will work and who is to be covered. This will be an important adjunct to the codes of practice and guidance that will be produced. It should also contribute to the effectiveness of informal dispute resolution.

Business does not look to the Government to provide everything. It is not looking for handouts and it will certainly use legal and technical specialists, as it does now in other areas of activity. I suppose that in this case there will probably be a whole raft of new consultants on the Disability Discrimination Bill. But the Government and publicly funded sources will play a vital and central role.

The Government have already given undertakings that information and some advice will be available from a variety of publicly funded sources. Given that, it is also reassuring to have Government undertakings as stated in Hansard of 13th June at col. 1696; namely, that ACAS, the Employment Service and their PACTS will be available to offer to people with disabilities and employers appropriate help and advice on the new requirements under the Bill. It is also reassuring that business will have a realistic time to prepare for and make necessary changes, and that the Government have undertaken to ensure that, while the introduction of the Bill will be phased, the support structure is intended to be fully in place to meet the requirements of the first provisions that come into force. That again was mentioned on 13th June.

But there are some important criteria which the provision of advice and information must fulfil if necessary functions are to be carried out. Further confirmation is sought that the support will be consistent—that is very important—and coherent across employment and access issues, guided by "reasonableness" tests as to the scale and nature of the physical adjustments which will be required. There will also be a need for support which is readily accessible at local and national level; for example, through the provision of telephone helplines. It should also be available to all three groups; namely, those employing people, those providing goods and services and, most importantly of all, the disabled.

In a case where it is clear that advice is too individual or specific to be answered by anyone other than specialists—for example, on the precise adjustments that must be made—people should be told where the specialist advice can be obtained. In addition, I seek clarification on what contribution the NDC and NACEPD will make to the design and delivery of the support structure for the Bill. I beg to move.

Baroness Hollis of Heigham

I support the amendment moved by the noble Baroness, Lady O'Cathain. At the moment the National Disability Council would simply advise the Secretary of State and then only on issues of goods and services and only when he asks it to. It has no independent powers to offer him advice; no independent powers to commission research or to give advice. As I say, in any case, as it does not deal with employment matters, it is certainly not able to advise employers even if the Secretary of State wanted it to.

I believe that we all agreed at Second Reading that most problems in enforcing this Bill are likely to occur not because of malevolence, but because of ignorance; not because employers and the providers of goods and services want to thwart the law, but because they do not know what the law is or what it requires. All hope that cases going to the courts and tribunals will be a last resort when all else fails. It is much better to have a culture of willing compliance rather than a climate of litigation.

How will employers' organisations and suppliers of goods and services who seek clarification of the law know where to go if they are not allowed to seek the advice of a central authoritative body? It is a very modest and tiny amendment, but at least it would ensure that companies, organisations and suppliers of goods and services get consistent advice when they seek it. Otherwise, where do they go? How do they find out what they should do? How are they going to assess what is reasonable cost and how can they be reassured that their competitors will also be complying in the same way?

There was a revealing interchange at Committee. We discussed this matter on the first day, 13th June, at cols. 1737 to 1738. On an amendment moved by my noble friend Lady Turner, we discussed the need for employers to take expert advice. The noble Lord, Lord Rix, and the noble Baroness, Lady Seear, asked the Minister where employers could take expert advice, and the Minister said that the National Disability Council could "offer advice". When we were surprised, the noble Lord, Lord Inglewood, replied that, although institutionally the body could not give advice, if someone were casting around, with nowhere else to go, they might find they could be helped by contacting that body".—[Official Report, 13/6/95; col. 1739.]

When the Minister said that, we all thought, "What an entirely sensible idea"—but for one small drawback; under the Bill the council has no power to do that. The Minister apologised for misleading the Committee. The Minister's first thought—that employers could go to that body—was his best thought. That body, the National Disability Council, could and should offer advice. Indeed, the Minister's reflex response was that it could offer advice. We all thought that it was sensible for it to offer advice. The Minister was somewhat surprised, when pressed, to find that it could not do so. Was not the Minister making our case for us? In the light of that, may we hope that the Minister will support the amendment?

6 p.m.

Lord Swinfen

I rise to support the amendment. If it is accepted, we shall need to take out of the Bill subsections (9) and (10), as envisaged in the group of amendments, Amendments Nos. 108, 109 and 110. Those subsections specifically prevent the National Disability Council from giving advice on employment matters.

Lord Addington

In our last debate but one I said that the noble Baroness had proposed a second way to try to make the Bill more functional—that is, to try to specify that there should be advisory powers and to try to stitch together the current rather loose structure. This is not my preferred way of doing that, but at least it is an attempt. Therefore, I support the amendment and its aims.

Lord Mackay of Ardbrecknish

Perhaps I may start by making the position clear. Indeed, I thought that I had made it perfectly clear in my rather long speech on the first group of amendments. Clearly, however, I had not because the noble Baroness, Lady Hollis, said—I cannot quote her verbatim but I understood her to say—that the NDC could give advice only if asked to do so by the Secretary of State. I said clearly that the NDC will provide advice both on its own initiative and when asked to do so by the Secretary of State. I added—indeed, I emphasised this by pointing out that I was answering a point made by my noble friend Lord Campbell of Croy—that the NDC will report publicly to Parliament through its annual reports, thereby drawing attention to its concerns in any areas where it considers that its advice has not been heeded. Although I understand that the noble Baroness wants to go a little further, I believe that she is doing the proposed NDC a disservice to suggest that it can give advice only when asked to do so by the Secretary of State. That is certainly not the case.

We fully intend the NDC to give advice on the needs of disabled people and on how service providers can meet those needs. Practical advice on implementing the provisions relating to goods and services will be issued in codes of practice prepared by the National Disability Council. Similarly, NACEPD will give advice to my right honourable friend the Secretary of State for Employment on the employment provisions in the Bill. Indeed, NACEPD rather than NDC is best equipped to consider the wide range of employment issues as all of its members are appointed because of their knowledge and expertise in the field of employment and disability issues. They include such key figures as Sir Peter Large, who was mentioned earlier by the noble Baroness, and the director of RADAR, Mr. Bert Massie.

In particular, we shall be drawing on the expertise and experience of NACEPD when drawing up the new employment code of practice on the employment of disabled people. However, we are also fully aware that employers, service providers and disabled people will want more general information and specific advice on particular issues. That point was raised in another place and my honourable friend the Minister responsible for disabled people gave assurances that the Government intend working in co-operation with business—with, for example, the Confederation of British Industry, the chambers of commerce and local authority access officers—to ensure that people know what Parliament expects them to do once the Bill has been enacted.

Officials in the DSS and the Department of Employment are already working together to co-ordinate a framework of action to ensure that the business community and disabled people are aware of the new rights and duties created by the Bill. We shall be discussing that framework with business and with representatives of disability organisations. My honourable friend has also said that he is considering setting up a telephone helpline to provide more specific advice on particular issues.

When the NDC is set up, both it and NACEPD may wish to provide advice about those arrangements. We shall certainly put draft plans to them for their consideration, but we see no advantage to it becoming the councils' responsibility to provide such advice. The experience and skills of the NDC's members should be directed to overseeing the operation of the Act, appraising the arrangements with a truly independent eye and advising the Government on any improvements which need to be made. I remind the Committee that the Bill already contains provisions for setting up an advice and support service to help to resolve disputes under the right of access and that the services of ACAS will be available to help to settle the disputes arising from the new employment rights.

I hope that I have been able to reassure my noble friend Lady O'Cathain that the information and advice needs of business and disabled people will be met. We are at one in considering that essential for the successful implementation of the Bill. We shall be giving it a high priority in the lead-up to the implementation of the Bill's provisions and thereafter to ensure that the Act operates as we all intend it to operate. With that explanation, I hope that my noble friend will withdraw her amendment.

Baroness O'Cathain

The phrase which gave me the most comfort in my noble friend's speech was that officials of the DSS and the Department of Employment are working together. The impression that has been given in our long discussions on the Bill to date is that they are two cells working in different parts of Whitehall and ne'er the twain shall meet. Therefore, I found my noble friend's words most encouraging. I was also encouraged that the Government are considering setting up a helpline. Being realistic, I suppose that we should be most encouraged by the fact that my noble friend has said that he fully intends the NDC to be fully available to give practical advice on access, that it is involved in drawing up codes of practice and that NACEPD is to give practical advice on employment matters. In the light of those assurances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness O'Cathain moved Amendment No. 107:

Page 17, line 39, after ("appropriate") insert ("including appropriate organisations representative of employers and appropriate organisations representative of disabled persons").

The noble Baroness said: In moving Amendment No. 107, I should like to speak also to Amendments Nos. 112, 119 and 120. My noble friend the Minister will not be surprised by these amendments because they relate to a matter that I have raised in every discussion on the Bill so far. I refer to the need to consult. It is terribly important that that happens. I hope that by now the message may have got through. I look forward to hearing my noble friend's reply: I beg to move.

Lord Carter

I shall be extremely brief. These are helpful amendments. When the Minister replies perhaps he could tell the Committee how the department proposes to ensure that the organisations which represent disabled people are truly representative and whether they are organisations of disabled people or organisations for disabled people. I can see the Minister holding his head. He is aware of the problems that that will raise, but I know that he is aware of the important distinction. Therefore, it would be helpful if he could say just a few words, first, about how the Government intend to ensure that they understand the distinction between organisations of and organisations for disabled people and, secondly, about how the Government propose to ensure that they are appropriate organisations.

Baroness Seear

At a previous stage I mentioned that when consultation is to take place with employers' representatives and representatives of disabled persons, it is regrettable that no reference is made to trade unions, or at least organisations of employees, because disabled people will be working alongside other workers. It is a common experience that some workers can find that difficult. They need to have the position explained to them.

I recall many years ago the issues that arose when a person with epilepsy was introduced into a typing pool without the other typists knowing that that person had epilepsy. If that person had suddenly had a fit it would not have had a good effect on relationships in the section or on the future of the person with epilepsy. If people with disabilities are to be happily employed inside organisations, it is important that fellow workers should understand the position and should be willing—when they do know they normally are—to accept such a person. They should understand that they are likely to do a good job but they may have special problems. It is a pity that that has been overlooked.

Lord Mackay of Ardbrecknish

I shall deal with each amendment in turn. I say to the noble Lord, Lord Carter, that I understand the difference between organisations of and organisations for, and probably organisations which are both of and for, disabled people. We appreciate the wide range of bodies that there are in this field. Some overarching bodies exist to bring them together, otherwise consultation might be impossibly lengthy.

On Amendment No. 107, as the Bill is currently framed the NDC would be empowered to consult any persons it considered appropriate before giving advice to the Secretary of State. It would be free to consult appropriate organisations representative of employers and disabled persons, but might also wish to consult a wide range of other people, organisations and service providers, depending on the area under consideration. I hope that that answers the point made by the noble Baroness, Lady Seear.

Baroness Seear

I am sure that the Minister will not let the disgraceful words "trade unions" or "union employee representatives" pass his lips, will he?

Lord Mackay of Ardbrecknish

I did say representatives of employers. As I said, depending upon the area of consideration, the organisations could easily include representatives of employees. A trade union is obviously one such organisation which represents employees. If that encourages and helps the noble Baroness, I am happy to say it.

The NDC is required to consult bodies set up by statute or by Ministers for the purpose of giving advice on disability. Representatives of business and disabled people already sit on those advisory bodies. Moreover, the NDC itself will include members from business as well as disabled people.

We do not think it right to place in legislation further reminders to consult specific types of organisation. The NDC's membership will be appointed with a view to gaining the respect and confidence of all sectors of society. Therefore we envisage that it will see the good sense of consulting organisations whose members are likely to be affected by its recommendations. But we must leave the NDC to decide whom it is appropriate to consult before giving advice to the Secretary of State on particular issues. I am sure that the Secretary of State will take an interest in whom the NDC has consulted and it would be open to him to consult more widely before corning to any decision if he considered that to be appropriate.

On Amendment No. 112, the legislation as currently framed allows the Secretary of State to consult whoever he considers appropriate before making appointments to the NDC. The intention is that both appropriate organisations representative of business and representatives of disabled people would be consulted along with others with an interest in the work of the NDC. It would be wrong to put some types of organisation on the face of the Bill, as proposed by Amendment No. 112, while leaving others out.

The effect of Amendment No. 119 would be to require the Secretary of State to specify at least one person to be consulted by the NDC whenever he asked it to prepare a code of practice. That would not always be appropriate. The legislation as currently framed allows for the proper amount of flexibility.

Amendment No. 120 seeks to specify that appropriate organisations representative of employers and disabled people should be included among those the NDC considers consulting when preparing codes of practice. However, it would be inappropriate to make such a provision. As I have already said, there will be a number of other bodies with an interest in the work of the NDC and it would not be sensible to specify two groups on the face of the Bill and leave others out. In any case, the Bill as currently framed allows the NDC to consult whoever it wishes.

I am sure that the NDC will be careful to consult organisations representing those with a direct interest in the matters under consideration when preparing proposals of codes of practice. But I would also remind my noble friend and other Members of the Committee that there are further safeguards which require draft codes of practice to be published before they are put to the Secretary of State. Those will ensure that everyone with an interest has an opportunity to make representations to the council and, I suppose, to the Secretary of State.

We believe that the provisions in this Bill for consultation prior to the appointment of members or the giving of advice, and on the preparation of codes of practice, are sufficient to ensure that the views of all those with an interest are taken into account. I hope that, given my assurances and my explanation on the record, my noble friend will consider withdrawing the amendment.

Baroness O'Cathain

I am grateful to my noble friend for giving that reassurance and for the fact that it will be on the record. But will be enlighten me on one point? He said that membership of the NDC will include representatives of business in relation to the provision of access. Will there be something in the remit of those appointed to the NDC which will make them responsible for consulting widely the people whom they might represent? I cannot get my mind around whether a member of the NDC will be someone who happens to be a good business person (man or woman) or an articulate member of a disabled lobby who might just give his or her own views rather than consult. In that case the rest of business would not be consulted. Does my noble friend see the point I am making? I should like to know what he thinks about it?

Lord Mackay of Ardbrecknish

That is always a problem. If one wishes to consult a body, one writes a letter to the secretary and receives a letter back from the secretary. One may well be left puzzling whether the secretary is writing on his own behalf or whether he has decided that that is what everyone thinks. It is a general problem, but I do not believe that it happens often. I suspect that people are always careful about ensuring that their organisation is involved if it is being consulted.

The people on the NDC will be drawn from the background I mentioned. On employers, I hope that they will do a great deal more than just represent employers' interests. I hope that they will be of such a calibre that they will realise that they must try to listen to what all employers are saying before they give the views. I hope that they will take a wider interest in the NDC's business. Even if it does not directly involve employers, I hope that they will still be prepared to give their expertise, help and advice. That is it.

On appointing people to the council, we shall of course be consulting about that, but all the people appointed, whether they are from disabled groups, employers or wherever else, will be appointed in their individual capacity. It would not be in the interests of the NDC's best working if all the members felt that they were only there to bat for whatever or whoever they represented. Some Members of the Committee, like me, may have served on bodies where that view was sometimes held by a member. It did not serve the body well when the member took such a narrow view of his responsibilities. I hope that that helps my noble friend.

Baroness O'Cathain

I thank my noble friend for that explanation, but my attention has just been drawn to Schedule 3 which provides: The members shall be appointed from among persons who, in the opinion of the Secretary of State—

1. (a) have knowledge or experience of the needs of disabled persons … or
2. (b) are members of, or otherwise represent, professional bodies or bodies which represent industry or other business interests".

I come back to the point: will they be charged with not necessarily giving their own personal opinion, but when issues arise which have wide implications charged to consult on behalf of those particular groups?

Lord Mackay of Ardbrecknish

I understood my noble friend to ask whether an individual representing employers, say, will be obliged personally to consult employers. I do not believe that on the face of the Bill that will be the case. The NDC collectively, including that person, will be obliged to consult widely, as set out in Clause 23(7). However, there will be no obligation on each individual member to consult the sector from which he or she is drawn.

However, the way of the world is that when deciding how to make a judgment on issues before the council the person will draw from his or her experience, contacts with colleagues, and so forth. I understand my noble friend's point but she is concerning herself unnecessarily about the distinction between what an individual must do and what the body as a whole, including that individual, must do. I hope that I have helped my noble friend.

Lord McCarthy

We are corning close to the heart of the Government's philosophy. The noble Baroness, Lady O'Cathain, told us that she reflects what is said by the CBI. Of course, the CBI wants a body that is representative. It wants to sit at a table with people who represent different groups and who can commit those groups by saying, "This is what these people would like to have".

If one wants a body that is representative it would help to have representatives of employees, even if they are from trade unions affiliated to the TUC. A dreadful thing! I do not ask for that to be on the face of the Bill. Nevertheless, the Government are keen not to have anything representative because it smacks of that terrible thing, "representativeness"; it is getting close to quangos and so forth. Therefore, they state repeatedly that such people are individuals talking as individuals. If that continues they will represent no one until there is nothing.

Lord Renton

During the past 50 years we have had a great deal of experience of statutory bodies appointed by the Government under authority given by Parliament. As regards the National Coal Board, for example, it was customary to have on the board at least one current or former representative of the National Union of Mineworkers. However, once he was appointed he represented the interests of the National Coal Board. He drew on his experience and loyalty but his decisions were those to be made in favour of the National Coal Board. That is only a simple example of what happens across the board.

Lord McCarthy

The noble Lord is utterly and totally wrong. If one was a workers' representative on the National Coal Board one could not have anything whatever to do with the National Union of Mineworkers or any other association connected with the industry. The board was an executive functioning management and people were not there to represent people; they were there as individuals. We are now talking about a consultative committee and the Government are trying to discover what industry and various groups, including the CBI, think. That is the difference and that is why it should be representative.

Lord Mackay of Ardbrecknish

It is a great deal more than a consultative committee. It will give advice on a number of issues, including important issues such as codes of practice. Therefore, it is a good deal more than the noble Lord suggested.

I am amazed because it sounds like a debate on how many angels can dance on the head of a pin. I thought that it had been pretty well accepted that people who are appointed to public bodies, as this body will be, come from different backgrounds and perhaps are appointed because of that. However, after they are appointed they are expected to participate fully in the total work of the board or organisation and not represent only one interest. I am amazed that the noble Lord, Lord McCarthy, believes that that would be a sensible and workable way to organise a body such as this.

Baroness O'Cathain

Of course, individuals are not there to represent only one interest. Let us suppose that there is an employers' representative on the NDC; for instance, somebody with experience of dealing with ATMs, the bank machines. He has been appointed in his own right because he has experience and knows about some of the problems. If a specific problem arises will it be up to the NDC as a whole or will it be up to that individual to ensure that there is wider representation? It could be that the individual has specific experience in one area of ATMs and not in another.

Obviously, representatives will be appointed for what they can contribute to the running of the NDC but groups of employers, disabled people and providers of goods and services will believe that, as regards the NACEPD and the NDC, unless there is a strong commitment they will be left out.

I shall read carefully what the Minister said. Perhaps he will confirm that he said that the NDC will have a responsibility to consult. Indeed, it has a responsibility to consult but I expect that underlying that will be specific areas. For example, in the case of access it will consult the building construction industry and in the case of disability it will consult disabled people. I cannot see why the provision cannot be put on the face of the Bill.

Lord Mackay of Ardbrecknish

Perhaps it will help my noble friend to reflect on what has taken place today if I put on record in Hansard Clause 23(7). She can then read it tomorrow. It states: Where the Council proposes to give the Secretary of State advice on a matter, it shall before doing so … consult such other persons as it considers appropriate". There are plenty of powers on the face of the Bill to suggest that the council must consult.

Baroness O'Cathain

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 108 to 110 not moved.]

Clause 23, as amended, agreed to.

Schedule 3 [The National Disability Council]:

Lord Mackay of Ardbrecknish moved Amendment No. 111:

Page 33, line 7, at end insert: ("() have knowledge or experience of the needs of persons who have had a disability or the needs of a particular group, or particular groups, of such persons;").

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

[Amendment No. 112 not moved.]

Lord Mackay of Ardbrecknish moved Amendment No. 113:

Page 33, line 15, after first ("persons") insert (". persons who have had a disability").

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 114 to 118 not moved.]

Schedule 3, as amended, agreed to.

Clause 24 agreed to.

Clause 25 [Further provision about codes issued under section 24]:

[Amendments Nos. 119 and 120 not moved.]

Clause 25 agreed to.

Baroness Lockwood moved Amendment No. 120A: After Clause 25, insert the following new clause:

("Reports prepared by the Council

.—(1) Without prejudice to the generality of section 23(2), the Council, in pursuance of the duties imposed by paragraphs (a) and (b) of that subsection—

1. (a) shall examine enactments for the purposes of ascertaining whether they are inconsistent with, or contrary to, the object of eliminating discrimination against disabled persons, and
2. (b) if so required by the Secretary of State, make to him a report on any matter specified by him which is connected with those duties and concerns the results of any such examination.

Any such report shall be made within the time specified by the Secretary of State, and the Secretary of State shall cause the report to be published.

(2) Whenever the Council think it necessary, they shall draw up and submit to the Secretary of State proposals for amending enactments.

(3) In this section "enactment" includes an Order in Council, and Northern Ireland legislation and any instrument made under an Act or any Northern Ireland legislation:").

The noble Baroness said: The purpose of Amendment No. 120A is to monitor other legislation in order to test its effect on the disability discrimination legislation. Clause 32 establishes that all other legislation, whether prior or subsequent to it, will take precedence over the disability discrimination legislation. Therefore, this amendment will require the disability council to review both secondary and primary legislation to ensure that it does not conflict with the purposes of the Disability Discrimination Bill; in other words, that it does not conflict with the elimination of discrimination against disabled people.

It is a fairly simple and straightforward amendment but it is important in the sense that much of our other legislation tends either in itself or in its implementation to discriminate against disabled people. A number of laws may operate in such a way as to block the elimination of discrimination. One example has already been discussed; that is, the legislation governing listed buildings. We are extremely pleased that the Minister has indicated that English Heritage will be producing guidance on that issue and that the council may choose to address that in its code of practice.

Another obvious example relates to the implementation of health and safety legislation. The role of health and safety legislation and of fire regulations in constraining access to buildings and services is well documented, in particular in the report of the Committee on the Restrictions against Disabled People which reported in 1982. Perhaps I may quote a paragraph from that report which states: Many of the letters we received referred to people being refused access because they were 'a safety hazard' … Many others referred to being turned away from cinemas. dance halls and other places because they were 'fire risks'. We … accept that on certain occasions they might be justified. On the other hand. the insistence on safety by managers is often not so much for the benefit of customers as to protect managers who do not want to be accused of carelessness".

I know that that report was published in 1982 and, as the Minister indicated earlier, we have become much more aware of those issues since that time. But there are still examples of occasions on which people impose restrictions which are not reasonable and which impose a barrier against disabled people. In other words, there are still misplaced perceptions of what disabled people can and cannot do. Those perceptions can easily creep into legislation, and in particular into secondary legislation.

I hesitate to say this, but there is a precedent for this particular amendment. It is based on Section 55 of the Sex Discrimination Act. Under that section, the EOC is required to monitor and report on changes in health and safety legislation. It has carried out one major report at the request of the Secretary of State but, since then, it has not published any major reports. However, it has monitored the various changes that have been made and it has made its report to the Health and Safety Commission or, as appropriate, to the Minister.

Of course, this amendment would go rather wider than just to one area of legislation, although health and safety would be extremely important in that respect.

The fact that such a duty is placed upon the commission is a cautionary influence on those making legislation and in particular those putting forward secondary legislation in the form of regulations. It would give the National Disability Council an opportunity to influence the wording of those regulations for the legislation to ensure that unfair perceptions were not included. It is quite an important amendment and I hope that the Minister will be able to accept it. I beg to move.

6.30 p.m.

Lord Renton

The noble Baroness put her case clearly and sincerely but, with respect, I must say to her that I do not consider that the amendment is necessary and I am not sure that it creates a very wise precedent. In the first place, the amendment asks that the NDC "shall examine enactments". That means previous legislation. But that is the function of the legal people in government departments. Sometimes that is done with the help of parliamentary counsel, the draftsmen.

If the NDC were to do that, it would have to employ lawyers. It may be that it will employ one lawyer but I should not expect it to employ more than one. Surely when we establish new bodies under statute we do not expect to pass the buck to them to see whether the statute under which they have been appointed has omitted necessary amendments to previous legislation. I hope that they have not been omitted because there are quite a large number of amendments proposed in this legislation; there is also a repealing schedule and there is modification of the Act in its application to Northern Ireland, and so on. Therefore, with great respect to the noble Baroness, I do not believe that it would be right to have the effort which government departments are making continuously duplicated by this new statutory body.

The noble Baroness has a better case in relation to subsection (2) of the amendment; but within the powers already given to the NDC under the Bill—in subsection (2) of Clause 23 especially, to which the new clause refers—the council could perfectly well submit to the Secretary of State proposals for amending enactments, including this Bill when it becomes an Act.

I should have to look again at Section 55 of the Sex Discrimination Act which the noble Baroness mentioned but my recollection is that Section 55 enables the health and safety regulations which are already in existence to be considered to see whether they need to be amended in the light of practice which has arisen in their application. Therefore, with deep respect, that is not really a precedent and I should not be surprised if, on this occasion, my noble friend felt unable to accept the amendment.

Lord Ashley of Stoke

I support my noble friend, who put her case so well. I am extremely surprised that the noble Lord, Lord Renton, should say that there is a danger of creating a precedent because my noble friend went out of her way to say that the precedent is already established in the Sex Discrimination Act.

The principle is precisely the same. The strength of my noble friend's case is that because the section is in that Act it gives us a valuable precedent and is a crucial part of the legislation. Therefore, by omitting the principle from the Bill, the Government are, in a sense, discriminating against disabled people by their failure to provide adequate legislation. We are not at all interested in existing legislation; we are concerned with future legislation. That is a very important factor and one of the important reasons why my noble friend deserves support.

Can the Minister say why the Government deliberately omitted that clause? Perhaps I may speculate on two possible excuses, although I am sure that the Minister will have a very good reason rather than excuses. However, my first example is on the question of money. No government want to spend money unreasonably, but, as the Minister well knows, there is provision in the Bill to cover unreasonable accommodation. Therefore, there is no question of unreasonable amounts of money being spent because of the amendment, which I hope the Minister will accept.

The only other excuse or reason that I can think of is that the Government do not want the hassle and that they fear that arguments will arise over such issues as safety regulations. But we will not remove discrimination and prejudice or get reasonable provision for disabled people without a lot of hassle. We shall have the hassle in any event when the Bill is enacted; but hassle is an essential and worthwhile price to pay. If the Government fail to accept the amendment, I believe that they will have far more hassle if subsequent legislation goes against the letter or the spirit of the Bill.

Lord Swinfen

My name is attached to the amendment and I should like especially to support its principle. My noble friend Lord Renton praised Clause 23(2). Of course, it may have been faint praise, but it was nonetheless praise. However, how can subsection (2) work without there being some work on subsection (1)? Looking at the provisions and the regulations produced under the legislation, one would have to undertake a certain amount of investigation to ascertain whether there are any contradictory Acts around.

When he responds to the amendment, can my noble friend the Minister say whether, as drafted, the provision would cover secondary legislation? I ask that question because I have a feeling that it may cover only primary legislation. I suspect that most of the problems are caused not necessarily by primary legislation (which should be looked at by parliamentary draftsmen when preparing Bills) but by the way in which the regulations produced under various enactments are actually put into effect.

Perhaps I may give Members of the Committee an example from my own experience when dealing with fire officers. When there is a change of individual holding a particular post, all the requirements in a particular building also change because the new man's fads—and it is normally a man—happen to be totally different. Such changes can prove to be very expensive for disabled organisations and also for business.

Baroness Masham of Ilton

I do not know whether this is the right time to mention it, but I have received yet another letter. This time the letter is from the vice-chairman of the Oxford City Access Committee. The committee is most concerned about city centres of such towns as Oxford which are being closed to traffic. The letter says: I beg you to use your influence to press for more power to be given to local authorities when they shortly take over responsibility for access for disabled people in city centres. In fact, a legal right of access is needed". I hope that the Minister will ensure that such a provision is somehow incorporated into the Bill. Access is absolutely essential to such people if they are to live a normal life.

Lord Carter

It may be of assistance to the noble Baroness to know that I have tabled Amendment No. 126A which deals with that very point.

Baroness Masham of Ilton

I thank the noble Lord for that information.

6.45 p.m.

Lord Mackay of Ardbrecknish

The amendment seeks to place a separate duty on the NDC to examine legislation to ascertain whether it is inconsistent or contrary to the aim of eliminating discrimination against disabled people. I hope that Members of the Committee will forgive me if I tell the noble Baroness, Lady Masham, that I believe her point does not actually arise under the current amendment. However, we shall perhaps deal with it later. I shall certainly look into the point that she mentioned. Moreover, if Members of the Committee will extend a little further tolerance to me, I should say that I have looked into the point that the noble Baroness raised regarding an earlier letter that she read out this afternoon. The noble Baroness said that it was letter number one. I was surprised at the suggestion that my honourable friend Mr. Hague, the Minister for Social Security and Disabled People, had—and I believe that I remember the words correctly—"fohhed oft" a disabled constituent.

I believe that that letter led the noble Baroness to take a very partial view on the matter. However, far from fobbing off the gentleman, my honourable friend has written to the council on his constituent's behalf on no fewer than four occasions since last December. As the council has the responsibility in the issue, that clearly is the body which my honourable friend must consult.

My honourable friend has also secured a temporary extension of the taxi licence while the matter is being investigated further. I do not want to go into any more detail on the matter, but I should like to restore the balance as regards the picture painted—unwittingly, I know—by the noble Baroness. As other people have said, and as I am sure the noble Baroness appreciates, my honourable friend has an excellent record on behalf of disabled people in general and regarding his own disabled constituents.

Baroness Masham of Ilton

For the sake of the record, perhaps I may tell the Minister that that was not letter number one; it was a telephone call. Letter number one came from Devon.

However, I was very pleased to hear what the Minister said. I hope that there will be a satisfactory outcome. If the matter has been going on for as long as the Minister said, it really is a very serious problem. Indeed, we are talking about the poor man's livelihood. Therefore, to take away his bread and butter—and he is a taxpayer—and throw him into unemployment would be ridiculous.

Lord Mackay of Ardbrecknish

As I said, thanks to the intervention of my honourable friend, that gentleman now has a temporary extension of his licence while the matter is being resolved. Therefore, as they say, we should carefully watch this space.

I appreciate the concerns expressed by Members of the Committee who have taken part in this short debate and especially those raised specifically by the noble Baroness, Lady Lockwood. I, too, envisage that the NDC may wish to pursue that area. My noble friend Lord Renton, with his unerring eye, drew our attention to Clause 23(2). Some of the duties of the council are laid out in that subsection and encompassed in them would be the ability to apply the role that I believe the noble Baroness wishes it to play; namely, to look at the important area of other legislation. Indeed, although I am not a lawyer, my eye is caught by subsection (2) (c) in particular which says: It shall be the duty of the Council to advise the Secretary of State, either on its own initiative or when asked to do so by the Secretary of State— (c) on matters related to the operation of this Act or of provisions made under this Act". Therefore, quite clearly—

Lord Swinfen

If, when the legislation becomes enacted, it clashes with another Act, would advice on amending the other Act be allowed?

Lord Mackay of Ardbrecknish

I thought that my noble friend had lost patience with me. I was just about to tell him that that would, of course, include secondary legislation. I believe that that answers one of my noble friend's points.

However, the question is: what would happen to that advice? I would expect that in most cases—and I use the word "most" with a little care—the Government would try to take the opportunity (and obviously, if it is legislation, that has to be the way that it is done) to square up the Bill and whatever Act or secondary legislation has been drawn to their attention as being contradictory.

I would not like to say that in every case they would be able to repeal the offending part of a previous Act. There may be other or conflicting interests which require to be balanced. We all know about the difficulties concerning fire prevention and health and safety which may well conflict with this Bill. In some cases a future government may not be able to go down the road the NDC might wish them to go down.

However, I see the NDC as a valuable body from which the Government could obtain advice on those conflicts. I would expect that in the great majority of cases the Government would take steps to make sure that the conflict was removed. However, I should not like to lead my noble friend into believing that there is a guarantee that the Government would act in every case. The other interests involved have to be considered.

As I said, the council will be free to consider these matters on its own initiative. Should it consider that a piece of legislation is inhibiting the elimination of discrimination and needs to be amended it will be within the council's remit to advise the Secretary of State how that could be done.

While we do not envisage that the council would produce a report for publication on each piece of legislation examined, it would be open to the Secretary of State to use the council's report as a basis for wider consultation. The council might also wish to include details of its consideration of legislation in its annual report, as I mentioned earlier. The Northern Ireland Disability Council will have a similar ability in relation to Northern Ireland legislation.

I hope that the debate has served to demonstrate the breadth of the NDC's general duties as proposed in the Bill and the influential position it will hold. We do not believe that it would be right to try to identify all the areas which the NDC may wish to consider in detail on the face of the Bill as those are hound to change over time. However, I hope that, given my assurances on the points before us this evening, the noble Baroness can withdraw her amendment.

Baroness Lockwood

I am grateful to the Minister for what he said. However, there is a difference between the general duty about which he spoke and to which the noble Lord, Lord Renton, referred and a specific duty which is placed upon the council. If a specific duty is placed upon the council, that means that there is an obligation on the council and on the Government to discuss the matter and consider what the council recommends.

To take the parallel with the Equal Opportunities Commission, the review of the health and safety legislation led to a number of changes in that legislation. However, where the commission has made representations on other Acts of Parliament it has been more difficult to bring about changes in those Acts. Therefore, there is a difference, which can be important.

However, because the Minister has dealt with the amendment so sympathetically, I should like to consider what he said and perhaps return to the matter at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 [Codes of practice prepared by the Secretary of State]:

Lord Mackay of Ardbrecknish moved Amendments Nos. 121 to 124:

Page 19, line 36, leave out ("against disabled persons").

Page 19, line 37, after ("employment") insert ("against disabled persons and persons who have had a disability").

Page 19, line 39, at end insert ("and persons who have had a disability").

Page 20, line 3, after ("person") insert ("or a person who has had a disability").

The noble Lord said: I have already spoken to the amendments. I beg to move Amendments Nos. 121 to 124 en bloc.

On Question, amendments agreed to.

Clause 26, as amended, agreed to.

Clause 27 [Further provision about codes issued under section 26]:

Baroness O'Cathain moved Amendment No. 125:

Page 20, line 19, after ("consult") insert "the National Disability Council and such other").

The noble Baroness said: I am grateful that this is one of the few areas of the Bill where consultation is specifically mentioned. However, the amendment seeks reassurance that consultation will also involve discussion with the NDC. There could conceivably be an overlap between the codes of practice under Part H of the Bill on employment and under Part III relating to goods and services. It is very important that those should be consistent.

For example, in the case of an employee working in a restaurant, NACEPD would give advice and the code of practice would specify that certain arrangements would have to be made for that disabled employee. That same restaurant would be open to disabled people. It could well be that the advice given by the NDC in terms of access would not be consistent with the advice relating to provision for the wheelchair employee in the restaurant. In order to avoid any confusion, I ask that the National Disability Council should be consulted. I beg to move.

Lord Inglewood

I am grateful to my noble friend for explaining her concerns about one hand not knowing what the other was doing. However, I should point out that, unless specifically asked to do so, the National Disability Council is excluded under the Bill as currently drafted from advising Ministers on specific matters relating to employment. The National Advisory Council on Employment of People with Disabilities fulfils that role, as we have already debated. However, I accept that the employment code of practice will have implications for employers and others that need to be considered in a wider context.

As my noble friend Lord Mackay mentioned, NACEPD has considerable expertise and is well respected. It has advised Ministers on a number of employment issues, including the Employment Service's voluntary code of good practice, the disability symbol and Access to Work, and continuously monitors the provision of employment and training programmes and services for people with disabilities. NACEPD is currently helping with issues connected with the Bill, following a request from my honourable friend the Minister of State for Employment. To that end it has set up a special working group which is looking into employment matters as they are affected by the Bill.

I mentioned earlier that it is our intention to issue a code of practice in advance of the employment provisions of the Bill coming into force. As we intend the employment provisions to commence towards the end of next year, the preliminary work on that code has already commenced and the intention is for it to be put out for formal consultation at the end of this year. Members of the Committee will be interested to note that the NACEPD working group I mentioned earlier is playing an active role in the development of the code. I make these points because, although the intention is for the National Disability Council to be established early in 1996, it may not be set up by the time the Government are ready to consult formally on the draft code and clearly can have no role in the current preliminary work.

I can, however, assure my noble friend, as my honourable friends have explained in the other place, that we will be consulting widely on our proposals for codes of practice and regulations. Those consultations will include organisations and individuals not included on the face of the Bill. I can therefore confirm that NACEPD, and the National Disability Council provided it is set up in time, will be included in any formal consultations on the code and any subsequent revisions of the code. It is unnecessary to mention that in the Bill; it could potentially cause confusion when coupled with other provisions specifically excluding employment and training matters from the National Disability Council's remit.

I hope that with that assurance my noble friend will withdraw her amendment.

Lord McCarthy

Is the noble Lord really saying that he cannot accept this very small and reasonable amendment because the Government cannot make up their mind what they want to do with these two consultative bodies? They have made provisions whereby they could keep one of them in existence for ever, get rid of one of them, or have another. The Government do not know what they want to do. Therefore, when they are asked to accept a simple amendment which provides merely that something may be done to keep them together so that they do not go in different directions, they cannot make up their mind. Why can they not make up their mind? If they cannot accept the amendment, why can they not tell us now how many councils they think we shall eventually have, and when?

Lord Swinfen

Is this not another argument for having a central authority?

Lord Inglewood

In trying to confuse me, the noble Lord, Lord McCarthy, has confused himself. To go hack to what I explained about timing in relation to the various bodies, the important point is that. as the amendment is drafted, it would be impossible for anybody to do anything until both bodies were in existence. The National Disability Council will not come into existence for a little time, long after much of the essential preliminary work from NACEPD in order to draw up the code of practice will have had to be carried out. In other words, the amendment would effectively block the proceedings which we intend to put into place to help disabled people. That would be quite contrary to the purposes underlying the Bill, whose aims I believe noble Lords opposite agree with.

7 p.m.

Lord McCarthy

The noble Baroness does not say that one can consult only the National Disability Council. If it were not there one could not consult it. The noble Baroness is saying that when the council is in existence, consult it.

Baroness O'Cathain

Perhaps I may say what I actually wanted to say. I take the Minister's point that if the council is not in existence it cannot be consulted. When the codes of practice are drawn up, I wish to ensure that there is coherence between the two councils. If NACEPD has done all the work on the codes of practice before the NDC is in existence, my amendment does not stand. However, I was reassured by what my noble friend stated: that people will be consulted on drawing up the codes of practice. Although he did not say this, there was mention earlier about there being common membership between NACEPD and the NDC. It was another point on which I wished to thank the Minister. People who are drawing up the codes in NACEPD now may eventually find themselves on the NDC. If there were any problems, they could be ironed out.

The Minister nods his head in agreement. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 126 not moved.]

Clause 27 agreed to.

Lord Carter moved amendment No. 126A: After Clause 27, insert the following new clause:

("Obstruction by public authority

. No public authority shall unreasonably obstruct the operation of this Act where a person has acted to comply with its provisions.").

The noble Lord said: This is a probing amendment. I apologise for the drafting; I drafted it myself.

The purpose of the amendment is to find out the exact rights, powers and responsibilities of public authorities—I refer in particular to local authorities—in respect of the Bill when it becomes an Act. I briefed the department on the background to the amendment. I put forward the provision as a result of my experience over the past week or so which revealed to me that there may be a gap in the Bill. If not, perhaps the Minister will explain that I have analysed the situation incorrectly.

Members of the Committee who were present at an earlier debate may remember that I gave an example of a company I know which employs disabled people. It needs a ramp. The company is a tenant and the landlord has agreed to provide a ramp. The tenant requires access to secure employment of disabled people. Application for planning permission has been sought, received and so on. The only place for the ramp is on the pavement, on the public highway. The highways authority has said that within the existing law there is a long and tedious procedure for encroachment on the public highway. The matter can even go to a public inquiry and may take a long time. In fact, the ramp is half built, but building of the ramp has been stopped while the issue is sorted out.

I have deliberately not named the council because I am just giving an example of the grey area which may arise when the Bill becomes law. The point was made earlier by the noble Baroness, Lady Masham, when she referred to the problem of city centres.

Unless the matter is already covered in the Bill, if the ramp clearly does not interfere with movement on the pavement—in this case the pavement is extremely wide and in common sense there is no problem with the ramp—the amendment requires the public authority or the local authority not to act unreasonably. It can consider the situation and say, "We can rely on the Disability Discrimination Bill. It provides that we must not act unreasonably. Therefore, we do not have to go through this long and complicated procedure under the Town and Country Planning Act, the public inquiry route, and so on. We can rely on the Bill to provide that we are not acting unreasonably if we give permission".

At present public authorities, in particular local authorities, can put so many hurdles in the way of access or whatever that there can be a long delay and then refusal. In this case the highways authority regards as its primary responsibility to defend the safety of the highway rather than giving higher priority to providing access for disabled people and thus employment for disabled people. If the ramp is not provided, disabled people will have to be discharged from employment because the fire officer is extremely unhappy with the current access available.

As it is drafted, I am not clear that anyone will be able to call in aid the Bill in order to ask the public authority to act reasonably. The purpose of the amendment is to discover whether the Bill can be used, as it were, to force a public authority to apply the test of reasonableness in its considerations.

With regard to my specific example, there will obviously be a requirement to consult with the highways authority. The highways authority can consider the matter and say, "This is not unreasonable. Therefore we give permission. We do not have to consider all these other requirements which are largely theoretical, although legal, as overriding the responsibility for providing access for disabled people".

If the power is not built into the Bill, many necessary alterations to improve access will not take place because the owner of the building will be willing to provide access but the local authority, the highways authority or the public authority involved will say, "No. We have a higher responsibility over and above providing access for disabled people. That responsibility is under the Town and Country Planning Act to ensure that the highway is not impeded".

The amendment probes the need for an overriding power of reasonableness so far as concerns the public authority whose consent is required. Such a power requires the authority to behave reasonably in its consideration of such matters; the authority would not be forced to rely on other Acts of Parliament which take precedence over the Bill. I beg to move.

Baroness Hollis of Heigham

I support my noble friend's amendment most warmly. The problems that he outlines have been experienced by many local authorities, in particular where one has a two-tier system. The district council may be responsible for conservation issues as a local planning authority and may well have the disability access officer. Together they come up with an acceptable proposal. But the highways authority involves another tier—the county council. The county council is responsible for ruling whether a proposal is acceptable. As a result, the district council may urge that providing access is a reasonable activity. The pavement may be 10 feet wide or 12 feet wide. The conservation officer and the local disability officer, both employed by the district council, have come to a reasonable and sensible way forward on the issue. But the traffic authority involves the county council—another local authority. It may veto the matter, unreasonably we may believe.

Given the complications, and given that there cannot always be a meeting of minds, we hope that the Government will be supportive of the amendment.

Baroness Masham of Ilion

I thank the noble Lord, Lord Carter, for bringing the amendment to our notice. I, too, would like to probe the Minister on the issue. I received a letter only yesterday about Oxford city centre. It is from the vice-chairman of the Oxford City Access Committee. It asks me to bring the matter up and to press for more powers to be given to the local authorities when they shortly take over responsibility for access for disabled people in city centres.

Is this a new provision? I should like an answer from the Government so that we know whether a new regulation is being handed over to the local authorities. Access to city centres is absolutely vital for people living in those towns, otherwise they will not be able to go shopping or to take up employment and will be discriminated against.

When the city centres are closed to cars, there needs to be positive discrimination for severely disabled people so that they may park their cars near the closed areas, otherwise there will be completely no-go areas. As people live longer, there will be more elderly people and it is becoming a great issue. I should like an answer from the Minister about that. I wish to thank the noble Lord, Lord Mackay, for his helpfulness over the other matter.

Lord Rix

I too would appreciate clarification. Access to places of entertainment and particularly theatres in city centres is involved. The noble Lord. Lord Carter, put the amendment down as a probing amendment for clarification, which I too should like if the Minister can give it.

Lord Addington

The noble Lord, Lord Carter, has put his finger on an important point. Once again, the amendment calls for clarification, as we have been doing all day. If the Minister can give a little guidance, it would probably save many people a lot of money and avoid the damage to pension funds with the use of solicitors.

Lord Swinfen

I wish to support the principle behind the amendment. I am thinking of a theoretical case of a listed building which will require a new use. The building will perhaps be used as a hotel or offices but the approach to it is in fairly poor condition, for example, with potholed asphalt. In order to make the place look more authentic and in keeping with its listing, the local authority wants the developer to cobble the front as opposed to the nice smooth surface. Something similar was done recently outside one of our most famous cathedrals, where asphalt was replaced with cobbles. I gather from those who use wheelchairs that to be pushed over it is absolute hell. Sometimes local authorities suggest or insist on various things being done in planning applications but the example I gave is the kind of thing that should be avoided.

7.15 p.m.

Lord Inglewood

I am grateful to the noble Lord, Lord Carter, for moving the amendment and for describing the background to it and also to other Members of the Committee who spoke. The problem is obviously causing considerable concern. We are trying here to tease out the interaction between the provisions in this legislation and that contained within other government legislation, particularly as it refers to providing access for disabled people.

As an aside, I believe that the problem we arc discussing goes much wider than simply disablement issues. I suspect that most planning inquiries and appeals going on in the country at present would in one way or another focus on the problem.

When considering the matter, it is important for us to distinguish between two cases: those where the law gives the person who—if I may put it this way—is getting in the way of the desirable disablement aspiration absolutely no discretion about what he can do; and those circumstances where a public body is involved and has a discretion. I shall go through the matter in detail and I hope I shall demonstrate why I believe that the amendment is unnecessary.

We have already debated the right of access to goods, services and facilities in the Bill where it is made clear that it applies equally to public authorities as to any other provider of services. I am, however, happy to take the opportunity to restate the position, which is that any public authority will be subject to the requirement under the right of access. as a provider of services or facilities to the public, to make adjustments to any policies, practices and procedures which would otherwise prevent a disabled person from making use of a particular service or facility and to take steps to remove any physical features which make it unreasonably difficult for a disabled person to use a service or facility.

I must also make it clear that, as with other legislation of this nature, nothing in the Bill makes unlawful anything done under any other Act. I refer here to Clause 32. In other words, the legislation does not require service providers to breach other legal obligations. The important word there is "require". That is the same approach as taken in the sex and race legislation, an approach which the Government believe is right.

I know from what the noble Lord said that he has in mind a particular case. Obviously I cannot comment on it from the Dispatch Box. However, I can say with certainty that I cannot imagine a situation where a highway authority would unreasonably refuse permission to provide wheelchair access in the public highway. After all, as we know, that is the kind of aspiration that the Committee would like to see provided for where possible and appropriate. However—and this is the crux of the issue—the ultimate responsibility for the safe upkeep of the highway lies with the local highway authority. No alteration to the highway would be permitted if, in the authority's view, such alteration would pose a danger to other highway users. The prime factor in granting such permission is therefore one of safety and avoiding obstruction to the public highway. In areas where there is a discretion, one should remember that that discretion must be exercised reasonably. I am sorry that the noble Earl, Lord Russell, is not here. He has plenty of views about that.

The public authority cannot simply act capriciously. We referred to that when we debated listed buildings some days ago. However, in cases where a refusal has occurred, it may not necessarily be the end of the matter. For example, there may be a more acceptable way of providing wheelchair access which meets the concerns of the highway and planning authorities. Or, for that matter, on the facts of the case and the circumstances, there may be a mechanism for appeal which will be open to those people who are disappointed. That is the case in all kinds of other areas where people may be disappointed in respect of quite different matters.

We have heard examples from the noble Lord, Lord Carter, and the noble Baroness, Lady Masham, asked some questions to which I wish to respond later. I cannot give her an exact reply. My noble friend Lord Swinfen mentioned examples about which he was concerned. It might be helpful if the noble Lords wrote to me about particular cases so that the matter may be investigated and a fuller response given if there is a problem. In a wider sense, there may be useful lessons to be learnt from the cases that people have in mind.

Meanwhile, I hope that I have satisfied the noble Lord, Lord Carter, that the amendment is unnecessary to achieve the result he seeks. If he feels reassured, I ask him to withdraw his amendment.

Lord Carter

I am extremely grateful to the Minister and to other Members of the Committee who took part in the short debate. When I moved the amendment I forgot to mention a point raised by my noble friend Lady Hollis which reminded me that it was a disability access officer who suggested where the ramp should go. The planning authority was happy with it, but then the highway authority moved in and we now have the whole apparatus of the Town and Country Planning Act to deal with. It seemed to me that it was a good example of the overlapping powers of different departments in the same authority.

I was partly encouraged by what the Minister started to say—that the Bill would apply to public authorities, with the right of access and that they will be required to adjust policy and so on. However, the local authority is not the provider of the service in this case, it is just the provider of the highway. Whether that is caught, I am not sure. The authority is required not to act unreasonably, but suppose it does? That is the question. The disabled person, the employer or whoever it was would not be able to rely on the Bill to stop the authority acting unreasonably because it would be acting within the powers which it thinks reasonable within the existing legislation. At the end of the day, it seems to me that it will be left to the public authority. We shall not be able to rely on the Bill; someone will not be able to say: "You are acting unreasonably and we have the anti-discrimination Act which prevents you doing so".

Lord Inglewood

I understand that the position which the noble Lord described is correct. However, we are talking here about a system where discretion is to be exercised by an authority. In exercising that discretion, the authority will take into account the policy aspirations that may be found in society. The kind of problem which the noble Lord describes is one which people face all the time. In planning matters there is an appeal and the policy behind the Bill is an important matter to be taken into account. I myself conducted a planning appeal—successfully, I am glad to say—about a listed building and trying to provide WCs for disabled people.

Lord Carter

I am extremely grateful to the Minister for giving way. Incidentally, did he win?

Lord Inglewood

Yes, I did.

Lord Carter

If he had not won, I bet that he would not have mentioned it. I am grateful to the Minister. I shall write to him with a particular example. It is an interesting illustration of the sort of problems that might arise. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 127 had been withdrawn from the Marshalled List.]

Lord Carter moved Amendment No. 128: After Clause 27. insert the following new clause:

("Unlawful advertising

.—(1) It is unlawful to publish or to cause to be published an advertisement which indicates, or might reasonably he understood as indicating, an intention by a person to do any act which is, or might be, unlawful by virtue of Part II or III.

(2) Subsection (1) does not apply if the intended act would not in fact be unlawful.

(3) The publisher of an advertisement made unlawful by subsection (1) shall not he subject to any liability under that subsection in respect of the publication of the advertisement if he proves—

1. (a) that the advertisement was published in reliance on a statement by the person who caused it to be published to the effect that, by reason of the operation of subsection (2), the publication would not be unlawful; and
2. (b) that it was reasonable for him to rely on the statement.

(4) It is unlawful for a person knowingly or recklessly to make a statement such as is referred to in subsection (3) which in a material respect is false or misleading.").

The noble Lord said: In moving this amendment, I shall also speak to Amendment No. 128A which is grouped with it. The amendment relates to unlawful advertising and the enforcement of the advertisement provision.

The issue of discriminatory advertisements is addressed in the Bill. However, we feel that the current approach is too weak. Clause 11 provides that where a discriminatory job advertisement has been placed, a disabled individual has applied for the job, has been rejected for that job, and challenges that decision as discriminatory, then that fact can be used in evidence in proceedings.

The corresponding provision in the sex and race legislation makes discriminatory advertisements illegal per se and allows the commissions in those cases to take proceedings. These amendments mirror that approach. The approach to discriminatory advertisements currently contained in the Bill is unsatisfactory and is unlikely to lead to individuals attempting to use the Act to bring challenges. The burden of enforcement placed on the individual is too high. Very few people apply if an advertisement indicates that they will be unwelcome. After that it is extremely unlikely that they will take additional legal action. This illustrates the important role that a commission could play, if it had the power, in lifting the burden of enforcement from individuals.

Although few prosecutions are brought under the relevant sections of the sex and race discrimination Acts, the commissions in those cases are regularly contacted by people who seek advice before they place advertisements because they wish to ensure that they comply with the law in those two respects. I believe that we are all now familiar with the types of blatantly discriminatory advertisements that were common before the passage of the race and sex legislation and which have been stamped out. I was given an example by RADAR of the sort of advertisements that discriminate against disabled people. I am afraid that it relates to a local authority which intended to place an advertisement for a car park attendant that included the statement: An essential criterion for the post is being physically fit as there is a lot of walking involved". On closer examination it was accepted that this was not correct. Indeed, the post of car park attendant is one of the occupations reserved for registered disabled people under the Disabled Persons (Employment) Act.

I am sure that the Minister will understand the drift of the amendments and what we seek to achieve. As I say, it is extremely unlikely that the individual will wish to go through all the hoops that are in the Bill in order to prevent discrimination in advertising. The two new clauses in the amendments are intended to prevent that happening. I beg to move.

Lord Inglewood

I can fully understand the noble Lord's concern that it should not be lawful to publish advertisements that are suggestive of discrimination. That is why we made the provisions in Clause 11 to which the noble Lord referred in relation to the publication of advertisements by employers.

The Committee may remember that when we discussed Clause 11 I explained that we do not believe that a total ban applying to employment advertisements is the best approach. As I explained, there may be perfectly good reasons why certain particular physical attributes are necessary to carry out a particular job. In the case of a disabled person applying for that job, we then had to measure by the test of what would be an appropriate and reasonable adjustment in the particular circumstances. We believe that it would he wrong to prevent an employer mentioning health requirements or occupational skills requirements in advertisements. Instead, as already touched on, the Bill provides for tribunals to take into account the publication of an advertisement that suggests an intention to discriminate in considering an employer's reason for refusing employment to a disabled person. We shall also provide guidance for employers on ways to avoid unacceptable advertising.

As to advertisements for goods and services, which I believe would be covered by this particular proposal, I must say that I have difficulty in thinking of examples of cases of advertisements that might be discriminatory in the way that the amendment suggests. Apparently, there was an evangelist who recently advertised a rally that he was holding. It was suggested that all those who were disabled would somehow or other walk away from it with their illnesses put right. That is the only case that we could think of where people might positively advertise in a discriminatory manner, in the way suggested, as we understand it, in these particular provisions so far as Part III of the Bill is concerned. I am sure that the main focus of the new clause is advertisements for employment. Indeed, while the Sex Discrimination Act covers advertisements for employment and goods and services, the examples given in that Act concern only employment advertisements. In any case, I believe that the concerns expressed are already addressed by the provisions of Part III. Clause 15 puts a duty on service providers to change any policy, practice or procedure which makes it impossible or unreasonably difficult for a disabled person to make use of their services. Given the need to adjust such policies, it seems most unlikely that a trader, determined to evade this requirement, would advertise his or her failure to comply with the law. Essentially, I believe that Amendment No. 128 is unnecessary.

There is no equivalent of Clause 15 of this Bill in the Sex Discrimination Act and thus no need to follow the lead on advertising set by that Act in relation to goods and services. It is interesting that the Americans with Disabilities Act, which does have similar provisions to Clause 15, has no general ban on discriminatory advertising of goods and services.

Amendment No. I28A seeks to place a responsibility on the National Disability Council to police and enforce the provisions of the new clause proposed on unlawful advertisements. Again, it seeks to mirror the provisions in the Sex Discrimination Act without regard to whether they are necessary or constitute the best approach. The amendment provides for the NDC to monitor advertisements, apply to either an industrial tribunal or a court for a decision as to whether an advertisement is unlawful, and apply for an injunction if it considers that the person who issued the advertisement is likely to do so again.

My noble friend Lord Mackay went to some lengths in earlier debates to explain that the NDC is not intended to be an investigative or policing body. It will be an advisory body, charged with providing high level policy advice and guidance. The role proposed in the amendment, which I fully understand is one that noble Lords opposite would like to see the NDC have, is totally at odds with the remit that we propose for the council.

I turn to the noble Lord's other point about trying to prevent advertisements of this kind. It seems to be generally accepted that, where there is legislation of this kind on the statute book, backed by policy guidance, it has the effect of reducing very considerably the number of offending advertisements.

Of course, the NDC will be able to consider advertisements as part of its wider duty to study the operation of the Act. Should it identify a problem, it will bring that to the attention of the Secretary of State and advise on ways in which the problem could be tackled. However, as I mentioned, we believe that the provisions already in the Bill will be sufficient to deter such advertisements.

I hope very much that I have been able to allay and mitigate the noble Lord's concerns about advertising. I hope he considers that he will be able to think again.

Lord Rix

Before the Minister sits down, can be say whether this provision will also apply to firms employing 20 or less in terms of advertising? So long as the advertisement was not offensive, could those firms exclude people with disabilities and get away with it?

Lord Inglewood

So far as those employers are concerned, the duty not to discriminate as defined in the Bill does not apply. I believe the noble Lord's question did not address goods and services. It addressed advertisements for employment.

Lord Rix

It could be either. It could be goods and services or employment. The goods or services might be provided by an employer who employed fewer than 20 people.

7.30 p.m.

Lord Inglewood

Indeed, so far as the provision of goods and services is concerned, there is no threshold involved. It completely falls outside it. The second point on which the noble Lord inquired was whether an employer who employed fewer than 20 people would fall subject to the provisions of Clause 11 of the Bill. Clause 11 expressly states that a number of criteria have to be satisfied.

I hear the noble Baroness's remarks, but the difference between these Benches and those opposite is that when we make a mistake, we quickly appreciate it. That is not necessarily the case on the Benches opposite. I hope that the noble Lord will allow me to look into this matter. I should like to give an accurate answer. I think that I know the answer but perhaps the noble Lord will allow me to give him an answer later this evening.

Lord Rix

I should be delighted to and I hope that it will be quite clear that companies with 20 or fewer employees cannot discriminate in their advertisements.

Baroness Hollis of Heigham

I too would like to ask the Minister a question. One of the difficulties and reasons why so many of us are anxious to have a national disability commission is that under the arrangements of the council, with individuals going to tribunals and courts, there is no way to take on board what I call third party issues or problems; in other words, where the difficulty is generic. As with the old Press Council, someone could only pursue a problem that directly affected that person as opposed to a generic problem, which may be the case of advertisements. Can the Minister help us on this?

Lord Inglewood

I thought that I had explained our approach to that matter in my remarks. The National Disability Council clearly can consider the general question of advertisements. We do not anticipate that the kind of general queries to which the noble Baroness alludes will be likely to cause problems. However, as I explained, it is open to the council, if it anticipates or identifies the kind of problems to which the noble Baroness refers, to make recommendations to the Secretary of State.

I am now able to give a reply to the noble Lord, Lord Rix. A firm of below 20 employees is not subject to Part II of the Bill and hence will not be covered by Clause 11.

Lord Rix

Before the noble Lord sits down, perhaps I may tell him that I am shaken by that response, for obvious reasons. In fact it means that an employer could place an advertisement in a small local newspaper saying, "No disabled person need apply". If my reasoning is correct, the advertisement could be as flat-footed as that, which is in absolute contravention of the whole principle of this entire Bill.

Lord Inglewood

I should like to emphasise that the guidance that will be provided is intended to be guidance for the good behaviour of employers and others regardless of the size of firm about which we are talking. I do not wish to go over the ground that we went over at some length on a previous occasion. But the Government feel that the burdens that could be inherent by falling within the scope of the Bill compulsorily under Part II arc such that they should not be imposed on employers employing fewer than 20 people. That does not mean to say that the Government might necessarily in any way condone the kind of advertisement to which the noble Lord referred.

It has just been drawn to my attention that we ourselves arc not aware of discriminatory advertisements which are so blatant as the noble Lord suggests. I should have thought that if such advertisements were not appearing now, the chances of them appearing once the Bill came into operation would be that much less.

Lord Rix

I believe that I can give chapter and verse for advertisements that have appeared certainly within the past year saying in effect that no disabled person need apply. The advertisements probably did not use those exact words but used similar wording. I shall try to find evidence and provide the Minister with it, if he so wishes.

Lord Inglewood

I am extremely sorry to hear that the noble Lord has such evidence. Clearly, we should be pleased—if that is the right word to use in the circumstances—to have chapter and verse.

Baroness Farrington of Ribbleton

Surely the Minister can see that there is a difference between some of the advertisements for employment not requiring specific people to be employed as a rule and circumstances in which people are ruled out of consideration before they even get to the job. Surely it is totally wrong for someone to be able to write advertisements in such a way that people know that there is no point in applying, even to be able to prove it to themselves, however small the employer.

Lord Inglewood

I understand the noble Baroness's concern. But it is not helpful to anyone concerned if the advertisement encourages people to come forward who will not be given a realistic chance of getting the job. All of us in our time no doubt have applied for jobs for which we knew that we had no chance of being successful. It does not do anybody a good turn to encourage people to apply for jobs when they are simply not in the running for them.

Baroness Hollis of Heigham

Tell John Redwood!

Lord Carter

It was a most unworthy remark of my noble friend to imply that that certainly applies to Mr. John Redwood.

This discussion has opened up an area to which we might well have to return at Report stage. We are aware of the tribunal route, but it is a very long, winding one. I was struck by two examples under the heading of goods and services. In fact, I have just been given an advertisement which states: I am blind; I am crippled; I am helpless". It refers to a home for the multiple handicapped. In the middle of the advertisement it says that these people are mercifully few in number but their plight is tragic. I find that an extremely offensive advertisement. It would be interesting to know whether that would be prevented by the Bill.

Also, it occurred to me while listening to the Minister that I saw an advertisement some years ago which referred to the state of this country under a Conservative Government. There was an advert in the Guardian which showed a clapped out, broken down Britannia in a wheelchair. I thought that that advertisement was extremely offensive. I do not say that it was inaccurate in what it said about the Conservative Government, but it was extremely offensive to use the wheelchair analogy.

I shall not press these points now. We have opened up an interesting area and I can see the Minister looking rather worried. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 128A not moved.]

Lord Mackay of Ardbrecknish: I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage should not begin again before 8.30 p.m.

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

House resumed.