§ 3.1 p.m.
§ The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish)
My Lords, I beg to move that the Bill be now read a second time.
The Bill is the first comprehensive measure to tackle discrimination against disabled people ever brought before Parliament by a British Government. This is an historic day for disabled people, and I should like to start by paying tribute to those noble Lords whose efforts have in no small measure ensured that this day has arrived. The noble Lord, Lord Ashley, my noble friend Lord Campbell of Croy, the noble Baroness, Lady Lockwood, the noble Lord, Lord Rix, and many other Members of your Lordships' House who are in the Chamber this afternoon have kept the flag flying over many years. Their experience and expertise will be of incalculable value when we come to examine the Bill in detail. I should also like to pay tribute to the many organisations of and for disabled people which have argued so persuasively for anti-discrimination legislation.
The Bill will provide: a right for disabled people not to be discriminated against in employment and a duty on employers to make reasonable adjustments to working practices or the working environment where that would help to overcome the practical effects of a disability; a right of access to goods and services which will make a refusal to serve a disabled person unlawful and require service providers to make reasonable adjustments to their services to make them more accessible; and the establishment of a national disability council to advise the Government on their strategy for eliminating discrimination against disabled people.
801 The Bill is the most tangible evidence yet of the Government's commitment to disabled people, a commitment which over the past 15 years has done much to help them live with dignity and independence. Over time it will bring about dramatic changes involving millions of people in taking positive action. Its effects will be felt across the board and in all aspects of life.
However, the Bill ensures that the move to a more accessible environment will not place undue burdens on those who will be responsible for delivering its provisions. In forming our proposals, we have taken account of the understandable concerns of the business community that the legislation should not be unrealistically ambitious or unnecessarily prescriptive. Most importantly, employers and service providers are entitled to know what is expected of them. The Bill shows that the Government are prepared to face up to this responsibility, and it has been drafted to provide for maximum certainty.
Nowhere is the need for certainty of approach more apparent as in Part I of the Bill where we define what we mean by "disability". Our aim has been two-fold—to produce a definition which covers those people who would be regarded generally as disabled and, at the same time, to produce one which can be easily understood by ordinary employers and service providers and, of course, by disabled people themselves.
For the purposes of the Bill, a person is disabled if he or she has a physical or mental impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. A definition of "long-term" is included in Schedule 1 as is a list of the areas of activity. The Bill also provides authority for us to issue guidance on matters to be taken into account in determining whether an impairment has a substantial adverse effect and whether it has long-term effects.
While the definition covers people who are disabled in common sense terms, we have also ensured that people with progressive conditions are covered from the first point at which they develop effects on day-to-day activities, however slight, and that people are covered who have impairments where the effects fluctuate or recur. We have ensured, too, that people with severe disfigurements are covered.
A line has to be drawn somewhere. Clearly, people with merely a "reputation" of an impairment are not "disabled" in any common use of the word and, in our view, should not be covered. But we have recognised the serious concern about discrimination against people who have had a disability but have recovered. After very careful consideration we accepted that the Bill should confer protection against discrimination for people who have had a disability that met the Bill's definition. The Government will bring forward amendments to give effect to this during the Bill's passage through your Lordships' House.
Part II of the Bill deals with the new employment right. Employers have done much in recent years to improve the employment prospects of disabled people. But it has become increasingly clear that the current regulatory system—the "quota scheme"—which sits alongside and complements their initiatives, has not been working as 802 originally intended. It is widely accepted that it fails to meet the needs of disabled people. Only a third of those in the workforce eligible to register do so—about 1 per cent. It is consequently impossible for all employers to meet a 3 per cent. quota. And the concept of a quota is outdated. Many disabled people think that the whole approach stereotypes and stigmatises them.
So the Bill will repeal the quota scheme and introduce instead a statutory right of non-discrimination against disabled people. For the first time it will be unlawful for an employer to treat a disabled person less favourably than he would treat others without good reasons. Employers will also be required to make reasonable adjustments to help overcome the practical effects of disability where not to do so would result in less favourable treatment. The factors which a tribunal would take into account in determining reasonableness include issues such as the cost and benefits of making an adjustment. A statutory code of practice will be produced, which will be the subject of consultation before the new right is commenced, to give practical guidance on various points in the legislation.
However, we think it self-evident that compliance with this Part of the Bill, particularly the provisions on reasonable adjustment, will be more difficult and burdensome for small firms. Very small firms are much less likely to have the specialist personnel to help them get to grips with the new requirements, or to obtain and consider the advice they need about the adjustments that can be made in particular cases.
The new duties will not therefore apply to employers with fewer than 20 employees. I should say that the Government take great exception to the allegation that this exemption shows that they are content to see small firms treating disabled people unfairly. We oppose unfair discrimination in any form. In fact, many small firms already employ disabled people and we shall encourage them to follow the guidance in the new code of practice. We will consult small firms organisations in drawing it up. Small firms will also continue to be able to get help from the Employment Service.
But we need to strike a fair balance between what it is reasonable to require on behalf of disabled people and the need to avoid imposing a disproportionately onerous requirement on the employer. We must avoid steps which could constrain the growth and prosperity of new and small firms, which are so essential to the creation of job opportunities. It is important to note that even with this exclusion, 80 per cent. of employees will still be covered by the Bill.
However, as has been stated in another place, we recognise the strength of feeling on this issue and have given an undertaking that an amendment will be tabled to the effect that within five years the Government will review the operation of the relevant employment provisions in relation to small firms. Further, the power within the Bill which enables the Secretary of State to vary the threshold number will now operate in a way that will make it possible to lower it below 20 but never to raise it above.
803 The right of access to goods and services as set down in Part III of the Bill ensures that it will be unlawful to refuse to provide goods or services, or treat people unfavourably, solely on the ground of their disability.
The new right imposes four broad duties on service providers. First, it will be unlawful to refuse service to a disabled person for a reason which relates to that person's disability. Secondly, there will be an obligation to adjust policies, practices and procedures where these make it Impossible, or unreasonably difficult, for a disabled person to use a service. Thirdly, there will be a duty to provide auxiliary aids, such as induction loops for people with hearing aids. Lastly, there will be a duty either to remove physical barriers or provide the service by a different means.
The Government recognise that some of these stipulations are more stringent than others—the order in which I listed them perhaps a reflection of the difficulties and expense which businesses might face. Therefore, we have made it clear that the duties will be introduced at different times over the coming years—the requirement to make physical adjustments being introduced last, after perhaps 10 years. That will give businesses time to prepare.
But before long those measures will start to bring about the accessible environment which we all wish to see. Your Lordships will have deduced from the fact that there are four duties on service providers that accessibility is not just about building construction and design, although those factors are important. It is also about the production of written material in large print; it is about the installation of induction loops for hearing aids in theatres; it is about the prohibition of "no-dogs" policies in restaurants so that blind people with guide dogs are not excluded. In fact, it is about tackling the thousand and one ways, perhaps insignificant and unnoticed by the rest of us, in which society makes life difficult for disabled people. We will not be able to change the world overnight, but this Bill will stand as a significant landmark on the road to an accessible environment.
I alluded earlier in my speech to the all-embracing nature of the legislation. However, there are two areas which, as the Bill now stands, are excluded from the general right of access to goods and services where, in the Government's view, special factors require a different approach to questions of accessibility. I refer to transport and education.
We have made clear our commitment to achieving fully accessible transport—a key element for enabling disabled people to become fully integrated within society. Improved access to goods and services is of little use to someone who cannot get on the bus to the shops.
We have, however, also made it clear that we believe that progress towards accessible public transport is best achieved by targeted action rather than by any kind of blanket legislation. Different modes of transport inevitably require different access solutions. A simple application of Part III to transport vehicles is not therefore appropriate.
However, the Government will be bringing forward amendments to give a statutory basis to their policy of incremental development. The amendments will allow the Government to set minimum standards of accessibility 804 in new land-based public transport vehicles. This new power will provide the flexibility required to tailor access solutions to the widest range of transport modes while recognising the operational issues associated with each one. This measure builds on the huge progress that has already been made in making the transport network more accessible—progress which is critical if disabled people are to have the maximum amount of mobility. It is a development which I know your Lordships will warmly welcome.
I should like to turn now to education. The Education Act 1993 was a major advance which set the right framework for meeting special educational needs. We have already announced measures which build on its provisions: the Further and Higher Education Review and the Schools Access Initiative. A consultation document was recently published on how the access initiative might operate, and it was announced that in the region of £10 million would be made available to encourage imaginative projects aimed at increasing accessibility to mainstream schools. We are currently analysing the responses received; it is fair to say that the proposals have been warmly welcomed by local education authorities and voluntary groups alike.
But we have consistently set out the clear rationale for not applying Part III of the Bill to education. We are concerned to avoid measures which would perhaps conflict with the carefully balanced provisions in recent education legislation which was so warmly welcomed by your Lordships. However, your Lordships will be aware that we propose to table a number of amendments which will quash any possible fears that by not covering education we are undermining the importance of education.
The 1993 Education Act established a new appeals mechanism and makes schools more accountable than ever by requiring them to report on their special educational needs policies. Our proposed amendment will build on those provisions and strengthen the hand of parents whose children do not have a "statement" when they are choosing a school.
Similarly, the Further and Higher Education Act 1992 established a comprehensive framework for meeting the requirements of students with disabilities. The further education funding councils are under a duty to take into account the needs of students with learning difficulties and disabilities and have demonstrated their commitment in this area. We have proposed amendments to strengthen the current legislation by requiring colleges to focus on how they meet the needs of students with disabilities and publish clear statements of their provisions in these areas. In higher education also we propose to seek a power which would enable higher education institutions to be required to provide more information on their policies towards students with disabilities, thus giving the funding councils the ability to assess the provision which exists in the sector.
Part III of the Bill further allows for arrangements to be made to provide advice and assistance to people, with a view to promoting the settlement of disputes arising under the new right of access to goods and services, and Part IV 805 of the Bill will create the national disability council. In making these provisions separate we have recognised that there are two distinct functions to be carried out.
First, we have recognised that disabled people will need advice on how they can secure their new rights. This is why we propose a national advice and support service—one that is accessible and knowledgeable and which will promote the resolution of disputes wherever possible before litigation becomes necessary. Should an acceptable solution not be reached, the support service will be able to provide advice on the redress available through the county courts. This service, however, will not be best placed to offer advice to government on measures relating to the elimination of discrimination, or to prepare the codes of practice, that disabled people and businesses will need to understand the new legislation.
The national disability council will fulfil this second requirement. It will be able to call on the experience and advice of its members, as well as consult other bodies either established to advise on disability, or able to provide specialist advice in a particular area. It will be able to request that research be undertaken, and the information collected by the advice and support service will be available for its consideration.
The work of the national disability council will be complemented by that of the National Advisory Council on the Employment of People with Disabilities who will continue to advise the Secretary of State for Employment on issues relating to employment. However, the national disability council has a much broader remit which will empower it to give advice to government, on its own initiative, on a very broad range of issues related to discrimination and to recommend the measures necessary to make further progress.
For example, if the national disability council were to find that disabled people were experiencing problems in obtaining their rights in a particular area, it could make recommendations to the Government about how these problems could be overcome. The flexibility provided in all parts of the Bill by regulation-making powers will allow the Government to tailor the legislation so that it works for disabled people, not only in the near future but in the long term as circumstances and technology change. This will mean that the national disability council has a vital role to play in ensuring that the legislation continues to meet the policy intention.
The national disability council will also be responsible for providing codes of practice giving guidance to disabled people and business on what is required by the legislation. This will be an important task. Given the wide-ranging nature of this legislation, the varied nature of the businesses covered, and the differing needs of people with particular disabilities, it will no doubt mean tackling a number of complex issues where practical, clear advice will be of great value to all concerned.
The national disability council will also be able to work with business, in the same way as the National Council on Disability in America does, and provide a lead in persuading industry to take account of, and provide for, the needs of disabled people. This would be particularly 806 useful in the area of accessible design and packaging of products which cannot be dealt with in rights-based legislation.
The national disability council will be a powerful voice for disabled people. At least half its members will be disabled people, or parents or guardians of people with disabilities. It will be able to provide influential policy advice and practical guidance in the form of codes of practice. The advice and support service will provide disabled people with local, accessible help. This two-pronged approach will prove the most effective way of ensuring that disabled people can secure their rights, that business understands and meets its responsibilities, and that the legislation achieves our aim of bringing an end to discrimination on the grounds of disability.
I have described the effect of the Disability Discrimination Bill at some length. Although I am grateful for noble Lords' patience, I make no apologies for the time I have taken in introducing what is the most comprehensive package ever to be brought forward by any government to tackle discrimination against disabled people. For the first time, it will be unlawful for employers to treat a disabled person less fairly; for the first time, disabled people will have a right not to be denied access to goods and services solely on the grounds of their disability; and a national disability council will be established to keep the issue of discrimination under review and to advise the Government. Only the churlish would dissent from the view that this Bill marks an historic advance for disabled people in this country—an advance which marks Britain out as a world leader in tackling discrimination.
The Government have set themselves one central objective—the elimination of discrimination against disabled people. That aim cannot be realised overnight, as disabled people themselves recognise. But the Disability Discrimination Bill marks the boldest move forward which any government have yet proposed.
§ Moved, That the Bill be now read a second time.—(Lord Mackay of Ardbrecknish.)
§ 3.28 p.m.
§ Baroness Hollis of Heigham
My Lords, I am sure that the entire House is grateful to the Minister for such a clear introduction to the Bill.
This is so nearly a good Bill. It is a Bill that was shaped by the events of last summer when, to thwart the Berry Civil Rights (Disabled Persons) Bill, the Minister got his friends to put down amendments for him, denying that they were his and then admitting that they were. Then, when they were accepted by the Bill's sponsor in order to get the Bill through, he talked out his own amendments in order to defeat the Bill. In the process, we lost a good Bill then and, sadly, we also lost a good Minister who had fought for disabled people when they did not have the support that they have today.
Such was the anger of Parliament and of disabled people that the Government finally conceded—after 13 years and 13 private measures—that education and persuasion were not enough. After consultation, they 807 brought forward this Bill. It is still not about rights due. It is, however—and this we appreciate—about ending wrongs done.
It is so nearly a good Bill. It makes it illegal, as the Minister said, for larger employers to discriminate unreasonably against disabled people when their disability is not relevant to the job. We do not ask that blind people become bus drivers. But we all know that three times the number of disabled people are likely to be unemployed and six times as many are denied an interview for a job. We all know of cases of discrimination. For instance, there was the woman with MS who took a fortnight off work because she was sick, and was sacked. She was sacked for having 'flu! We all know of employers who insist that a driving licence is essential for a desk job, or that the ability to walk long distances is essential for a professional job. Or we have heard of the hearing-impaired but skilful typist who failed her interview test because the interviewer insisted on dictating to her with his back to her so that she could not pass. These practices will not stop, but they will become illegal. No longer, under the goods and services provision, will pubs and cinemas refuse to admit, waiters refuse to serve, taxis refuse to pick up or insurance companies refuse to insure. Again, those practices will not stop; but they will be illegal. Therefore this is nearly a good Bill.
However, I suggest to noble Lords that the Bill is not good enough, and for three main reasons. First, it is unduly restrictive about whom it defines as disabled. Secondly, it is unduly lax about which organisations it exempts from conforming to the legislation. Thirdly, and above all, although the Bill has the power to make discrimination illegal, it has no power to prevent it because it lacks an enforcement agency.
Perhaps I may enlarge on those three points. First, the Bill is unduly restrictive in its definition of disability. The Minister very helpfully gave us the definition based on paragraph 1 of the first schedule. Under the Bill, a disability must be a long-term, clinically well-recognised condition that substantially and adversely affects day-to-day normal activities. In other words, if a person has a disability that falls outside the definition in the Bill, even though it gives rise to discrimination, there is no redress. Therefore courts will have to take difficult decisions about diagnosis, definition and prognosis. For example, a condition that is not medically so well recognised, such as ME, and, according to MIND, most mental disorders, will not fall within the law. A person who is discriminated against on those grounds will have no redress. Likewise, if a disability exists that gives rise to discrimination, but the person himself can manage his day-to-day activities—as, for example, in cases of controlled epilepsy, HIV, some forms of multiple sclerosis, or mild cerebral palsy—there will be no redress.
Equally, if a person does not have a disability but the employer incorrectly believes that he has had one, or has one—for example, a mental health problem—and he proceeds to discriminate against that person, there is no redress. If an employer is right in thinking that someone has a severe disability which under the terms of this Bill disables that person, he may not discriminate against him. But if someone has a disability that is not covered by this Bill, the employer may discriminate against that person. 808 If a person does not have a disability but the employer believes that he has, and discriminates against him, that person, too, has no protection.
Why is the definition of disability so narrow? It is narrower than it is in mental health legislation. Someone can be compulsorily sectioned on grounds of mental disorder which is nonetheless not regarded as a severe enough disability to merit protection under this legislation. Equally, someone can be awarded the new incapacity benefit, which is very restrictive, because that person is disabled. Yet if he sought work, he would not be regarded as sufficiently disabled to merit protection under the Bill. If someone has been sectioned in the past, or has been awarded invalidity or incapacity benefit in the past, and the employer discriminates against him, that person will have no redress. That definition excludes too many people. In Committee we shall hope for a more inclusive definition of disability.
The Bill is too restrictive in its definition of disability, and therefore in the grounds on which a person may seek protection against discrimination. But, secondly, it is also too lax in terms of the organisations that it exempts, and in particular firms that employ fewer than 20 people. As the Minister rightly said, small firms employ some 20 per cent. of the labour force. But they represent something like 96 per cent. of all businesses in this country. They are the fastest growing sector of the economy. In rural areas very few businesses employ more than 20 people. So in the countryside virtually no employer be required to come within the framework of this Bill.
Where does the figure of 20 per cent. come from? It is a hangover from the 3 per cent. quota system, under which 3 per cent. of a workforce represents less than one full-time employee. Yet that percentage has been imported unnecessarily into the Bill. Do we need it? No Member on any side of this House wants to see unacceptable burdens placed on small businesses which jeopardise their financial survival. Small businesses are our seed-bed of the future. Yet the American experience shows that the costs of making even small businesses accessible to disabled people are trivial. In the United States two-thirds of all companies were made fully accessible to disabled people at a cost of less than 500 dollars. But in any case, this Bill contains a crucial provision that the Minister was right to emphasise. For all businesses and organisations, including small businesses, any such adaptions must be done at reasonable expense. So any small business faced with a cost that was considerable or substantial would not have to carry out such adaptions. They do not need the belt-and-braces protection on grounds of both numbers and reasonable cost. Why, then, should the rights of a disabled person depend not on their disability but on who is their employer? In Committee, we shall seek to follow up the Government's hint to us about revising the figure and will try to bring it down to 15, or even 10, over a phased-in period.
As the Bill stands, therefore, it is nearly a good Bill. It protects some disabled people against some discrimination. But ultimately it is not good enough. I come now to my final criticism. We do not believe that it will work, because it contains no power that will make it work. It sets up no central authority to enforce it. The Bill will make 809 discrimination illegal, but it will not prevent it happening. It will forbid discrimination, but it will not end it. We have been here before. Some 200 years ago, Sir Robert Peel's father led the Conservative Party in trying to bring about protection for factory children. It took 30 years, 10 Bills and four Acts. Not until a factory inspectorate was appointed, were the provisions to protect such children enforced and the legislation made to stick. Law that is not enforced is not observed. Law that is not observed brings all law into disrepute.
For this legislation to be observed and enforced we need, in the words of the Employers Forum on Disability a single, central, authoritative body with statutory powers—and for three reasons. First, we need such a body because, without it, the Bill adds a second advisory council to an existing advisory council, and both will run in tandem, provided that they pedal in the same direction. We already have a national advisory council for the employment of disabled people reporting to the Secretary of State for Employment. It has fewer than three staff, and I suspect that most of us have never even heard of it. The national advisory council in the Bill will be a second advisory body, this time to the Secretary of State for Social Security, with a budget of £250,000 and five staff, for most of everything else, when even to administer the present quota system takes £2 million. So that means two bodies, both advisory, one for employment and one for everything else. As the Employers Forum on Disability says:This legislation must send a clear signal to employers that disability discrimination is just as important as race and gender and that they should manage it accordingly. It will be very difficult for such clear messages to be effectively delivered by two sets of civil servants reporting to two different Ministers, advised by two different councils, using two separate drafted codes of practice, enforced by two different legal authorities and supported by two different local advisory arrangements".Not surprisingly, says the Employers Forum on Disability, we need one central authoritative body, not two advisory councils. We need it not only for clarity but also for two other reasons.
Secondly, we need it for the sake of employers. Many of your Lordships will know far more about this matter than I do, but I hope that the House will agree that I present the employers' case fairly. Employers want to know what the law is, where they stand and what they must do to conform to the law. When, for example, the EOC investigated employment agencies, within five days 250 agencies telephoned, anxiously seeking to conform to the law. They did so quite voluntarily. Similarly, in this field, employers have made it clear—it is in their responses, summarised in the Government's Red Book and elsewhere—that they too want an independent impartial body with powers to give advice, information and guidance; powers to receive, investigate, conciliate and, if necessary, prosecute complaints; and with powers to initiate the test case—for example, on controlled epilepsy—so that we do not get a dozen cases being tested at the same time in a dozen different courts with perhaps a dozen conflicting outcomes.
Employers, we are told, do not want law by litigation. That is what this Bill will do. Employers want to know where they stand. That is why the CBI and virtually every 810 major company want the equivalent of a statutory commission. From the Bank of England to Boots to BT to Esso to Grand Met to GRE to ICI to Sainsbury's to Kingfisher to Marks & Spencer to Macdonald's to the Pru to Northern Electric to Shell to Unilever to W.H.Smith—they all want a statutory commission. They ask for it. On this side of the House we do not seek to impose it upon them against their wish. They want it. Disabled people want it. We want it. Only the Government so far are denying it. I hope that we can remedy that in Committee.
The third and final reason why we must have a central authoritative body with powers is on behalf of disabled people themselves. It is not just for employers and not just to clarify the law; but for disabled people. The Minister told us again today that disabled people will be able to enforce their employment rights through industrial tribunals and the rights to goods and services through the county courts. About whom are we talking? We are talking of a disabled person, who is perhaps solitary and isolated, not very fit and well, without a trade union behind him or the CAB (because it has washed its hands of this side of things), certainly poor, without a solicitor and without access to legal aid, pursuing a powerful employer through the legal system, knowing that, even if he has the moral strength to do it, he will in future never again get a job because he will be labelled as a troublemaker.
Is that what we want? Surely, disabled people, even more than women or ethnic minorities, need a strong friend—a commission, which can remove their personal need to fight through the courts and establish the clarity of a test case; a body whose very intervention can bring the conciliation which we should all prefer and which would discourage frivolous claims. Why should disabled people have less power to enforce their rights and less power to obtain their due than any woman or any member of an ethnic minority? On simple grounds of fairness and decency, they are entitled to a commission.
Without such a body the Bill will not work. It will outlaw discrimination but it will not stop it happening. It will offer to disabled people rights which cannot be enforced. It will impose duties on employers and traders which are not enforceable.
Many years ago, Martin Luther King said:Reality cannot be legislated, but behaviour can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless".Yes, but it will only happen if the Bill has a commission to enforce it. That will be for your Lordships to decide over the course of the Committee and Report stages. If so, we can send from this House a Bill of which we are all rightly proud. In the process we shall have made a Bill which is nearly good enough into a Bill which is truly good enough and which brings credit and honour to us all.
§ 3.45 p.m.
§ Lord Lester of Herne Hill
My Lords, my noble friend Lord Addington has asked me to express his regret that he is unable to take part in this debate on a subject in which he takes a keen interest. He has a complete alibi. I believe that he is playing rugby football in South Africa.
811 Like the noble Lord the Minister, I pay tribute to the Members of this House who campaigned long and hard for effective legislation on this subject. We on these Benches warmly welcome the Government's recognition, however belated, of the need for legislation to tackle discrimination against disabled people so as to enable them to play a full part in national life and fulfil their individual talents. The effective legal protection of the fundamental human rights to equal treatment on personal merit without unfair discrimination on any ground is a central part of our commitment to liberal democracy. The disabled surely deserve the strong legal protection that Parliament has given to the victims of other forms of unfair discrimination so that they too may live and work in dignity without being unfairly handicapped by practices and procedures which disable them still more.
Most regrettably, however, although we enthusiastically support the Bill's declared aims, we can only give a small cheer for this measure. I hope that the Minister, when he has heard me, will not regard my speech as churlish. The reason why we can only give a small cheer is because of the narrowly restrictive, obscure and legalistic way in which the Bill has been drafted and the impracticality of its key clauses.
I shall do my best, lawyer though I am, to explain in non-technical and non-legalistic language something of what is wrong with the Bill. To put it in a nutshell, first, the key definition of what constitutes unlawful disability discrimination is very narrow and outmoded. Crucial issues about what is and what is not unlawful discrimination are left to be decided by Ministers, without effective parliamentary scrutiny—a matter on which we await with interest a report from the Select Committee for the scrutiny of delegated legislation. The Bill will be immensely difficult to interpret and apply, whether by the disabled, or by employers and others on whom the Bill places legal obligations. The well established body of case law, so carefully built up for 20 years under the sex discrimination, race relations and Northern Ireland fair employment legislation, will be of little help because this Bill introduces cumbersome concepts that are alien to our existing well tried code of anti-discrimination law. The enforcement of the Bill's provisions, as the noble Baroness, Lady Hollis, pointed out, will be as weak as water because the national disability council will lack the necessary minimum powers that Parliament has already given to the equal opportunities commissions, the Commission for Racial Equality and the Fair Employment Commission for Northern Ireland. If the Bill is enacted in this form, I am sorry to say that the victims of disability discrimination will therefore be much less effectively protected than the victims of discrimination on grounds of sex, race, religion or political opinion.
The principles on which anti-discrimination laws have been built in this country—and in Australia, Canada, New Zealand and the United States as well as under European and international law—are widely recognised. The first principle is that the concept of unfair discrimination must cover not only cases in which the discriminator is badly motivated but also cases in which the discriminator is well motivated but where the effects of his practices have a disproportionate adverse impact on particular groups and have no objective justification. That is the key concept of 812 indirect discrimination which has been included in our laws tackling sex and race discrimination for 20 years. It was a Conservative Government who added that concept of indirect discrimination in the Northern Ireland fair employment legislation in 1989, to tackle religious and political discrimination. The concept of indirect discrimination is also included, for example, in Australian legislation following from our own British statutes.
Unfortunately, the definition of unlawful discrimination, both direct and indirect, is much narrower in this Bill than in our existing laws. The meaning of "discrimination" in Clause 4 is confined to cases where an employer treats someone less favourably for a reason which relates to the disabled person's actual disability, which is narrowly defined in Clause 1. It does not cover the common example where an employer treats someone less favourably, not for a reason which relates to actual disability but because the employer wrongly assumes that that individual is disabled and therefore not suitable for the job. That is one way in which the concept of discrimination is too narrow. A black person or a woman is protected against discrimination based on characteristics attributed to them on the basis of broad stereotypes or generalisations. But under this Bill a disabled person can complain only of discrimination relating to actual rather than assumed disability—what the Minister referred to as a "reputation" for disablement; a reputation that may be entirely unjustified and which would be entirely unfair to act upon.
Clause 5 also marks a major departure from our existing legislative code by introducing the curious concept of justifiable direct discrimination which focuses on the employer's state of mind—that is, his opinion that one or more of the conditions mentioned in Clause 5(4) are satisfied and on whether it is reasonable for the employer to hold that opinion. By contrast, existing legislation does not focus on the employer's state of mind. It forbids less favourable treatment whenever an individual's sex, race, political opinion or religious belief has significantly influenced the employer's decision as a matter of objective causation and however worthy the employer's intentions. That was established in the case law of this House in the Equal Opportunities Commission v. Birmingham City Council case, reaffirmed in James v. Eastleigh Borough Council.
Those and other radical departures from the existing anti-discrimination code are certain to give rise to costly and protracted litigation and much avoidable uncertainty. That would be for the benefit of no one except some members of my profession—the legal profession—for whom this will truly be a disability litigation Bill of immense advantage.
Clause 5 also departs from the existing legislative code by excluding the usual and widely recognised definition of indirect discrimination—the equal rule with unequal impact or effect such as a height requirement which is not necessary to enable an employee to do the job, and which hits disproportionately at women or Asian workers. What the Bill does instead is convoluted and weak. One needs more than algorithmic diagrams to find a way through this bewildering maze. The Bill creates a duty under Clause 6 for employers to make adjustments to their arrangements and premises which would place disabled people at a 813 substantial disadvantage in comparison with those who are not disabled. That rightly recognises the need to tackle the major problems of indirect discrimination against the disabled.
Clause 6(5) then immediately creates an exception where the employer does not know, and could not reasonably be expected to know, that the complainant has a disability and is likely to be placed at a substantial disadvantage by the employer's arrangements or premises. Once again the state of the employer's mind is brought into the Bill by way of defence when the whole point about the concept of unlawful indirect discrimination, learnt 20 years ago, is that it is designed objectively to tackle practices, procedures and systems which have been designed and operated from the best of motives, but which unintentionally put groups of people at a substantial disadvantage and which are not objectively justifiable.
Another basic and universally recognised concept of discrimination law is that all exceptions to the principle of equal treatment should be kept to the minimum necessary to avoid undermining the principle itself. That has been repeatedly put into our existing laws, which are usually—not always, but usually—careful to define the circumstances in which what would otherwise be unlawful direct discrimination, is not unlawful; for example, an exception because an individual's gender is a genuine occupational qualification for a specific job because of the job's essential nature.
By contrast, this Bill embodies a series of sweepingly broad absolute exceptions; for example, for employers with fewer than 20 employees, for prison officers or for firefighters. Those blanket exceptions make it unnecessary for employers to ensure that they look closely at the physical and mental requirements needed for specific jobs—the touchstone of any anti-discrimination law worthy of the name.
The Bill is riddled with vague, slippery and elusive exceptions making it so full of holes that it is more like a colander than a binding code. Suppose, for example, that a disabled person is treated less favourably by the employer than others without that disability. To decide whether the employer acted unlawfully we must discover whether he failed to comply with the duty imposed on him by Clause 6. That provision contains examples of steps which an employer may have to take in relation to a disabled person to comply with the employer's statutory duty. However, the employer is under no duty if he falls within Clause 6(5). The circumstances in which an employer may or may not be in breach of duty are not to be found on the face of the Bill, but are to be prescribed by regulations under Clauses 6(7), 6(8) and 6(9) subject only to parliamentary approval by negative procedure. If the employer is found to be under a duty imposed by Clause 6, then the next question which must be asked under Clause 5(2) is whether he has complied with the duty. If he has not complied, then the tribunal has to determine whether it would have been reasonable for the employer to believe, at the time of the treatment in question, that even if he had done so the treatment would have been justified.
814 The search for a practical and foreseeable answer to that hypothetical question is indeed a daunting task. The unfortunate complainant who has recourse to law will find that this is a game of snakes and ladders with plenty of snakes and very few ladders. Nor is that all. In deciding whether the treatment would have been justified, the tribunal will have to consider the four conditions mentioned in Clause 5(4). But, under Clause 5(5), regulations may again be made providing for other circumstances in which an employer is to be taken to be justified in treating a disabled person less favourably. Once more those regulations are subject only to negative procedure.
If the employer is not in breach of the Clause 6 duty, then the employer has a defence under Clause 5(1), if he reasonably believed that one or more of the conditions in Clause 5(4) were satisfied. I agree with the Minister that employers are entitled to know what is expected of them: to reasonable legal certainty. I feel great sympathy both for employers and for disabled people because they simply will not be able reasonably to foresee in what circumstances there will or will not be legal liability when they gaze into these opaque obscure clauses. I also have great sympathy for the tribunals and the courts which are meant somehow to make sense of this inaccessible and indigestible verbiage.
I have referred only to the employment provisions, but what I have said applies equally to other areas dealt with in Part III. Before the tribunal or court decides whether a complainant is the victim of unlawful discrimination in employment or elsewhere, it must first decide that he or she is a disabled person within the crabbed definition in Clause 1, read with the morass of technical detail in Schedule 1.
For that purpose Clause 2(3) requires the tribunal or court to take into account any relevant guidance issued by the Minister about whether an impairment has a substantial adverse effect on someone's ability to carry out normal day-to-day activities, or whether such an impairment has a long-term effect. The guidance may therefore have a quite crucial influence on whether the complainant has any basis for bringing a complaint at all; yet the Government have decided—I know of no precedent for this whatever—that no parliamentary approval is needed for this legally relevant guidance, not even by means of negative procedure. All that Clause 2 requires is that the Secretary of State must consult whoever he likes, and that he lays a copy of any guidance issued before this House and another place. Because the guidance is not legislation, it is not even referred to in the memorandum which the Government have given to the Select Committee on the Scrutiny of Delegated Powers. It is not legislation, but it will have important legal consequences.
Twenty years ago, the government of the day were much more respectful of ministerial accountability to Parliament and of the need to ensure that the process of law-making complied with the law and conventions of the constitution. The Sex Discrimination and Race Relations Acts, to whose fashioning I am proud to have contributed, required the Secretary of State not only to consult the EOC and the CRE but also to proceed by way of 815 affirmative procedure before amending key exception clauses. We at that time properly respected the principles of legal certainty and of the rule of law.
I agree with the trenchant criticism made by the noble Baroness, Lady Hollis, about the absence of any enforcement agency similar to the EOC, the CRE or the Fair Employment Commission for Northern Ireland. The national disability council will be a pathetically powerless quango, not worth setting up in my view. Unlike the existing commissions, it will not be able to investigate individual complaints or give legal advice and other assistance to individual complainants in test cases or where they are specially vulnerable. The council will not he able to investigate suspected unlawful practices and procedures, to issue non-discrimination notices or bring enforcement proceedings.
The council will have only two functions: advising the Secretary of State and, if asked by him, preparing draft codes of practice. This quango will have no teeth, and even its freedom to advise is quite extraordinarily to be fettered. It is to advise only the Secretary of State—not Parliament and not the public—and, for reasons that wholly escape me, Clause 23(9) forbids the council to advise on its own initiative on whether specified existing measures are likely to reduce or eliminate discrimination against the disabled. I can only assume—I hope that this is not an unworthy thought—that the Government fear the advice which even this attenuated and diminutive body is likely to give on this important subject and must therefore ask Parliament to prevent the council from giving such unwelcome advice.
I recognise that it would be unrealistic for the House to refuse to give this measure a Second Reading and to ask the Government to come back with something closer to the admirable Civil Rights (Disabled Persons) (No.2) Bill introduced by the noble and indefatigable Lord, Lord Ashley of Stoke, almost a year ago. I think that the present Bill is very seriously flawed, but its defects could be cured by appropriate amendments. I very much hope that the Government will listen with an open mind to constructive proposals to improve the Bill, so that it becomes readily intelligible, workable and reasonably certain in its operation, and so that it is able to be enforced in practice for the benefit of the whole of our society.