§ 4.58 p.m.
§ Second Reading debate resumed.
§ The Lord Bishop of St. Edmundsbury and Ipswich
My Lords, one of the many groups which exist for the support of disabled people, and largely consisting of disabled people, is CHAD which stands for Church Action on Disability. It is an ecumenical and also an educational group. CHAD publishes a leaflet which spells out in sketch form various people suffering from different disabilities which we can ourselves imagine and identify. The leaflet's caption reads:Join us in ensuring that no one in your congregation is handicapped".831 It draws the neat distinction between disability and handicap. The disabled have enough difficulty coping with the problems which life has dealt out to them without having to contend with the handicaps which society deals out to them.
It is, therefore, with great warmth that I also welcome the Bill. I congratulate the Government on the work that has been done on bringing the legislation this far. Any criticisms which I may make of the Bill as it stands at present are only intended, I hope, to improve the Bill and to make it effective.
I wish to focus on four areas in the Bill as it stands. The first is education. I realise that there are arguments for excluding education from the Bill. However, I do not understand the power of those arguments, particularly when one bears in mind—if Scope's figures are correct—that 65 per cent. of primary schools and 55 per cent. of secondary schools have no suitable toilets for disabled students. That hardly seems to me to bear out a view that nothing at the moment needs to be inserted in the Bill on educational grounds. However, my concern about education goes wider than that.
If one sets aside the small percentage of those who discriminate against others on sadistic grounds, discrimination by and large is due to ignorance and to a lack of social awareness and social knowledge. The education field is, above all, the field where citizens of this country are able to sit, work and study alongside other citizens of this country who suffer from various disabilities. My own two boys were educated, at primary level, at a school which had a firm policy of accepting one, if not two, children suffering from a disability in each class. The children who were disabled benefited from that, and so did the children who were not. To sit alongside and to work alongside disabled students and to realise that it is the student who is sitting beside one who one addresses and not the person who pushes the wheelchair, and that when the student beside one inadvertently dribbles one's reaction is not to withdraw in horror but to move forward with respect, and to offer care and support, is something which has borne fruit in my own sons and in many other students who attended that school.
I believe that the Government should be striving vigorously to include education in the categories referred to in the Bill in order to ensure that that wider element of education is right to the forefront. If that is a valid argument for education, it is also a valid argument for the second point I wish to stress, and that is the power of the controlling body. I do not mind whether it is called a council or a commission; what I care about is whether it has teeth. I do not believe that at the moment it has. One of the teeth which it has to have must be education. To bring a test case, as our commissions can, is of great significance to everyone, and not only to those who are involved in the test case. It is an educational experience which draws attention to a need and has widespread effects beyond itself. I would therefore support the argument that we have already heard; namely, that we need a body with more power, which is more able to be pro-active and which is more able to effect what I believe to be the main intention of the Bill. I have doubts at the moment whether that can be implemented in practice.
832 My other two concerns relate, first, to the definition. I appreciate that to define "disability" is a difficult task as this is a difficult area. I am glad that I am not a lawyer who has to do that. However, I believe that the definition at the moment is too restrictive. In his introduction the noble Lord, Lord Mackay of Ardbrecknish, said that people with a reputation for disability are not disabled. That, clearly, is true on occasion. However, what is also true is that those people so identified are discriminated against. I believe that we must place more stress on discrimination as well as on disability.
My other point relates to the position of firms which employ fewer than 20 people. I am a rural Bishop and my diocese is the county of Suffolk. If, at the moment, 96 per cent. of firms nationwide are to be excluded by the Bill from the provision we have discussed, I would guess that a figure more like 99 per cent. of firms in rural areas would be excluded. That seems to me to be quite intolerable. I understand the Government's concern that small businesses should not have undue impositions placed upon them but the figures I have show that 60 per cent. of firms who employ fewer than 10 people already employ a disabled person. If that is so, or even if the figures are anything like that, I believe that the Government's caution on this matter is misplaced.
My concern—and I am sure this is the concern of the House—is that this Bill, which is admirable in many ways, should be able to be implemented and to bring forth the fruits that we all desire. That is why I wish to return to the point that I made at the beginning of my speech but from another angle. Frances Young is an academic and a theologian; she is also the mother of a severely handicapped son. In her book Face to Face, which she wrote when the terms that were used were rather different and the word "handicapped" was used of people rather than of the pressures under which they are put, she stated,Handicapped people remind us that life is not all go-getting and individual achievement. There are more fundamental human values. Handicap demands mutual support, a sense of communal sharing. Handicap fosters compassion and helpfulness, care and concern. It challenges our selfishness and our ambition and sectional loyalties. Society needs handicap".
§ 5.6 p.m.
Lord Campbell of Croy
My Lords, I should like to thank my noble friend the Minister for the clear manner in which he introduced this Bill. The House will know that I welcome the Government's initiative because I made that clear in the debate which I initiated on 14th December last on disablement. That should have been no surprise to your Lordships as I have consistently over the past 30 years in both Houses of Parliament expressed the opinion that this is a subject so wide and complex that the resources of government departments are needed to provide workable and effective measures.
I was advocating this when I was speaking on Private Members' Bills, including two of my own, one introduced in each House. The noble Baroness, Lady Hollis, referred to the past 13 years. I was successful in a ballot in another place in 1968 and introduced a Private Member's Bill then. I cannot refrain from adding—noble Lords opposite will expect me to say this—that it was voted down at Second Reading with a Government Whip applied. The 833 Government was a Labour Government. That was a stark illustration that successive governments have always found it difficult to accept proposals, however mild. That Bill of mine was extremely mild and inexpensive.
Governments have also found it difficult to formulate legislation of their own. I recall that my second Bill went through all its stages in this House in the mid-1980s. I applaud—and I feel I am entitled to applaud most loudly —what the Government have now undertaken. As I had hoped, the Bill largely depends on reasonableness. Reasonable adjustments are to be the aim. In the equivalent American legislation—Americans with Disabilities Act—the words "reasonable accommodations" are used; but in both the British and American legislation the intention clearly is to avoid unnecessary confrontations and to reduce litigation to a minimum. I hope in that respect the apprehensions expressed by the noble Lord, Lord Lester of Herne Hill, can be allayed in the course of the Bill or by any changes that are made. In his speech he demonstrated how complicated legislation on discrimination in this field has to be, including definitions. Of course definitions were much easier in the cases of gender and race. No doubt that was one of the factors which made it so difficult in the past for governments to introduce a Bill of this kind.
I turn to Part II of the Bill, on employment. As my noble friend said, the quota scheme had become unworkable. A 3 per cent. quota was impossible to implement when only about 1 per cent. of the working population were registered as disabled. Either the registration system had to be radically changed or it had to be replaced. The 1944 Act, which introduced the quota system 50 years ago, was intended for the war disabled, most of whom were in their twenties. I was one of them. They are now past the retirement age, so the original purpose of the quota scheme no longer exists.
The 3 per cent. quota did not apply to establishments employing fewer than 20 people. That was because unreal situations would have arisen and small firms would have been expected to employ 0.6 or 0.3 of a person.
With the new system, it seems a pity to retain that exemption for small firms as proposed, although the numbers employed by those smaller firms is only 15 per cent. of the workforce. Of course we must not impose crippling financial burdens on smaller firms, which are important sources of new jobs. However, could not the provisions requiring reasonable solutions which occur throughout the Bill take into account the difficulties of an individual small firm so that it is not expected, in certain circumstances, to do exactly the same as a large firm? I should have thought that that was part of the reasonableness that we hope will be the basis of the Bill.
As the smaller firms were not included in the quota system, I believe that the application of the Bill to small firms should be phased in rather than brought in at the outset. They have not been used to a quota system. I was glad to hear my noble friend say that in any event it was intended to review the position after five years.
Because there is a power in the Bill to reduce the figure of 20 by regulation, it is my hope that there will be a gradual reduction and eventually we shall reach the figure nought. Incidentally, the CBI and the Employers Forum 834 on Disability are both in favour of small firms being included in the Bill, but again with enough time given to allow them to adjust to the new system.
I also believe that, outside the Bill, the Government could introduce or encourage achievement awards for small firms, rather like export awards. Those who succeed in employing disabled people after making special arrangements would receive an award. That would win them prestige in their own local areas.
I now turn to Part III of the Bill relating to goods and services. Many more disabled people will be affected by this part of the Bill than by Part II, which relates to employment. The provisions relating to employment apply to disabled people of working age, from 16 to retirement. Therefore, we ought to consider the numbers affected by the Bill as a whole. The 1991 census provided the most valuable information so far, including the figure, which has been quoted often, of 6.5 million disabled people. That is the total, covering every kind and degree of disability from slight disablement to those who are completely incapacitated. One in nine of our population is in that category of disabled.
However, over 5 million of the 6.5 million are past retirement age. Most were not disabled in earlier life. The population is steadily getting older and we shall have a larger percentage of our population in the upper age brackets as the years go by. Disabilities which arrive with old age must be included in measures for goods and services, as for the younger disabled. Therefore, we are dealing with a much larger proportion of the population than with Part II of the Bill.
In contemplating the figure of 6.5 million it is worth noting that the estimate of people permanently in wheelchairs is half-a-million, which is one in 112 of the population. To summarise, one in nine of the entire population is estimated to have some form of disability, if only slight, and one in 112 of the population is a regular user of wheelchairs. Those figures help to clarify the size and nature of the problems which will arise under the Bill.
I am glad that there is emphasis in the Bill on the availability of advice, both to disabled people and employers, on the interpretation of the new system and its translation into action and expenditure. There appears to be a gap in relation to advice to disabled people on goods and services under Part III. I understand that the Government had hoped that the citizens advice bureaux offices would accept that role, with increased subsidy. I also understand that the CABs have declined to accept that role. In that case, where will the disabled person, especially the elderly disabled person, be expected to turn for advice on Part III of the Bill?
I have another question which I hope my noble friend will be able to answer today. It is not clear how much of the new system the proposed national council will be concerned with. It seems from Clause 23(2) that the council can offer advice on its own initiative on any matter relative to discrimination or arising from the Bill when it is enacted. However, there is a rumour that the council will not be expected to advise on Part II relating to employment or will be limited in that field. I shall be grateful for clarification about that point and on whether there are other areas of the Bill which will be outside the council's remit.
835 Having been raising this subject in Parliament for the past 35 years, it would be churlish of me not to applaud the Government warmly for tackling this very difficult task. I entered another place in 1959, several years before some other fellow campaigners were elected and became Members. Being war-disabled myself, I became acutely aware in the early 1960s that many disabled people in the country who were disabled from other causes were being overlooked and were not then properly provided for in our social security system. There have been many changes, and the introduction of allowances and benefits, since then.
I strongly support the Bill, looking forward to the promised government amendments which it was announced in another place would be introduced here, and also to other possible additions and improvements to the Bill.
§ 5.18 p.m.
§ Baroness Lockwood
My Lords, I too welcome the Bill. I welcome the sympathetic way in which the Minister introduced it. I do so because it signifies how far we have come not only in the 35 years during which the noble Lord, Lord Campbell of Croy, has been campaigning but also since 1992 when I first introduced into this House the Civil Rights (Disabled Persons) (No. 2) Bill. At that time, and even last year when my noble friend Lord Ashley introduced a similar Bill, the Government were not convinced of the need for comprehensive anti-discrimination legislation. They thought that only specific and targeted legislation would assist progress. We have had an indication in the Minister's speech this afternoon that the Government are still thinking in terms of targeted legislation, but at least they have acknowledged the need for a comprehensive Bill.
The fact that we have made such progress is, I believe, due to the determination and persistence of disabled people themselves who through their appropriate organisations have campaigned energetically for such legislation. I should like to pay tribute to them for that. However, I share their disappointment that the Bill does not go far enough. What people with a disability want is the right not to be discriminated against because of that disability, the right to be socially accepted, the right to be able to lead a full and active life within the constraints of their disability, and a proper framework to ensure that those rights are realised. We have to ask whether the Bill provides that. I rather fear that the answer is no.
The organisations representing disabled people are asking for a number of changes, many of which have been referred to this afternoon. They are concerned about the narrow definition of disability, the absence from the Bill of provisions relating to education and transport, the exemption regarding small employers employing under 20 people, and the absence of a commission with real power. I, too, am concerned about that matter; I wish to come back to it in a moment. I am also concerned that there is not a proper reference to and definition in the Bill of direct and indirect discrimination. I suggest that such a reference would make unnecessary many of the complicated clauses to which the noble Lord, Lord Lester of Herne Hill, referred. That would also eliminate the 836 need for many of the regulations which the Minister proposes to introduce. I hope that we shall return to the issue at a later stage.
At Committee and Report stages, we shall refer to the amendments which the Government propose to make. However, to date the Government have indicated no recognition of the inadequacy of their proposals in the establishment of a disability council with powers. I believe that that issue is absolutely crucial to the whole success of the legislation. I say that on the basis of my experience as the first chairman of the Equal Opportunities Commission relating to the Sex Discrimination Act. During the first year of the EOC's life—indeed during the first few months—we were absolutely overwhelmed by something like 10,000 complaints from individuals who wanted help and advice on what they felt was sex discrimination. That soon made the commission realise that there was a real need to establish priorities—in terms of testing the extent of the Bill and the application of indirect discrimination, and in trying to establish equal opportunity policies.
The Government claim that there is a difference between discrimination on grounds of disability and discrimination on the grounds of sex and race. They state as one of the reasons that there are so many different forms of disability. That, of course, is quite true. However, I draw the opposite conclusion. The complexity of the issues underlines the need for a central body responsible for administering and enforcing the law, and employing a central strategic approach to enforcement and promotion of equal opportunities.
This is a complicated Bill. I believe that we need a simple and clear mechanism for ensuring, first, that individuals can obtain their rights under the law; and, secondly, that employers and providers of facilities and services are assisted in understanding their responsibilities and safeguards.
What the Minister outlined this afternoon about the various organisations and mechanisms available provides a complicated picture, with divided responsibility instead of responsibility lying with one authority to undertake enforcement and interpretation.
I hope that we shall put forward amendments which will provide some of the following. First, we need to establish an independent statutory commission resourced by the Government as are commissions such as the EOC and the CRE. Secondly, we need a commission able to advise and financially assist key cases. We do not want the tribunals clogged up with individual cases. I am not sure that the tribunals would be so clogged up because unless there is a body which is responsible for helping and advising individuals, very few cases will come through. But we do not want to duplicate cases. I suggest that we need to identify key cases which will establish certain trends so that the commission can give authoritative advice both to applicants and respondents who seek help under the Bill.
Thirdly, we need a commission with powers to take action against persistent offenders. Again, I believe that we can turn to the experience of the CRE and the EOC to demonstrate that one cannot do everything through individual cases. It is a slow, long process. Once a type of 837 discrimination has been established, it is important to have a body which ensures that a range of such cases is dealt with.
Fourthly, we need a commission able to operate in all areas of the Bill. That is the point raised by the noble Lord, Lord Campbell of Croy. For the life of me, I cannot understand why the Government propose—it is how I understand the Bill—that Part II of the Bill (relating to employment) should be excluded from the scope of the disability council. Access to employment is absolutely fundamental to an independent life for disabled people. It is one of the most important areas of the Bill and certainly needs to come within the ambit of a commission or a council.
Fifthly, I envisage the need for a commission able to draw up codes of practice on the basis of experience that it has acquired. I fail to see why it is necessary for the Secretary of State to have to advise the commission to draw up codes of practice. That surely should be the commission's own responsibility. Finally, I see the need for a commission able to advise on good practice in the whole area covered by the Bill, through educational activities and publicity. That is crucial to a successful Bill.
What do we have instead of an independent commission? We have a proposed council which it seems to me will be responsible only to the Secretary of State. It appears that it will have little or no responsibility in the crucial area of employment. That will not help anyone.
I fear that if we are not careful, we will be on the way to passing a law which will not be enforced. Like the 3 per cent. employment quota of the 1944 Act, it will be observed more in the breach than in the implementation. That is not what the 6 million disabled people in the country are asking for. Having gone thus far and achieved general agreement on the need for a comprehensive Bill, I hope that we shall be able to proceed through the next stages with co-operation on all sides in strengthening the Bill and making it the kind of legislation for which disabled people ask.
§ 5.31 p.m.
§ Lord Rix
My Lords, like certain noble Lords, not forgetting disabled people themselves and their organisations, as well as other voluntary bodies, including MENCAP—and here I must declare a personal interest as that body's chairman—I welcome the Bill. Those of us who optimistically hung an empty pillowcase at the end of the bed on Christmas Eve and found, when we woke, only a full stocking instead, were still pleased but anxious for more.
The Bill represents a significant shift on the part of Her Majesty's Government in regard to discrimination about disabled people. Your Lordships' House has signalled its support for anti-discrimination measures on more than one occasion. Many noble Lords were at the forefront of the public outcry last year when the Civil Rights (Disabled Persons) Bill was talked out in another place. It is therefore both welcome and encouraging to have the opportunity to debate a Bill brought before your Lordships' House by the Government, in recognition of 838 the case made so passionately by disabled people and their organisations, sometimes disparagingly dismissed as the "disability lobby".
MENCAP is one such organisation, for and increasingly of disabled people. MENCAP was founded in 1946 to campaign for people with learning disabilities and their families. Over the years, that has involved pressing successive governments for legislation in the areas of social security benefits, education, housing, employment and the establishment of a wide range of services enabling people with learning disabilities to live decent lives in the community as full citizens. We have become convinced, however, that true citizenship cannot be achieved without some form of civil rights legislation. Getting an education, a home of one's own, perhaps a job—those crucial steps in achieving independence and self-respect—are wholly undermined if society still permits a person to be denied access to public services and facilities because of his or her disability.
Let me be clear, this is not a debate about bedtime theories or about laws to be invoked on the odd occasion. Discrimination is a live, daily issue for people with learning disabilities. Last month, MENCAP was contacted by a Rotherham man who had tried to visit his local pub with two friends. The landlord refused to serve them because they have learning disabilities. He said, "We've had trouble with mental people before". Just this morning I was told about a man with learning disability who lives alone in a council flat in central London. He loves his home and is very proud to have achieved independence, but he is terrified. The teenagers who live nearby are conducting a campaign of intimidation against him because of his appearance and because he is vulnerable. They bang on his windows at all hours of the night, snatch letters from his hand and tear them up, leave bikes piled across his door so that he cannot get into his flat. The housing department and the police express sympathy but say they can do nothing unless he is hurt. This is simply not acceptable in 1995. I am delighted that discrimination is at last becoming a matter of law rather than opinion.
I do not, however, wish to give the impression that the Bill, even with the concessions thus far announced, goes as far as we in your Lordships' House wish, or as far as disabled people need if they are truly to benefit from these measures. Indeed, I was afforded the courtesy of a meeting with the Minister some two weeks ago, to make him aware of my concerns about a number of shortcomings in the Bill—areas where I hope it might be possible for the Government to rethink their position. It was strangely apposite that the noble Lord, Lord Mackay of Ardbrecknish, learning that I was to visit the Ardnamurchan peninsula in western Scotland, advised that I visit the Sea Fish Industry Authority's experimental station at Ardtoe. This I did, and most valuable research is being performed by that government agency, to make it possible to farm white fish—namely, halibut—to put an end to all our Spanish problems. Unfortunately, there is one small difficulty: the fish can be successfully spawned, but if they are not fed a special diet of enriched plankton they remain black and white for the rest of their lives. Their natural sandy colour is denied them, although in all other respects they are as other halibut.
839 It seems to me that the Government's sea fish agency in Ardtoe, in failing to provide the fish with some essential ingredients, is rather akin to the Government themselves in not including in the Disability Discrimination Bill those ingredients which would guarantee disabled people genuine equality.
Let me highlight some of the missing component parts. In so doing, I must stress that I have consulted not only MENCAP but a distinguished campaigner with a learning disability herself, Miss Simone Aspis, who briefed me very thoroughly. I begin with employment. In common with other disability organisations, MENCAP recognises the shortcomings of the quota scheme. But, contrary to other speakers in your Lordships' House, I have to point out that MENCAP's Pathway Employment Service is able to make use of the quota, and we are not wholly averse to the positive discrimination that the quota implies. It has been a way of getting through the door of companies who had never considered employing staff with learning disabilities. There will be a huge task involved in informing employers about the new framework, the principles of reasonable adjustment and so on. From our point of view, an awful lot depends on the code of practice which we have not yet seen. Would it not make sense to leave the quota in place until the new system has bedded in? Even if that were only for a transitional period of perhaps a year, it would create a breathing space for the Department of Employment and employers' organisations to disseminate information so that employers can update their recruitment policies and, if necessary, retrain key staff in recruitment practice. Clearly, what none of us wants to see in the early years of this legislation is disabled people meeting confusion and bad practice when applying for jobs and losing rather than gaining from the changes.
It was at this stage of my speech that I was going to apologise to your Lordships for the fact that I had to leave early this evening to attend a function hosted by a large—a very large—company which has been and, we hope, will continue to be most helpful to the charity with which I am closely associated. However, such is the importance of this debate that I have notified my host that I shall be somewhat late in arriving. I am sure that he will understand, reflecting the fact that a great number of major companies are understanding and helpful to disabled people, as well as voluntary organisations. The Bill will make them even more aware of their responsibilities.
But why, then, should small companies be excluded? Many of them, too, would—indeed do—co-operate most willingly if encouraged just a little more. There is no logic in the exclusion of small firms from the Bill and no logic in fixing the magic number of 20—although I welcome the promised review. The figure 20, as we have heard, is an unfortunate hangover from the 1944 Act. It was an absurdity even in those days. I notice that the CBI agrees, too, and is more nervous about starting with this limit than removing it. A financial cap on making adaptations, and additional help from Access to Work, seems to be an eminently more reasonable approach than head-counting the workforce. There are people with learning disabilities whose employers would incur no additional costs; but this 840 arbitrary exclusion will allow small firms legally to turn them away without even considering their applications. It makes no sense whatever.
Secondly, I hope that we shall have an opportunity during the later stages of the Bill to consider the question of insurance services. MENCAP has been concerned for some years about discrimination in insurance. We established our own insurance company—at arm's length of course—because of the difficulties reported by so many of our members and by local groups. We came across companies that simply refused to cover the member of the family who had a learning disability; others wanted to charge ridiculously high premiums because of some perceived, but unproven, extra risk; and one told a family, "We don't cover mental handicap, but come back when she's better". I do not dispute the need for insurance companies to continue to be able to differentiate on the basis of risk; that is, after all, the key principle of insurance. But the many complaints received from people with learning disabilities and from their families suggest that insurance companies have no objective data about learning disability and therefore make judgments on the basis of ignorance and prejudice.
Finally, I want to address the crucial (question of the enforcement of this legislation. I know that there has been much debate about the relative merits of the proposed national disability council as against the disability rights commission set out in the Civil Rights (Disabled Persons) Bill. Personally, I am not too concerned about the title or the exact structure of whatever body results. I am concerned that disabled people should have an effective method of seeking remedy under this legislation. I note that the official Opposition and the CBI share some common ground on setting up a commission, and I trust that the Opposition will offer appropriate undertakings about their own plans. The council that the Government have proposed can be strengthened—indeed it must be strengthened—on its way to becoming what so many want. I am encouraged by the recent suggestion that legal aid may, after all, be extended to industrial tribunals. But clearly that is not the entire solution. People with learning disability in particular will find it difficult to make complaints, fill out paper work, make representations about discrimination unless the system is clearly geared to their needs and high-quality independent advice is available. I hope that a clearer picture of the Government's plans for promoting and funding that advice will soon be vouchsafed.
We have heard that two vital components of the Bill; namely, transport and education, will be addressed during its passage through this House; and no doubt we shall look closely at what is proposed. After its return to another place, I gather that Royal Assent is likely to be forthcoming in the autumn. That will be a great moment in the history of our approach to disabled people. That history depends now to some extent on your Lordships: a footnote to history or a whole chapter. I am not alone in hoping for the latter.
§ 5.43 p.m.
§ Lord Renton
My Lords, I am very glad indeed to be called upon to follow the noble Lord, Lord Rix. He and I have worked together for many years as officers of 841 MENCAP. The noble Lord knows, and it is right to remind your Lordships, that the mentally handicapped are the largest particular group of disabled people in the country. The noble Lord is familiar, as I am, with the great diversity of kinds of mental handicap. There are many different degrees of it. That affects people's capacity for taking on work or not being able to work at all. Some people have no physical handicap but have a slight mental handicap. Such people are employable in many capacities. I believe—and MENCAP recognises this by giving them training accordingly—that they are especially able to make their way in horticulture and farm work. Many are particularly good at looking after animals. There are other forms of manual work which are suitable for such people. On the other hand, they are not often suited to office work. We must be realistic about that.
The other day, the noble Lord and I attended the Gateway Festival and heard a mentally handicapped young woman play the piano quite magnificently and most movingly. That may be a rare condition. She was variously handicapped in other ways. But one should take note of the fact that there are opportunities for mentally handicapped people to lead useful lives; those opportunities should not be missed. One reason why I so greatly welcome the Bill is that I am confident that such opportunities will be increased.
At the other end of the scale, there are those like my youngest daughter. She cannot talk, she cannot walk unless she is held up, and she cannot feed herself. The Bill therefore has to accommodate various degrees of mental handicap. It has to be flexible, adaptable and realistic. We do no service to people who are disabled in various ways if we raise their hopes too high; for example, by using, as it were, lawyers' arguments—and such arguments have been used this afternoon—in the hope of applying to them the definitions of discrimination which apply under the Sex Discrimination Act and the Race Relations Act. I was very grateful to my noble friend Lord Campbell of Croy for the speech he made. My noble friend has a wonderful record in this matter. It goes back 50 years. I am glad to say that my noble friend's remarks enable me to shorten my speech.
Although the Bill is long overdue, let us be thankful that it is with us. It will enable so many disabled people to live more normal and fuller lives. There is so far only one major omission; namely, the question of access to transport. However, the Government propose to deal with that. I understand that amendments will be moved in Committee. I hope that those amendments will be realistic.
Perhaps I may relate a personal experience. My severely handicapped daughter, who is 40, has to spend much of her time in a wheelchair. But she does not travel well in a wheelchair put into a vehicle. She travels most comfortably sitting in the seat beside the driver in an ordinary saloon car, as she did with me this morning. I have no difficulty getting her into such a seat. I then put her wheelchair in the back of my estate car. I simply could not get her into a modern type taxi, even when adapted for a wheelchair, without help from other people. And once she is in the taxi, because of her tendency, although strapped in, to slip down when travelling in a wheelchair, 842 that is not the solution for her. I hope that the Government will broaden their minds on this question of requiring a vast number of taxis to be adapted for the carrying of wheelchairs. By all means let some of them be adapted.
In London, I understand, by the end of the century all black cabs are supposed to be adapted for the carrying of wheelchairs. That is a policy already being implemented. But outside London I doubt whether it would be sensible. It is all right in London and other large cities where taxis are doing quite well financially. However, in small towns —the noble Baroness, Lady Hollis, may agree with me—and in East Anglia, out in the wider spaces, the taxis have been having a very difficult time financially in recent years. If we require too many of them to be fitted like London taxis and adapted for carrying wheelchairs, there will not be enough taxis. That will be a great disadvantage to disabled people with various disabilities. I hope that my noble friend will persuade his friends in the Department of Transport not to be too rigid, as they have been so far, on this matter.
Perhaps I may add one other comment. We must be careful on this Bill not to do what we do too often with some legislation; namely, create an Act which is not adequately enforced. That is to raise people's hopes when, in fact, we are enacting a dead letter and wasting our own time. I go along very much with those noble Lords on both sides of the House who have asked that we should consider carefully whether the Bill will be enforceable. I am keeping an open mind as to the best method to achieve that. I simply say that I hope that we shall be careful to ensure that the Bill is enforceable. Otherwise, we shall defeat our own purpose.
§ 5.52 p.m.
§ Lord Murray of Epping Forest
My Lords, the Bill is without doubt a significant step forward and will be all the better for the substantive amendments that the Government intend to bring forward. I am glad that the Government have learnt to listen to organisations of and for disabled persons. I hope that they are still disposed to listen and make further improvements.
We shall do disabled people and their organisations no service if we pretend that we can offer them perfection at a stroke. Even so, we shall look for further instalments of progress as a result of our discussions in this Chamber. Beyond that, example and resources will be needed to complement legislative action.
I shall concentrate mainly on three areas in which I believe that the Bill needs and is capable of improvement: employment; access to entertainment and cultural venues; and access to hotels and holiday provision. Before I turn to those issues, let me express my strong support for what has been said about the need to strengthen the national disability council; and it matters not to me whether it is called a council, a commission, or whatever.
As it stands, the council has all the defects of the National Advisory Council on Employment of Disabled People, set up under the 1944 Act. That advisory council was given no life of its own. It was restricted to advising the Minister; it had neither the resources nor the authority to influence what happened on the job; and few people had even heard of it. We need a body which itself can 843 comprehensively provide advice and legal support to individuals and an advisory service to employers and providers of services; a body which can collect statistics and monitor the effects of the new legislation and which can, of its own initiative (as has been said earlier), undertake formal investigations.
Reference has been made by the Minister and other speakers to the fact that it has not in practice been possible to enforce the employment quota set up by the 1944 Act. That is the result partly, as has been said, of the reluctance and failure of most disabled people to register and partly of the related unwillingness of the authorities to prosecute. The right reverend Prelate reminded us that, even though the quota did not apply to undertakings employing fewer than 20 people, the fact is that 60 per cent. of firms employing up to 10 workers employed at least one disabled person and in some cases more. We should build on that and do nothing to undermine the willingness of small firms who have demonstrated their support for employing disabled persons. I am afraid that the Bill might do so.
When both the CBI and the Evangelical Alliance combine to say that in principle firms of all sizes should be covered, we ought to listen to them. It is indeed both a moral issue and an issue of a level market place. The law should not require some firms to be more moral than others. Nor should we discourage those firms which would continue to employ disabled workers if others in the same bracket have to accept an equal obligation. As the noble Lord, Lord Campbell of Croy said, if a firm, large or small, has genuine difficulty in offering employment, that difficulty can be looked at objectively under the terms of the Act. But there is too much emphasis in the Bill on solving problems by excusing companies from their obligations. The Government should think rather in terms of extending the modest assistance that they are already giving to firms to enable them to provide jobs for disabled workers.
In that context, concern has been expressed in some quarters about the Bill's impact on the work of Remploy. There has always been strong cross-party support for Remploy, which was set up to provide quality jobs for disabled people. In his reply, can the Minister comment on the concerns that have been expressed and can he assure the supporters of Remploy on all sides of your Lordships' House that the future of Remploy itself will be safe under the new legislation?
Access issues are one of the most fundamental causes and manifestations of discrimination against disabled people. I welcome the provision relating to access to services, including facilities for entertainment and, implicitly, for cultural activities; but I must say that it seems odd to me as a layman—apparently it seems a little odd to the Law Society—that we should define services covered by the use of illustrative examples. Are there any precedents for that? If so, what lessons do they have for this Bill?
As has already been said, in the Bill—as elsewhere— the definition of:what is reasonable in all the circumstanceswill be critical. What constitutes reasonable provision will vary from one service to another. A museum, for example, would need to make very different provision 844 from an opera house. Anti-discrimination legislation in the USA has been referred to by several other contributors. Both the USA and the Australian legislation recognise the need to establish a structured framework, within which consistent decisions could be taken, which sets out the basic principles and priorities for the removal of barriers and which encourages businesses to prepare plans for the removal of barriers. It would be quite unsatisfactory to depend on individual challenges in the courts. Again, that underlines the need for a national council with powers to monitor, advise and provide support.
If the experience of voluntary initiatives is any guide, many venue owners—of cinemas, for example—will be only too ready to argue that adaptations are not necessary, are costly and are unreasonable. The escape Clause 15(4) could help obstructionist owners to avoid their proper obligations by relying on existing inadequate provisions in building regulations. So building regulations, planning policy and fire safety legislation will need to be reviewed, it is to be hoped in consultation with disability organisations, and modified to ensure that they conform to the spirit of this legislation.
On a previous occasion I referred to the work of the ADAPT Trust (Access for Disabled Persons to Arts Premises today). It would chime with the spirit of the Bill if the Government would respond to the challenge of ADAPT's initiative by incorporating in the Bill a programme for the achievement of full access to facilities such as concert halls, theatres, cinemas and museums by, say, the Millennium, putting it down in black and white. I welcome the Minister's emphasis of the fact that we are not just talking of providing ramps and lavatories for people who use wheelchairs, but of enabling visually and hearing-impaired people to enjoy theatrical performances or museums.
Perhaps I may revert to a point to which I have previously drawn your Lordships' attention. Clause 12(3) underlines the fact that the services to which its provisions apply include,access to and use of any place which members of the public are permitted to enter".Can we be assured that that includes this Chamber and that wheelchair users who visit the House can look forward to seeing for the first time what is happening on this side of the Bar? Like charity, the removal of discrimination should begin at home.
The improvement of access for disabled people to hotels and holiday provisions raises many of the same issues. For a disabled person, particularly one who is heavily dependent on a carer, to get away on holiday for a week or two is a lifesaver—and a godsend for the carer. I therefore welcome the reference in Clause 12(3) (d) to,accommodation in a hotel, boarding house or other similar establishment".The same points that I referred to on access to entertainments need to be looked at in that regard.
More generally, the need for this measure is illustrated by the work being done by a few organisations in this field to provide facilities for disabled people, one of which is the Winged Fellowship charity, with which I am involved. It now has five centres throughout the country which provide 6,000 holiday weeks each year to severely 845 handicapped people who would otherwise have no chance whatever of a break. Might we not envisage, as part of the Government's new and welcome approach, the establishment of a development fund which may be used to make improvements necessary to achieve the purpose of the Bill, including for example the provision of holiday facilities?
Emphasis has been made, rightly, on the monitoring of the activities involved in the Bill's provisions. I totally support what was said, but we need to go a little further and provide some modest resources in order to achieve the objectives we are setting ourselves in adopting this legislation. Therefore, while we need improvements to the Bill as it stands, at the same time we would value some tangible demonstrations that the Government intend to back it up with practical support.
§ 6.4 p.m.
§ Lord Holderness
My Lords, I should like to begin by congratulating both my noble friend and my honourable friend Mr. Hague on their wisdom in introducing this Bill. I am bound to say that it comes as a great relief to me because I had real apprehensions about the Bill's predecessors. I hope that my remarks will not alienate me forever from the noble Lord, Lord Rix, and other noble Lords for whom I have great respect, but I believe that my honourable friend Mr. Nicholas Scott was absolutely right in resisting the civil rights Bill. During the years Mr. Scott spent in his important office I happened to see on many occasions how deeply committed he was to the welfare of disabled people. He will be warmly remembered for his achievements on their behalf, long after his opposition to the civil rights Bill (which I believe would have been a disaster for disabled people) has been forgotten.
Many, and probably most, disabled people as far as possible do not want to be thought of as different from the rest of society. They hope that able-bodied people will look upon them as normal and, if I may speak personally, it is a real joy to find one's own disability not just politely ignored, but barely noticed and anyhow thought not to be relevant. Earlier legislative attempts to help worried me by their deliberate and declared aim to set disabled people apart, to emphasise their apartness and to justify special rights for them.
This Bill has an entirely different aim of which I thoroughly approve; that is, to bring or keep disabled people within the mainstream of social and industrial life and actively to discourage employers, transport and other authorities or the providers of goods and services from making any distinction or exercising discrimination between those who are disabled and those who are able-bodied. So far so good. But the great difficulty, as I have already learnt in the one-and-a-half hours we have spent on this debate, lies in the definitions to be attached to those two important concepts, and key words in the Bill's title, "disability" and "discrmination".
As my noble friend Lord Campbell of Croy, said, it is perfectly true that surveys, and particularly the survey he mentioned, show that the number of disabled people amount to around 7 million—some of them severely so but most very much more slight. But if one looks on 846 disability as any shortfall below complete physical ability, obviously the number will be far greater because, unfortunately, superman and physical perfection are rare. The mere fact that I wear these spectacles, in company with several million of my fellow countrymen, emphasises a part of our disability and a part of the gap between ourselves and physical perfection. I merely make that point in order to illustrate the great difficulty in defining disability. I understand that there are voices, mentioned by the noble Baroness, which would possibly complicate the issue further by urging important extensions to the present concept. I hope therefore that my noble friend will hold firm. My own preference, if the Bill is to be effective, is for as simple a definition as possible, but one that directs help towards those who suffer from a substantial handicap, physical or otherwise, which is likely to last for some time.
The other concept on the question of discrimination is one that we all understand in general. However, Clause 5, for example, illustrates some of the difficulty of its practical application. We all know that there may be 100 reasons which persuade an employer on an interviewing panel to choose one individual rather than another. Legally, as I understand it, a man or a woman may not be refused employment because of his or her race, or a woman because of her sex. This Bill broadly aims to make illegal the refusal of an individual only because he or she is disabled.
I fervently hope that the Bill will lead to the employment of more disabled people, even though from time to time it may place an extra burden on generally small, but sometimes fairly substantial, employers. But in my view there is a cogent reason, which has been touched on already in our debate, that underlies the present persistently much higher rate of unemployment among disabled people, which was an important part of the speech of the noble Baroness, Lady Hollis. It is not that most employers are prejudiced against them. They are not. But there are a great many jobs in the market which are just not open to people with substantial disabilities. Although the Bill aims to increase the number of jobs that someone who is disabled can do—I fervently hope it will be successful—nothing, apart from unlikely physical regeneration, will make available the far wider choice that we should all like to see offered to those who are disabled.
My experience of the attitude of employers ever since the passage of the 1944 Act and the work, right from its early days, of the National Advisory Council on Employment of Disabled People, which the noble Lord, Lord Murray, mentioned, and also a short period in the old Ministry of Labour, convince me that most employers will be very favourably disposed to employing disabled people, if they can possibly do so, even at a cost to themselves, especially if they have experience of what those disabled workers can achieve.
Because of the choice of whom to appoint, and because that choice depends on so many factors, I am very worried that after the Bill is passed many disabled people will inevitably be disappointed when for completely different reasons they are not chosen for the employment they want. I hope and believe, based on some things said by my noble friend Lord Campbell of Croy, that many fewer will be disappointed by the operation of the provisions in Part 847 III of the Bill. It is abhorrent to us, as the noble Lord, Lord Rix, mentioned, that anyone disabled should face discrimination in the effort to buy goods or make use of services. But to be realistic, there are many examples of cases where it will be difficult completely to remove that discrimination.
For instance, I do not think there is any doubt that the presence of a considerable number of people in wheelchairs in one place can put a great strain on many establishments even if they have the most understanding and sympathetic management. The difficulty and expense of installing lifts capable of carrying one or several wheelchairs as well as of ensuring the complete safety of their occupants are examples of problems facing those who are most willing to provide the services sought.
In the important field of transport, which my noble friend Lord Renton mentioned, although the eventual objective must clearly be to make any journey achievable by and accessible to disabled people, a really massive replacement of unsuitable by suitable vehicles could only be made either at enormous cost or over a substantial period, which many potential travellers are bound to find frustrating. I thought that my noble friend Lord Renton put that point very clearly indeed. I also fear that unless we are realistic any attempt to hasten the process is certain to have the effect of driving out of business many small transport undertakings, especially in the rural areas, and that would certainly be of no benefit to anyone, whether disabled or not.
I wish to make two further points. First, I understand from speeches made in the debate that there may be attempts to persuade the Secretary of State to amend Clause 7(1) and apply the legislation to employers with fewer than 20 employees. That might or might not at some stage be wise, but I suggest that it would be wise to follow the lead given to us by my noble friend Lord Mackay and wait until we have a little more experience of its operation. I say that for two reasons. First, not only could the potential burden of what I think are known as reasonable adjustments bear relatively heavily on small employers but—this point is also important—the employer of a small workforce might need from time to time a small contribution of help from an individual employee beyond the original job specification and that particular service that is needed by the small employer might be outside the capability of some disabled people. On the other hand, as was suggested recently by the Royal National Institute for the Blind, there may be a case for the more immediate issue of regulation, before the five years mentioned by my noble friend, both for small and larger firms in order to deal with some small and particular problems that may arise.
My final point concerns balance. The Bill will not please everyone. All those who have listened to the debate will be clear about that. There will be many organisations for the disabled and many disabled people who would like and will demand more. However, before making demands, I hope that they will have in mind the very remarkable change in opinion that has taken place since the end of the 1939–45 war, noticeably accelerating in recent decades. Before this change, even in the 1930s when I was rather small, many people who had anything wrong with them were either hidden away or forgotten 848 about. Most of the problems we are discussing today have their origin in fear, ignorance or misunderstanding, now greatly and increasingly diminished.
There are few employers who are hostile to the disabled when they get to know them and understand their difficulties. It would be a near disaster if this more positive attitude which society now takes were to be frustrated or destroyed by unreasonable and unachievable demands that some may be tempted to make. Therefore, in wishing well to my noble friend and to my honourable friend in their efforts to improve the position of this large group of people, I hope they will resist attempts to throw this Bill off course by pressure for a more: rapid advance than the Government, employers and others can make. That, in my opinion, would be a grave disservice to the very people we are trying to help.
§ 6.17 p.m.
Baroness Darcy (de Knayth)
My Lords, I thank the Minister for his clear explanation of a complicated Bill. As he said, it is an historic moment. This is the first government Bill to outlaw discrimination against disabled people. I join him in paying tribute to those noble Lords who over many years have attempted to introduce similar legislation.
I shall resist the civil rights bait proffered behind me by the noble Lord, Lord Holderness, and go on to say straightaway that it is not in a spirit of churlishness that I argue that, despite some enhancement in another place and the welcome promise of further amendments, there are still serious gaps to be filled if the Bill is to eliminate discrimination successfully. The noble Lord, Lord Mackay, and the Minister for Social Security and Disabled People had a very useful meeting with a handful of Cross-Benchers to discuss the Bill. I hope that we can progress with sensible and workable amendments to strengthen the Bill.
The first major gap is education. It cannot be right that all education—primary, secondary, further and higher—should be excluded from the Bill. The Minister has promised certain measures to improve educational opportunities for disabled people, and those are very welcome as far as they go. But they are all amending existing legislation, as the Minister explained. They encourage improved provision; they do not bring education within the scope of the Bill.
The Minister said that education was excluded so as not to clash with recent and very welcome education legislation. Regulations could ensure no conflict with existing legislation and provisions could be phased in slowly. Education plays a vital part in determining everyone's future life, be it for basic survival in a competitive, able-bodied society or for an enhanced quality of life doing a fulfilling and demanding job. Ending educational discrimination in schools is a key towards ending other forms of discrimination against disabled people in later life. Integrated education prepares disabled pupils for the adult world while able-bodied pupils come to understand their disabled peers.
SKILL, which is the National Bureau for Students with Disabilities, of which I am the president, believes that amendments to cover higher and further education in 849 respect of right of access to goods and services are needed. Such legislation, requiring all institutions to make reasonable —and I stress "reasonable"—arrangements and modifications would ensure a concerted and strategic approach which could be set out in regulations, which would result in better progress than under the present system which has tended to be haphazard. Some institutions do a lot to increase access for disabled students; others do very much less. Such amendments would mean that well-qualified students could no longer be turned away because of their disability. It is very welcome that the Bill covers employment. But what is the use of discrimination legislation on employment if education is not covered too? It is education at all levels which is the key to a job.
The second major omission relates to the proposed national disability council. Whatever it is called—council or commission—it needs teeth if the Bill is to work. Many noble Lords have spoken and, I am sure, will speak on this, and none more persuasively than the noble Baroness, Lady Lockwood. Therefore, I confine my remarks to a couple of quotations.
Many of your Lordships may remember CORAD, the Committee on Restrictions Against Disabled People, which was set up over 13 years ago. It concluded that anti-discrimination legislation was essential and stated in paragraph 4.53 of its report:Having considered the way other anti-discrimination legislation works, particularly abroad, we recommend that 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. In every case where … legislation has been passed, it has been necessary to have an enforcement body".CORAD's chairman was Peter—now Sir Peter—Large, who is a reasonable man, known to many people here. He is not given to exaggeration. Yet this is what he said in a letter of 4th February 1995 about the proposed advisory council:Central to the success of any legislation to eradicate discrimination against disabled people is the idea of a Commission with powers to undertake general investigations and powers to assist individual disabled people enforce their rights under the legislation".Now we come to the proposed council:In comparison, the Government's proposal for an advisory council is a wheyfaced ghost of what is required. Not only does the proposed advisory council lack teeth but it also lacks a digestive system and a few other essential organs. It enjoys no life of its own. It acts only in response to the summonses of the Secretary of State".We must give the council or commission an independent life that is worth living.
I turn briefly to employment. There is a third gap— small in comparison to the other two—but one which the Association of Disabled Professionals, of which I am a member, believes important. I refer to partnerships, which were included both in the Sex Discrimination Act 1975 and the Race Relations Act 1976, although in the case of the Race Relations Act only partnerships of six or more. Some firms, many quite large ones, are partnerships, and becoming a partner is a form of promotion within the firm. In such instances, discrimination on grounds of disability will block the career development of a disabled person.
850 I hope that these gaps can be filled before the Bill leaves this House. As the Minister said, it is the first time that a government Bill has been introduced to outlaw discrimination on grounds of disability. It may be many years before we have a similar opportunity. It is therefore very important to give the advisory council teeth. It is crucial to the success of the Bill, as the noble Baroness, Lady Lockwood, argued very cogently in the light of all her experience.
It is equally important to bring education within the scope of the Bill. To fail to do so means perpetuating discrimination for the next generation. It will make the work of the council/commission more difficult if we do not include education in the Bill. If we fill the gaps I have mentioned the Bill will be a very welcome measure which will have a real influence on the lives of disabled people for many years to come.
§ 6.24 p.m.
§ Lord Hamilton of Dalzell
My Lords, the last time I spoke on this subject it was to support the line taken by my right honourable friend Sir Nicholas Scott and the Government against the Bill of the noble Lord, Lord Ashley. I echo what my noble friend Lord Holderness said about Sir Nicholas Scott. He was a great friend of disabled people. The noble Lord, Lord Ashley, will no doubt have his say the moment I have sat down, but I am glad that this Bill goes less far than his did. The Government's view then was that it involved enormous costs and would lead to endless litigation.
The Bill now before us tackles the first of those problems. The costs will be lower. I am not sure what effect it will have on the amount of litigation. My criticism of the Bill of the noble Lord, Lord Ashley, was directed at the principle of legislating against discrimination, particularly in employment. That is an important part of this Bill and my criticism still stands. It will, in my belief, be ineffective, but not for the reasons put forward by the Front Benches opposite and by other noble Lords who want more enforcement.
I work in the field of disability and nobody is more conscious than I am of the importance of employment to disabled people. Above all, it gives them financial independence and a sense of fulfilment. They also make excellent employees. My objection to legislation in this field is one of principle. We all exercise discrimination every day of our lives and no more so than in deciding who we employ. What sort of society would we have if decisions were all made indiscriminately?
What this Bill is aimed at of course is prejudice against employing people with disabilities when they are capable of doing the job. Any reasonable person would be against that, but it is difficult to legislate sensibly against prejudice. You should not, in a free society, try to legislate for what is in people's minds. The effect of this legislation will be to create a process which employers will have to follow in order to comply with the law, but it will not prevent them deciding that an able-bodied candidate, with the same qualifications, fits better into an organisation than a disabled one, if they are so minded. This must tend to make the legislation ineffective.
851 There is a natural tendency, when having been called to an interview, for people to analyse why they have not been given the job: I was the wrong colour; the employer clearly did not like women; the winning candidate was prettier than I am—a problem that I have often had. We can all be accused. Oxford and Cambridge, in which some notable Members of your Lordships' House hold distinguished positions, are accused of discriminating against entrants from public schools. All these are just examples of where people feel that they have been discriminated against.
The process of deciding whether discrimination has taken place by a process of law amounts to a policing of what is going on in the minds of those who made the decision. The noble Lord, Lord Lester, would like to see all these people hauled in front of the courts even when their motive was innocent. This Bill, brought forward in the guise of a liberalising measure, is in reality very illiberal in my view. There are noble Lords opposite who have made a name for themselves in sponsoring the rights movement. The time is coming when a longer view will be taken of what this fashionable obsession with giving people rights has achieved in practice.
In making this point, I have been asked to look at what the equal opportunities legislation has done for women in employment. It is an opportune moment to do so when some of its feminist proponents are beginning to doubt whether it has done them much of a favour.
While it can be argued that equal opportunities have increased the employment of women, it has had the unfortunate side effect of creating a pool of unemployed and discontented men inclined towards criminality. However, the insidious price women have had to pay is a loss of consideration for them as women. I fear the same result will follow this legislation towards those with disabilities.
Rights are no substitute for consideration and goodwill. A helping hand is worth more than a passport to grapple on equal terms in a rough and tumble world. Disability is a problem that has to be faced by individuals capable only of individual solutions. That figure of 6 million disabled people covers an enormous spectrum of disabilities—deaf, blind, dumb, mentally impaired and physically disabled, young and old, those born disabled and those who have suffered some accident or illness. Five hundred thousand are in wheelchairs. In their train follows another army of those who give their time, money and lives to provide practical help and solutions to improve the quality of life of those less fortunate than themselves.
It would be nice to think that the vast diversity of problems which all those people are working together to solve could be ameliorated by legislation. Those who think that it can are working to turn the Bill into a full Bill of Rights with the vast costs that that would entail, and to make it more enforceable. I believe that that would endanger the work of the voluntary sector. Imposing costs and duties on industry and the people who work in it will make it less inclined to make the voluntary contributions on which such work depends. In my view, the merit of the 852 Bill is that it could be much worse. I there fore support the Government in making sure that its scope is widened no further.
§ 6.30 p.m.
§ Lord Ashley of Stoke
My Lords, two vivid phrases illustrate conflicting views about the Bill. One is that the Bill is, as the Minister claimed, "an historic advance" for disabled people. The other is that the Bill is "unbelievably terrible". That was said by an opponent of the Bill who is a disabled person. I say that both of those views are absolute baloney, just like the idea of the noble Lord, Lord Holderness, that the Civil Rights (Disabled Persons) Bill is "a disaster". I have never heard such a nonsensical view in all my life because that Bill is one of the finest Bills ever to come before this House. I see that noble Lords opposite are more than capable of shaking their heads, but I have no doubt that your Lordships were wise to pass all parts of that Bill. I believe that both the extravagant claims made for this Bill and the outright condemnation of it are equally misleading. This Bill is, in fact, a midget milestone on which we need to build and which requires cool appraisal and constructive improvements.
I greatly appreciate the kind personal comments about my work from the Minister and the noble Lord, Lord Lester. The Minister admirably tried to portray his Bill in the best possible light. Of course, as a Minister he is right to do that, but he had an enormously difficult problem—
§ Lord Ashley of Stoke
Oh yes he did!—because the Government have produced a Bill which is tarnished by serious omissions, inviting loopholes, and a lack of enforcement procedures. I hope that noble Lords on all sides of the House will co-operate in strengthening the Bill. The noble Earl, Lord Snowdon, who has long been involved with disabled people, has asked me to express his regret that he is unable to be present today.
Just who is the Bill supposed to protect from discrimination? Certainly not all disabled people. The definition is far too restrictive for that. The Bill omits, for example, any reference to perceived disability which affects elderly people, those with HIV, and many others. The trouble is that discrimination damages, regardless of whether the disability is real or perceived. That question of perception is very important.
I welcome the Government's undertaking to extend the provisions to those with a history of disability, but we also need to ensure that all of those with a history of mental illness are included because, regrettably, it is a stigmatising illness which leads to prejudice and discrimination in employment. The restrictive provisions which are still in the Bill will exclude many who have had a brief mental illness even though that illness can lead to a lifetime of difficulty in securing a job. Mental illness, whether for long periods or short, is very common and sufferers deserve protection just as much as those with a physical disability.
The Government should heed the clear message that unjustified discrimination is immoral. It is wrong in principle and unfair in practice. By definition, unjustifiable discrimination is unjustifiable, whatever the 853 circumstances. There can be no exceptions. Yet the Government seem intent on making exceptions—not only by limiting definitions, but by specific exclusions.
The exclusion from the employment provisions of employees in firms of fewer than 20 workers is wrong on every single count. It is deplorable to allow legal discrimination against disabled employees under any circumstances. It is anomalous when the employees of other firms are protected. It is unjust to allow discrimination according to the size of the firm, and it is false to assume that small firms are to be unreasonably burdened because the thrust of the Bill is that there should be "reasonable accommodation". So, again by definition, there cannot be unreasonable burdens. I do not see how the Minister can get round his own definitions on that—nor do I see how people can claim that there are going to be unreasonable burdens if the Bill states that there must be "reasonable accommodation".
Another significant exclusion is further and higher education. I should declare an interest, albeit an honorary one, as Chancellor of Staffordshire University. The pioneering work that has been done there shows how effectively disabled students can be accommodated to the benefit of themselves and the university.
The Government's promise of amendments to previous legislation to encourage institutions and funding councils to provide for disabled people is welcome, but still allows legal discrimination against disabled students. The exclusion of higher and further education is extraordinary. It makes sense for people to choose careers which focus on their strengths and minimise their weaknesses. We all do that, but for many disabled people, with a weakened body, that means training their intellectual capabilities. Yet we are not prepared to offer non-discriminatory education. I do not see the sense of that.
The fact that so few disabled people get higher education is itself an indication of discrimination. A shameful example is that there are only 300 deaf higher education students. Where are all the other deaf people? Ability is not the barrier; the lack of provision, the inadequate non-medical helper allowance and the fact that there is nothing for part-timers are the hurdles at which many deaf people fall. That is inexcusable and should be rectified in the Bill.
Communication is the great challenge for deaf people. If it can be achieved, their disability melts away. Technology has been of great benefit, as I know from personal experience. However, improvements to telephones may leave hard of hearing people stranded. Digital mobile telephones are now incompatible with hearing aids. Even more threatening is the development of new office systems from which hearing aid users could be excluded. If that trend is allowed to develop, it could be damaging to many millions of hard of hearing people and difficult to change. Manufacturers of new technology telephones and producers of hearing aids should realise that Parliament would never permit the long-term exclusion of hearing aid users from telephone use, in particular when it is related to employment. I hope that the Minister can give some assurances on that point at the end of the debate.
854 We need to look also at what may be lost as a result of the Bill, not what may be gained. The access-to-work provision has been extremely valuable to deaf people, providing them with communication support for interviews and in the workplace. Deaf organisations know that employers will not pay for it. Without government support, deaf people have little chance of obtaining jobs. That support must continue. I hope that the Government can also give an assurance on that matter. I hope that the Minister will be able to oblige.
Denying protection from discrimination to employees of small firms is an act of negligence; abolishing the 3 per cent. quota is an act of vandalism. The weaknesses of the quota system are familiar to us all. We are also familiar with the Government's excuses. Ministers claim that the quota system does not work because not enough disabled people register. That nonsense belongs to topsy-turvy land. Disabled people do not register because the quota system does not work, and the quota system does not work because the Government do not enforce the law. That is the reason for the failure. The fault lies not with the 3 per cent. quota system, but with Ministers. There is no point in noble Lords opposite condemning the system. They should condemn Ministers. That is about the only party political point that I shall allow myself in this short speech.
The Bill attempts a different approach. We all hope that it will work. But just suppose that it does not, how will we know that it does not? The Government, and the Minister who is so careful with his words, will surely not rely on individual evidence. That will not get us very far. I cannot believe that it is the Government's intention. Monitoring is essential, and until the Government provide a better system, we need to keep the quota system.
Another reason for retaining registration is that it provides the means of ensuring that severely disabled people obtain subsidised employment. I hope that the Minister will be able to give the House an assurance that the Government still support the policy of subsidised employment for this group of disabled people. The Minister should tell the House why the Government are proposing to allow profit-making organisations to enter the subsidised employment arena. They will inevitably choose to employ the less severely disabled, creating enormous difficulties for the non-profit making organisations such as Remploy which genuinely tries to help all severely disabled people. It is under great pressure at the moment.
If the Government are planning to privatise Remploy, that will lead to even more selective and damaging practices. The best facilities, provided by public funds, will be used to generate dividends, while the rest will be scrapped. No doubt many disabled people will go with them. That is totally unacceptable to disabled people, to the disability organisations, and to many Members of both Houses of Parliament. I hope that the Government will not allow that because it will damage disabled workers.
Of course the Government's greatest single failure in the Bill is the lack of enforcement procedures such as those for race and gender, as has been mentioned. The national disability council is purely advisory. I believe that most people are law-abiding and will accept the Bill's provisions which make it unlawful to discriminate against 855 disabled people. The problem lies with those people who wish to disregard the law, They are the people with whom we are concerned. No amount of "advice" will change them. So we must have the enforcement body, which was spelt out by my noble friends and noble Lords opposite. We require a strong, well-resourced commission, and we shall be fighting for that in Committee.
I wish to conclude by saying that, as it stands, the Bill is inadequate, and we shall be suggesting sweeping, radical and detailed improvements at later stages. The splendid briefs we have received from so many organisations indicate widespread concern. This is a great opportunity to legislate for comprehensive civil rights for disabled people. Britain is no longer in the vanguard of progress, but if the Government accept the suggestions that Members of all sides will offer in Committee and on Report, I hope that we will be able to catch up with the rest of the world.
§ 6.46 p.m.
§ Baroness Gardner of Parkes
My Lords, discrimination on grounds of disability does exist; sometimes that is a deliberate conscious process, but I believe that is rare. In my view, the main reason is the preconception that people have of a disabled person's ability.
A young woman I know well, now in her 30s, was diagnosed as having multiple sclerosis when she was 21. She is registered disabled, but is not visibly so. In employment, she has proved most capable. By experience she has learnt not to disclose her disability until offered a job. She has no problems then, as she has been chosen because she is the best person for the post. The disability is of secondary importance. Applying for almost identical posts, when she has included the medical history on her cv, she has never even been offered an interview. She needs a cooler position in the room and good light for work and those are simply provided and make normal work possible.
This Bill now enshrines the minimum standards that are already accepted as good practice by many companies and individuals. One of the strengths of the Bill is that it asks no employer or supplier of goods and services to act against his interests. No one need employ a disabled person because he is disabled. What is asked is that there should not be a blanket objection to someone because they have a disability. Many people choose not to register or identify themselves as having a disability because it can be such a disadvantage in employment terms. Many people have disabilities that are always apparent and they have no choice in the way they present themselves for interview.
Employers can be distracted or diverted by disability. They do not stop to think: is this the best person for the job? Their first impression is of the deafness, the wheelchair, or the other noticeable evidence of the disability. It may even be that due to an ill-informed or misguided sympathy they feel for the disabled person, they imagine the work to be beyond him or her.
This Bill is intended to make clear the Government's support for those with disabilities. It cannot and will not change long-standing attitudes overnight, but by having 856 a law against discrimination on grounds of disability, the Government are making a statement which will cause people gradually to think again and revise old ideas.
The process of change is never easy. That has been clear in the years since it became illegal to discriminate on grounds of sex. Women regularly point out that they have all the necessary laws against discrimination but there remains a gap between de jure and de facto, between the law and the reality.
The Bill contains substantial order-making powers. Your Lordships are increasingly wary of such powers and no doubt the Delegated Powers Scrutiny Committee will be looking at the powers contained in this Bill. But for myself, I believe that they are appropriate here. This is an indication of my optimism about this Bill. I believe that these powers will be used to the advantage, not disadvantage, of disabled people. This is a complex field and I hope and believe that the Secretary o I State will take the trouble to use his powers to adjust arrangements under the Bill to make the protection it offers more comprehensive as time goes by.
I intend to raise a number of matters in Committee and to seek assurances from my noble friend that regulations will cover the necessary details and that problems will be kept under review and action taken under the Act as necessary.
One of my particular concerns in the Bill centres around the problem associated with disability arising from HIV infection. The approach taken by the Bill is to define the disabled as those with a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. I have heard this characterised as a commonsense approach to disability—the disabled are those who actually have a physical or mental impairment. As I read the Bill, there is little doubt that those with AIDS and those with symptomatic HIV will be covered by the law, and I welcome that. However, I would. appreciate the Minister's confirmation on that point. The trouble with HIV is that it is such an emotive and well-publicised issue that those infected have become easy targets for discrimination. Employers, and indeed the public in general, tend to have an irrational fear of contracting the disease, even though the circumstances may present no risk at all.
It is relatively easy to test for the virus, but in most cases there is a long time gap between a positive HIV test and progress to a symptomatic HIV infection and another time gap before the development of full AIDS. For an employer or provider of services to demand a test for the HIV virus or demand answers to indicate whether or not this or, indeed, any other screening test has been taken can discriminate against the person concerned. The definition of disability would not cover a person who is asymptomatic. I see that as a real problem and hope that a solution may be found to enable the scope of this Bill to cover this very unfair treatment of people. I know that the Government encourage testing and screening for all sorts of conditions and rightly discourage any discrimination against individuals because they have wisely had diagnostic tests of any sort.
857 Under employment legislation, ill health actually making an employee incapable of work has always been grounds for "fair dismissal". But HIV is a condition that, in progressing towards AIDS, has symptoms which materially affect a person's ability to carry on his day-to-day life. At present, the best we can do for those infected with the virus is to enable them to continue a normal life, even if they have some of these symptoms. Discrimination does not help. Quite the contrary, it weakens people, makes them feel useless and a drain on society.
People with symptomatic HIV, needing help, can still make an important contribution and this Bill will benefit them by outlawing discrimination and enabling them to continue as full members of society. I suggest to your Lordships that HIV and AIDS are in that way much like other physical disabilities. If we can ensure that the Bill covers people who have those conditions, when they need protection and yet remain relatively able to make their contribution, we shall have achieved something.
Some concern was expressed in the other place that the insurance industry might be forced to insure someone beyond the actuarial realities of the insurance market. I shall seek to clarify this point at Committee stage. Actuarial reasons for refusing insurance are common enough, but it should be actuarially possible for the insurance industry to devise a satisfactory solution and it should be impossible for the insurance industry to exclude any class of the disabled simply because they are disabled.
The number of speakers in this debate today makes clear that this House considers this Bill to be an important step forward. It deals with the rights of those who need support and encouragement to play a full part in society. One person's rights are another person's responsibility towards that other person. I think we can agree that we all have responsibilities for disabled people. I welcome the Bill.
§ 6.55 p.m.
§ The Earl of Winchilsea and Nottingham
My Lords, I wish to focus my remarks on one narrow, specific but important issue. I rise to express grave concern on behalf of the licensed hackney carriage trade of the UK in relation to the serious implications and threats to that trade contained in Part III—Clauses 12 and 15—of the Bill.
Clause 12(1) provides:It is unlawful for a provider of services to discriminate against a disabled person—(a) in refusing to provide, or deliberately not providing, to the disabled person any service which he provides, or is prepared to provide, to members of the public; (b) in failing to comply with any duty imposed on him by section 15 in circumstances in which the effect of that failure is to make it impossible or unreasonably difficult for the disabled person to make use of any such service".Clause 15 (1) states:Where a provider of services has a practice, policy or procedure which makes it impossible or unreasonably difficult for disabled persons to make use of a service which he provides, or is prepared to provide, to other members of the public it is his duty to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to change that practice, policy or procedure so that it no longer has that effect".858 Many noble Lords will know that I have a long-standing interest and association with the licensed taxi trade of this country and no doubt many noble Lords present today for this Second Reading will have been on the receiving end of a number of eloquent pleas from various licensed taxi associations up and down the UK warning of the severe consequences for their trade if the measures contained in the Bill are carried out without exception and with no exemptions. They are right to be concerned for their future, and their warnings should be listened to carefully. Their comments are not the mad ravings of a small group of selfish, greedy, narrow-minded, shortsighted, money-grubbing wide-boys but the careful, logical, sensible, reasoned responses of intelligent and knowledgeable people who know what they are talking about. They bear no grudge against disabled people. They have simply not been consulted when they should have been.
Since wheelchair-accessible taxis were introduced by the two manufacturers of purpose-built cabs, the drivers, owners and operators have accumulated a wealth of knowledge which has been recorded concerning a number of occasions when the wheelchair carrying facility was asked for either through a telephone booking or a hiring in the street. In all taxi hirings during an average year, the wheelchair facility is used by only 0.01 per cent. of customers. In his excellent speech, the noble Lord, Lord Campbell of Croy, said that one in every 112 disabled people was in a wheelchair. By any standards, that represents a very small number of the total population.
Among my many friends I am pleased and honoured to include quite a large number of taxi drivers, not just in London but all over the country. All those who drive a purpose-built taxi with a wheelchair carrying facility will tell you the same story. The facility is hardly used—perhaps once a year; sometimes not even that. They are glad to provide the service when asked to do so. But to force every single licensed taxi to be wheelchair accessible is a nonsense. It is unfair, unnecessary and extremely expensive. If implemented, even over a 10-year period as proposed, it would undoubtedly force large numbers of taxi owner drivers who drive saloon cars licensed as hackney carriages to hand in their badges.
I understand that there are several disabilities which cannot be accommodated even in purpose-built taxis. I have in mind one sufferer who wrote to a national newspaper saying that because he was unable to bend or move his neck and was confined to a wheelchair he was unable to use purpose-built taxis. However, he had found that an ordinary saloon car used as a taxi and fitted with a swivelling front seat did allow him access. What a pity to deny that man and others like him the continued use of taxi transportation by eliminating all licensed hackney carriages which do not have a wheelchair carrying facility.
As several noble Lords know, I drive a purpose-built taxi. I drive it for several reasons which are not particularly relevant to today's debate. But here I must declare an interest. It is provided for my use by its manufacturers. I do not own it. I use it to demonstrate my commitment to the licensed taxi trade in this country. I enjoy using it. However, my wife, sitting in the back, does not enjoy journeys longer than 30 minutes. It is not designed for long journeys, although I drive it all over the 859 country. My wife finds it uncomfortable because she suffers increasingly badly from arthritis and every jar and bump is painful.
Are my wife and millions of other people suffering from the same complaint to be denied the comfort of ride which only a saloon car can provide at present? Why and for what? Who wants the legislation? The wheelchair disabled? Well, provided that wheelchair accessible taxis are available and can be booked by arrangement, why cannot there continue to be a mixture of vehicles used as taxis outside London? Is that not freedom of choice? Surely it is a question of getting the mix right.
Provincial taxi drivers, particularly owner drivers, do not want to be restricted to the purpose-builts. They are inappropriate in rural settings when long distances are the norm rather than the exception, and they certainly do not suit all disabled people by a long chalk. To bring in such an unnecessary restriction would also be to put operators, drivers and owners of licensed hackney carriages at an unfair disadvantage with operators of private hire vehicles who would not be subjected to the proposals contained in the Bill. If the proposals become the law of the land it seems fairly obvious to me that there would be a large number of provincial hackney carriage badge holders who would switch to private hire in order to continue trying to earn a living. I intend to return to that topic during the Committee stage of the Bill.
§ 7.4 p.m.
§ Lord Swinfen
My Lords, I believe that the noble Earl, Lord Winchilsea and Nottingham, has done the House a very considerable service in illustrating how diverse are the disabilities from which many people suffer. That is why, when taking the Bill through the House, we have to ensure that, when it leaves us, it is workable for the vast majority of people with disabilities.
I should declare an interest as I work for a charity which works with and for disabled people. I earn my living through that work. However, I welcome the Bill. It is very much a step in the right direction. I also welcome the amendments that the Government already intend to make to the Bill in this House.
However, in my view, the Bill has certain flaws. The national disability council proposed in the Bill has, as other speakers have already pointed out, no power to make the legislation work. It has no authority or resources to enable it to enforce the Bill's provisions, and therefore it has no credibility. As other speakers have already said this afternoon, I consider that we need a commission with similar powers and funding to those which enforce race and equal opportunities legislation. Such a commission would need the power to obtain information and the resources to employ sufficiently committed staff. It should have the power to take legal proceedings and compel the production of information. It should also be able to home in on key areas and issues and produce authoritative guidance. Moreover, its investigations, when made public, would promote necessary change.
The Bill provides that businesses with fewer than 20 employees will be exempt from the legislation. However, as has already been mentioned, that comprises 860 some 15 per cent. of the labour force and approximately 95 per cent. of all businesses. I believe that we need to make provision as the Bill goes through its next stages to lower that limit steadily over the next few years.
The Bill provides a duty for businessmen to take reasonable steps to remove physical barriers and provide communication and other auxiliary aids. However, reasonable provision defies simple definition and will vary from business to business. I believe that a commission and its decisions would be helpful to business. I understand that many of the business organisations would also like such a commission.
Access provisions will operate within two constants—a time limit and a financial cap. Without a clear framework to answer those questions, a distant time limit and an indeterminate financial cap will do nothing to encourage businesses to do anything unless they are taken to court. The access provisions in the Bill impinge on unrelated legislation, such as building and fire regulations. When answering the debate, will my noble friend the Minister advise the House whether the Bill will be subordinate to all other Acts of Parliament, which would mean that parts of its provisions would not be made effective?
Not mentioned in the Bill is the genetic predisposition to certain disabling conditions. However, scientific advance is continuing apace. I feel that we should make provision in the Bill for the Secretary of State, by regulation, to introduce provisions at some future date when it proves to be necessary.
I have received a number of letters and correspondence on the provisions in the Bill which deal with the Armed Forces, suggesting that they should also be made liable to all the provisions. I must admit that I am not in favour of that suggestion. Anyone in the Armed Forces, no matter what his job happens to be—whether a clerk, a cook, a driver or a telephone operator—is, first and foremost, a trained fighting man and, subsequent to that, a cook, a clerk, a telephone operator, or whatever.
Finally, I give an illustration from someone who is not a lawyer of why we need to go through this Bill with a fine tooth-comb. I find it extremely odd that Clause 3(2)—as I read it—states,It is unlawful for an employer to discriminate against a disabled person whom he employs…(d) by dismissing him".I do not think that is quite what is intended by the Bill. I think that added to that paragraph should be the words,solely on the grounds of his disability".That is an illustration of the drafting of this Bill and of why we must be so careful at the next stages. I welcome the Bill.
§ 7.10 p.m.
§ Baroness Masham of Ilton
My Lords, I have been asked by the noble Lord, Lord Crawshaw, to give his apologies to your Lordships. He would have added much sense and wise advice to the Bill. The noble Lord has spent many years using a wheelchair and knows of the numerous difficulties and extra expenses that disability brings. The noble Lord is ill in hospital, and I hope very much that he will be well enough to take part at later stages of the Bill. The noble Lord has great charm and wit, as well as experience and might even get some of his Conservative colleagues to understand the arguments.
I thank the Minister for his clear explanation of the Bill before your Lordships. This year we are celebrating the silver jubilee of the Chronically Sick and Disabled Persons Act 1970. I am also celebrating 25 years of being in your Lordships' House. My noble friend Lady Darcy (de Knayth) and I made our maiden speeches on the 1970 Bill. There is no doubt that this legislation has helped over the years. This year I have been disabled for 37 years. That is something I am not celebrating. As a high lesion paraplegic, paralysed from the chest down, I have come into contact with many disabled people and organisations. This year also we are celebrating the 21st year of the Spinal Injuries Association—a self-help organisation which I helped to establish with colleagues for those people who have become paralysed by damaging their spinal cords through injury or illness from the neck or back down.
To take a person with a spinal injury as an example, he or she has an obvious disability such as not being able to use his paralysed limbs and thus having to use a wheelchair. But he also has hidden disabilities such as paralysed bladder and bowels, and the risk of pressure sores due to not being able to feel. These hidden disabilities can be even more complicated. I therefore have sympathy with disability on a very wide plane. For instance, the person with epilepsy, who needs understanding when he or she suddenly has a fit, or the person with HIV, who may find discrimination from lack of understanding and compassion.
The Minister called a meeting so that he could explain the Bill to some of your Lordships. I was sorry that I was unable to attend due to speaking in a debate on rural matters, some of which have important implications for disabled people living without many services because of lack of provision in rural areas. I would have asked the Minister some questions, one of which I will ask him now. The only thing is he is not in his place! My question concerns the title of the Bill, the Disability Discrimination Bill. Does this not give the wrong message? Does it not put the emphasis on discrimination, which might seem to be promoting discrimination? Would it not be better if it was the Anti-Discrimination (People with Disabilities) Bill? I would be grateful if the Minister would explain the reasons for the title of the Bill to your Lordships. There may be a simple explanation. However, I always like to see the emphasis placed on people first, with disability being put in second place.
Over the years I have been contacted by some distraught people when they have been faced with blatant discrimination. Therefore I am sure it is time to bring in anti-discrimination legislation. However, this law should 862 be clear, and the people administering it should have training to enable them to understand the great variations that disabilities encompass across the board. One lady from Scarborough telephoned me to tell me she had taken her disabled child in a wheelchair to the cinema. A member of the staff had said, "You can't have that thing in here". An ex-miner from Wakefield, who was a paraplegic, took two newly injured paraplegic men out from hospital, for their first visit beyond the hospital gates, to a pub. When they got there the publican told them, "You will have to sit in the back room. We do not allow dogs in here, so you cannot come in".
A disabled woman came to London on her first visit to attend an interview for a Winston Churchill Fellowship. She was a large lady with a charming personality. She told us that the taxi drivers at King's Cross Station had refused to take her. Incidentally, I have just spent a few days in Barcelona attending a conference and there I found some taxis which had been adapted to take wheelchairs, similar to some of the taxis we have in London. However, the taxis in Barcelona had a ramp which pulls out from under the floor. That is quick and easy and saves the taxi driver wasting time getting ramps out of the boot and assembling them. It would be well worth some taxi firms here considering this simple and efficient ramp in use in Barcelona. Another very practical thing that I found at the hotel I stayed in was that the bathroom door was hinged so that it opened both ways. Therefore, instead of getting stuck behind the bathroom door, which so often happens, one just pushed through either way.
Many European countries are now looking at the sort of legislation which is before us now to make life more workable for disabled people. That is another reason we should get this legislation as clear and efficient as possible as other countries will be looking at what we will or will not achieve in your Lordships' House.
I hope that the Government and NGOs of and for disabled people will work also through the European Commission to get anti-discrimination legislation for all people across Europe with disabilities. I have been told that the Government wanted the citizens advice bureaux to take on the organisation of the workings of this legislation, but that that body turned it down. The citizens advice bureaux are helpful as regards matters concerning disability, but I am sure they know what a mammoth task it will be to do the job properly, and that the variation among disability matters across the board is immense.
Whatever the machinery that is used to do the job, be it a council or a commission, it will have to have a wide range of expert advisers and people who understand all sides of the problems. The correct balance will have to be found and it would be wrong for everyone concerned if this legislation encouraged litigation. It needs to promote reconciliation and good practice for all. Service providers, service users, employees and employers, all need to have the correct attitudes to make it work. I feel that there needs to be a central body with a network across the UK and resources to enable it to work.
The big question I ask the Government is: who will decide whether something is reasonable?
863 There is much concern over Clause 5(5), which states:Regulations may make provision as to other circumstances in which, for the purposes of section 4, an employer is to be taken to be justified in treating a disabled person less favourably than he treats, or would treat, others who do not have the disability in question".I am worried by the list of examples in Clause 6(3) of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1). If there is to be a list, as there is at present in paragraphs (a) to (I), I should like to add paragraphs (m) and (n) to include provision of parking and assistance from a car for a severely disabled person using a wheelchair. I know many well-qualified and skilled tetraplegics who are excellent employees, once they can get out of their transport, which is likely to be a car, and in to their place of work. That may be the only help they need. As other items are written into the Bill it would seem unwise to leave out the two I have mentioned.
It may be better not to have a list as other vital needs may be left out, which could cause problems and prevent people taking up employment. I know that the items listed are only examples, but it will be those which are left out which will be argued about.
Not knowing what the regulations are to be is causing concern. The Law Society feels that the phrase:a clinically well-recognised illnesswill cause considerable uncertainty. What is the Minister's view? It is amazing how many disabilities there are. They may be recognised only by experts dealing in the specialised field of that disability. Are they then to be left out of the legislation? That seems to be most discriminatory and unreasonable.
At present much legislation is going through Parliament which involves people with disabilities, such as the changes in benefits and the Jobseekers Bill. I have been contacted by the organisers of a fishing club for disabled people who fish at Telford. They are very worried that people on the new incapacity benefit will lose benefit if they do unpaid voluntary work, whether it be for one hour or more. Is that true? Will it be the case that only people with jobs will be able to do voluntary work? The members of that club are also concerned that if they go fishing that will be taken into consideration against them. With the effect that the National Lottery is having on small charities, if disabled people are prevented from helping the charities that will be a disaster for the charities and the individuals who will have to sit at home and vegetate. That in itself is discrimination. I should very much like to have an answer, if not today then when the Minister has had time to look into the matter.
With all legislation concerning the complex subject of disabilities one needs clear interpretation, clear guidelines and adequate training of the personnel who administer the resulting legislation at face to face level.
I join with Skill, the National Bureau for Students with Disabilities, in its concern that the Disability Discrimination Bill explicitly excludes further and higher education establishments. When the noble Baroness, Lady Blatch, was Minister at the Department for Education I raised two issues. One concerned a community college of further education, and the other Keele University. Both concerned the lack of lifts. At Keele University there was no lift to the students' union 864 building. Students were very upset that students with disabilities were discriminated against because there was no access. More lifts are needed for full integration in colleges and universities. The establishment said that it did not have the money and needed a grant. The Department for Education said that it was up to the individual establishment. The result was that there was no provision. Again, if only some of the lottery money could go towards that type of provision, that would be a help.
As a frequent user of British Rail—or what I think is called British Rail; it may be called something else now—I should like to pay tribute to the improvements made for people with disabilities and to the helpfulness of the staff at ground level. With a growing elderly population, there is anxiety that unmanned stations are causing problems.
All travel is important, and I know only too well the difficulties of lack of space in aircraft for people with stiff legs who need to stretch out. My noble kinsman, who has a deep vein thrombosis in his right leg, had great problems on a recent flight.
Age Concern is worried that many of its members with disabilities will not be covered by the provisions of the Bill unless the definition is more flexible. Perhaps many Members of your Lordships' House will have sympathy with that point.
The Minister and the Minister for Disabled People have a great deal of energy, and I hope enthusiasm. One only has to note the many organisations which are taking an interest in the Bill to see how important it is to have the correct machinery and resources to make it viable. It will affect millions of people. If those two Ministers will take the message to the Treasury and their ministerial colleagues that to make such wide-ranging legislation work realistic resources will have be available, there will be millions of grateful people. Good facilities for people with disabilities is surely an insurance and an investment for future generations.
I hope that the legislation will, in time, help to build bridges across the deep gaps which have developed over years of discrimination through lack of knowledge and willpower.
§ 7.18 p.m.
§ Baroness Dean of Thornton-le-Fylde
My Lords, first, I wish to extend an apology for my late arrival in this Chamber to the Minister, my noble friend Lady Hollis of Heigham and the noble Lord, Lord Lester of Herne Hill. It is a poor substitute, but tomorrow morning I shall read with great care each of their individual contributions at the start of this debate.
The Bill is a testament to the hard work over many years of Members from all sides of this Chamber, Members in another place, disabled people themselves and the organisations representing disabled people. Therefore, it is a shame that the Bill that they have awaited for so long has severe limitations and, in my view, does not adequately address the needs of disabled people. It does not provide for the enforcement powers that are needed for such legislation. There is no doubt that people with disabilities have a sense of joy about the Bill, but equally are greatly disappointed by its limitations.
865 I shall address my brief remarks to Part II of the Bill dealing with employment. In my view and experience, discrimination in employment starts before the interview and is demonstrable at the interview itself. Job applicants without a disability who go for an interview are asked about their skills and their training. They are asked about the positive aspects of their contribution to the employer's organisation. On the other hand, individuals with a disability are asked a completely different set of questions: what are their disabilities; will they be able to do this; will they be able to walk up the stairs; will they be able to deal with customers properly? They are asked a whole range of negative questions. That is where discrimination in employment begins.
My concerns regarding employment provisions relate to the exclusions within the Bill. For instance, why is it legal to reject a deaf person as a secretary, or a person with an artificial limb as a cook if the job is in the prison service, but not legal to reject those people within the hospital service or in a range of other areas? To give that legal exclusion to the prison service is a discrimination.
My noble friends Lord Murray of Epping Forest and Lord Ashley of Stoke admirably covered the exclusion of small firms. However, the provisions of the Bill place a severe limitation on rectifying discrimination, and the manner in which people with disabilities are treated.
Remploy has been mentioned. There is much concern about the possible impact of the Bill on Remploy. I hope that the Minister will be able to give assurances with regard to the work that Remploy does, the protection that it has and the support that it receives. Remploy was formed by strong cross-party support after the Second World War. It is an admirable demonstration of people with disabilities working in employment producing good quality goods and being able to compete extremely well in the market place.
The provision of the support employment programme appears to be threatened by the abolition of the register of disabled people. We need assurances in that regard from the Minister when he replies.
A further employment related aspect of the Bill is the abolition of the employment quota. It will remove the central elements of the Disabled Persons (Employment) Act 1944. That is of deep concern to people with disabilities and indeed their organisations and anyone involved in the employment field. I readily accept that the quota level has not been met. But surely the answer is to monitor it and enforce the provision rather than abolish it. Such a form of deregulation which completely wipes out the quota will harm employment opportunities for people with disabilities, and employment policies relating to such people in many organisations. Only 10 employers have ever been taken to the courts for non-enforcement of the quota. Indeed, since 1975 not one employer has been prosecuted. There has been little attempt to apply a provision in law which the Bill now seeks to eliminate.
In his reply, perhaps the Minister will say why the Government did not take up the suggestion of the Employment Select Committee in another place: to run the anti-discrimination Bill in conjunction with the quotas, and to monitor them to see whether it is necessary 866 for the quotas to continue. If the registered disabled people represent only 1 per cent., we might consider reducing the 3 per cent. figure but keeping a quota.
I must comment on the reference made by the noble Lord, Lord Holderness, to employers being favourably disposed to disabled people. That has not been my experience. My experience has been that good employers follow the law. Good employers have good policies for people with disabilities in employment in their companies. Regrettably, many employers ignore the current legislation. It is those employers whom we need to address. As regards the 1 per cent. registration of people with disabilities, I have met many employees who were not registered as disabled. They were afraid to do so because they believed that they would lose their job; and if they did so they would have no chance of other employment. I have spent many hours trying to persuade people to register for disability. They did not do so because they feared the impact on them and their employment chances.
There are many examples—some choose to call them anecdotal evidence—of the need for the Bill to be strengthened in the area of employment. I do not regard such examples as anecdotal. I know that they represent the reality of everyday experience of many disabled people seeking to provide independently for themselves in employment. For instance, an employee in an advertising department of a newspaper was dismissed because he had a mild form of controlled epilepsy. It did not interfere with his job, but he was dismissed. A coach company refused to carry a person in a wheelchair; hence it affected that person's employment chances. A qualified blind telesales person was denied a job because the employer thought that she would not be able to cope with the stairs to the office.
A Department of Employment survey found that employers drafted their job requirements in ways which unnecessarily excluded disabled people. That has been my experience too. In that survey, 65 per cent. of employers thought the ability to climb stairs was "vital" for work in management; 31 per cent. even believed that the ability to walk fairly long distances was vital for a career as a degree level business professional. Those are real examples of the experience of people with disabilities. Those are the main areas of concern regarding employment provisions in the Bill.
The overriding concern of many groups representing people with disabilities is the absence of a central body with the authority and resources to make the law work. The national disability council to be established by the Bill is not such a body. Enforcement powers need to be introduced. I hope that there will be cross-party support for changes that will strengthen the Bill in the area of employment and in the many other areas to which noble Lords referred.
§ 7.37 p.m.
§ Baroness Stedman
My Lords, noble Lords will regret that the noble Baroness, Lady Macleod of Borve, has had to withdraw from the debate because she is unwell. I am sure that we all wish her well and hope that she will be 867 with us at future stages of the Bill. I should like to make a few general remarks and then concentrate on access, transport, and the national disability council.
I am concerned about the exemptions for small businesses and the removal of the quota system and registration. Who will gather the statistics about the number of disabled people: in employment? And who will monitor the results of the implementation and effect of the new employment rights? I believe that small businesses should not be exempt for all time and that the Bill should extend to all employers. Like the noble Lord, Lord Ashley, I am concerned that the access-to-work scheme may be under threat. It has been a remarkable success and it ought to continue at least until we see how the new proposals work.
The provisions of the Bill raise many questions for businesses and for their disabled employees and customers. What is a reasonable provision? Is there any order of priority for access improvements? What improvements will give the best value for money? How will fire safety and building management relate to the physical access issues? Surely it is time that we stopped paying lip service to the access needs of the disabled in their houses, workplaces and in places of leisure entertainment?
It is so much easier and cheaper to build in the basic requirements from the start rather than to carry out a major reconstruction later. Why cannot building regulations lay down adequate standards for all new housing developments, estates and social housing so that the designs ensure easier access—wider doors and passages, bathroom aids, and so on? Such housing accommodation would make it easier for the able bodied and disabled persons to use such premises for life, with only minor adaptations. The same applies to educational establishments, to other public buildings and to entertainment and leisure complexes.
This new legislation will be most successful if access provisions can be negotiated between the employees and employers, between the service providers and their disabled customers. That will depend on all parties having a clear understanding of their rights and responsibilities and knowing what options are open to them.
Whether we eventually have an advisory committee or a commission with teeth, sources of advice at local level and nationally will be vital. When some of us had the privilege of meeting the Minister in another place and the noble Lord opposite both of them referred to the need to have advice groups at local level. It seems that they hoped that the citizens advice bureaux might be such bodies, but they are meeting, or appear to be meeting, with some resistance over the increased costs and responsibilities and the need for specialised training.
Access officers have been employed by many local authorities for over 10 years to give advice to developers and to service providers. A provision in the Bill for at least one access officer in each local authority area would ensure the development of a source of independent advice for goods and service providers and users. Then we also have the Access Committee for England, appointed and financed by the Government in 1984 with the object of promoting and advising on access for disabled persons to the built environment.
868 This new legislation will stimulate demand from businesses and from disabled people for support and advice. Yet the Government have drastically cut the funding of the Access Committee for England for this year. Why? This has put the committee under the most severe pressure and yet it has a network of over 400 local access groups in England, with personal experience of the disability of its members which is used to great effect to promote better access provision in all key services at a local level. Who better to be called in aid? But it cannot undertake additional work if its core funding is cut so drastically and without due notice.
I am glad that compliance costs have not figured so prominently as they did in the earlier Bill. I can only repeat what I said then, that compliance costs need to be considered together with opportunity costs or cost benefits. Only to consider costs is to consider outlay and ignore the return. That attitude tells us nothing about the merit of the investment.
If we are unwilling to incur compliance costs we leave people with disabilities frustrated at the edge of opportunities for education and employment, lacking public transport which they could use without great difficulty and denied access to many of the buildings in which the social, cultural and economic life of their community is carried on. If accessible transport is not available, then access to education and employment is denied to many disabled persons.
I am delighted that the low floor buses are appearing on the streets of London and elsewhere and that taxi cabs for hire are to be wheelchair accessible. I pay tribute to the Minister, Steven Norris, for his efforts towards the new provisions relating to taxis and private hire cars in the interests of a countrywide, dependable, safe and acceptable system of service.
Accessible taxis are not just about wheelchair users, even though 75,000 to 80,000 people use wheelchairs all day and every day. Those taxis will also have better fittings for the 1 million visually impaired people and will be more suitable for the 4 million people with mobility impairments who do not have to use a wheelchair. It means that the nimble, the not-so-nimble, those with a lot to carry, those with a trolley or a buggy, the partially sighted and the disabled will all benefit from more accessible transport.
My final concern today is about the proposed national disability council which will only have a monitoring or advisory role. Without full powers of enforcement such as those given to the Commission for Racial Equality and the Equal Opportunities Commission, the new laws could be disregarded. If the council is unable to take up general cases of discrimination, the onus will be on individual disabled people to fight their own case. Yet most of those people will be unable to seek redress through the courts unless legal aid is available to them.
We need a full commission to assist those who want to follow up a case, either by giving advice or with full legal representation. The commission should be empowered to issue a non-discriminatory notice against individuals and organisations and be able to enforce compliance. A council lacking resources for follow-up work, both in terms of finance and staff, and which cannot apply statutory enforcement measures is unlikely to be heeded 869 by employers and service providers. It will therefore threaten the credibility of the council, both among disabled persons and among the business community. It will have no enforcement powers and it will lack both independence and adequate resources.
The Bill could still be a landmark for disabled people. It is a move in the right direction, but much remains to be done. By widening the Bill to cover transport and education, the Government have strengthened the need for a commission—with teeth—to act on behalf of disabled persons. Discrimination is morally wrong and unreasonable. Unjustified discrimination cannot be tolerated today. We must have a real national commission, adequately funded, with powers to advise, powers to draw up codes of practice and powers of investigation and enforcement. Can we not please the noble Baroness, Lady Masham, by seeing the person and not their disability? Disabled people want and ought to have equal rights like everyone else and equal citizenship. This is an opportunity for us to give them that.
§ 7.48 p.m.
§ Baroness Seccombe
My Lords, at this hour many of the issues have been covered. I shall therefore confine myself to one aspect and in so doing I shall not delay your Lordships for many moments.
One of my earliest memories as a small child was seeing disabled people being pushed in a variety of chairs. The vehicles were cumbersome and heavy and the disabled person was often completely dependent on the person in charge. He or she was often left outside shops and distanced from normality in many ways. Life must have been very difficult as a result.
One of the biggest changes since those days—I marvel at it—is that even people with very severe disabilities are now able to enjoy the pleasure of getting around independently. That is due to the dramatic advance of technology and the determination of many groups and individuals to see an end to the discrimination against disabled people which was so hurtful and negative. I pay tribute to all those who have highlighted the issue of discrimination. I pay tribute also to my right honourable friend the former Minister for Disabled People, Sir Nicholas Scott, who, as the noble Baroness, Lady Hollis of Heigham, said, fought tirelessly on behalf of disabled people. Indeed, I believe it was he who prepared the ground for the Bill before us today.
I congratulate my honourable friend the present Minister on introducing a Bill that seeks to take forward the current legislation so that we have on the statute book the greatest advance for disabled people in the country's history. The Bill covers employment and access to goods and services while at the same time giving consideration to all employers, particularly small employers, who may not have the financial resources required.
I have to admit that I shall be glad to see the quota scheme replaced. I am sure that it was an honest attempt to raise awareness and give disabled people a right to employment. But it just did not work. The proposal in the Bill giving a statutory right to disabled people, making it unlawful for employers to treat a disabled person less 870 favourably than other people without justifiable reason, is a great step forward. I welcome it. More than four in five employees will be covered by the proposal. But, as I said, it is imperative that small businesses are not placed in a position where the law drives them out of operation. The United States decided to exclude small businesses from the Americans with Disabilities Act. Doubtless, that was for similar reasons.
The Bill is very good news for everyone, including those who have not had to cope with disability and who have so much admiration for those who do overcome the difficulties they face. I welcome the Bill and wish it well in its progress through this House.
§ 7.51 p.m.
§ Lord McConnell
My Lords, I do not intend to delay your Lordships long at this late hour. Mainly, I wish to say that I give general support to this Bill.
My interest in this subject arose a few years ago in response to the case of a young French woman who came to Northern Ireland to take up a post as an assistante in a grammar school. The engagement was merely for one year, but she made many friends, liked the place and wanted to stay on. I tried to help her to get employment. I went to see a man whom I knew who took on staff in a large national company. I told him that she was bilingual in English and French, that she could speak Spanish and that she had a degree in management from a French university. He was very impressed—until I told him, "But she is in a wheelchair". "Oh," he said, "our offices are on several storeys. It's a high building. If it caught fire, somebody would have to carry her down the stairs". He lost interest completely when he discovered that she was disabled. That made me think that we ought to do something to help such disabled people. That, I hope, is the benefit of this Bill.
The Bill may not be the complete solution, but it is certainly a welcome step. I am glad to see in it a degree of flexibility in that it can be extended in certain respects—for instance, the provisions dealing with the number of people in an enterprise which is to be exempt—and the legislation can be brought in piecemeal, so that we can learn from experience and proceed at the proper speed.
I shall mention just two other points. I shall not go into great detail because many experts have already spoken on this subject, and I do not pretend to be an expert. I am glad to see that the legislation will apply to the Crown. Too often in the past legislation has been passed in which the Government have said, "This is what you must do, but of course it does not apply to us. We do not have to do it". There are two recent examples of Crown exemption. One was the fire at Windsor Castle. Sir Alan Bailey, in his report, stated that we should consider the position in respect of Crown exemption. A similar example arose in regard to the fire at the Stormont parliament buildings in Belfast. Again, the fire regulations were not followed by the Crown. Sir Reginald Doyle likewise said that the matter should be looked at. I am glad indeed to see that this Bill applies to the Crown.
I am also glad to see that the Bill applies to Northern Ireland. Too often legislation applies only to Great Britain and not to the whole of the United Kingdom. Eventually, 871 Northern Ireland has an order that cannot be amended; we either have to take it or leave it. I am glad to see that Northern Ireland is properly included in this Bill. I extend my support to the Minister in respect of his legislation.
§ 7.58 p.m.
§ Baroness O'Cathain
My Lords, like all other noble Lords, I welcome this Bill wholeheartedly—particularly as its objective is to tack le discrimination against the disabled. Naturally, it has received the warmest of welcomes. The acknowledgement and universal understanding that disabled people have every right to be treated as equal citizens is a very big step forward if one considers what happened some 50 years ago. We are now a much more caring and humane society.
The Bill before us in effect updates the 1944 Act so as to encompass in law the very changes in universal understanding of the needs and wants of disabled people that have been so apparent in recent years. As well as welcoming the Bill, I believe that a similar welcome should be given to the remarkable degree of consensus that has been achieved on this issue, particularly between those organisations that represent the disabled and the business community. It is as a business person that I wish to make comments on this Bill, but as one who has first-hand knowledge of the real, not imagined, problems of access for the severely physically disabled.
I should like to make four points at this stage of the Bill. First, what the Bill must not do is result in a substantial increase in the cost base of British business. That in turn would affect our painfully won improved international competitiveness. The CBI reproduced for us the Government's estimates of the additional costs that are likely to be incurred—by whom, is an issue in itself, and one that has not been made clear. Those costs range from £375 million to £1,125 mill ion in non-recurring costs, and some £40 million to £120 million per annum thereafter. At this stage it is probably not opportune to ask for a detailed breakdown of where the Government will be responsible for these costs, but I give notice to my noble friend the Minister that I shall pursue this matter in Committee.
In business nowadays, any new piece of legislation, any new computer programme or any new way of improving customer care is not introduced with minimum fuss. The sums that are spent on training, internal helplines and process manuals all involve hidden costs to business on a scale that is really quite frightening. I fear that far too often legislation is proposed without sufficient acknowledgment of the cost burdens that are involved. Being tempted to be cynical, I suggest, gently, that a whole new industry of consultants giving advice on the Disability Discrimination Act will spring up once the Bill receives Royal Assent.
The imperative to retain our determination to improve international competitiveness was brought into sharp focus for me with the release of recent figures that show that, while on manufacturing unit labour costs the growth has been close to zero, they moved up 0.6 per cent. in the first three months of this year compared with the same period last year.
872 Even more worrying is the fact that since 1993 the US, Germany and Japan, our main competitors, have seen even steeper declines in unit labour costs. There is no room for complacency here. Any increase in imposed cost must be resisted. My noble friend the Minister must realise that I am putting in a plea for government to take on all the cost, but I know what his response to that will be.
Our progress over the past three years cannot be jeopardised by allowing costs to run ahead of productivity gains. If they do, the inevitable will happen, and the so welcome improvement in the unemployment rate will disappear, creating a risk to one of the objectives of this Bill; namely, more jobs for the disabled.
Earlier today we heard that the Government's second competitiveness White Paper has been published. Indeed, I have already scanned it for latest trend information. There is much in it and much to be welcomed. But we shall have to maintain our vigilance and make sure that we do not slip.
To return to the issue of costs in this B there does not appear to be a clarification of the precise distinction between recurring and non-recurring costs, other than the fact that the CCA (compliance cost assessment) document states that non-recurring costs may include adaptations or alternative services as well as the costs associated with acquiring information on the new legislation, the review of rules and practices and dissemination of instructions to staff. On that point, the "dissemination of information to staff' would almost certainly be a recurring cost depending on staff turnover levels.
I turn to my second point, which follows neatly from the first; namely, the essential requirement for clarity. There exists a huge risk of cost escalation from lack of clarity. I specifically draw attention to Clause 21, which deals with the provision of goods, facilities or services. To give just one example, how will services such as vending machines, banks' ATMs, and telephone boxes be dealt with? Will the provider of those services be obliged to have an employee standing by to ensure that the disabled are assisted to operate those machines? This is not a rogue point but a valid concern. At the Committee stage I am sure that this matter will be addressed. I just put up a marker.
My third point concerns the availability of advice to businesses to ensure that they can do the right thing. The scope of the Bill is immense and there are bound to be areas of confusion which manifest themselves during the operation of the Act and points that none of us will have thought about. What we certainly do not want is a situation whereby, through no fault of their own, businesses fall foul of the legislation because of bad advice or, indeed, no advice.
Let me illustrate my point. I was taken aback when I was shown an internal manual prepared by Bass PLC, who own the company Holiday Inn. That internal manual gave instructions on how to comply with the US ADA legislation. The manual is 292 pages long. It covers a detailed breakdown of the law, analysis of the disability market, disability etiquette, resources to be made available, questions and answers for hotel managers and the rules and regulations attached to each area covered by that Act. It is a sobering process but necessary if that company does not want to get into serious legal problems.
873 Yet, in the US there are helplines available. The helpline on access, for example, is provided free by the Department of Justice. I ask my noble friend the Minister whether there is any likelihood of similar helplines being provided by a government department here. That point could be covered, I suppose, by the national disability council, if its remit were widened to provide advice and guidance.
My fourth point concerns small businesses. It is in that area that we are pinning so much hope for new job creation. It is essential that the cost burdens arising from the Bill are minimised. The Government have already committed themselves to reviewing the current exemption from the proposed employment right for those employing fewer than 20 employees. But that creates a possible danger. If regulations and codes prepared with those employing more than 19 people in mind suddenly apply to those employing fewer people, there could be a real problem. It would be far better to consider the situation of that group when the regulations and guidance on unemployment are first drafted rather than later. The Government have said that they will not reduce the level below 20, but regulations and guidance need to reflect that.
It has to be said that if there were not such an exemption for small firms, as advocated by my noble friend Lord Campbell of Croy and many others, there could be significant cost penalties. Employing a disabled person can be very costly, not just in terms of access but in terms of back-up when the person has, for example, to go to regular physiotherapy or for medical checks, etc. In my personal experience, the sick-leave record of the disabled is generally much higher. A larger company can have the luxury of job cover. Smaller firms might not be able to afford it. My noble friend Lady Gardner of Parkes spoke about HIV and how an HIV-positive person has problems. That is very true. A bigger organisation can cope with that, again, allowing back-up and jobshare, but the smaller companies might have problems if the level were extended below 20 people.
Inevitably, there is a great deal more that could be said about the Bill and many noble Lords have already said it. But lest I give the impression that it is all too complicated, I must reiterate how much I welcome the Bill. The principle is excellent; the content needs working out; and the perennial question of who bears the cost must be addressed. However, it is imperative that every effort is made to ensure that clarity is reached on every single aspect of the Bill. We now have a golden opportunity to introduce measures which should make life so much better both for the disabled and for those of us who have a genuine wish to make sure that life is made easier for the disabled.
Perhaps I may make an observation. I do not think it is realised that many people who are in close contact, on a daily basis, with the severely disabled live with a constant nagging guilt that they are not doing their absolute utmost to alleviate the problems of disability. If only things were universally easier, those who are responsible for the complete care of the disabled person would not be so "stressed out", to use the current jargon—but it is jargon which so correctly describes the reality of the situation.
874 Of course, things are not universally bad. There are shining examples of good practice: the out-of-town supermarkets, so often the butt-end of recrimination are a case in point. It is so much easier to go grocery shopping in those stores than to try to manipulate a wheelchair up and down kerbs and in and out of congested small shops in the high street. People's attitude to the disabled has improved beyond measure, but there is still a way to go and this Bill will propel the issue forward.
Finally, let me sound a note of caution—a health warning, if you like. What we do not want is a new piece of legislation which is so unclear and so complex that at every turn one has to refer to lawyers. Too much legislation becomes tantamount to writing blank cheques for the legal profession but, more seriously, brings us all into disrepute also.
§ 8.7 p.m.
§ Lord Robertson of Oakridge
My Lords, I very much welcome the Bill in general. I should like to mention just one area of concern where I feel that further debate is needed; namely, the provision of medical care to disabled people. It is a vitally important area involving, as it does, the patient's right to medical care and, in the last resort, possibly to life itself. It is an area where there are a number of difficult but important ethical questions.
The Bill has very little to say on the subject of medical care—so little indeed that I wondered whether it was intended to cover it at all. However, Clause 12(3) (h) (on page 9) refers to:the services of any profession or trade".The noble Lord, Lord Mackay of Ardbrecknish, kindly confirmed to me that health authorities and medical practitioners are included in the Bill in so far as they offer services to the public. Nevertheless, from inquiries that I have made so far, it appears that the Bill is regarded as almost entirely concerned with commerce, trade and employment. If that is so, the very considerable medical implications remain to be fully assessed.
I hope that, as the Bill goes through its various stages in your Lordships' House, the public debate on the medical issues will gather pace and provide a forum in which various representative professional bodies and the voluntary agencies can participate.
§ 8.9 p.m.
§ Lord Beloff
My Lords, I have no intention of echoing previous speakers who have enlarged upon the many important provisions of this important Bill. I want only to take up a point made by my noble friend the Minister concerning amendments that would affect the institutions of higher education, which we understand are to be brought forward at Committee stage along with other government amendments.
It is obviously important that higher education, as education generally, should make adequate provision for all those who, by reason of disability, may not be able immediately to find a suitable place and to vary provisions in order to assist them. With 96 universities (at the last count) and innumerable courses, that should not be too difficult, provided it is accepted that the rights conferred could not be necessarily universal. It is important that 875 there should be some place; it need not necessarily be that every institution must provide a suitable place. To take an obvious example, the business of physical access through lifts or other means is relatively easy to apply when one is erecting a new building, but when one is dealing with historic buildings constructed centuries ago real difficulties are involved. Their listed nature involves other permissions and the intervention of other authorities.
But on the whole it cannot be denied, either by the Government or those familiar with the higher education scene, that universities have taken their obligations seriously and that a great deal of work has been and is being done by university staff, assisted by the demands of the student bodies themselves. The University of St. Andrews, with which I am connected, has a student officer whose prime duty is to make sure that disabled students coming to the university are familiar with the facilities available for them and to agitate for suitable facilities where they do not exist. We are not dealing therefore with a static situation.
On the other hand, there does not seem to me to be in the disabilities field any specific reason to go back on undertakings which this House secured in relation to academic freedom. I remind your Lordships that, during the passage of the Further and Higher Education Act 1992, an amendment was passed which prevents the Secretary of State from giving directions to the funding councils which might impinge on academic freedom. As 1992 seems like a long time ago, perhaps your Lordships will pardon me for reading the section. It is Section 68(3), which states:Such terms and conditions"—that is to say, the terms and conditions of grants from the funding council—may not be framed by reference to particular courses of study or programmes of research (including the contents of such courses or programmes and the manner in which they are taught, supervised or assessed) or to the criteria"—this was the amendment accepted by the House against the advice of the Government, but which the Government accepted—for the selection and appointment of academic staff and for the admission of students".That seems firm enough. But we now learn that without prior consultation with the universities the Government (I understand from listening to this debate on the more general issues) consulted fairly widely with those organisations concerned with disability. However, their habit of consultation, which may be powerful in the Minister's Ministry, is not one which the Department for Education finds normal or natural. We now learn that the Government propose to introduce an amendment to the Bill,to provide the Secretary of State with an unambiguous power to require the higher education funding council to seek policy statements from universities and colleges covering their arrangements for access (in its widest sense including admissions and curricular policies as well as physical access) for disabled students".The letter of 28th March to the Committee of Vice-Chancellors and Principals, which gave the first official indication of the Government's intention, stated that this was being done because of the restrictions in Section 68 of the Act from which I quoted.
876 In other words, the genuine and important needs of disabled students are being used, on occasion, for the Government to go back on a decision reached by Parliament that the one thing the funding council may not do is to place conditions on its grants affecting academic matters. The objection is not so much in the substance because all universities do and will continue to give publicity to the arrangements they are making on behalf of disabled students. The difficulty is that once a provision of this kind is overridden on a worthy cause, what will stop the Government from coming forward and providing means of overriding it for some less worthy cause?
One might say that perhaps the needs of disabled students are so important that we should make this an exception to the general rule. But in this case it does not appear that it would be of assistance. The noble Baroness, Lady Darcy (de Knayth), mentioned the national bureau for students with disabilities—SKILL—in which I understand she is a leading figure. But SKILL is opposed to the government amendment. I received a briefing from it which reads as follows:There is no sound reason why the increase in equality for one group should be made to threaten the existing rights of another, the universities. More specific policy statements on provision for disabled students would be welcome and useful, but the amendment needs to be framed in another way if it is to be welcome to the institutions who are to respond to it".In other words, those who represent disabled students believe that the way forward is through co-operation between such organisations and the institutions of higher education. They deplore the interjection of an unnecessary compulsory power in violation of the undertakings given by the Government when the original Section 68 was finally enacted.
Since I am sure that my noble friend the Minister is anxious that there should be co-operation on all sides of the House in dealing with this important Bill, and will be looking for the greatest measure of goodwill, I ask him earnestly to consider not moving the proposed amendment in order that there should be one big body of opinion—those concerned with higher education—who will look upon the Bill with favour, which they might otherwise withhold.
§ 8.18 p.m.
§ Lady Kinloss
My Lords, like other noble Lords who have spoken, I welcome the Bill as far as it goes. I also thank the Government for the concessions they have already made and look forward to seeing the amendments they intend to bring forward.
The Bill establishes two important new rights for disabled people in employment and in access to goods, facilities and services. There are around 1 million blind and partially sighted people who could benefit as a result of legislation to outlaw unfair discrimination in those areas. Part III of the Bill deals with goods, facilities and services.
The RNIB is pleased by the Government's pledge to bring forward amendments in regard to transport. The noble Lord, Lord Winchilsea and Nottingham—I am sorry he is not in his place—spoke of transport by taxi. Some taxi drivers refuse to carry guide dogs for the blind 877 or talking dogs for the deaf. I understand that it is generally minicabs, which I believe are not licensed. If they do carry the dogs, it is not unknown for the guide dog owner to be charged extra for the dog. That would seem to be very unfair.
Last Thursday evening when I arrived at York station I had to take a taxi the 11½ miles home. I was in a saloon car. The car behind was a London-type black cab, which I can assure your Lordships makes for an extremely uncomfortable journey on country roads. The driver, a taxi driver for 29 years, said he would like to have a mixture of taxis. All taxis and hire cars in York are licensed. His taxi was registered under Ryedale district council, my own council. He had a large notice in a convenient spot for all to read —"Guide-dogs and talking-dogs are carried without hesitation and at no charge". His list advised that an ordinary pet should be charged for at lop. He would like some saloon taxis allowed as tourists often ask to be taken quite long distances to beauty spots or places of special interest and expect a comfortable car. May I ask the Minister whether this mixture of taxis could not be recommended.
SENSE would like the Bill to afford protection to deaf-blind people in the provision of goods and services. For deaf-blind people this means that companies and shops should not be allowed to charge for services such as Braille copies of brochures, leaflets or menus. If companies or providers of goods and services are able to impose a charge, it could be seen as a disability tax. This would surely be going against the main intention of the Bill—equality before the law.
As other noble Lords have said, the definition of disability is very difficult. SENSE and other organisations for the disabled feel that the definition is too narrow. SENSE draws attention to the failure to include genetic predisposition within the definition. This would appear to throw open the possibility of a person suffering from Usher syndrome being discriminated against by an employer. Usher syndrome is where an individual is born with a profound hearing impairment and then begins to lose his sight in his mid-to-late twenties. The discrimination would be where an employer took into account the future loss of sight, perhaps 10 years hence, when interviewing for a job at a time when only hearing is impaired.
I agree with many of the organisations for disabled people in their wish to see a commission with legal teeth rather than a national disability council without the backing of possible legal enforcement.
Remploy Limited, a government-subsidised company, is very concerned that the Bill could have an adverse effect on the employment of people with severe impairments. Remploy was originally set up after the last war—the 1939–45 war—to provide jobs for disabled people, particularly those disabled in the service of their country. As we celebrate the 50th anniversary of VE Day, it would be very sad if subsections (2) to (5) of Clause 34 of the Bill threatened the unique nature of Remploy. May I ask the Minister if this could happen under the Bill, or is Remploy worrying needlessly?
878 I look forward to the Bill leaving your Lordships' House improved not only by promised government amendments but possibly other amendments as well.
§ 8.23 p.m.
§ Lord Ashbourne
My Lords, it is getting late and I will not detain your Lordships for long. I believe that the Bill deals with an issue of fundamental importance to our society, and I welcome it. I am glad that the Government have responded to the widespread concern about the rights of disabled people and are seeking to strengthen the law and protect the disabled from discrimination. I have experienced the impact of disability in my own family, as no doubt have many noble Lords, and anything that we as parliamentarians can do to enhance the status of the disabled and ensure that they are treated on a similar basis to the rest of society must be welcomed. No doubt noble Lords will have a number of suggestions for strengthening and improving the Bill.
As I read the Bill, I was troubled by a more fundamental concern. I believe that we are in danger of rightly responding to the cries of those disabled people that we can see and hear, but gradually leaving to one side those who cannot speak for themselves. I fear that, in spite of the efforts of a Bill like this, the overall attitude of society to disability and handicap is becoming more negative. I say that because the advances of genetic screening mean that more and more inherited handicaps are identified before birth and the option of abortion is not only offered but is expected to be taken by parents facing the possibility of a handicapped child. In 1993 there were 2,000 terminations of pregnancies on grounds of serious handicap, some of them in very advanced stages of pregnancy, following the changes made to the law in 1990. Noble Lords may feel that abortion raises different ethical issues from the more general concern for disabled rights. But what of the newly born or the confused elderly with disabilities who cannot speak for themselves?
I was shocked to read of a recent case in Holland where, on 26th April, a judge acquitted a gynaecologist of murder charges after he had intentionally killed a three day-old baby girl. The doctor justified his action on the grounds that the girl was seriously handicapped and might only have a few weeks to live. While the Medical Ethics Committee of this House, chaired by the noble Lord, Lord Walton, strongly condemned in its report actions like that, I can see a time when the trends in our society mean that such events could happen here. Perhaps I may add how much I applaud the report of the Medical Ethics Committee of your Lordships' House. I should like to congratulate members of that committee, in particular the noble Lord, Lord Walton, on the admirable report which they rendered.
Similar issues arise where those who are incapacitated but unable to express a view may become less valued by our society and we decide that the best thing is for them to have their lives ended, directly or indirectly. The recent Law Commission report on mental incapacity delves into that issue with results which, in some cases, I find deeply offensive.
It is clear that we need a Bill like the one before us today. But my plea is that we need to think again about our attitude as a society to the disabled. We must eliminate 879 discrimination against disabled people but never go down the path we have started with the unborn—of eliminating the disabled themselves.
§ 8.27 p.m.
§ Baroness Seear
My Lords, I have powerful memories, 50 years ago, of going to a lecture on rehabilitation given by a most outstanding surgeon who had an international reputation for the work that he had done on people hopelessly, it would have seemed, mutilated and disabled either in the forces or as the result of civilian bombing. He took as his text: sympathise not with my weakness but with my strength. That is the principle which should lie behind all legislation connected with disablement and the way we should deal with, and the opportunities we should offer to, disabled people.
To turn to another memory of those years, that strength was very much illustrated by an exhibition near Burlington Academy by disabled people who had been trained to do work which was urgently needed at that time. It was remarkable how during the war people who had been regarded as quite incapable of employment were suddenly found to be very valuable indeed and quite able to get up to high standards of work provided they were given the appropriate training. I should like once again to pay particular tribute to the work that St. Dunstan's did at that time, and has, of course, done since. That is why I want particularly strongly to support what was said by the noble Baroness, Lady Darcy (de Knayth), about the importance of education and training. One cannot give appropriate training to disabled people to bring them to the standard of work which enables them to obtain and to hold very satisfactorily—not as a concession—the jobs for which they can be trained unless they have the essential education to do it. That is a most important matter to be put into the Bill for the development of disabled people. In so doing, I echo what the noble Lord, Lord Beloff, said: it is particularly unfortunate to alienate the education institutions by making unnecessary requirements in order to reach the standard. He was referring to a government amendment that we have not yet seen. The Government still have time to do something about it and to meet the point made by the noble Lord, Lord Beloff, and, by implication, by the noble Baroness, Lady Darcy (de Knayth). Therefore the emphasis on education and training and its absence from the Bill, is something on which we should concentrate.
Employment is at the heart of the matter. To be able to get a job, hold it down, earn a living and to work along with other people in ordinary employment, is probably the greatest benefit that one can give to the disabled. It is also the most economically sensible thing to do because it relieves the strain put on society if the disabled are unable to work. It makes the disabled contributing citizens rather than people who have to draw benefits from the rest of the community. I particularly regret that education is not included in the Bill. I draw the Minister's attention to the fact that under the European Convention on Human Rights, discrimination on grounds of education is illegal. I hope that he will be able to comment on that and tell us what action the Government might consider taking in that regard.
880 There are many other points of proposed; legislation on which I would like to comment. I very much follow the noble Baroness, Lady O'Cathain, as regards costs. It is quite extraordinary that this Conservative Government, which is quite rightly devoted to the development of industry and its prosperity, and which claims that they are taking burdens off industry, are constantly putting them on. If we want better treatment, facilities and opportunities for disabled people, surely a considerable amount of the cost should be borne by the Government and the taxpayer. Of course, it is not the Government: they are always telling us that they have not got any money and that it is the money they have taken from us, whether we want them to or not. It is unreasonable that industry should have to bear the cost if we want a decent society.
I have said this before and I shall say it repeatedly: if we want a decent society and the proper treatment of disabled people, which is very much part of having a decent society, then we must be prepared to pay for it. The Minister looks extremely doubtful about it. He is going to tell me, of course, that the Liberal Democrats will throw money away right, left and centre and that they do not care what the taxpayer has to pay. We want a decent society and we believe that people are capable of being persuaded that such a society has to be paid for and that the costs should not all be laid on the employer if we want it to work properly.
There are many other points, but there is not a great deal of time to deal with them at the present moment. Once again the question of parliamentary control over the regulations and development of this Bill rears its head. I understand that the council lays down the guidance which the tribunal has to go by in dealing with the complaints which come before it. But that guidance does not come before Parliament. Therefore, the tribunal is adjudicating on cases where Parliament has not had the chance to say whether the standards on which the adjudication takes place are satisfactory. The Government's passion for doing everything by regulation in side tracking and bypassing Parliament, has become a mania. Would it not be possible to look again at this matter to see whether the right can be restored to Parliament to look to see what the guidance will be before it is passed to the tribunal to act on?
We come once again to the question which practically all noble Lords have raised and which I sincerely hope will be dealt with before the Bill leaves your Lordships' House. All the good intentions in the Bill and all the fine words said about it, will add up to absolutely nothing unless there is an effective enforcement procedure. That has to be in place in order to see that the whole purpose of the Act is properly carried out and that discrimination does not take place.
In view of some of the comments made by some noble Lords, perhaps I may add that the anti-discrimination legislation which we are asking for, with powers to have it enforced, is in no way asking employers to take on people who will be economically damaging to them. Previous anti-discrimination legislation has made it entirely clear that employers are not asked to run their businesses less efficiently because there is anti-discrimination legislation. All employers will retain the right—as they have done under legislation dealing 881 with sex discrimination and discrimination on grounds of race—to refuse to accept someone if it is justifiable so to do. They are only required not to turn down people for reasons which have nothing whatever to do with their ability to carry out the job.
That point does not seem to be fully understood as regards some of the comments which have been made today. We heard Members of your Lordships' House talk as though employers were asked to carry people who cannot do the job. That is not so: they have never been asked to take on women who are not competent to do the job because they are women or members of ethnic minorities because, as such, they are incapable. They will not be asked to take on disabled people who are incapable of doing the job. There has always been the provision that the employer can turn down—the Minister is telling me to shut up and I shall do so very shortly.
§ Baroness Seear
My Lords, I had forgotten the time allowed for the gap. I beg the noble Lord's pardon. I have made the point about discrimination which is very important. I finish by saying again that without enforcement procedures of the kind that we have had in other anti-discrimination legislation, we are wasting our time.
§ 8.37 p.m.
§ Lord Carter
My Lords, as is always the case when this House debates disability, we have had an excellent and wide-ranging discussion. In winding up the debate from this side of the House I shall not attempt to repeat the many persuasive arguments which have been advanced. I believe that all who have spoken have felt a strong sense of déjà vu. If my arithmetic is correct, this is the 14th attempt to get legislation on the statute book since 1982. We know now that the Government have been finally persuaded that education and persuasion are not enough and that legislation is needed.
Obviously, the crucial question is this: will the legislation begin the task of ending discrimination against people with disabilities? At the outset, to be fair, I must say that it is a beginning. My noble friend Lord Ashley said that it was "a midget milestone". I would describe it as a very tentative first step. To use the Minister's word, it would be churlish to argue that it is not in fact a beginning. But will it go far enough? Clearly, we believe that it will not. We shall certainly attempt to strengthen the provisions of the Bill as it goes through its various stages.
The reason for having the legislation at all is a simple one. Discrimination of any sort, be it on grounds of sex, race or disability, reinforces and legitimises attitudes in society which run counter to fundamental beliefs which are based on natural justice. Those of us who have made the case over the years for enshrining anti-discrimination provisions in law did not have to make the case in favour. The onus was on those, like the government, to show why legislation was not needed. That argument has now been won.
882 Our task now, having breached the walls of prejudice against legislation, is to see that the Bill does a proper job, not in ending but in beginning to end discrimination against people with disabilities. I believe that we can all agree that one Act of Parliament will not solve the problem. Attitudes towards disability are founded on a complex psychological matrix involving fear, ridicule, pity and charity.
However, if those attitudes are to be overcome, there has to be a basis in law which lays down the rights of a disabled person. Anti-discrimination legislation does not confer privileges on those affected by it. It ensures that certain groups in society receive the same treatment that the rest of society takes for granted. Discrimination against disabled people has become institutionalised in employment, access, education and many other areas. Institutional discrimination can be ended only by changing social behaviour through appropriate legislation.
The statistics and the arguments are well known and have been quoted, so I shall not repeat them. However important the statistics, it is the everyday experiences of people with disabilities trying to live their lives as fully as possible which are the real facts that matter. If one in nine of the population is to lead life to its fullest potential, the other eight must learn to listen and to understand that the argument has now moved from charity and welfare to civil rights.
Perhaps a useful way to examine the Bill is to compare it with successive anti-discrimination Bills which have been proposed over the years as Private Member's Bills. The latest is the Barnes Bill. A true anti-discrimination Bill speaks of "civil rights". This Bill speaks of "duties". A true anti-discrimination Bill would say that no employer can discriminate. This Bill says that certain employers, small employers, are allowed to discriminate. Anti-discrimination is based on the idea, "You are disabled if you think you are". This Bill is based on the philosophy, "You are disabled if we think you are". A proper anti-discrimination Bill would have a commission with teeth; this has a council with gums.
Your Lordships may have seen the excellent supplement in the Observer on 7th May, produced in association with Scope, which dealt with disability. It provided an excellent summary of the arguments surrounding disability legislation over time and included immensely instructive and moving accounts of the day-to-day experiences of nine disabled people with a wide range of disabilities. A number of things can be discerned when one looks at the life experiences of disabled people. There is often low self-esteem among disabled people, fuelled by a low level of expectation in education and employment. Many people think that a job as a lift attendant, telephonist or car park attendant is not only suitable but appropriate for disabled people. There is also casual institutional discrimination, often by doctors who either do not understand disability or just do not know how to communicate with disabled people or their relatives.
There are infuriating practical problems. There are cab drivers who pretend that their wheelchair ramps have been stolen so they cannot take a wheelchair. As we have heard, there are minicab drivers who either refuse to take 883 passengers with guide dogs or who charge extra for the dog. A member of my family who uses a guide dog says that the drivers of black cabs in London are excellent in that respect; it is the minicab drivers who create the problems. I hope that that point can be met when we deal with the licensing of cabs in later legislation. There is also the question of the lack of an induction loop system in public places. As a family, whenever we go to a theatre, church or meeting place, we now ask, "Is there an induction loop and if not, why not?" Architects and design consultants now go in for fashionable greys and pastel colours and omit colour coding on the edge of steps to help the visually impaired.
Discrimination against disability has its roots in our social culture and finds expression in economic and physical disadvantage. As I pointed out earlier, a complex mixture of religious, psychological, cultural and educational factors provides the seed bed for discrimination. Every disabled person continually meets examples of insensitivity or downright ignorance based on traditional perceptions of impairment.
Much has been said about the powers, or lack of them, of the national disability council which is proposed by the Bill. Only this morning I received the government response to the consultation paper on the government measure. The section which deals with the new advisory body states:It emerged from the qualitative analysis that many respondents felt strongly that the new body should not be advisory at all but should have statutory powers of enforcement—otherwise it would be ineffective. Further, most advocated that the new body should be a commission, with the same powers to combat discrimination as the Commission for Racial Equality and the Equal Opportunities Commission … It was therefore considered that an essential function of the NDC should be to enforce the new law".It will be interesting to know from the Minister why the response to the consultation was ignored. How is it proposed to organise or fund advice at the local level where it is needed? We hear that NACAB has said that it is not at all keen on the idea.
Over the past five years when we have been discussing this matter we have all had occasion to mention the Americans with Disabilities Act, the ADA. I thought that it might be helpful if we brought ourselves up to date with the latest thinking in America on the ADA, its successes and failures. I spoke only yesterday to Judy Heumann in Washington DC, who is herself disabled and is the Assistant Secretary for Special Education and Rehabilitation Services. She is very well known on the world disability scene. Her view was that, broadly, the ADA is working well but that it takes time. When one looks at the American experience, it is important to remember that the ADA is one of a number of Bills which started out over 20 years ago. It is not the first such Bill, as ours is. How much progress have we missed by the Government's intransigence on this matter since 1979? Judy Heumann said that there is now much more discussion, both for and against, but that the barriers are breaking down. Substantial resources have been put into technical assistance for employers and educationists. We have to compare that with the miserly amount that is set aside under the Bill for the national disability council.
884 I am sure that much will be made of the fact that this Bill excludes from its provisions employers with fewer than 20 employees. The federal Act, the ADA, has a limit of 15 employees. Indeed, for many years some states have specified a significantly lower minimum. That is because the only way to include employers in some states was to bring the limit right down. In New York, for example, the minimum is six and in California it is four. Why then are we starting with 20? As a result of the ADA, there is now much greater awareness of disability, but in the five years of its existence only nine cases have come to court in the whole of America. There has been no rush to litigation. Those of your Lordships who have been to New York will know that it has many old buildings with many steps. However, most of its restaurants are now accessible and the average cost per restaurant of doing that was 300 dollars. They have discovered that if you use a small portable ramp, you do not have to put in the expensive solid ramps to which we are used. When owners came to modernise their restaurants, they were forced to think things through and to make their buildings accessible.
As I said, America has 20 years of experience, starting with contract compliance which was laid down by federal and state government. When the ADA was introduced, over 50 per cent. of companies in America were already complying with such provisions as a result of contract compliance. What could we have done over the years if the Government had insisted on anti-discrimination measures for disabled people in contract compliance here? The late Ed Roberts who, sadly, died recently, was the chairman of the World Institute of Disability. He said that the ADA made people think twice, and that when disabled people say, "You're discriminating against me", the officious, the bureaucrats and the prejudiced back off. Mr. Justin Dart, the Right-wing Republican, the chairman of the President's Committee on Disability under George Bush, said that the ADA has made disabled people full citizens of the United States.
The first Motion that I moved in your Lordships' House eight years ago was to draw attention to the needs and problems of people with disabilities. In that debate, I coined the phrase "the disabled divide" to describe the gulf that exists between the aspirations and ambitions of people with disabilities and their actual experience. The Bill will not bridge that divide unless it is considerably amended and strengthened. Noble Lords will be doing a great service to disabled people if they ensure that those improvements are made to the Bill as it goes through its various stages. We must ensure that when it completes its passage through the House it will truly be a civil rights for disabled persons Bill and not the half-hearted and tentative Bill we have before us.
§ 8.50 p.m.
§ Lord Mackay of Ardbrecknish
My Lords, we have had an interesting debate with a large number of speakers. I do not suppose that your Lordships would appreciate it if I tried to answer every point that was made by every speaker.
§ Lord Mackay of Ardbrecknish
My Lords, I suggest that the Benches opposite do not try to tempt me. We should still be here after 10 o'clock. I shall look at one or two of the themes that have run through the debate and then take one or two individual points. I have no doubt that we shall be able to return in Committee to most of the issues raised in Committee.
The main theme running through the debate, as it did through the speech of the noble Lord, Lord Carter, was the council that the Government have proposed as opposed to the commission which the Benches opposite seem to want. The theme that runs through the debate is the view that discrimination against disabled people is somehow akin to discrimination on the grounds of race, sex or religion. I do not propose to attempt to counter all the points raised; but I am sure that we shall have plenty of opportunity to go over them.
I should like to explain some of the reasons underlying the approach we have adopted to the Bill. First, we gave careful consideration to adopting the existing model found in the sex discrimination and race relations legislation. We rejected that because in some cases disability can limit someone's ability as an employee or capacity to receive services.
If we are serious about tackling discrimination against disabled people, we must not stop at merely prohibiting unfavourable treatment as in sex and race discrimination legislation. We must also require employers and service providers to take reasonable steps to help disabled people overcome any limitations imposed by their physical or mental impairment. Having done that, we must still remember that some disabled people will, none the less, not be able to do a particular job or to avail themselves of some services. In those cases, regrettably, we must allow that less favourable treatment is inevitable.
Those factors make this area different from race and sex. They also make our endeavours to end discrimination against disabled people a complicated matter. Those complexities are, quite rightly, reflected in the Bill. Where the national disability council can help with some of the examples that noble Lords gave, is when it finds that a particular group of disabled people is having difficulty securing its rights; for example, from considering the information supplied by the advice and assistance service, there will be a number of courses open to the council. It may want the Secretary of State to commission research to find out the reasons for the difficulties. Alternatively, it may wish to take evidence from the advice service and speak to representatives of any industries or businesses concerned in order to identify the problem.
In any event, we would expect the national disability council and the National Advisory Council on the Employment of People with Disabilities to draw their findings to the Government's attention and to make recommendations as to what should be done to overcome any problems. The flexibility provided for in the regulation-making power in the Bill and the provisions for codes of practice allow for the policy intention to be clarified if particular problems arise.
It should be borne in mind that the existing commissions have used their powers of general investigation very infrequently. In 1993, the Commission 886 for Racial Equality commenced only three investigations of named bodies and the EOC commenced only one such investigation. The noble Baroness, Lady Hollis, and others, prayed in aid the CBI as being in favour of an effective enforcement body. I believe that the noble Baroness will find that the CBI is neutral on the question of a commission. Its main concern is that there should be an effective source of advice and information for employers. We shall be working with it to ensure that such a service is made available. I am confident that it can be delivered without setting up a commission.
The noble Baroness, Lady Lockwood, seemed to be worried that the council would be responsible only to the Secretary of State. It will provide advice to the Secretary of State, but it will also produce an annual report which will be laid before Parliament and be published. It will be open to Members of your Lordships' House to seek to debate any aspects of that report.
I shall turn to a point made outside the House by the noble Lord, Lord Ashley, who was critical of the lack of a commission in the Bill, as he seems to think that a large number of people will choose to disobey or disregard the law. I can do no better than quote back to him his words in last week's programme "Does he take sugar?" in which he said, "I can't believe that many people are going to break the law, I just don't believe that". Neither do I.
§ Lord Ashley of Stoke
My Lords, I am sorry to interrupt the Minister. That is precisely what I said today. I was echoing myself. The Minister has misunderstood. He should read Hansard tomorrow.
§ Lord Mackay of Ardbrecknish
My Lords, I was reading a transcript of the programme; but I shall, indeed, read Hansard tomorrow.
I shall turn to the issue of definition. Again, the noble Baroness, Lady Hollis, complained that the definition excludes some disabled people. The definition is not limited to people whose impairments are clinically well recognised. That qualification relates to mental illness only which, as your Lordships will recognise, has a much greater scope for doubt than other mental impairments or physical impairments.
The noble Baroness has some other misconceptions about the Bill, upon which I have no doubt we shall spend some happy hours in Committee. The definition of "mental impairment" is wider than that in the Mental Health Act. Under that Act, people are covered only if they are a danger to themselves or others. I should not have thought that the noble Baroness would have wanted such a restriction. Someone who has epilepsy, where the substantial effects are controlled by medication, would be covered.
§ Baroness Hollis of Heigham
My Lords, again, like my noble friend Lord Ashley, I am sure that the Minister would wish to quote me correctly when he is addressing points in his reply. The examples of well-defined conditions that I gave were from MIND. ME and mental disorder would not be considered. I made it clear that when I was talking about that area in which the Bill fails to protect against discrimination, I was talking about mental disorder. The other examples, including controlled epilepsy, related to where it had no adverse or substantial 887 effect on normal activities and in consequence therefore were not covered by the Bill. That was a separate part of the answer.
§ Lord Mackay of Ardbrecknish
My Lords, I said at the beginning that I was not going to answer every point. I thought I had answered one of the points that the noble Baroness made but perhaps that should act as a warning to me. I should probably leave these matters to the Committee. The noble Baroness may be surprised to know that the mildly disabled people would not be covered by the definition in the Civil Rights (Disabled Persons) Bill.
My noble friend Lady Gardner of Parkes was worried about HIV and AIDS. She raised some interesting points about the inclusion of people with HIV and AIDS. I am sure that we shall return to those points later. I can confirm that people with HIV and AIDS will be covered by the provisions in the Bill if the symptoms have a substantial effect.
I shall turn to one of the other main themes in the employment sector, which was drawing the line at 20 employees. It is true that the CBI is against the exemption of small employers; but we should bear in mind that the CBI represents few, if any, employers with fewer than 20 employees. I should think it would be difficult to find many, if any, of those in its membership. Significantly, the Federation of Small Businesses, which of course does have small employers as members, supports the exemption of small employers.
The noble Lord, Lord Rix, explained that he was going to a reception to look for some money for one of his good causes, and that he hoped to return. However, he underestimated the ability of your Lordships to keep speeches within reason—I mean the time and not the content—and I shall attempt to do likewise. The noble Lord came to see me with some people from MENCAP. I should say to him that I do not believe that it would be practicable or reasonable to overlap the quota provisions with the new provisions in this Bill, even for a year. The two laws will not be compatible. One is subject to criminal sanctions, and the other to civil sanctions. They have different definitions. One insists on a system of registration, and the other does not. Those are only three differences. Employers will have to make a transition at some point. It seems to me best to ensure that employers have a reasonable time in which to understand and take account of the new legislation. I hope that they will be able to do that with the guidance which we shall provide for them.
The right reverend Prelate the Bishop of St. Edmundsbury and Ipswich—a splendid title, if I may say so—pointed out on the question of small firms that many of the 96 per cent. of small firms will be in rural areas. I have little doubt that that is true. But I remind the right reverend Prelate and other noble Lords that something like 80 per cent. of employees will be covered by the Bill. Many large firms or branches of them are in rural areas. Therefore, they will be covered.
I thought that the right reverend Prelate made a good point, and I wish to underline it, when he said that 60 per cent. of firms employing fewer than 10 people have disabled employees. Indeed, we are aware that many 888 small employers employ disabled people. We welcome that. The Bill will not prevent them continuing to do that if they are doing it at the moment without being covered by the legislation.
In no way do we wish to give the impression that we are content to see small firms treating people unfairly. We are opposed to unfair discrimination in any form. The fact is that we hope that many small firms, in addition to the 60 per cent. already mentioned, will be encouraged by the guidelines in the statutory employment code of practice. We shall consult small firm organisations when we draw those up. While they may not be covered by the legislation, the good practice will be there for them to see.
My noble friend Lady O'Cathain, made some serious points about the loading of costs on to business. We have tried to be mindful of that in the timescale over which we shall implement the legislation. I do not see that you can simply substitute business for the Government because the Government receive much of their income from business and individual taxpayers. Therefore, it is much more sensible to attempt to introduce the legislation and the costs that go with it in a balanced and sensible way over time.
§ Lord Carter
My Lords, before the noble Lord leaves the point about small employers, will he deal with the question that I asked him; namely, if six is good enough for New York and four is good enough for California, why do we need 20?
§ Lord Mackay of Ardbrecknish
My Lords, we do not live in either New York or California. We live in Britain. We must make our own judgments on that, and our judgment is that 20 is the appropriate number. We do not do lots of other things that are done in New York, thanks be to God, and I do not see why we should just follow blindly what is done in New York. We must tailor legislation to the needs of our own country, and sufficient unto that is the problem thereof.
I shall turn now to Remploy because I was asked whether it would be safe when the legislation is enacted. The Bill does not affect the substance and the provisions in the 1944 Act under which Remploy was set up as a company providing sheltered employment. We are committed to maintaining Remploy's present support which, I am advised, was £92 million for the year 1994–95.
The noble Lord, Lord Ashley, raised a number of employment-related issues. He asked about Access to Work. When that was introduced in 1994, we made clear that the operation of the programme, including the financial aspects, would be reviewed after one year's operation, and a decision made on its future. The implications of the new duties in the Bill will be considered during the review. Of course, I cannot anticipate the outcome of the review, but I assure the noble Lord that its intention is to see how the available resources can be used as effectively as possible to help disabled people obtain and keep jobs.
As regards profit-distributing organisations, we are committed to the supported employment programme which provides jobs for nearly 21,000 severely disabled people. The new power will enable us to fund supported employment in dividend-distributing bodies. In the 889 long-term, that will allow the provision of a wider range of supported job opportunities in a greater number of locations. It will also help to tailor provisions more precisely to the local employment needs of those who are most severely disabled. No one already in supported employment or on a waiting list will lose that place as a result of the changes. We shall consult relevant organisations, particularly those representing existing supported employer providers, before we use that power.
A number of noble Lords raised the question of education. As I said in my opening speech, we must be mindful of the considerable progress that we have made in education. I remind noble Lords that nearly 99 per cent. of all pupils are in mainstream schools. About 2 per cent. of all pupils have statements; and 49 per cent. of the pupils with statements are in special schools, while 51 per cent. are in mainstream schools. We must try to maintain a balance because it rather depends on individuals and their problems as to which is the best of the alternatives.
I do not wish to become involved in the discussion between the noble Baroness, Lady Darcy (de Knayth), and my noble friend Lord Beloff on the subject of higher education. Perhaps I may say to both of them that we are mindful of the need to make sure that if we attend to school education, when pupils leave school, they must not find that the doors are shut, the lifts are not there or whatever it may be if they are able to go on to further and higher education.
I should say to my noble friend Lord Beloff that we understand the anxieties in relation to the proposed higher education amendments. However, I ask my noble friend and those noble Lords who are interested to await the actual amendments before reaching a final decision on their merits. I assure him that there will be adequate time to discuss them in Committee, and I hope to be able to persuade him that the Government's proposed approach is both sensible and not imposing untoward restrictions on the universities. I can go further and say that we are consulting with higher education representative bodies, including those mentioned by my noble friend, on the details of achieving our objectives.
The noble Lord, Lord Rix (who I am glad to see has now returned from his expedition) asked me about discrimination by insurers. I believe that several speakers also mentioned that point. At the risk of detaining your Lordships a few moments longer, I should like to set out our position on that important aspect. I believe that noble Lords will recall that, despite originally proposing to exclude financial services from the legislation, the Government decided as a result of responses to last year's consultation exercise that, notwithstanding the many difficulties that we would face, it was important to ensure that disabled people did not encounter unfair discrimination in insurance or as regards any other financial services.
I have stressed "unfair discrimination" because insurance, by its very nature, involves assessing and weighing risks and selecting and discriminating between those risks. The task that we have set ourselves is to find a way of deciding what criteria it would be reasonable to apply. Actuarial data, certainly, where it is available; but what do we do when it is not available? What about claims 890 history and other such factors? We have been exploring those questions with the insurance industry and have taken a power in the Bill so as to put the solution into practice by way of regulations.
I am confident that we will be able to come forward with a workable solution which will ensure that disabled people are not refused insurance or charged higher premiums unjustifiably, while also protecting the industry's right to transact its business, make its profits and act on the risks involved.
My noble friend Lord Renton and the noble Earl, Lord Winchilsea and Nottingham, raised the issue of taxis. I should point out that government amendments to allow the setting of minimum access standards for taxis have yet to be finalised. I can assure the House that there is no intention to require every new taxi to be purpose built; nor do we intend to subject taxis to all the requirements in Part III of the Bill on service providers to make reasonable modifications. I can also assure the House that, in framing the new access standards, the Government will be mindful of the problems facing taxi operators in rural areas. Coming from the West Highlands as I do, I am well aware of such difficulties.
However, more accessible taxis will be a boon for more than just wheelchair users; indeed, they will also be to the benefit of many elderly people such as those suffering from arthritis. Anyone who has an elderly relative will know the difficulties that they sometimes encounter when getting into a motorcar.
The noble Lord, Lord Ashley, raised a most interesting question about digital mobile phones; indeed, I was most intrigued. I should tell the noble Lord that we have to make sure that new telecommunication equipment can be used by deaf people. However, we cannot do that by imposing restraints on the manufacture and design of new products. It would be wrong to jeopardise the bringing of new products to the market by requiring manufacturers to comply with an individual's right to accessible products. The Americans with the Disabilities Act, for example, do not attempt such restrictions. The US National Council for Disability has pursued questions about accessible products with the manufacturers and they have registered some notable successes. For example, there are discussions with Microsoft about making the next version of the Windows computer operating system more accessible to people. I very much hope that our proposed national disability council will be able to play a similar role.
I believe that I have probably spoken for as long as I possibly can, given the admirably short speeches that most speakers made. However, I should like to conclude by saying that I was particularly impressed by three noble Lords who contributed to our debate. I happen to know at first hand the kind of careers that those noble Lords pursued. I have in mind the noble Lord, Lord Ashley, and my noble friends Lord Campell of Croy and Lord Holderness. Indeed, my noble friend Lord Campbell of Croy reached the Cabinet table, which is better than some of the rest of us have managed to do. It shows that disabled people can often get to the very top. Perhaps my noble friend had secret ambitions of becoming Prime Minister, but I believe that getting around the Cabinet table would be good enough for most of us. In addition, my noble 891 friend represented a constituency in the north of Scotland at a time when travel would have been a good deal more difficult than it is today. He got around that widespread rural constituency extremely well, as I know.
Of course, the three noble Lords that I mentioned exemplify what I believe we are all trying to achieve; namely, that people ought to be able to make their own way in the world by their own efforts and abilities, and they should be able to realise their full potential. Our policies will continue to be directed towards making that fulfilment a reality for those whose talents are constrained or who are prevented from contributing fully to society. More than most, disabled people can be frustrated by lack of opportunity and by the hurdles which they must negotiate in attempting to do the things which the rest of us take for granted. These difficulties are often caused by social barriers and a lack of—
§ Lord Lester of Herne Hill
My Lords, I am sorry to interrupt the Minister. However, before he sits down, I wonder whether he would be good enough to deal with one point that the House might consider important, which is parliamentary control over delegated powers. I raised the point—I think one or two other noble Lords did as well—that in the sex and race discrimination Acts, any changes in exemptions in the scope of the Bill must be dealt with by affirmative procedure. In this Bill it is only negative procedure, and so far as the guidance is concerned in Clause 4, that seems to me to be legally relevant, like the Highway Code, and yet there is to be no negative or affirmative procedure. Would the Government be prepared to think again about those two points?
§ Lord Mackay of Ardbrecknish
My Lords, the noble Lord may know, if he has followed the record in Hansard on the previous two Bills for which I have been responsible, that I have taken seriously the reports of the Delegated Powers Scrutiny Committee, and I look forward to receiving that report. I do not think he will make me go any further than that this evening.
Lord Campbell of Croy
My Lords, I was going to say, being on that Select Committee —I do not think there is anyone else on that committee who is here tonight—that we have noted that the negative procedure is there. But, for example, had the Government given themselves powers to put the number of 20, as regards the limit for small firms, upwards instead of downwards, I think we would have thought the affirmative procedure was needed. But having looked through the Bill, I do not think the negative procedure is wrong.
§ Lord Mackay of Ardbrecknish
My Lords, I thank my noble friend for that. As I said, I look forward to reading the report. As I was saying, the difficulties faced by disabled people are occasionally caused by ignorance and sometimes by outright prejudice, but rarely by the person's ability, or by the disability itself. This injustice—for that is what it is—is, I think (as anyone listening to your Lordships' debate today would realise) unacceptable to the House, and of course it is unacceptable to disabled people. It is equally unacceptable to the Government, which is why we are committed to the creation of a fair, open and accessible environment for disabled people.
892 I mentioned at the beginning of this debate that over the past 15 years much has been done to further that aim: there has been the Access to Work programme, which enables more disabled people to take up employment; the introduction of access requirements to the building regulations, which has had a substantial effect on social, recreational and employment possibilities; for disabled people; the recent community care reforms, which have created new opportunities for people to get help in their daily lives; and the development of a more comprehensive system of disability benefits upon which expenditure has tripled in real terms since 1978–79.
We have set ourselves a tough task now—perhaps tougher than others before—and that is a pledge to the disabled people in this country that we will eliminate discrimination against them. This will not be easy. It is a goal which cannot be achieved overnight, as disabled people realise. But the Bill now before your Lordships' House represents an enormous stride forward towards the fulfilment of our aims and the redemption of that pledge.
The measures contained within the Bill represent the most comprehensive package ever brought by any government to tackle discrimination against disabled people. It is well worth reminding your Lordships of what it does. 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. Together these represent an enormous step forward in the battle against discrimination. I believe that they will be welcome to the many who care greatly about disability, and they will be crucial to the future happiness and well-being of disabled people. I commend the Bill to the House.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.