Lords Sitting of 24 October 1995

Preamble
The House met at half past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Birmingham.
Lord Phillimore Lord Phillimore —Sat first in Parliament after the death of his father.

Rail Privatisation
Lord Clinton-Davis Lord Clinton-Davis asked Her Majesty's Government:
Whether it is their intention to privatise Railtrack's safety and standards directorate.
The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen): My Lords, yes. The new safety regime recommended by the Health and Safety Commission took into account the Government's intention to privatise Railtrack. The Health and Safety Executive remains the independent body responsible for safety regulation.
Lord Clinton-Davis: My Lords, is the Minister aware that there remains considerable disquiet about the whole process of rail privatisation among the public and, indeed, among his own supporters according to opinion polls and that one of the greatest causes of disquiet is safety? Why is there this ideological obsession to privatise everything to do with the railways?
Viscount Goschen: My Lords, the clearly stated aim of the Government in privatising the railways is to get better value for money and to improve services. That is why we are undertaking the privatisation and that is what has happened with every other privatisation we have undertaken.
Lord Campbell of Alloway: My Lords, did my noble friend happen to hear a programme on BBC Radio 4 last Saturday at about four o'clock?
Noble Lords: No!
Lord Campbell of Alloway: It was an objective programme which suggested that more time should be given to ensure that the safety of the public is safeguarded.
Viscount Goschen: My Lords, I regret that I did not hear the programme to which my noble friend paid so much attention. We believe that we have the timetable right for railway privatisation. Safety is of paramount importance; that is why we have put such a robust safety regime in place.
Lord Ewing of Kirkford: My Lords, if the timetable is so accurate, why was it necessary yesterday to transfer on a very high salary a very senior civil servant at the Scottish Office, Mr. Hetherington, to the authority dealing with the privatisation because, on the admission of the authority and, indeed, the Scottish Office, the whole privatisation programme is in such an appalling mess?
Viscount Goschen: My Lords, it is clear that the privatisation programme is not in an appalling mess but proceeding extremely well. We have made significant strides. On the noble Lord's specific question, I shall investigate and let him have an answer in writing.
Lord Brabazon of Tara: My Lords, on the question of safety, can my noble friend give any example of a privatised transport undertaking which is operating less safely now than when it was in the public sector? In fact, are not most such undertakings now operating a great deal more safely?
Viscount Goschen: My Lords, my noble friend makes an extremely important point. One need only bear in mind the example of the airline industry. British Airways is known as having nothing less than an extremely good safety record. The British Airports Authority, the ground infrastructure company, also has a very good safety record. It has been shown extremely clearly that privatised and privately owned companies take their safety obligations just as seriously, if not more seriously, than public sector operators.
Lord Clinton-Davis: My Lords, was it an accidental slip on the part of the Minister that in his catalogue of success stories he forgot to mention the bus industry where the safety record is far from good, as evidenced over and over again?
Viscount Goschen: My Lords, I believe that significant improvements in service have been made in the bus industry. We are discussing the railway industry where considerable work has been done to take privatisation forward. We believe that we have an extremely rigorous safety 'regime in place. In fact, it is the regime which the independent Health and Safety Commission advised the Government to put in place. We have taken up its independent report and fully implemented exactly what it asked us to do.
Lord Mottistone: My Lords, does it not seem strange that the Opposition constantly seek to denigrate privatisation which has been so incredibly successful not only in this country but throughout the world in places where it had not previously existed? Would it not be a very good thing if the Opposition ceased to try to pick on small points? There is no doubt that this particular aspect of the privatisation has been picked on in a rather strange way. Does my noble friend agree that it would be much wiser if the Opposition were to concentrate on making themselves more competent to understand what is going on in the world?
Viscount Goschen: My Lords, I agree with my noble friend. It is regrettable that the Opposition seek to oppose all privatisations merely on principle. They display dogmatic opposition to the benefits that can flow from privatisation. Safety is an incredibly important factor. We put it at the top of our list of priorities. That is why we have adopted this extremely robust regime.
Lord Cledwyn of Penrhos: My Lords, will the Minister give the House and the country a guarantee that if the privatisation of the railways takes place rural railways in Wales, which are essential to the people living there, will be kept going?
Viscount Goschen: My Lords, the noble Lord will recognise that with the passage of the Railways Bill (now the Railways Act) considerable procedures have been put in place to safeguard rural services. That is a safeguard which did not exist before privatisation but which is now there. Services have a better safeguard than ever before.
Baroness Oppenheim-Barnes: My Lords, will my noble friend ask the party opposite whether its memory needs jogging in order to appreciate that so far as concerns the cost of services and safety the current situation is highly unpopular and highly unsatisfactory?
Viscount Goschen: My Lords, I agree with my noble friend that there is clear pressure for improvements in services to be made. We feel that taking forward the privatisation initiative is the correct vehicle to ensure that that occurs. I regret that, however often we point out the advantages of privatisation, the dogmatic opposition expressed by the party opposite is extremely difficult to undo.
Lord Avebury: My Lords, has the Minister had any opportunity of making a comparison between the safety record of the privately owned road freight industry and the publicly owned rail freight industry? In particular, has he observed the large number of fatal casualties caused by the excessive hours worked by drivers in the private sector road industry? How does that compare with the record of fatalities for the transport of freight on the railways?
Viscount Goschen: My Lords, that is an entirely spurious comparison. They are two entirely different modes. If the noble Lord wants to talk about the safety responsibility of airline pilots, for instance, I do not believe that he will tell me that just because they work in the private sector they do not take their responsibilities extremely seriously.
Lord Molloy: My Lords, bearing in mind that the Government have every right to privatise whatever they believe needs to be privatised, will British Rail please remain British and will foreign investors who might want to take it over be resisted to ensure that we will always have a British railway system?
Viscount Goschen: My Lords, I can guarantee that the network will always be in Britain. We do not intend to move it. It will be for the benefit of British passengers clearly. We feel that bringing in new investment is beneficial to the railways system and the passengers of this country.
Lord Molloy: My Lords, will the Minister now be honest and answer the question? Will foreign money be invested in British Rail to take away the British part of our railways?
Viscount Goschen: My Lords, this party favours inward investment into this country. It would be extremely unwise to do otherwise.

Unemployment
2.48 p.m.
Lord Dormand of Easington Lord Dormand of Easington asked Her Majesty's Government:
What proposals they have to reduce the number of long-term unemployed.
The Minister of State, Department for Education and Employment (Lord Henley): My Lords, tackling long-term unemployment is a key priority for this Government. That is why this year, through Jobcentres and TECs, we are offering longer term unemployed people around 1.5 million opportunities to help them back to work.
Lord Dormand of Easington: My Lords, if that is the best that the Government can come up with after 16 years in power, heaven help the long-term unemployed. Does the Minister accept that there are now over 1 million long-term unemployed, and that a quarter of them have been unemployed now for four years? Is the Minister aware that the scale of long-term unemployment is one of the most reliable criteria for assessing the success or otherwise of an economy? How can the Government tell us about the so-called success story when so many thousands of families are being devastated by long-term unemployment?
Lord Henley: My Lords, I am sorry that the noble Lord thinks that the Government are not doing very much. I can list a whole host of initiatives that the Government and the Employment Service have introduced to bring down unemployment. I can assure the noble Lord that long-term unemployment, which is an important figure, is falling and falling, more importantly, as a percentage of the total. It is well below the average of our European colleagues. It is now below 1 million. It is about 862,000. It is down by 218,000 since the peak. It has been down 142,000 in the past year. It is down by 24,000 in the past quarter. It is down in all regions for all ages and for men and women.
Lord Clark of Kempston: My Lords, does my noble friend agree that the success of the economic policy of this Government has resulted in a drop in unemployment of nearly 700,000 since its peak in December 1992? Does he further agree that if the minimum wage or the social chapter were introduced unemployment in this country would be increased? Finally, does he agree that it is rather hypocritical of noble Lords opposite to criticise this Government when their policies would increase unemployment?
Lord Henley: My Lords, my noble friend is absolutely right to draw attention to the dangers of a minimum wage, which we would refuse to contemplate. Similarly, he is right to draw attention to the dangers of the social chapter, which would do much to increase unemployment as would the minimum wage. Our refusal to sign up to either of those, our reforms of the labour market in the early 1980s, which were strongly opposed by the party opposite, and the fact that we keep

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our non-wage labour costs much lower than most of our European competitors have done much to bring down unemployment by 700,000 since its peak.
Lord Dean of Beswick: My Lords, will the Minister explain why yesterday at the United Nations the Prime Minister attempted to have the International Labour Organisation disbanded, bearing in mind that what little protection some low paid workers have in this country rests with that organisation? Is the Minister aware that if the International Labour Organisation is disbanded the one line of protection for some people in the poorest countries which are governed by dictators will be removed? Is that what the Government intend? If it is, why do they not say so?
Lord Henley: My Lords, the best protection for the unemployed is to find them jobs and one will not find them jobs by imposing increased burdens of the kind that the noble Lord and the International Labour Organisation would like on employers.
Baroness Castle of Blackburn: Is it not a fact that unemployment today is about twice what it was in 1979 when the Labour Government left office?
Lord Henley: My Lords, the important thing about unemployment is that it is coming down and has been coming down steadily for 24 months. It has come down much earlier in the recovery from the last recession than any of the pundits in the party opposite ever thought. It came down because of the reforms that we made to the labour market in the early 1980s and for the various other reasons which I expounded earlier. Not least of those is our refusal to touch the minimum wage which the party opposite so much desires.
Baroness Rawlings: My Lords, would the Minister consider extra teaching not only to students but to adults too of a foreign language to widen the chances of people seeking jobs?
Lord Henley: My Lords, any training, skill and qualification always increases the employability of any individual in the labour market. That is one of the principal reasons why my right honourable friend the Prime Minister brought together the Department for Education and the Department of Employment, which was strongly opposed by the party opposite.
Baroness Turner of Camden: My Lords, is the Minister aware that according to his own figures the number of people in training-for-work schemes is 30 per cent. lower than it was this time last year and that the number of starts on training-for-work in Great Britain is also 24 per cent. lower than for the same period last year? Has the Minister any idea why that should be? Further, would he mind telling his noble friend who asked a question in connection with the social chapter that the minimum wage has nothing whatever to do with the social chapter and that it is not part of it?
Lord Henley: My Lords, I do not believe that anyone said that the minimum wage had anything to do with the social chapter. The fact is that the party opposite has signed up to both of them. As regards the number of people in training-for-work, I do not believe that that is important. What is important is the quality of the
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training that we can deliver and the fact that unemployment has been coming down steadily for 24 months—that is long-term unemployment and the whole figure for unemployment—as a result of the policies that we have been pursuing.
Lord Mason of Barnsley: My Lords, that is from the peak of 3 million unemployed. Will the Minister explain to the House why, after the Government's 16 years in office, we have over 2,200,000 persons on the dole?
Lord Henley: My Lords, I am glad that the noble Lord corrected himself and reminded the House that unemployment has come down from 3 million to roughly 2¼ million. The fact is that unemployment has gone up throughout the developed world, in particular in the European Community which has the most appalling record on the creation of jobs. We, though, have seen it come down far earlier and far more strongly than most of our competitors. At the same time, we have seen employment grow far more strongly and we now have virtually the largest percentage of those of working age in employment in Europe.
Lord Mackie of Benshie: My Lords, is the Minister not slightly worried that in this best of all possible worlds that he has been expounding an article in last week's Financial Times showed that our capital investment, for which the fall in unemployment is absolutely necessary, is the lowest in Europe?
Lord Henley: My Lords, the noble Lord is taking the Question slightly beyond what is on the Order Paper. We are dealing with unemployment and with the growth of employment. I have made clear to the House that although unemployment is very high it has fallen far faster and far sooner than anyone predicted and it fell because of the reforms that this Government made to the labour market and the other policies that we have espoused.
Lord Dixon-Smith: My Lords, does my noble friend agree that the economies that are most successful in the general field of employment are also the least regulated?
Lord Henley: My Lords, that too is a point that I have been trying to get over. It is why I stressed the importance of keeping our non-wage labour costs down and why they are far lower than those of most of our European colleagues and pretty low in world terms.
Lord Dormand of Easington: My Lords, is it not significant that none of the Minister's noble friends has referred to long-term unemployment, which is the whole purpose of my Question? Is it not also significant that 216,000 people under the age of 25 have never had a job? The longer one stays out of a job the harder it is to get a job.
Lord Henley: My Lords, I will remind the noble Lord of some figures that I gave earlier. Long-term unemployment is a much lower percentage in this country than elsewhere and it is falling as a percentage of overall unemployment. The noble Lord mentioned the unemployment rate for the under-25s. Perhaps he will look at the over-regulated economies across the Channel and see how high their youth unemployment is.

The Electricity Industry
2.57 p.m.
Lord Ezra Lord Ezra asked Her Majesty's Government:
Whether, in view of the vertical integration now taking place in the electricity industry in England and Wales as a result of take-overs and mergers, they have abandoned the concept, inherent in the Electricity Act 1989, of transparency as between the generation, transmission and distribution of electricity.
The Minister of State, Department of Trade and Industry (Lord Fraser of Carmyllie): My Lords, the Government made it clear at privatisation that when their special shares expired the regional electricity companies would be exposed to the disciplines and opportunities of the market, including mergers and acquisitions.
Lord Ezra: My Lords, does the Minister recall that his right honourable friend Mr. Ian Lang recently stated, as reported in the press, that at some stage an accumulation of mergers:
"may impede the electricity regulator's ability to carry out his duties."?
In view of the fact that more than half of the regional electricity companies have been the subject of mergers or take-overs, and more are in the offing, will the Minister consider that the stage referred to by his right honourable friend has now been reached? Is he aware that on this issue the existing regulator has expressed grave concern on a number of occasions?
Lord Fraser of Carmyllie: My Lords, the existing policy on referrals to the MMC is the policy that has been followed since 1984; namely, that any referrals should be on competition grounds on a case-by-case basis. I believe that to some extent the noble Lord misinterprets what my right honourable friend the President of the Board of Trade said. He indicated that, where consideration was to be given to mergers between the regional electricity companies, there were particular factors to which he would pay attention. Those include the extent to which the regulatory power of the director general might be adversely affected if such a company were subsumed within a larger group; the extent to which there was a loss of comparators; any adverse effects of vertical integration; and the extent to which any of those adverse effects might be remedied by disinvestment. It would not be right for me or for my right honourable friend the President of the Board of Trade to determine that no further mergers were to take place. Each one should be considered on its particular merits.
Lord Taylor of Blackburn: My Lords, in view of what the Minister has said, does he not believe that there is a case for the take-over bid for North West Water by Norweb to be considered by the Monopolies and Mergers Commission?
Lord Fraser of Carmyllie: My Lords, I am dealing with a question about the transparency of the electricity industry. However, I have indicated a broad general
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policy and, clearly, many aspects of that policy would also be applicable if there were to be mergers with water companies.
Lord Taylor of Gryfe: My Lords, will the Minister comment on the bids and the prices that are being offered in those take-overs? Will he talk to his merchant bank advisers who gave the original substantial undervaluation of those public assets?
Lord Fraser of Carmyllie: My Lords, there may be an argument to say that at the time at which the privatisations took place, there were those who had a particular interest in trying to talk down the value of those companies. I certainly do not think that that is correct. As the noble Lord will appreciate, I must resist commenting on any one of the proposals for take-over or merger because there are proper procedures to be followed. The Director General of Fair Trading, following on the advice that he receives from the electricity regulator, gives independent and impartial advice to the President of the Board of Trade who then takes the decision whether or not to make a referral.
Lord Haskel: My Lords, does the Minister agree that the main effort of the Government to introduce competition into the electricity market was by introducing the spot market; and that has failed? Instead of driving down the price of electricity, as the Government promised, it has increased it to such an extent that the regulator has been forced to cap it. Does the Minister agree that, had the regulator not capped that pool market for electricity, the price would have risen to such a level as to make the energy costs of British industry uncompetitive?
Lord Fraser of Carmyllie: My Lords, it is rather extraordinary to put the matter that way round. Of course we recognise that there is a role for the regulator to play, and one of those roles is in relation to price. But the noble Lord should have drawn attention to the fact that domestic electricity prices have fallen by some 7 per cent. in the past two years and are expected to drop by a further 3 per cent. in real terms over the next year. Industrial prices have fallen by some 6 per cent. Furthermore, next year, once the National Grid has been floated, every consumer will receive a £50 rebate.

Transport Research Laboratory
3.2 p.m.
Baroness Castle of Blackburn Baroness Castle of Blackburn asked Her Majesty's Government:
Which organisations or companies have expressed an interest in taking over the Transport Research Laboratory when it is privatised and how many of them would be non-profit-distributing concerns.
Viscount Goschen: My Lords, in response to their sale memorandum issued this summer the Government received expressions of interest and indicative bids for the laboratory from a range of bodies. We have asked certain of those bodies to submit confirmed or revised bids by the end of October. The bids are confidential at this stage of the sale process.
Baroness Castle of Blackburn: Is it not a fact that of those expressions of interest the only offer of a non-profit-distributing company take-over comes from the Transport Research Foundation, an in-house staff management consortium of the Transport Research Laboratory? In view of the fact that the Government's own consultants, Peat Marwick, said that the best way to preserve the reputation for impartiality which the Transport Research Laboratory enjoys worldwide would he the choice of a non-profit-distributing company, will the Minister for once accept his consultants' advice?
Viscount Goschen: My Lords, in view of the fact that the chief executive has made clear that a management staff bid to form the TRL as a non-profit-distributing company, to be known as the Transport Research Foundation, is being mounted, I can confirm that. However, I cannot confirm what are the other bids and what stage they have reached. I cannot follow the noble Baroness in her supposition that only a non-profit-distributing company can be impartial and put forward impartial advice. The Government commission expert advice from a wide range of bodies in both the public and private sectors and we receive very good impartial advice from all of them.
Viscount Chelmsford: My Lords, are the Government aware that a number of organisations are supporting the Transport Research Foundation, including my own, ITS Focus, which deals with transport telematics? I understand from the foundation that we are one of over 100 organisations representing universities, consultants, the construction and supply industry, infrastructure owners, transport operators and professional institutions which are supporting the bid. The strength of that support was demonstrated when 38 of them attended a meeting called at very short notice to try to set out the position. Will the Government give special consideration to the bid by the Transport Research Foundation?
Viscount Goschen: My Lords, all I can say at this stage of the bidding process is that full consideration will be given to all the details of all the bids.
Lord Dean of Beswick: My Lords, that was a special, individual plea from a Member of this House, which is quite unusual. I believe that the Minister mentioned that four bids are in. Are they based on a uniform basis of specification? Which criteria will the Government use when making the award? Will the final decision be based on straight price and projected performance or will there be a whittling down and negotiations taking place, as has happened previously?
Viscount Goschen: My Lords, I mentioned that we had gone back to a number of the bidders to ask them to clarify certain points. This will be a fair competition. We shall take into account all the relevant details including price, ability to perform, what sort of work the organisation can put forward and its record. Those will be the important criteria on which we shall consider the bids.
Lord Taylor of Blackburn: My Lords, will the Minister answer the question put to him? There may be a difference as regards definition of the word "fairness". Is each bidder making the same bid on the same contract?
Viscount Goschen: My Lords, people are bidding in response to the sale memorandum issued by the Government.
Lord Clinton-Davis: My Lords, will the Minister be kind enough to answer the question put by my noble friend Lady Castle? She asked whether or not it is a fact that Peat Marwick recommended very strongly to the Government that if they were to proceed with the privatisation a non-profit-distributing concern would be the best avenue by which to pursue it. Will he answer that question which was put twice by my noble friend and not answered by the Minister?
Viscount Goschen: My Lords, I am very glad that the Opposition place such great store on the advice given by an independent company in the commercial sector. That rather goes against the thrust of the questions which have been coming from the Opposition. We recognise the advice given to us by Peat Marwick. Nevertheless, we are considering a wide range of bids from a wide range of companies. We believe that that is the best way to ensure the future provision of high quality work by the transport laboratory.
Lord Clinton-Davis: My Lords, the Minister has not answered the question. Was clear advice given by Peat Marwick that that form of organisation was the one which the Government were very strongly recommended to follow—yes or no?
Viscount Goschen: My Lords, the simple answer to that is that advisers provide us with advice which we take fully into consideration. We then look at all the other relevant factors involved. The company which the noble Lord mentions does not run the country and is not the elected government. The Government have a duty to provide the best value for money for their taxpayers taking fully into account the advice which they have received and commissioned in order to produce the best possible transport research laboratory and the best future for that laboratory.
Baroness Seear: My Lords, from that answer we can surely assume that the answer the Minister has not given us is yes.
Viscount Goschen: My Lords, the other answer I have not given the House is no. I believe that we have rehearsed fully these arguments. There will be a fair competitive process to see which company will end up running the TRL. I am sure that in view of the Government's guarantees of future work we shall end up with a strong organisation that is able to provide good quality, impartial advice to the Department of Transport and other customers.
Lord Ewing of Kirkford: My Lords, has the noble Viscount noticed that three of the four Questions today deal with public industries that have been sold off by the Conservative Government—railways, electricity and

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now the Road Transport Laboratory? Will the Minister read out a list of those public interests which the Government are not prepared to sell?
Viscount Goschen: Well, my Lords, I believe that that is grabbing at straws. Indeed, it is about as far from the original Question as I can imagine. One might put at the top of such a list your Lordships' House, perhaps, as something we are not seeking to privatise. However, we are open to suggestions from the party opposite. The serious point is that the privatisations which the Labour Party has opposed over and again have turned out to be successes over and again. I am sure that that will continue.

Disability Discrimination Bill
3.10 p.m.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read a third time.—(Lord Mackay of Ardbrecknish.)
Lord Carter: My Lords, before the House begins to consider the amendments on Third Reading, perhaps I may draw the attention of your Lordships to yet another case of late tabling of amendments by the Government. Last Friday the Government tabled 13 pages of highly technical amendments covering such subjects as occupational pensions, the lease of premises, industrial tribunals and benefits.
The Bill started its passage in the other place many months ago. We have all stages up to Third Reading in this House. We had the Report stage in this Chamber on July 20th and the Government tabled the amendments exactly three months afterwards on October 20th. So they had three months to consider, consult and draft all the amendments. They are extremely technical amendments and effectively we were given only one day to get the advice that we certainly need when they are so technical. The Minister sent the amendments out by post on Friday and his office kindly faxed them to me on Friday evening because I happen to have a fax machine at home. They certainly did not improve my weekend.
It really will not do on such an important Bill, given the limited resources of the Opposition and of the Back Benches. We all tabled our substantive amendments by the middle of last week. It happens time and again. It is not fair to the House or to the Opposition. It prevents this Chamber from performing its job of properly considering and revising legislation. It makes for bad, ill-considered legislation, which is something that we have certainly become used to from this Government and especially from the Department of Social Security.
On Question, Bill read a third time.
Clause 1 [Meaning of "disability" and "disabled person"]:
Lord Carter Lord Carter moved Amendment No. 1:
Page 2, line 6, at end insert ("; and
(c) the interpretation of section (Definition of discrimination) of this Act.").
The noble Lord said: My Lords, I see that the Minister does not intend to answer the point that I made. However, in moving Amendment No. 1 I should point out that it is a paving amendment for Amendment No. 53. It deals with organisations providing training, accommodation or other services specifically for disabled people which then find that they are discriminated against; for example, organisations which are not able to buy or rent property from which to operate.
As we understand it, under the Bill as it presently stands such organisations will not be able to challenge such discrimination because, as organisations, they are obviously not disabled persons as covered by the legislation. Therefore, the amendment would allow any person—the term includes organisations—to challenge discrimination when it takes place because they are providing training, accommodation or services to disabled people.
We all know from our own experience that organisations which provide services or accommodation for disabled people frequently find great difficulty in renting or buying property because the owner does not want disabled people to use the premises. We were sent by RADAR the example of the Surrey Heartlands which is a charity providing services to people with learning difficulties or mental health problems. The letter reads as follows:
"During the course of the last year we have in two instances found the ideal place for training worksites, both within industrial estates…In both cases negotiations progressed smoothly up to the point where we were ready to finalise the leasing arrangements. At this point in both cases we were turned down, and it was inferred that the type of people who would occupy the premises would not be acceptable to the rest of the neighbourhood. We have of course encountered similar problems when looking for residential care".
I am sure that your Lordships will agree that that has a very damaging impact because it makes it extremely hard for organisations to meet the needs of their disabled clients. We feel that the Bill will be seriously flawed if such activities are allowed to continue unchecked. Although the majority of problems arise with the procurement of premises, difficulties may also arise with other services; for example, where a charity is refused a block booking for a holiday because its clients are disabled.
As I said, organisations which provide services, training and accommodation for disabled people experience discrimination as organisations. Indeed, landlords will not allow them to rent premises if they are to be used by people with learning difficulties or mental health problems. We all know of many such examples over the years affecting a wide range of organisations as regards property for the mentally handicapped or the mentally ill, holidays for disabled people or the provision of services.
We appreciate that disabled people are the receivers of that discrimination, but their organisations are discriminated against just as much. The amendments attempt to put that right. It is a very straightforward matter and we feel that it is a weakness in the Bill. We urge the Government to accept the amendments; indeed, they can always redraft them when the Bill returns to

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another place if the wording is not entirely correct. But I believe that it is most important for the point to be recognised on the face of the Bill. I beg to move.
Lord Campbell of Croy: My Lords, I do not know whether the Government feel that the amendment is necessary. I hope that they will be able to explain other ways for dealing with the point. I should like to reiterate that it is a very definite matter which needs to he looked into. We know that disabled people will be able under the Bill to take action, as indeed will those supporting them.
However, most of us know of cases where places that have been assigned for disabled people to live in or be trained in have then been objected to by people in the neighbourhood. I speak particularly about mentally disabled people and also some other categories of disabled people who are thought not to make a district as acceptable as it was before. I hope that there will be a way to improve such situations where preparations have been made and everything is ready for something to be opened but then objections are received and the proposition falls through. I trust that the Government will be able to tell us what can be done in those circumstances.
Lord Addington: My Lords, the amendment effectively deals with secondary discrimination; that is, discrimination against someone through an organisation. Whether discrimination is of a primary or secondary nature—that is, to your face or behind your back—it still has the same effect. It restricts your activities. That is what the amendment is about. Surely the Government should have such a provision, or something very like it, on the face of the Bill. If you merely restrict where someone can go and do something, you are still restricting what they do. Moreover, it is not on any reasonable grounds—indeed, we have the grounds of reasonableness in the Bill—it is just allowing prejudice to stop people occupying a site for accommodation. Surely that is against the whole thrust of the Bill.
Lord Ashley of Stoke: My Lords, I should like to put a simple proposition to the House; namely, for noble Lords to assume that the Bill provided that it was perfectly legal to kick over wheelchairs, to kick white sticks or, indeed, to kick the dogs of the blind. If the legislation did so provide, there would naturally be public outrage. But in point of fact the Bill as it stands does permit the most savage discrimination against the people and the organisations helping the disabled. That is why the amendment has been tabled.
The people and organisations helping disabled people are just as important as the wheelchairs, the white sticks and the dogs; in fact, far more so. That is why we propose that the amendment should ensure that the people and organisations be given the same kind of protection from discrimination as is provided for disabled people. We all know from personal experience about the absolutely horrific discrimination against some organisations and people helping the disabled. That is why we want the amendment to be passed.
I should also like to point out that the Bill as it stands is grossly inadequate. I refer to the way in which people suffer discrimination. I see that the Minister is nodding
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his head. There is no doubt that all the organisations which represent and assist disabled people suffer discrimination. Let them try to help mentally disabled people; let them try to help people with cerebral palsy and bring them in and give them accommodation or jobs. Then you find that the great British public revert to the old cliché, "Not in my backyard". Discrimination is widespread against the organisations trying to help disabled people. That is why we want the amendment passed.
Lord Swinfen: My Lords, I should declare an interest when supporting the amendment because I work for an organisation which provides all the things listed in paragraph (b) of Amendment No. 53. I do not want to speak of the experience of my own organisation. However, I should like to give an example. A friend wished to take a group of children from a Church of England Children's Society home to a pantomime in Morecambe. The booking, for some 30 children, was turned down on the grounds that a number of them might be mentally disabled and therefore liable to make a noise during the performance. I was somewhat surprised because at a pantomime children are supposed to enjoy themselves and make a noise.
I can also give an example from some time ago when I worked as a surveyor for a firm in Kent selling property. The owner of a property refused to sell it to MENCAP because he was friendly with his neighbours and thought they would object to having people with a mild mental disability living in the same street.
There is discrimination against organisations which work for and with people who have disabilities of all kinds. We cannot allow discrimination against organisations of that kind because that is a roundabout way of discriminating against disabled people. It is obviously against the spirit of the Bill.
Therefore, I hope that my noble friend will accept the amendment as it stands or, if it needs to be improved, that he will accept it on the basis that he will arrange for it to be improved in another place.
Lord Mackay of Ardbrecknish: My Lords, first, I apologise to the noble Lord, Lord Carter, for spoiling his weekend. I was a little disturbed when I realised that we would table amendments on Friday. We tried hard to prevent that happening but consultation on the important issues covered by the amendments in my name has taken some time. It is important that we get the amendments right. I understand that some amendments were tabled by other Members of your Lordships' House yesterday, so I was not the last offender in terms of tabling late amendments. I hope that the explanations that we provided with the material we sent to the noble Lord, were helpful.
I listened with some sympathy to the difficulties which noble Lords have described. However, I am afraid that the solution in front of us in the form of the amendment moved by the noble Lord, Lord Carter, is not acceptable.
During its passage through Parliament my ministerial colleagues and I have emphasised that the Bill is concerned solely with discrimination against disabled people. It cannot be seen as a solution for all those who

973
may possibly face discrimination. I have said on a number of occasions that it is not a general anti-discrimination Bill or even a general health discrimination Bill. In working towards our aim of eliminating discrimination against disabled people we have to carry with us employers, business and the general public. Vagueness and uncertainty will not do. Employers, business and individuals all need to know who has rights, who can complain to courts and tribunals, and whom employers or businesses will have duties towards.
The definition used in the Bill is clear. The people we intend to cover are those who have, or had, 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. As I have said on a number of occasions, those are people who are disabled in common-sense terms.
Although we are extending protection to a wide range of people, a line has to be drawn concerning those the Bill is intended to cover. That is not easy. American experience demonstrates that tremendous problems can be caused by involving groups with what may be only marginal connections to disability. Those problems include a large backlog of complaints, great uncertainty among employers and service providers, and groups rightly intended to be excluded from the Act managing to complain by claiming, for example, that they have a reputation of having a disability.
Similar problems would be caused by extending the Bill's coverage to third parties. The amendment of the noble Lord, Lord Carter, is intended to do just that by making unlawful less favourable treatment of a service provider on the grounds that he or she provides employment or services to disabled people.
We should be clear that there are some situations in which a disabled or able-bodied third party is so closely linked to another person that it will not really matter which receives the service. Discrimination against either will be actionable by the disabled person. An example is parent and child situations. We discussed those during previous stages of the Bill. For example, in the case of a mother and baby where either the mother or the child is disabled, a refusal to serve one of them on the grounds of disability would be a case of actionable discrimination. If, say, the mother is disabled and needs information in an accessible format from a clinic about medical treatment for her child and the clinic refuses to provide the information in an accessible way it is the baby's health which will suffer, but it will be the disabled person who has been discriminated against.
I listened to the example given by my noble friend Lord Swinfen about access to the pantomime. That case probably falls within the category I have mentioned in this part of my speech. I can reassure my noble friend that denial of access to a pantomime for disabled children would certainly be covered by the Bill, because the children would have been denied a direct service by those who refused the booking on their behalf. The amendment before us today goes a good deal wider than those circumstances to cover instances where there is not a direct service relationship between the provider
974
and the disabled person. Clearly, the disabled children hoped to go to the pantomime and the theatre was the provider. I hope that that explanation helps to calm my noble friend's fears that situations such as the one he mentioned would not be covered by the Bill. They would.
To return to the amendment in front of us, any attempt, however well intentioned, to introduce provisions which would widen the scope of the Bill to include those who are merely associated with disabled people or deal with them in some way would damage the Bill and dramatically reduce its effectiveness. Employers, business and the public at large will accept that a change in attitude and approach to their dealings with disabled people is necessary and, indeed, overdue. I expect them to respond positively to provisions which are couched in terms of what is reasonable, as they are in the Bill. However, they would fail to understand and in many cases would refuse to accept a Bill which seeks to protect people who are not disabled. The success of the legislation rests on its credibility. In my view the amendment raises enormous questions of principle which might result in the backlash we are all anxious to avoid.
I fear that a change of this nature could lead to a good deal of spurious or vexatious legislation. The number of people who provide facilities, goods, accommodation and so on to at least one disabled person must run into many millions. Each, at least in theory, would have a case under this legislation if he received poor treatment of some kind and could claim that the perpetrator knew that he had some dealings with a person who might be disabled. The legislation is sufficiently complex as it is without burdening the courts with cases brought by those who might seek to stretch its provisions way beyond their purpose.
I hope that I can add some words of reassurance to those I have already given to my noble friend Lord Swinfen in relation to his example. I hope that I can reassure the noble Lord, Lord Carter. As has been said on a number of previous occasions, the Bill cannot be and does not purport to be the last word when it comes to tackling discrimination. But it will engender wholesale changes in attitude which will have an effect going much wider than the ambit of the Bill. For example, landlords will get used to the idea that they are not able to discriminate against disabled people when considering prospective tenants. Over time it will be the norm for disabled people and non-disabled people to receive the same treatment, just as racial discrimination in the same area has faded since the Race Relations Act was passed. I hope and expect that not many years from now the kind of difficulty which the noble Lord outlined today will be increasingly rare.
As it stands, the Bill is clear and easily operable, despite the fact that this is a very complex area. The vast majority of employers and service providers are willing to comply with the law and need to be clear about how they do that. Our primary purpose is to raise awareness of discrimination which may simply be the result of fear and ignorance. I do not believe that we can

975
do that by using vague concepts such as reputation, which I believe would only lead to confusion, uncertainty, argument and excessive litigation.
With that explanation, I hope that the noble Lord, having made his points very forcefully, will feel able to withdraw his amendment.
Lord Carter: My Lords, that was a disappointing answer. I am extremely grateful to those noble Lords who spoke, all of whom supported the drift of the amendment.
As the Minister well knows, the amendments put down yesterday were paving amendments. They were not the substantive amendments that we had on Friday. He made an interesting point. He stated that the Government do not see the Bill as an anti-discrimination Bill against disabled people. That will surprise many people who have not been following the Bill. I believe that that is what he said.
Lord Mackay of Ardbrecknish: My Lords, I am grateful to the noble Lord for allowing me to intervene. I believe that I said—as I have stated on a number of occasions—that it is not a general anti-discrimination Bill, period.
Lord Carter: My Lords, the Bill is about disabled people. If it is an anti-discrimination Bill, I fail to see the Minister's point. I believe that that statement will surprise people outside the House who, perhaps mistakenly, thought that it was a general Bill to help disabled people.
If an amendment of this nature, or one like it, is not accepted, there will be a series of test cases. That will be particularly difficult for those who are mentally handicapped or mentally ill. It will be a great strain for them. They will have to appear as individuals, even though the organisation will back them.
It is a simple point. The provision is supported by all noble Lords who have spoken who have great experience of these problems. I cited an example. I could give many more. During the passage of the Bill, the Minister has got into the habit of putting up straw men to knock down in his arguments about spurious and vexatious litigation, and the hundreds or thousands of people who will be queuing up to take action under the Bill. I agree that an enormous number of disabled people depend on organisations to support them. The provision could easily be redrafted to include, for example, only the non-profit-making or charitable organisations which support disabled people. We raised a point of real concern which has been put to us by organisations for disabled people. It has been put forward by all who spoke in the debate who obviously understood the nature of the problem. The Minister has not answered the point. I wish to seek the opinion of the House.
3.32 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents 121; Not-Contents, 154.

Division No. 1

CONTENTS

Addington, L. [Teller.]

Irvine of Lairg, L.

Airedale, L.

Jay, L.

Allen of Abbeydale, L.

Jenkins of Hillhead, L.

Archer of Sandwell, L.

Jenkins of Putney, L.

Ashley of Stoke, L.

Kintore, E.

Avebury, L.

Kirkhill, L.

Barnett, L.

Kirkwood, L.

Bath, M.

Lawrence, L.

Beaumont of Whitley, L.

Lockwood, B.

Beloff, L.

Lovell-Davis, L.

Birmingham, Bp.

McCarthy, L.

Blackstone, B.

McConnell, L.

Brain, L.

McIntosh of Haringey, L.

Broadbridge, L.

Mackie of Benshie, L.

Bruce of Donington, L.

Masham of Ilton, B.

Callaghan of Cardiff, L.

Mayhew, L.

Carmichael of Kelvingrove, L.

Meston, L.

Carter, L.

Molloy, L.

Castle of Blackburn, B.

Monkswell, L.

Cledwyn of Penrhos, L.

Morris of Castle Morris, L.

Clinton-Davis, L.

Nelson, E.

Cocks of Hartcliffe, L.

Nicol, B.

Craigavon, V.

Ogmore, L.

Dahrendorf, L.

Peston, L.

Darcy (de Knayth), B.

Prys-Davies, L.

David, B.

Richardson, L.

Dean of Beswick, L.

Ritchie of Dundee, L.

Desai, L.

Rix, L.

Diamond, L.

Robson of Kiddington, B.

Donaldson of Kingsbridge, L.

Rochester, L.

Donoughue, L.

Russell, E.

Dormand of Easington, L.

Sainsbury, L.

Dubs, L.

Scanlon, L.

Elis-Thomas, L.

Seear, B.

Ewing of Kirkford, L.

Sefton of Garston, L.

Ezra, L.

Serota, B.

Falkender, B.

Shannon, E.

Falkland, V.

Shepherd, L.

Farrington of Ribbleton, B.

Smith of Gilmorehill, B.

Fitt, L.

Stallard, L.

Gallacher, L.

Stoddart of Swindon, L.

Gladwin of Clee, L.

Strabolgi, L.

Glenamara, L.

Strafford, E.

Gould of Potternewton, B.

Swinfen, L.

Graham of Edmonton, L.[Teller.]

Taylor of Blackburn, L.

Gregson, L.

Taylor of Gryfe, L.

Grey, E.

Thomas of Walliswood, B.

Harris of Greenwich, L.

Thomson of Monifieth, L.

Haskel, L.

Tonypandy, V.

Hayter, L.

Tordoff, L.

Headfort, M.

Turner of Camden, B.

Healey, L.

Varley, L.

Hilton of Eggardon, B.

Wallace of Coslany, L.

Hollis of Heigham, B.

Warnock, B.

Holme of Cheltenham, L.

Wedderburn of Charlton, L.

Hooson, L.

Whaddon, L.

Howie of Troon, L.

White, B.

Hughes, L.

Wigoder, L.

Hylton, L.

Williams of Elvel, L.

Ilchester, E.

Williams of Mostyn, L.

NOT-CONTENTS

Aberdare, L.

Arran, E.

Addison, V.

Astor of Hever, L.

Ailesbury, M.

Balfour, E.

Ailsa, M.

Belhaven and Stenton, L.

Alexander of Tunis, E.

Bethell, L.

Alport, L.

Birdwood, L.

Archer of Weston-Super-Mare, L.

Blaker, L.

977

Blatch, B.

Kimberley, E.

Blyth, L.

Knollys, V.

Boardman, L.

Lane of Horsell, L.

Borthwick, L.

Lauderdale, E.

Boyd-Carpenter, L.

Leigh, L.

Brabazon of Tara, L.

Lindsay, E.

Braine of Wheatley, L.

Liverpool, E.

Bruntisfield, L.

Long, V.

Butterworth, L.

Lucas, L.

Campbell of Croy, L.

Lyell, L.

Carnegy of Lour, B.

Mackay of Ardbrecknish, L.

Carr of Hadley, L.

Mackay of Clashfern, L.[Lord Chancellor.]

Charteris of Amisfield, L.

Chelmsford, V.

MacLehose of Beoch, L.

Chesham, L.[Teller]

Macleod of Borve, B.

Clanwilliam, E.

Malmesbury, E.

Clark of Kempston, L.

Manchester, D.

Clifford of Chudleigh, L.

Marlesford, L.

Cochrane of Cults, L.

Marsh, L.

Cockfield, L.

Merrivale, L.

Constantine of Stanmore, L.

Miller of Hendon, B.

Cornwallis, L.

Milverton, L.

Courtown, E.

Montgomery of Alamein, V.

Cranborne, Y.[Lord Privy Seal.]

Modistone, L.

Cullen of Ashbourne, L.

Mountgarret, V.

Cumberlege, B.

Mowbray and Stourton, L.

Davidson, V.

Munster, E.

Dean of Harptree, L.

Murton of Lindisfarne, L.

Denham, L.

Napier and Ettrick, L.

Dorwent, L.

Norrie, L.

Dixon-Smith, L.

Northesk, E.

Dormer, L.

O'Brien of Lothbury, L.

Downshire, M.

O'Cathain, B.

Dundonald, E.

Onslow, E.

Elihank, L.

Orr-Ewing, L.

Ellenborough, L.

Park of Monmouth, B.

Elles, B.

Park of Monmouth, B.

Ferrers, E.

Pearson of Rannoch, L.

Finsberg, L.

Pender, L.

Flather, B.

Perry of Southwark, B.

Foley, L.

Peyton of Yeovil, L.

Forbes, L.

Plummer of St.Marylebone, L.

Fraser of Carmyllie, L.

Pym, L.

Fraser of Kilmorack, L.

Rankeillour, L.

Gainford, L.

Rawlings, B.

Gardner, of Parkes, B.

Reay, L.

Geddes, L.

Renton, L.

Gibson, L.

Renwick, L.

Goschen, V.

Rodger of Earlsferry, L.

Gray of Contin, L.

Salisbury, M.

Gridley, L.

Seccombe, B.

Grimston of Westbury, L.

Sharples, B.

Haddington, E.

Shaw of Northstead, L.

Hailsham of Saint Marylebone, L.

Skelmersdale, L.

Hamilton of Dalzell, L.

Strathcarron, L.

Harding of Petherton, L.

Strathclyde, L.[Teller.]

Hardings of Penshurst, L.

Strathcona and Mount Royal, L.

Harmsworth, L.

Swinton, E.

Hayhoe, L.

Terrington, L.

Henley, L.

Teviot, L.

HolmPatrick, L.

Thomas of Gwydir, L.

Hood, V.

Torphichen, L.

Horthfield, L.

Trumpington, B.

Howe, E.

Ullswater, V.

Hylton Foster, B.

Vivian, L.

Inglewood, L.

Whitelaw, V.

Johnston of Rockport, L.

Wolfson, L.

Kenyon, L.

Wynford, L.

Killearn, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
3.40 p.m.
Clause 3 [Guidance]:
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 2:
Page 2, line 27, at end insert—
("( ) Following the publication of such draft guidance the Secretary of State shall make public any representations he has received from voluntary organisations, employers' organisations and the National Disability Council.").
The noble Baroness said: My Lords, I wish to move Amendment No. 2 and to speak also to Amendment No. 49 with which it is grouped. We believe that Amendment No. 2 is highly desirable in its own right but it also serves to pave the way for our debate on Amendment No. 49. Both amendments relate to the functions and responsibilities of the National Disability Council.
We on these Benches believe that the Bill is so nearly a good Bill. The Government have introduced valuable amendments as the Bill has progressed, even if, as my noble friend Lord Carter said, some have arrived only one working day before we debate them. However, in so far as that shows that the Government continue to develop their thinking and to respond to persuasion, it is all to be applauded. It is therefore in a spirit of hoping that the Government have not yet finally closed their minds on all such issues that today we move a set of amendments which we believe touch the heart of the Bill.
The year 1995 is 25 years after the Chronically Sick and Disabled Persons Act 1970, the 25th anniversary. This Bill could be another and similar landmark Bill. No one doubts that it will offer disabled people a sizeable extension of rights and opportunities which are long overdue. The questions on which the amendment touches are simple: will the Bill work? Can those rights be exercised? Will the opportunities be enjoyed? We fear that the answer will largely be no. Why is that? At the heart of the Bill is a hole; there is no central, authoritative body to aid employers, disability organisations or disabled people to deliver the intent of the Bill. I appreciate that at Report stage the Government and the House did not want a fully empowered disability commission. So be it. The amendments do not revisit that issue.
Amendment No. 2, linked with Amendment No. 49, is very different. It proposes what at Report stage many noble Lords on the Government Benches—including, I believe, the noble Lords, Lord Renton and Lord Campbell, and the noble Baroness, Lady O'Cathain—would have welcomed; that is, a body simply to give advice and assistance. Why is that? As we all accept, the Bill is extremely important, complex and a difficult piece of legislation. Many of its concepts are new, much of its statutory language is new. It charts new ground, untried territory. Its implications and ramifications and its establishment of precedent are all hard to calculate. There needs to be a central body giving interpretations, advice and assistance to help employers, disability organisations and individuals know what are their rights, duties and responsibilities.
Perhaps I may give some simple examples. Controlled epilepsy may have implications as to whether it is reasonable for an employer not to permit someone with it to have a job involving driving. Employers need clear and consistent advice but they will not get it. A second example concerns HIV and the rights to mortgage and insurance protection. Disabled people need clear and consistent advice on that. Will they get it? Perhaps we may consider small firms employing under 20 people. As noble Lords will recall, such small firms are exempt from the legislation. We regret that, but your Lordships have affirmed the Government's view on that. What happens if a small firm with 19 employees wishes to replace two full-timers with four part-timers? Does it then come within the remit of the Bill? What happens if a firm with 19 employees wishes to take on extra temporary staff at Christmas? Does it come within the remit of the Bill? We do not know.
What about the term "reasonable expense"? What adaptations must a hotelier make for his hotel to be made available and accessible for disabled staff as opposed to disabled customers? We do not know. What about the reassurance that employers might have that competitors are being treated in the same way as themselves under the framework of the Bill? What about staff harassing a disabled person? What responsibilities must an employer have under the Bill? We do not know, nor will we know until guidance is established.
I dare say that the Minister and his advisers can answer every one of those questions and that noble Lords around the House could have produced another 20 or 30 simple, basic and straightforward issues which will affect many people. But will the answers reach employers and disabled people? No, they will not. What is needed is a body to which employers and organisations can turn in order to put those questions and receive consistent, authoritative advice which applies right across the board. They need to know the answers to their questions, but they do not.
None of us wants law-making by litigation. We do not want the scope, intention and purpose of the Bill to be established by courts, by complaints and tribunals. We would all prefer it to be done by advice, assistance, conciliation and good will. The advice must be authoritative and consistent. Yet there is no body to help employers, disability organisations and disabled people to understand what the Bill entails for them. There is no body at all.
How then can people make the Bill work? All we have is a National Disability Council which is inward-looking and merely advises the Secretary of State, whereas we want an outward-looking body to which people can turn because the Bill belongs to them, not to us. Of the two amendments, the first seeks to ensure that comments on the draft guidance should be in the public domain, as happens with the Social Security Advisory Committee. Its response to draft guidance is published so that we may know what its views are. The second substantive amendment will give the National Disability Council only one additional responsibility: an outward-looking public responsibility of giving advice and assistance. I emphasise that the amendment does not propose that the NDC should investigate complaints. It
980
does not propose that it should instigate inquiries; it will not overlap the courts, tribunals or the legal system. It will be simply and solely a source of advice and assistance. That is precisely what noble Lords on all sides of the House asked for and called for on Report when they rejected a fully-fledged disability commission.
The Government know and accept that this is necessary. The Minister, the noble Lord, Lord Inglewood, said in Committee that he thought it a good idea that the National Disability Council should offer advice and assistance—until he was reminded by his noble friend that the NDC would not have that function and had to withdraw his statement. As recently as last Thursday in the House of Commons, the Minister in the other place, Mr. Burt said:
"Disabled people and business will require a lot of information about the legislation. I confirm that we shall set up at least a telephone information line to meet those needs. We plan to discuss with disabled people and business how best to design that service".—[Official Report, Commons, 19/10/95; co1.567]
And, as of twenty past three this afternoon, the Minister, if I took his words down correctly, said that employers, business and disabled people all need to know how the Bill applies and in what ways it will work.
Finally, there is almost no difference between us. The Government accept that the legislation charts new ground. They accept that employers and disability organisations need advice and help in interpreting and understanding it. They accept that a helpline must be established to provide that. So we have moved a long way. The only question that therefore remains is: who is to provide that helpline? Should it be another agency, or the National Disability Council?
If it is to be another agency, and if that agency does not liaise with the National Disability Council, the resulting advice and assistance will not be authoritative and consistent. But if it does liaise with the National Disability Council, as surely it must, then why are the Government adding yet another piece of bureaucracy, yet another organisation, yet another layer of intervention between disabled people and the advice that they need?
We all know that legislation works and the law is obeyed not because of the work of the police, the courts or the prison system, but because people expect to comply with the law. We are fortunate in this country in having a culture of compliance rather than a culture of law evasion. People want to work with the grain of the law and expect to do so. In good faith, employers and disabled people want and expect to make this Bill work. But to be able to make it work, they have to know what it means. In order to know what it means, they need a source of advice and assistance. I urge noble Lords to agree that that advice and assistance should be located with the National Disability Council so that the council advises not only the Secretary of State but the people to whom this Bill belongs: the people of this country. I ask noble Lords: is this Bill more or less likely to work to afford rights and opportunities and fairness to employers and disabled people alike, and is it more likely to work with grace and goodwill if the National Disability Council can offer advice and assistance? We believe that it will work better if that is

981
the case. We believe that these amendments would help to do what the Government want to do; namely, make this Bill work with consent. I beg to move.
Lord Addington: My Lords, this amendment is probably one of the most straightforward and reasonable that we have seen on this Bill—and it has had some competition for that particular title. Basically it states, as the noble Baroness just said, that those who advise the Secretary of State should advise the general public; they should advise the employers and employees towards whom this Bill is primarily directed. There is no real reason why they should not do so. That is the first point that can be made in favour of this proposal.
There is no reason at all why this information could not come from a central body. We are simply talking about disseminating more information and having one or two people answering phones. It also means that we know where the central authority comes from and where people have to apply. Purely on practical grounds there is a huge case to be made for this amendment. Providing a focal point and guidance—namely, a central authority from where information is disseminated—would lend far more moral weight to the guidance. On both counts there is practicality. There is a central concept that lends authority. All these matters call for central guidance.
Implicit in the amendment is the fact that we do not call for a campaigning body. That argument has been debated in this House. The amendment seeks to control the functions that the Government have stated they want to be taken on by various bodies. Surely, there is no good reason why this amendment, or something very like it, should not appear on the face of the Bill.
The Lord Bishop of Birmingham: My Lords, the issue is really quite simple. As the Minister said, the purpose of the Bill is to benefit disabled people. Therefore surely the expertise concentrated in the National Disability Council should be available not only to the Government but to the people for whose benefit the Bill is designed.
Lord Campbell of Croy: My Lords, as I understand it, the noble Baroness, Lady Hollis, very clearly indicated the purpose of Amendment No. 49; namely, to add duties to the disability council on advice and assistance. In case there was any doubt (she mentioned my name), in earlier debates I was not in favour of the establishment of a new body, a commission. I was in favour of keeping the council in the Bill. But this debate touches on another issue that will arise on Clause 24, which deals with advice and assistance. My noble friend Lady O'Cathain will no doubt speak to this when she deals with her Amendments Nos. 29 to 31. It seems to me that under Clause 24 the Government plan that advice and assistance should be provided to persons and bodies as specified. Therefore we are touching upon another debate and one that is to come. I should like to draw the attention of the House, and particularly the attention of the right reverend Prelate, to the fact that this subject will arise before very long when we debate Clause 24.
Lord Ashley of Stoke: My Lords, perhaps I may answer the noble Lord, Lord Campbell. We should not assume that these issues will be debated and voted upon later. These amendments are particularly important. They seek to transform the National Disability Council from being a mere appendage to the Minister, a mere advisory body, into an authoritative body that is able to provide advice and assistance to millions of deprived disabled people. Those people are deprived because in the main they cannot consult a family solicitor simply because they cannot afford to do so. Most disabled people are poor. That means that they must turn to someone else for advice and assistance on what the legislation will mean. They will lack that information and advice if these amendments are rejected.
I am very concerned to see this House beginning to divide on party lines. This is not a party political amendment. These amendments are for disabled people. The right reverend Prelate put it in a nutshell: if the Minister says that the Bill is to help disabled people, this is the way to help them; namely, to give them advice and assistance.
In the deplorable absence of a national disability commission—I regret that fact but I cannot debate the matter now—the organisation to which disabled people will want to turn is the National Disability Council. The council can say to disabled persons that they have a case to take forward or that they are being over-sensitive and it should be dropped. It can provide reasoned advice which is of enormous value to disabled people. As the Bill stands, the council is shackled. These amendments throw off those shackles and allow the council to give advice and assistance.
I expect the Minister to make great play of the telephone helpline and to say that that is the major response of the Government to these problems. I know that he is marvellous when it comes to public relations. But that is a lot of rubbish for the following reasons. Many disabled people cannot use the telephone, perhaps because they are deaf or are afraid of it or they cannot afford it. There are many reasons why the helpline is inadequate. I hope that noble Lords on all sides of the Chamber will recognise that the helpline is a step forward but not a complete answer. The answer is to enable the council to give informed advice and assistance to disabled people. That is all that these amendments seek to do. I hope that noble Lords on all sides will be able to accept them.
4 p.m.
Lord Rix: My Lords, I have considerable sympathy with the noble Baroness, Lady Hollis, and other noble Lords in the matter of advice and assistance. Perhaps as chairman of MENCAP I may be permitted to trail that organisation's 50th anniversary appeal which goes from 1996 to 1997. It is intended to improve and increase our facilities to provide the advice, assistance, information and support so desperately needed by people who have learning disabilities and by their families and helpers. I trust that in due course we shall receive that support from the Minister and his department.

983
I should like to spend my pennyworth on the complaints issue. Like other noble Lords, I accept that it is not proposed that the council should investigate and provide support or remedy for individual complaints. However, I would welcome the Minister's assurance—I have discussed it with him—that, notwithstanding Clause 44(4), the council may identify issues of wider importance that are raised in individual complaints, advertise its interest in the issue or issues, invite evidence from individuals or groups and recommend appropriate action on that issue or those issues. I believe that that would be a useful clarification of the council's capacity for being helpful by taking the initiative, and I look forward in due course to the Minister's response.
Lord Hamilton of Dalzell: My Lords, it is my experience that since the publication of the Bill and during the long vacation of this House professional advisers who advise businesses and lawyers have taken a very keen interest in what the Bill implies, particularly concerning employment. Therefore, I do not see them having much recourse to the NDC. They are interested in what is in the Bill and what its implications are. What bothers me slightly is the possibility that the NDC may be invited to give advice that ends up as part of a dispute in which the council's opinion is overruled. Where will it stand then?
Baroness Masham of Ilton: My Lords, I believe that advice and information are vital if people are to understand the needs of the disabled. All noble Lords will know how varied and obscure some disabilities are. The needs of disabled people are as different as chalk and cheese. Unless correct information is forthcoming there will be fragmentation and different answers to similar questions. If useful advice is forthcoming, problems will be solved and money saved. It is remarkably unwise not to have this service in place when the legislation becomes operational.
Lord Swinfen: My Lords, my noble friend Lord Hamilton of Dalzell makes a suggestion that is likely to be rather rare. I believe that the additional powers given to the National Disability Council by this amendment will be extremely useful. I suspect that it will reduce the amount of litigation that is likely to take place and therefore the costs to disabled people and others. My noble friend should take cognisance of the amendment. I hope that he will agree it, even if it requires further amendment in another place.
Lord Clifford of Chudleigh: My Lords, I agree entirely with the previous speaker and with two or three speakers before. A number of points have been made about how we who are able believe things should be run. The noble Baroness before me said that the disabled were not understood by the majority. I should like to give a few examples. A member of a club in South Devon, where I come from, who is in a wheelchair as a result of cerebral palsy, has found a job in an office. He has been asked not to use his wheelchair up and down the corridor because it scratches the doors. One would have thought that the people concerned would have heard of kicking plates. That may be the sort of small incident where one would not go to a solicitor but to the council.
984
We know very well—and I think it has to be emphasised again and again—that people with disabilities are six times less likely to be granted a job than able-bodied persons with the same kind of skills and qualifications. Employers as a whole discriminate against disabled people by not providing accessible premises. Many jobs are inaccessible to the disabled in terms of equipment. It may be that only slight modification is required to make them more suitable.
Another matter brought up at Second Reading was that the work routine could preclude a person in a wheelchair from performing easily, if at all. There are definite barriers raised to prevent people with disabilities from reaching senior positions. Only 12 per cent. of disabled people in employment are in professional positions compared with 21 per cent. of able-bodied people. It should be repeated that on average disabled employees earn 25 per cent. less than their able-bodied peers. Promotion prospects are also limited.
The present system operated by jobcentres through their disability employment advisers fails to encourage a disabled person to maximise his or her employment potential. Instead, it tends to guide the applicant towards a job in a sheltered workshop or to low-paid, low-status, menial, repetitive and uninteresting types of work.
I give another example. A civil engineer in the south west whose speciality is bridge design has been told that if he were to apply today for a job with his present employers he would not be considered if there was an able-bodied applicant on the basis that an able-bodied person could do more than someone in a wheelchair. But that has been disproved on a daily basis in that office. That person has never asked anybody else to take a task from him because he can cope. That is where the council could help and give advice to the Secretary of State.
Disabled people are discriminated against in terms of public transport. That point will come up again later. Take British Rail, for example. The able-bodied traveller just goes to the station, purchases a ticket and gets on the next train, whereas the disabled passenger has to give notice of his intended journey at least several hours before he wishes to travel. I remember that at Second Reading I spoke about how disabled people, as well as well as elderly people, were discriminated against by the car hire companies when they travelled from, let us say, Paddington to Scotland. Again, such issues can be put forward to the council.
Disabled people suffer further discrimination because of poor access to buildings. In many buildings they have to go around the back and use the goods entrance or similar entry. Many buildings do not have means of disabled access to any other than the ground floor.
Perhaps I may tell your Lordships of an interesting situation that arose at a wedding which took place in Torquay. One of the guests happened to be in a wheelchair and was, to put it colloquially, caught short. The guest happened to be female. She could not get into the ladies loo and had to go into the gents. Before she did so, she had to return to the gathering, and speak to someone who was involved with disabled people, saying, "Please can you take me to the gents and stand

985
outside the door while I am inside?" He had to tell the gentlemen that they could not go into the gents because there was a girl inside. That is the type of embarrassing situation which will be brought forward to the council.
We are all aware that at some stage or another we shall die. Crematoria throughout the country suffer abysmally from inefficient access for wheelchairs. They are, so to speak, not wheelchair-friendly. Very often disabled people who go to the crematoria are left outside. Many undertakers simply do not know how to deal with that sort of thing. There may he, by the way, a lighter side. A lot of people go to weddings and many churches have steps. If the mother of the bride-to-be happens to be in a wheelchair, how will she get up the steps?
It is important to recognise that the Bill is a very sound one on the whole. It has been applauded by many people, including myself. One can lead a horse to water but one cannot make it drink. We are trying now to make things easier and more attractive to do. It is important to understand that, if we do not have a reasonable programme for implementing this Bill, smaller businesses involved with leisure or other matters will close the door to it. They simply cannot afford to implement it. That is where the Government might consider giving a little more support. The same goes for slightly larger businesses too.
In one way or another we are all to a degree disabled. Those who are classified as disabled recognise it and accept their disability. Those who are without physical or mental impairment are prone to overreact or avoid the disabled. Society is geared to the majority and the majority do not have a disability. It is to be hoped that this Bill will enlighten, make aware and broaden the minds of those who have not been traumatised by disability, who are the majority.
Baroness Darcy (de Knayth): My Lords, I should like briefly to add my support for this amendment. The points have all been very well made. It is, after all, a pretty moderate and sensible amendment. As the noble Baroness, Lady Hollis, said in what I thought was a very compelling opening speech, it responds to the strong feeling on all sides of the House expressed in Committee and on Report that there is a need for clear and accurate advice and that the advice should be of a uniformly high quality.
We all want the Bill to work. I know that the Government very much want the Bill to work. If they could accept this amendment, I feel that it would ensure that the Bill worked well.
4.15 p.m.
Lord Mackay of Ardbrecknish: My Lords, we have had a short and interesting debate which in many ways has been a subset of the debate that we had just before we rose for the summer holidays. I do not want to repeat many of the arguments that I used that day. However, as it was a little time ago, those of your Lordships who remember those arguments will perhaps forgive me if I rehearse at least some of them.
986
Perhaps I may start with Amendment No. 2, which amends Clause 3. Clause 3 enables the Secretary of State to issue guidance, after consultation, on the definition of disability. That is not intended to be a consultation on new policies or legislation, nor an attempt to open up interpretation of the law to a kind of popular vote. The purpose of the consultation is to enable the preparation of a useful and practical document.
We shall consider and take into account any relevant comments and make an analysis public. But we do not intend to publicise details of all the responses received. Individual organisations and people will be free to make their responses public, if they wish. Bearing in mind that the guidance will be subject to the negative resolution procedure, I hope that the noble Baroness will withdraw her amendment.
Perhaps I may move on to the more substantive amendment, which would have been dealt with later in the afternoon if it had not been linked to this one. I am afraid that I cannot support that amendment for three important reasons.
The first reason is because it would undermine one of our fundamental objectives in setting up the National Disability Council; namely, that it should be an influential and credible body able to give independent advice to government on the operation of, and the provisions made under, the Act. I believe that its ability to do that would be hampered considerably if this amendment were accepted.
The second reason is because we have already made provision elsewhere in the Act for the Secretary of State to provide an advice and assistance service. The Prime Minister himself has already said that we shall be consulting the National Disability Council on how that could best be achieved.
Thirdly, this amendment is far too inflexible. To ensure easy access to information about the Act, we shall be setting up a telephone helpline. A joint initiative is about to be undertaken by my department and the department of my noble friend Lord Henley to consider how best to provide that information service. If, after further consultation, we conclude that the helpline should be linked to the dispute resolution mechanisms under Clause 24, or should cover specific employment issues, the amendment before your Lordships' House this afternoon would prove far too restrictive.
The noble Baroness, Lady Hollis, gave a list of examples explaining why she believed that her amendment was necessary. Interestingly, however, none of the examples that she gave would be covered by the amendment that is before the House this afternoon, because subsection (2C) of the amendment puts Part II of the Bill—the part relating to employment issues—off limits. There is no suggestion of advice to employers on employment matters. I rather fear that the noble Lord, Lord Clifford of Chudleigh, in his intervention argued a case based on the assumption that the amendment covered employment issues as well as goods and service provision. It is actually the provision of goods and services that the amendment addresses, as does the National Disability Council.

987
Turning to the National Disability Council, as I explained in July, we envisage the council with a very important role. As well as specific duties linked to the operation of the Bill, we expect it to work with industry on issues which cannot be dealt with under rights-based legislation such as the design and labelling of products. It would also be within the scope of the NDC's duties to consider other legislation which had a constraining effect on the spirit of this legislation if it chose to do so. We have also said that we will be consulting the NDC on the setting up of the advice and assistance service under Clause 24, on the information to be provided to support the implementation of this legislation, and the regulations to be made relating to the right of access to goods and services. We illustrated how the NDC could obtain information to help it undertake its duties. For example, it could ask the Secretary of State to commission research on its behalf; it would have access to collated information from the advice and assistance service, and could draw from other sources in forming conclusions as to how the Act is operating.
Turning to the points raised by the noble Lord, Lord Rix, I can confirm today, as I did when we met in the summer, that the NDC would be able to invite individuals, voluntary organisations and business to put forward evidence on general issues under consideration. We do not intend that the NDC should be the recipient of individual complaints. However, the council could take evidence from individuals if it thought that would he helpful in the context of exploring a general problem, provided it made clear that the purpose of inviting the evidence was to help resolve the general issue, not to give the individual assistance. It would be open to the council to make public its area of interest—for example, by issuing a press release.
The council will have a challenging workload. Its advice will be influential and to be so it must have credibility and be independent. It must be able to praise—which I hope it will be able to do when it sees what the Government are doing in this field—to endorse or criticise as it sees fit.
I can assure your Lordships' House and the noble Lord, Lord Addington, in particular, that we are committed to providing both disabled people and business with the advice and assistance they will need for the legislation to be effective. As I said before, my colleagues and I have not spent many hours on this issue without the determination to ensure that the labours we bring forward will be effective. We have learnt lessons from other countries on this point and do not wish to reproduce some of their mistakes.
Perhaps I can briefly explain our intentions regarding the provision of advice and assistance for resolving disputes under Clause 4. The right reverend Prelate the Bishop of Birmingham asked how disabled people and service providers will find out about their obligations. As my noble friend Lord Campbell of Croy wisely spotted, this part of my speech interfaces with the contribution I shall make in response to my noble friend Lady O'Cathain when she introduces her amendment later. I shall try not to repeat myself and keep some of my explanation "dry" until we come to that amendment.
988
The main elements we envisage are the provision of a second tier advice and assistance service which will be available to local agencies providing advice to disabled people and small businesses, such as the citizens advice bureaux services or DIAL, and in certain circumstances, directly to larger businesses, perhaps where their customer complaints departments have been unable to resolve a particularly tricky problem. I would emphasise that in developing this advice and assistance service we are looking to build on, not compete with, existing structures and that we have given our commitment to consult with business, disabled people and the National Disability Council on this matter. The Government's approach of working with the grain of existing provisions and building on their valuable work is the best way of securing the help that disabled people will need, while the second tier advice and assistance service will ensure that consistent and authoritative advice on disputes under Part III is available at a local level and to bigger businesses. We fully expect the NDC to take considerable interest in the types of cases coming to the advice service so that it can build up an overall picture of how the Act is operating.
Turning to the need to provide basic information and more general advice, as I said earlier, officials in my department and the department of my noble friend, are already working together on developing the information that will be needed to support the implementation of the Bill. We will he setting up a telephone helpline to provide general information about the provisions in the Bill. This will provide a central information point for business and disabled people. We will be considering, after further consultation, the scope and construction of the telephone service. We will need to consider the type and range of questions that it should aim to deal with and whether it should be linked to the second tier advice and assistance service. Should we conclude that this is the best way forward, this amendment would prove to be far too restrictive.
The noble Lord, Lord Ashley, suggested that not all disabled people can use the phone. I suggest that the great majority of disabled people can use telephones and probably have them in their homes. In relation to deaf people, I hope I can put his fears at rest when I say that any services of this kind will be equipped with minicoms or other technical devices to allow access for deaf people. For those unable to use the telephone, through fear or whatever, other measures will be needed. That is why the provision of advice by local advice services will be so important. People then may not need to use the telephone; the services can be available for disabled people or their friends to call on to obtain advice. We hope that all the information and guidance that we will make available will be available locally where people will look for it. A centralised commission of the kind that the noble Lord, Lord Ashley, would prefer, would not be much use to deaf people either if they could not use the telephone. The way in which we communicate advice is a problem that we must try to resolve and I believe we can.
I hope I have reassured your Lordships that the Government recognise the importance of providing advice, assistance and information to business and

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disabled people in order to implement the Act effectively. I hope also that your Lordships agree with me that the NDC should not be diverted from its primary task of providing independent advice to government, and that it is right that we intend to use the NDC's expertise in helping us to determine how best to set up the service in the first place and to review the service should this become necessary rather than asking it to manage the service itself.
In the light of that explanation I hope the noble Baroness will feel able to withdraw her amendment, having heard how we propose to bring the Bill into effect. I shall be returning to the point later this afternoon, as I said, and perhaps making additional points. I hope for the moment that I have been able to persuade her to withdraw the amendment.
Baroness Hollis of Heigham: My Lords, I thank all noble Lords who have taken part in this debate. There were around 10 contributions and, with the exception of the Minister, the voices of your Lordships' House were behind the spirit if not the precise wording of the amendment.
What is the Government's argument? They have offered us three arguments, none of which are valid. The first is that the role of the NDC is to be an influential and credible body giving advice to government. Would not that advice be that much more enriched and effective if the NDC was also receiving the texture of complaints and issues arising from the fact that it was an advice and information service to employers, disability organisations and disabled people? Would it not be a more effective guide to the Secretary of State precisely because it was rooted in the hands-on experience of advice and information? We believe it would be.
The second argument put forward by the Government was that the advice and information, which the Minister recognises need to be delivered, would more appropriately be delivered by another agency. Why? Why invent another organisation to proffer a helpline when the NDC is in place and disability organisations and, in their briefing material, the CBI on behalf of employers, would like to see the NDC do it? Why are the Government inventing more bureaucracy at public cost and adding to public confusion?
The third argument that the Government gave is that the amendment applied only to the goods and services clause of the Bill and therefore the instances I gave of difficult cases where advice and guidance should be consistent, coherent and authoritative would not fall within the council's remit. That is true, except of course that the Government have indicated to us—I do not think I am putting words into the Minister's mouth—that over the next 12 to 18 months the existing body, the National Advisory Council on Employment of Disabled People, which guides the Government on employment matters, is quite likely to be conjoined, amalgamated and subsumed within the NDC. Therefore, the Minister's point, in so far as that point is valid, is inappropriate. We all believe and expect that within two years of the Act coming into operation the NDC will
990
have a remit of the total field. Therefore, I believe that all three of the points which the Government have sought to make are not valid.
What does the amendment do? What the amendment does not do is ask the NDC to campaign, to inquire, to investigate or to advocate. What it will do is reduce the amount of litigation, the number of test cases, recourse to tribunals and conflicting advice. It will only give advice and assistance. The point of that is that in the eyes of employers and disabled people alike it will help to make the Bill work. I do not believe that there is a Member of your Lordships' House who does not want the Bill to be effective. We all want it to work, do we not? I simply ask noble Lords to consider this question. Is the Bill more likely to work if the NDC has the capacity to give advice and information to those most affected by it? If we will the ends, should we not will the means? Would it not be a better Bill, because it would be a more effective Bill, if your Lordships were to approve the amendment? I should like to test the opinion of the House.
4.32 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 124; Not-Contents, 159.

Division No. 2

CONTENTS

Addington, L. [Teller.]

Glenamara, L.

Allen of Abbeydale, L.

Gould of Potternewton, B

Archer of Sandwell. L.

Graham of Edmonton, L.

Ashley of Stoke, L.

Grey, E.

Avebury, L.

Hamwee, B.

Barnett, L.

Harris of Greenwich, L.

Bath, M.

Haskel, L.

Beaumont of Whitley, L.

Hilton of Eggardon, B.

Birk, B.

Hollis of Heigham, B.

Birmingham, Bp.

Holme of Cheltenham, L.

Blackstone, B.

Hooson, L.

Broadbridge, L.

Howell, L.

Brooks of Tremorfa, L.

Hughes, L.

Bruce of Donington, L.

Hylton, L.

Carmichael of Kelvingrove, L.

Inchyra, L.

Carter, L.

Jay, L.

Castle of Blackburn, B.

Jay of Paddington, B.

Cledwyn of Penrhos, L.

Jeger, B.

Clifford of Chudleigh, L.

Jenkins of Hillhead, L.

Clinton-Davis, L.

Jenkins of Putney, L.

Cocks of Hartcliffe, L.

Kennet, L.

Dahrendorf, L.

Kintore, E.

Darcy (de Knayth), B.

Kirkhill, L.

David, B.

Kirkwood, L.

Dean of Beswick, L.

Kissin, L.

Desai, L.

Lawrence, L.

Diamond, L.

Leigh, L.

Donaldson of Kingsbridge, L.

Lester of Herne Hill, L.

Donoughue, L.

Lockwood, B.

Dormand of Easington, L.

Longford, E.

Dubs, L.

Lovell-Davis, L.

Elis-Thomas, L.

McCarthy, L.

Ewing of Kirkford, L.

McConnell, L.

Falkender, B.

McIntosh of Haringey, L.

Falkland, V.

Mackie of Benshie, L.

Farrington of Ribbleton, B.

Masham of Ilton, B.

Gallacher, L.

Mayhew, L.

Gladwin of Clee, L. [Teller.]

Meston, L.

991

Molloy, L.

Stallard, L.

Monkswell, L.

Stedman, B.

Monson, L.

Stoddart of Swindon, L.

Morris of Castle Morris, L.

Strabolgi, L.

Nelson, E.

Strafford, E.

Nicol, B.

Swinfen, L.

Ogmore, L.

Taylor of Blackburn, L.

Peston, L.

Taylor of Gryfe, L.

Prys-Davies, L.

Tenby, V.

Rea, L.

Thomas of Walliswood, B.

Richard, L.

Thomson of Monifieth, L.

Ritchie of Dundee, L.

Tope, L.

Rix, L.

Tordoff, L.

Robson of Kiddington, B.

Turner of Camden, B.

Rochester, L.

Varley, L.

Russell, E.

Wallace of Coslany, L.

Sainsbury, L.

Wedderburn of Charlton, L

Sandwich, E.

Whaddon, L.

Scanlon, L.

Wharton, B.

Seear, B.

White, B.

Sefton of Garston, L.

Williams of Elvel, L.

Serota, B.

Williams of Mostyn, L.

Shepherd, L.

Wyatt of Weeford, L.

Simon, V.

Zouche of Haryngworth, L.

NOT-CONTENTS

Aberdare, L.

Elliott of Morpeth, L.

Addison, V.

Elles, B.

Ailsa, M.

Faithfull, B.

Allenby of Megiddo, V.

Ferrers, E

Annaly, L.

Foley, L.

Archer of Weston-Super-Mare, L.

Forbes, L.

Ashbourne, L.

Fraser of Carmyllie, L.

Astor, V.

Fraser of Kilmorack, L.

Astor of Hever, L.

Gardner of Parkes, B.

Balfour, E

Geddes, L.

Belhaven and Stenton, L.

Goschen, V.

Beloff, L.

Gray of Contin, L.

Blaker, L.

Gridley, L.

Blatch, B.

Grimston of Westbury, L.

Boardman, L.

Haddington, E.

Borthwick, L.

Hailsham of Saint Marylebone, L.

Boyd-Carpenter, L.

Hamilton of Dalzell, L.

Brabazon of Tara, L.

Harding of Petherton, L.

Brigstocke, B.

Hardinge of Penshurst, L.

Bruntisfield, L.

Harmar-Nicholls, L.

Butterworth, L.

Harmsworth, L.

Cadman, L.

Harrowby, E.

Campbell of Alloway, L.

Hayhoe, L.

Campbell of Croy, L.

Henley, L.

Carnegy of Lour, B.

Holderness, L

Carnock, L.

HolmPatrick, L.

Carr of Hadley, L.

Chalker of Wallasey, B.

Hood, v.

Charteris of Amisfield, L.

Hothfield, L.

Chesham, L. [Teller.]

Howe, E.

Chorley, L.

Inglewood, L.

Clanwilliam, E.

Johnston of Rockport, L.

Clark of Kempston, L

Kenyon, L.

Cochrane of Cults, L.

Keyes, L.

Courtown, E.

Kimberley, E.

Cranborne, V. [Lord Privy Seal.]

Kingsdown, L.

Cumberlege, B.

Kingsland, L.

Davidson, V.

Kinnoull, E.

Dean of Harptree, L.

Knollys, V.

Denham, L.

Lane of Horsell, L.

Derwent, L.

Lauderdale, E

Dixon-Smith, L.

Lindsay, E

Dormer, L.

Liverpool, E.

Downshire, M.

Long, V.

Dundonald, E.

Lucas, L.

Dunrossil, V.

Lucas of Chilworth, L.

Eccles of Moulton, B.

Lyell, L.

Elibank, L.

McColl of Dulwich, L.

Ellenborough, L.

Mackay of Ardbrecknish, L.

992

Mackay of Clashfern, L. [Lord Chancellor.]

Rankeillour, L.

Rawlings, B.

MacLehose of Beoch, L.

Reay, L.

Macleod of Borve, B.

Renton, L.

Marlesford, L.

Rodger of Earlsferry, L.

Merrivale, L.

Salisbury, M.

Middleton, L.

Seccombe, B.

Miller of Hendon, B.

Sharples, B.

Milverton, L.

Shaw of Northstead, L.

Monk Bretton, L.

Sheppard of Didgemere, L.

Montgomery of Alamein, V.

Simon of Glaisdale, L.

Mottistone, L.

Skelmersdale, L.

Mountevans, L.

Soulsby of Swaffham Prior, L.

Mountgarret, V.

Stodart of Leaston, L.

Mowbray and Stourton, L.

Strathcarron, L.

Munster, E.

Strathclyde, L. [Teller.]

Murton of Lindisfarne, L.

Strathcona and Mount Royal, L.

Norfolk, D.

Sudeley, L.

Northesk, E.

Swansea, L.

O'Cathain, B.

Swinton, E.

Onslow, E.

Thomas of Gwydir, L.

Orkney, E.

Torphichen, L.

Orr-Ewing, L.

Trumpington, B.

Tugendhat, L.

Oxfuird, V.

Ullswater, V.

Pearson of Rannoch, L.

Vinson, L.

Pender, L.

Vivian, L.

Perry of Southwark, B.

Westbury, L.

Peyton of Yeovil, L.

Whitelaw, V.

Plummer of St Marylebone, L.

Wolfson, L.

Prentice, L.

Wynford, L.

Pym, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.41 p.m.
Clause 5 [Meaning of "discrimination"]:
Lord Henley Lord Henley moved Amendment No. 3:
Page 4, line 18, after ("fails") insert ("without justification").
The noble Lord said: My Lords, in moving Amendment No. 3, I should like to speak also to Amendments Nos. 5, 6, 8, 9, 10, 13, 14, 16, 17, 18, 26, 27, 51, 52, 57, 58, 59, 60, 61, 62, 72, 73, 76 and 77. I believe that that concludes the list. I apologise for putting such a large group of amendments before the House, but since some were tabled on Friday—I believe that many were tabled before that—it behoves me to give a brief explanation of them. I assure the House that they are all relatively minor and technical.
Amendment No. 3 is a technical amendment which seeks to ensure that an employer is not liable for justifiable non-performance of a duty to make reasonable adjustments under Clause 6. Such a failure is not unlawful if it can be justified. That comes under Clause 5(2). Amendment No. 16 does the same in relation to trade organisations under Clause 14.
Amendments Nos. 5, 17, 26, 59, 60 and 61 are consequential amendments which move the meanings of "section 6 duty", "section 15 duty" and "section 18 duty" from Clauses 5, 14 and 17 to the main clause dealing with interpretation in the Bill. This is necessary because they are referred to in other clauses.
Amendments Nos. 6 and 18 ensure that the references to "arrangements" in Clauses 6 and 15 do not inadvertently imply that this word has a restricted meaning elsewhere in the Bill.
On Amendments Nos. 8, 9 and 10, Section 6(6)(a) provides that an employer has no duty of reasonable adjustment if he does not know and could not reasonably be expected to know that the disabled person had applied or might apply for a job with him. Amendments Nos. 8, 9 and 10 prevent any mistaken impression being given that the condition applies in the case of duties owed to an employee.
Amendments Nos. 13 and 14 extend the exemption for charities in Clause 10(1) to include charities in England and Wales which are not registered, and ensure that "charity" in this Bill has the same meaning as in the Charities Act 1993. (There is no registration in Scotland or Northern Ireland). With these amendments, all charities would be similarly treated in the Bill.
Amendment No. 27 clarifies Clause 23(3), which relates to the power of a court to modify an agreement where one of its terms is void under this section.
On Amendment No. 51, Clauses 47 and 48 provide for the Secretary of State to draw up and issue a code of practice to support the employment rights given in Part II of the Bill. Clause 47(9) enables the code to cover the position of contract workers. Amendment No. 51 is a drafting amendment to make clear that references in Clause 47(3) to "employment", "employer" and "employees" also extend to contract work.
On Amendment No. 52, Clause 50 makes provision for what has become known in the context of the other anti-discrimination legislation as the "questionnaire procedure". It is a procedure to assist a person who considers he may have been discriminated against contrary to Part II of the Bill to decide whether to institute proceedings and, if he does, to formulate and present his case in the most effective manner. Amendment No. 52 is a drafting amendment to ensure that the definition of "respondent" reflects the fact that the procedure may be used either before or after actual proceedings have been commenced.
The purpose of Amendments Nos. 58 and 62 is to define the meanings of the terms "profession" and "trade" for the purposes of the Bill. Amendments Nos. 72, 73, 76 and 77 will ensure that the drafting in paragraphs 4 and 8 of this schedule is consistent with that in Clause 53(1), to which those paragraphs relate. Amendment No. 57 defines the meaning of the term "premises" for the purpose of the Bill and ensures that it includes land of any description.
I apologise for that lengthy explanation of an even lengthier group of amendments, but it was important to get it on the record. I commend the amendments to the House. I beg to move.
Lord McCarthy: My Lords, now that we understand this—if indeed we do—we fully understand that the noble Lord is saying that all of these amendments are unimportant; that they represent minor changes and merely bits and pieces, but given that, what is amazing is that they could not all have been effected before. We are talking about 25 amendments. Has this happened because the work was contracted out or privatised? What has happened is not normal.
Lord Addington: My Lords, I share the noble Lord's concern about the surprising number of amendments being tabled at this stage. However, I congratulate the Government on giving us some briefing papers when we finally got the amendments. If they could do that in the future, it might make life a little easier. It would also help us if we had rather more time to read the briefings.
Lord Henley: My Lords, I take the point. As regards the point made by the noble Lord, Lord McCarthy, I am afraid that it was a bad point. I have apologised for the fact that some of the amendments were tabled late, but many were tabled at quite an early stage, providing time for noble Lords to examine them in some detail. As the noble Lord well knows, one of the purposes of Third Reading is to allow us an opportunity to table a number of amendments in order to tidy up the Bill. It would be wrong to send it back to another place imperfectly drafted. Therefore, I hope that noble Lords will welcome the amendments, which I commend to the House.
On Question. amendment agreed to.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 4:
Page 4, line 29, at end insert—
("( ) Regulations under subsection (6) may, in particular—

(a) make provision by reference to the cost of affording any benefit; and

(b) in relation to benefits under occupational pension schemes, make provision with a view to enabling uniform rates of contributions to be maintained.").

The noble Lord said: My Lords, in moving Amendment No. 4, I should like to speak also to Amendments Nos. 11, 20; 21 and 56.
My noble friend Lord Inglewood said in Committee stage that he had received representations about the Bill's coverage of occupational pensions and the important issues that may be involved. He said that the Government would be considering the whole matter carefully, including when occupational pension benefits of a disabled person might justifiably be less than those for a non-disabled person. The House will recall that I was able to set out the Government's initial view during the Report stage of the Bill and we have been giving careful consideration to this difficult and complex area.
Clause 4 in its present form will cover the actions of an employer in providing opportunities to employees for pensions and insurance benefits. These will fall within the existing wording of subsections (1) and (2) of Clause 4. However, there is no bar at present to an employer actually setting up an occupational pension scheme which contains discriminatory rules—although we are not aware of evidence that this is widespread. Trustees and managers of the scheme would not be prevented from discriminating by Part II of the Bill because they are not the employer. New Clause 20 will imply a rule of non-discrimination against disabled people into the rules of occupational pension schemes. This means that any discriminatory decision taken by trustees will be contrary to the rules of the scheme. A disabled person who is affected will be able to seek redress through the dispute resolution mechanisms which already exist for pensions schemes.
However, where a disabled applicant has a pre-existing medical condition which is likely to increase the risk of ill-health retirement or death in service it is important that employers should be able to take just as much account of that as they would if the person were not disabled. However, employers will want to ensure that their decisions are based on sound evidence; for example, actuarial or medical advice. Many disabled people have disabilities which do not affect their life expectancy or likelihood of ill-health retirement and these amendments will make sure they can no longer be unfairly denied access to an employer's pension scheme.
Subsections (1) and (2) in Amendment No. 20 set out the overriding rule of non-discrimination. This makes it a breach of the rules of a scheme for the trustees to discriminate in connection with the provision of a pension scheme to employees. Subsections (3) and (4) have the effect that the various powers to make regulations relating to the position of employers under Part II include power to make different provision for trustees of pension schemes.
Amendment No. 4 makes it clear that the regulations under Clause 5(6) dealing with justification for less favourable treatment may stipulate that additional cost is a valid ground of justification. The second regulation-making power ensures that regulations can enable uniform rates of contributions to be maintained. We intend to consult on the use of those powers; for example, on what might be the kind of additional cost that could justify less favourable treatment.
Amendment No. 11 disapplies the duty of reasonable adjustment for occupational pensions and certain other similar benefits and provides a regulation-making power to prescribe additional scheme benefits to be covered by that exclusion. Again, we shall consult on the use of that power; for example, as to whether the list of benefits is felt to be complete.
Occupational pension schemes are not the only means whereby employers can make provision for their employees' future. There are other insurance benefits and the new clause provided by Amendment No. 21 covers the situation where an employer makes arrangements with an insurance company for insurance benefits, such as private health insurance, or the opportunity for such benefits, to be received by the employer's employees.
The insurance company will act unlawfully against a disabled person under the new clause if it treats him in a way which would be an act of discrimination under Part III if done by the company with regard to a member of the public. That means that refusal to insure a disabled employee, or levying a higher premium, will be unlawful unless it is justified; for example, where there are reasonable grounds for supposing that the disabled person represents a higher risk than normal.
A disabled person would be able to take a complaint against an insurance company and the employer, at the same time if necessary, and an industrial tribunal would decide whether there was discrimination by either of them on the basis of a full view of the evidence.
Amendment No. 56 defines "occupational pension scheme" as used in the Bill as having the same meaning as in the Pension Schemes Act 1993.
Any of your Lordships who may have come into the Chamber in the past minute or two might ask whether this is the pension Bill being re-rehearsed. For that I apologise. Clearly the impact of pensions and other benefits for disabled people in the workplace is an important matter. We believe that the amendments provide the right balance between meeting the needs of disabled people and non-disabled people in occupational pension schemes and that they place the necessary requirements on employers. They achieve our objectives which I mentioned earlier, as did my noble friend Lord Inglewood. I hope that they will also achieve the support of the House. I commend them to your Lordships. I beg to move.
Lord McCarthy: My Lords, I want to raise a point on the first amendment only. Other Members on this side of the House may want to take the Government into the details of Amendments Nos. 11, 20, 21, and 56. The first amendment, Amendment No. 4, amends Clause 5. The Government are concerned with the grounds upon which an employer is justified in discriminating. Many grounds are given in the Bill, as it is, upon which an employer can avoid the effects of the Bill because the discrimination is justified.
The amendment proposes to add to those circumstances. In effect the amendment says that the Government should provide regulations which,
"may, in particular, make provision by reference to the cost of affording any benefit".
Why do we need that at this point in the Bill? Should we not be rather concerned to see it there, because on this occasion, unlike the 25 amendments we have recently had put before us, the Government were good enough and kind enough to give us some notes to the clause itself and the amendments to the clause. I am reading from the note which was sent to us. It says that the first power—that is to say, the one that I am discussing—enables regulations under Clause 5 dealing with justification for less favourable treatment to stipulate that additional cost is a valid ground of justification.
Does that mean that any additional cost is a valid ground? Is this an attempt to increase the circumstances in which an allegation or assertion of costs becomes an automatic ground for getting around the effects of the Bill? I say that because, of course, it is unnecessary in the sense that in other parts of the clause and in Clause 6 the Government have quite a lot on the face of the Bill about costs. Clause 6(4) provides:
"In determining whether it is reasonable for an employer to have to take a particular step in order to comply with subsection (1), regard shall be had, in particular, to the financial and other costs which would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of his activities".
It continues:
"the extent of the employer's and other financial resources; the availability to the employer on financial of other assistance",
and so on. We have that on the face of the Bill. We have reference to financial considerations on the face of the Bill. So why, at this last stage, do we have this round

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claim that we shall have regulations which, in particular, will make provision by reference to cost of affording any benefit?
Baroness Hollis of Heigham: My Lords, perhaps I may add to the worries. We are all in some difficulty in discussing this provision on the Disability Discrimination Bill. The Minister says that in some ways we should be discussing it on a pensions Bill. Even more to the point, we should be discussing, not on Report, let alone on Third Reading, but in Committee in order to extract from the Minister the full implications of what we suspect are major clauses which we cannot discuss but which may have significant repercussions on the poverty of, or well being of, disabled people after retirement. We are all handicapped in this.
With the leave of the House many of us would welcome the Minister being able to add to the discussion so that we can return to these matters. We have before us extremely important, technical and late amendments to the Bill which perhaps should have been covered elsewhere. We hope and believe that the amendments on pensions are benign, but we have some worries. We just do not know how to extract answers from the Minister so that we can come back to him and pursue him further. The amendments have come so late, and improperly late, that we cannot use the procedures of the House in an appropriate and acceptable way.
The Government, I am sure, are right in their belief that disabled people may experience discrimination in the field of pensions. I refer in particular to Amendments Nos. 11 and 20. The Government need to make clear the rights of disabled people. We obviously welcome and support that. Behind that, of course, is the belief that disabled people are sick more often and therefore more costly to employ. As the Minister will know, because the research from his own department makes it clear, 44 per cent. of employers said that they found no difference in sickness absence, and 32 per cent. said that their disabled staff were off sick less often than non-disabled people. Similarly, the 1990 Devon Carers Study concluded that 93 per cent. of employers found their disabled staff had a better attendance record than the non-disabled. Therefore, the Government are right to appreciate the gap between the reality and people's perceptions of the problem.
However, we are handicapped because we cannot use a Committee-style approach to these difficult amendments. Our worries include the following problems and perhaps the Minister will help us. The amendments appear to exempt employers from having to make reasonable adjustments in the pension field. The Government have given us helpful notes but not helpful examples. Will the Minister be so kind as to give us examples?
Secondly, will the Minister tell us more about the conditions under which disabled people might be prevented from joining a pension scheme? For example, they may have diabetes, but the illnesses associated with that condition may develop late. What would happen, for example, if on joining a company a disabled person did not join an occupational scheme but subsequently wished to do so and the trustees sought to reject the
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application? What would be the position in that case, remembering throughout that a pension is deferred pay and not a charity, as the European Commission has insisted?
It appears, too, as though occupational pension schemes, and therefore trustees guided by actuaries and accountants, will be able to weight contributions according to risk. Will the Minister clarify that area? I understand that at present it would not be appropriate for an occupational pension scheme to load heavier contributions on someone who was, say, a smoker, even though, in terms of absence from work and subsequent sickness and dependency, his or her health record might be more serious than that of a disabled person. Will the Minister explain why such discrimination might apply to disabled people?
We have a whole series of questions on which we should like to push the Minister. If he is unable to answer them all or if we feel unhappy about his answers perhaps we may, with the leave of the House, seek permission to question him further during the course of this debate.
5 p.m.
Lord Carter: My Lords, it is a little unusual for the three of us to have to come to the Dispatch Box but it is entirely the Government's fault. These amendments were tabled late and we are having to have, in a sense, a mini-Committee stage.
As regards occupational pensions, will the Minister confirm that the self-employed retirement annuities, the personal pension schemes and so forth, which are not occupational pension schemes but are still pensions, are caught by Clause 16(3), which states that the examples of service include:
"facilities by way of banking or insurance or for grants, loans, credit or finance"?
I assume that means that all other pension schemes, apart from occupational pension schemes—that is, a self-employed retirement annuity or whatever—would not be able to discriminate against a disabled self-employed person. When amendments are tabled late one must ask such questions.
I turn to the point that was made extremely well by my noble friend Lady Hollis but from a different direction. The Minister may have seen an excellent report entitled "There may be trouble ahead". It is not about the future of the Conservative Government but about occupational pensions and permanent health insurance. It is produced as a result of a joint study by the Disability Alliance and the Disablement Income Group. They clearly make points about which we are all aware: that disabled people are the least likely to belong to an occupational pension scheme; that people with a pre-retirement disability tend to receive less occupational pension than non-disabled colleagues; that an occupational pension can be paid only to someone who has retired from work permanently; and that payments to people who have not retired can be made only under an occupational sick pay scheme.
The same point is made in a different way when the report states:

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"Our study of the evidence suggests that disabled people are less likely to be covered by occupational schemes than non-disabled people. It also shows that manual workers are less likely to be covered by occupational schemes than non-manual workers. The DSS's own research highlights that men claiming Invalidity Benefit were far more likely to have backgrounds in manual work".
All that is background to the extremely interesting figures in the report. The reason for my intervention is to ascertain whether the Government believe that the changes that they are making will help to correct the present situation.
The figures for men as regards the pre-retirement disability and average income from occupational pension for people receiving occupational pensions show that those who have a pre-retirement disability receive, to the nearest pound, an average income from occupational pensions of £46 per week, but with no pre-retirement disability it is £67 per week. There is a difference of £21 per week between those without a pre-retirement disability and those with. As regards women, the figures are £26 with a pre-retirement disability and £31 without. That is a difference of £5. Will any of the changes that the Government are now making help to correct that situation or will the amendments affect only future benefits?
Lord Mackay of Ardbrecknish: My Lords, with the leave of the House, I am happy to respond to the points that have been made. I believe that noble Lords opposite will realise that these are important amendments which they can support. If I am unable to give them all the answers that they would like, I shall certainly write to them about the matter. I certainly appreciate that we have had to deal with the issue at Third Reading for the simple reason that we had to consider it most carefully in order to ensure that pensions and similar benefits were being properly treated. Those of us who spent many happy hours debating the Pensions Bill will know that certain considerations involve actuarial calculations and the like. People are making a decision on each and every one of us as to what our risks are or are not when deciding whether they will insure us and the amount of premium they will charge for doing so. These provisions are part and parcel of the difficulties of actuarial work which enables pension funds and insurance companies to take people on and to deliver the benefits that they have promised.
I shall try to deal as best as I can with the points that were made by the troika which came at me from the Opposition Front Bench. The noble Lord, Lord McCarthy, no doubt appreciates the fact that the whole Bill breaks new ground. We have had to tackle some difficult issues and translate them from hopes and expectations into a legislative framework which will work. I accept that, as a result of such factors, I am putting these proposals forward rather late.
The noble Lord asked about costs, referring to Amendment No. 4 in particular. I can do no better than refer him to what I said in my main speech. I tried to speak fairly slowly because I realised that the issue is complicated but I shall repeat it. As regards costs, noble Lords will see that in Amendment No. 4 we are saying that we shall consult on the use of these powers. The example that I gave was the additional cost which could justify less favourable treatment. Therefore, we will be
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consulting on that matter. In order to help the noble Lord, perhaps I may put on the record the fact that we have solutely no intention of legislating for what might be trivial costs. We are looking at serious costs which will fall under those powers—
Lord McCarthy: My Lords, is the Minister prepared to say that in the regulations there will be reference to "significant" or "substantial" costs and not "insignificant" costs?
Lord Mackay of Ardbrecknish: My Lords, I am not sure that the regulations will be so vague. I suspect that they will be a little more detailed and will not use words such as "substantial" and so forth. I believe that the idea will be to attempt to show the kind of figures—perhaps not the exact figures—which may be encompassed. However, I shall check the detail of that and ensure that I am right in my appreciation of this complicated issue.
The noble Baroness, Lady Hollis, asked me a number of questions. First, she asked whether it was intended that contributions should be weighted according to risk for disabled people. The answer is not more so than for anyone else. We are preventing the weighting of risk on grounds of disability but retaining it for health, which has always been the case. In my main speech I tried to make the point that, looking at the whole provision, it would be illegal for someone to discriminate solely on the ground of disability as regards pensions. However, if there are actuarial reasons and justifications for that discrimination, that is accepted. As I said in my speech, the disabled person may not have a disability that is in any way life threatening or suggests that he may have to retire early or to take sick pay. The noble Baroness rightly pointed out that many disabled people have good attendance records. If that is the kind of person that we are talking about, it would be unfair discrimination if he were refused access to the pension scheme. It is only if there are actuarial reasons and the like to justify the decision to exclude that it would not be discrimination. I hope that that is helpful.
Baroness Hollis of Heigham: My Lords, many of our amendments at previous stages of the Bill dealt with the issue of perceived disability which was not well-rooted; in other words, when a condition of disability was believed—perhaps falsely and probably falsely—to give rise to an actuarial risk which did not exist. The Minister has made a distinction which we understand between disability and health. But given that he would not accept a previous amendment dealing with mis-information, how can he sustain that distinction, if accountants or actuaries give contrary advice to trustees?
Equally the Minister says that he is consulting. Will he set up a forum on those issues, as recommended by the Disability Alliance and the Disability Income Group, so that we can ensure further that accountants and actuaries do not confuse the issues of disability and health to the disadvantage of disabled people?
Lord Mackay of Ardbrecknish: My Lords, I do not believe that actuaries would confuse those issues because it is their business to be very clear about what are the risks and what each individual situation is,

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especially as regards insurance claims and pensions. Therefore, I believe that the noble Baroness is being a little more than unfair to actuaries when she thinks that they may make their decisions for flippant reasons.
But if they do that, there is the backstop, which I mentioned, that the person may test that and the evidence will have to go before a tribunal. But I believe that actuaries usually take their decisions based on facts and not on prejudice. However, there is the backstop that if a person feels that the actuarial reasons are not justified, he may have that tested before a tribunal.
As regards why I cannot rest my case on "reasonable adjustments" without coming forward with this series of amendments dealing with pensions, the proposed amendments will not confer a duty on employers to make a reasonable adjustment in respect of occupational pensions. Where a disabled person has been lawfully refused access to part of an occupational pension scheme—for example, based on a reasonable belief that his health condition presents an unreasonable risk—the employer will not have to consider ways in which his overall remuneration package can be brought up to the level enjoyed by other employees; for example, by increasing his salary.
Even if we accepted that reasonable adjustments were required, any calculation would be an additional burden on employers with considerable scope for disagreement. Also, the duty of reasonable adjustment was never intended to provide income for disabled people that was not as a result of the output of their employment. Therefore, we believe that pension provision raises some difficult points which need to be addressed separately, quite separate from the general position of making alterations or changes in the workplace and work procedures and so on in order to allow a disabled person to take a job.
The noble Lord, Lord Carter, asked me about self-employed people, personal pensions and so on. Any service offered by an insurance company to members of the public is covered by Part III. Therefore, for these purposes, self-employed businessmen who are disabled cannot be discriminated against unreasonably. As I have tried to explain to the House, we shall introduce regulations stipulating the circumstances in which it will or will not be reasonable for an insurance company to refuse a service to a disabled person.
I return to the point that I made at the beginning that there are actuarial considerations to be taken into account. At the risk of straying back to the Pensions Act, the last thing that we want to do is to make the provision of pension arrangements for the generality of people so difficult and expensive that employers decide to back away from making such provision. That would serve nobody.
However, I wish to make clear that there are many disabled people whose disability will not represent a risk to the pension trustees and the pension fund. Any disabled person in the category will, ought to and must, under this legislation, be received into the pension fund. The out—if I can call it that—is an out which can be exercised only on serious and justifiable grounds which will largely come from actuarial considerations.
Baroness Darcy (de Knayth): My Lords, perhaps I may intervene in this debate because this is a serious matter. The noble Baroness, Lady Hollis, referred to perceived disability. The Government may choose to leave the issue of perceived disability in the Bill. But if they remove it in the other place and a person with a perceived disability is then not covered by the Disability Discrimination Bill, will a person who feels that he is being discriminated against be covered by other legislation if he wishes to appeal about a matter in relation to pensions? Will he be covered by this Bill or by other legislation?
5.15 p.m.
Lord Mackay of Ardbrecknish: My Lords, I think that I follow the question. At previous stages, we have discussed at some length the whole question of somebody who is not disabled, but is, for whatever reason, perceived to be disabled. I believe that I have made my position clear on a number of occasions. This Bill is designed to deal with people who are disabled and I believe that the inclusion of such factors as perceptions will cloud the issue to the disadvantage of the disabled.
People whose disability is only perceived will not be protected in this part of the Bill any more than they are elsewhere in the Bill. I return to the point that if a pension fund, pension trustees or an insurance company will not take somebody on board, that will have to be justified for actuarial reasons. As I said earlier, if that is not justified, the matter can be taken to an industrial tribunal. Having spent many hours dealing with pensions, I find it extremely difficult to imagine circumstances in which actuaries and pension funds would act on a perception of disability. I think that that is very unlikely.
On Question, amendment agreed to.
Lord Henley Lord Henley moved Amendment No. 5:
Page 4, line 30, leave out subsection (7)
The noble Lord said: My Lords, I spoke to this amendment when moving Amendment No.3. I beg to move.
On Question, amendment agreed to.
Clause 6 [Duty of employer to make adjustments]:
Lord Henley Lord Henley moved Amendment No. 6:
Page 4, line 43, leave out ("other").
On Question, amendment agreed to.
Baroness Masham of Ilion Baroness Masham of Ilion.moved Amendment No. 7:
Page 5, line 17, at end insert—
("( ) providing dedicated parking spaces within existing car parks on the premises of the employer;
( ) providing reasonable assistance from such spaces to the place of work.")
The noble Baroness said: My Lords, as president of the Spinal Injuries Association, I know only too well of the many accidents or illnesses which leave many people, who are mostly young and of working age, paralysed and having to use a heelchair. This amendment just adds one more suggestion to the list already in the Bill.
Parking and a little help may be vital if a person is to obtain a job. It is better for employers to be aware of those needs before they take on someone. I was a member of the board of visitors of a young offenders' institution for nearly 30 years. Suitable parking was always made available; otherwise I could not have done the job. Similarly, I have been a member of various health authorities over the years. Parking and help, if I needed it, were always made available. The amendment is practical. If left out of the legislation, some people may not be aware that parking for people who cannot use public transport and can only use a car is a priority.
The amendment has had a great deal of support in your Lordships' House, but it has been tabled again because the noble Lord, Lord Swinfen, was concerned at the last stage that it would be too difficult to implement. The wording has now been changed to specify "existing car parks". I beg to move.
Lord McCarthy: My Lords, this is our old friend, the dedicated parking space. We have marched with the amendment in various forms through the Committee and Report stages. As the noble Baroness said, we have had a great deal of sympathy and understanding but no comfort at all from the Government.
We have tried to meet the arguments that were put forward by the noble Lord, Lord Henley, on the last occasion. As I understand it, he made three major points. The noble Lord said the purpose of the clause was to list examples of the things which employers should take into account and would be expected to adjust. He said that the list was not exhaustive but exemplary. He asked why we needed to add another example. As the noble Baroness said, we need to add this very important example relating to the kind of thing that we believe needs to be adjusted. It is most important to a large number of people and, indeed, I would have said more important than some of the examples given by the Government. That is the first point.
Secondly, the noble Lord said that we must not go into precise details with our amendments because they were just examples. Well, we have sought to simplify them. Therefore, I do not believe that the amendment could now be said to be detailed. It is 23 words long; it is illustrative and exemplary of a very important consideration. Thirdly, the noble Lord asked whether it would not be better to put such a provision in the code of practice. He asked whether we wanted or needed such a provision and, indeed, whether we should have it on the face of the Bill.
When the latter was advanced by the noble Lord as an argument against the amendment on Report, I asked him whether he would promise that it would be included in the code of practice and whether the latter would also include the provision about dedicated parking spaces as an example. As I understood the Minister, he said that he could not make that promise and that it would only be an issue that the Government would address. Well, perhaps they have addressed it; and, indeed, perhaps they will tell us so. I hope so. But, first of all, I hope that they will allow us to have the amendment.
As the noble Baroness said, the only real objection to the amendment was put forward on the last occasion by the noble Lord, Lord Swinfen. He was concerned about
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the employer who had no car-park on his site. That was a very persuasive and influential objection which we took on board. We have also managed to get the noble Lord, Lord Swinfen, to put his name to the amendment and, if noble Lords read the amendment, it will be seen that the position is covered. I recommend it.
Baroness Darcy (de Knayth): My Lords, I should like briefly to support my noble friend's amendment and the remarks made by the noble Lord, Lord McCarthy. As my noble friend said, the current amendment has taken account of the previous objections about the feasibility of parking and the amount of help needed. My points are much the same as those made by the noble Lord, Lord McCarthy. On Report the noble Lord, Lord Henley, said that he had considerable sympathy with the intention behind the amendments but felt they were matters for the code of practice. I, too, would be much more convinced by that argument if there were not already 12 examples in the clause.
On Report the Minister said that subsection (3),
"only sets out examples of steps and at a level of generality which will be most of benefit to people seeking to interpret and understand the duty".—[Official Report, 18/7/95; col. 209.]
Surely that perfectly describes my noble friend's amendment. At present, subsection (3) of Clause 6 relates to "making adjustments to premises". If arrangements are not made to enable the employee to arrive at and to enter the premises, as in my noble friend's amendment, the help listed in paragraphs (b) to (1) will be of little use to those with mobility problems. Therefore, I very much hope that the Minister will now feel able to accept the amendment in its present form.
Lord Swinfen: My Lords, my name has been mentioned fairly often in the debate. Although I supported the principle behind the amendment of the noble Baroness on the two previous stages of the Bill, I thought that it was impractical and that employers might have to provide parking space which was not on their own property. I am very grateful to the noble Baroness for altering the amendment to take account of my concerns.
I hope that the Government will now have no difficulty whatever in accepting the amendment. I know that the list of examples in the Bill is not exhaustive but—and it is a very big "but"—employers are likely to look at the legislation when it is passed and say, "This is all we need to take into account". I know that it is not all that they need to take into account, but what is there in black and white is very persuasive. Once they have gone through the list from (a) to (1) they will go no further.
We have before us an extremely practical suggestion to put in the Bill which could well help a number of disabled people to obtain work, especially young disabled people. I say that because it is very often the young who suffer spinal injuries because of their activities either in riding or motor cycling and so on. I hope that my noble friend the Minister will accept the amendment without demur.
Lord Addington: My Lords, I encourage the Government to take on board the amendment for the simple reason that it may do some good; indeed, it cannot

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possibly do any harm. The only reason that I can think of for rejecting the amendment is that it would become the 13th example and the Government may be superstitious.
Lord Henley: My Lords, we discussed broadly similar amendments at earlier stages of the Bill. I believe that my noble friend Lord Inglewood dealt with them in Committee, while I dealt with them on Report. I remember that we had two similar amendments tabled on Report over which there was some degree of disagreement about the wording. I congratulate noble Lords on coming to an agreement which has enabled them to table a single amendment which achieves broad support from all those moving it.
As I said on Report, I must stress that I have considerable sympathy with the intention behind the amendment. However, for the reasons that I intend to set out, I am still convinced that the code of practice, with which I shall deal shortly, is the best place for examples which go into such detail. I believe that it is a greater level of detail than that contained in the 12 examples that we already have in Clause 6(3).
The noble Baroness, Lady Masham, said on Report that such an amendment would, quite rightly, remind employers that there may be a need to provide parking space and some assistance. I believe that an Act of Parliament is not necessarily the first place that an employer may look to learn or be reminded of his duties. In such matters I believe that he is much more likely to consult practical guidance, and that will be provided to enable him to comply with the law. That is exactly what the code of practice is intended to be.
Noble Lords may argue that the code is not the law and that it is the law that must be clear on the issue. I have to reply that, even without the list of examples, the duty of reasonable adjustment would still apply to all employers. Indeed, in that respect we only have to look at Clause 6(3)(a) which deals with the reasonable adjustment to premises. It is that duty which is the law. I believe that everyone accepts that the list of examples could not cover all possible adjustments. I am sure that everyone would be in agreement on that: the list is purely of examples.
It is possible to argue that if some of the examples put down are too specific—and I would say that that is arguable with this amendment—the inclusion of such over-specific examples could even exclude other examples which are not listed. Therefore, one wants to keep all the examples that we have in Clause 6 as general as possible.
I fully accept that circumstances could arise where one or other of those examples might be a reasonable step. The list consists only of examples that might be reasonable in any given circumstances. Most would not be. Much more helpful for employers would be guidance on how the duty of reasonable adjustment would work in practice.
I understand that most noble Lords will not have seen the code, even in draft form, at this stage. It will not even be a public document until we publish it in draft form in December this year when we intend to institute a consultation process, which will continue through until some time in March. There will be about three months of consultation. I shall be interested in any comments which noble Lords and others may have.
1006
I can say at this stage that officials in my department have been involved in informal discussions on the draft of the draft with a number of organisations which have been helping to prepare that possible draft for consultation. That draft of the draft was recently put to my own department's National Advisory Council on Employment of People with Disabilities. The council will give its views, which will be fed through to me and my colleagues in the department in due course.
The noble Lord, Lord McCarthy, asked, quite rightly, whether the code would include words of this kind. Since I am talking about a consultation process it would be wrong to give a firm guarantee of that kind. However, I note what the noble Lord said, and what everyone else had to say. If the draft does not include the appropriate words I imagine that the noble Baroness will be one of the first to come forward with suggestions when the formal consultation process starts.
I can say that as an example of a possible reasonable adjustment the current draft of the draft states that where an employer provides dedicated car parking spaces near the place of work it might be reasonable to allocate one of those spaces to a disabled person who has difficulty in walking for other than short distances.
5.30 p.m.
Lord McCarthy: My Lords, I want to get this right. I think that I heard the noble Lord say "Where the employer provides dedicated car parking spaces". Suppose the employer provides only car park spaces. Could he dedicate one of those without dedicating others?
Lord Henley: My Lords, the noble Lord makes a very good point, but it is not necessarily a good point to make at Third Reading. It is the kind of point that I should like to hear from the noble Lord when we reach the consultation process. No doubt the noble Lord will feed in his ideas as to exactly what we have to do. I am glad that he has flagged them at this stage. I am arguing that it is important that the code is used as the vehicle rather than legislation.
Perhaps I may also repeat the assurance given at Report stage that the code will cover the general issue of parking. As I said, I am not going to commit myself to the precise form of words which will appear in the draft code. There is little point in having drafts, and drafts of drafts, and a consultation process if I guarantee that such and such a set of words will appear. However, I can say that it is obvious that this is a matter which has to be addressed, in a form similar to the manner in which it has been raised this afternoon. I hope, therefore, that in the light of what I have said the noble Baroness will feel able to withdraw her amendment.
Baroness Masham of Ilton: My Lords, I thank all noble Lords who have spoken and supported the amendment. I was rather disappointed with the woolly reply given by the Minister. I thought the arguments of the House were much better than the explanation given by the Government. If you cannot use public transport and have to use a car, and you cannot get into a building, you cannot have a job.

1007
Some of the items listed in the Bill such as
"modifying instructions or reference manuals"
and
"modifying procedures for testing or assessment",
are much more specific than being able to park your car.
I wish the Minister had been able to give us a more definite assurance. Because I feel so strongly about the matter, and because I know so well young men who have broken their necks or their backs, I shall ask the House for its view.
5.34 p.m.
On Question, Whether the said amendment (No. 7) shall be agreed to?
Their Lordships divided: Contents, 103; Not-Contents, 135.

Division No. 3

CONTENTS

Addington, L.

Kennet, L.

Airedale, L.

Kirkhill, L.

Archer of Sandwell, L.

Kirkwood, L.

Ashley of Stoke, L.

Lawrence, L.

Barnett, L.

Bath, M.

Leigh, L.

Beaumont of Whitley, L.

Longford, E.

Birk, B.

Lovell-Davis, L.

Birmingham, Bp.

Macaulay of Bragar, L.

Broadbridge, L.

McCarthy, L.

Bruce of Donington, L.

McGregor of Durris, L.

Carmichael of Kelvingrove, L.

McIntosh of Haringey, L.

Carter, L.

Mackie of Benshie, L

Clifford of Chudleigh, L.

MacLehose of Beoch, L.

Cranbrook, E.

Masham of Ilton, B.

Cross, V.

Darcy (de Knayth), B.

Merlyn-Rees, L.

David, B.

Molloy, L.

Dean of Beswick, L.

Monkswell, L.

Desai, L.

Morris of Castle Morris, L.

Donaldson of Kingsbridge, L.

Nicol, B.

Donoughue, L.

Ogmore, L.

Dormand of Easington, L.

Prys-Davies, L.

Elis-Thomas, L.

Richard, L.

Erroll, E.

Richardson, L.

Ewing of Kirkford, L.

Falkland, V.

Ritchie of Dundee, L.

Farrington of Ribbleton, B.

Rix, L.

Geraint, L.

Robertson of Oakridge, L.

Gladwin of Clee, L. [Teller.]

Robson of Kiddington, B.

Glenamara, L.

Rochester, L.

Graham of Edmonton, L.

Russell, E

Greenway, L.

Sefton of Garston, L.

Gregson, L.

Serota,B.

Grey, E

Hamwee, B.

Shannon, E.

Harris of Greenwich, L.

Shepherd, L.

Haskel, L.

Simon, V.

Hilton of Eggardon, B.

Stoddart of Swindon, L.

Holdemess, L.

Strafford, E.

Hollis of Heigham, B.

Swinfen, L. [Teller.]

Holme of Cheltenham, L.

Taylor of Gryfe, L.

Howell, L.

Tenby, V.

Howie of Troon, L.

Thomson of Monifieth, L.

Hughes, L.

Hylton, L.

Tonypandy, V.

Hylton-Foster, B.

Tope, L.

Inchyra, L.

Tordoff, L.

Jeger, B.

Turner of Camden, B.

Jenkins of Hillhead, L.

Varley, L.

Jenkins of Putney, L.

Wedderburn of Charlton, L.

1008

Whaddon, L.

Williams of Elvel, L.

Wharton, B.

Wyatt of Weeford, L.

Wilberforce, L.

Zouche of Haryngworth, L.

NOT-CONTENTS

Addison, V.

Kingsland, L.

Ailsa, M.

Lane of Horsell, L.

Annaly, L.

Lauderdale, E

Ashbourne, L.

Lindsay, E

Astor, V.

Liverpool, E.

Astor of Hever, L.

Long, V.

Balfour, E

Lucas, L.

Barber, L.

Lucas of Chilworth, L.

Barber of Tewkesbury, L.

Lyell, L.

Belhaven and Stenton, L.

McColl of Dulwich, L.

Beloff, L.

Mackay of Ardbrecknish, L.

Blaker, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Boardman, L.

Borthwick, L.

Macleod of Borve, B.

Boyd-Carpenter, L.

Marlesford, L.

Brabazon of Tara, L.

Massereene and Ferrard, V.

Braine of Wheatley, L.

Merrivale, L.

Brigstocke, B.

Middleton, L.

Burnham, L.

Miller of Hendon, B.

Butterworth, L.

Milverton, L.

Byron, L.

Monk Bretton, L.

Cadman, L.

Montgomery of Alamein, V.

Campbell of Croy, L.

Mottistone, L.

Camegy of Lour, B.

Mountevans, L.

Carnock, L.

Mountgarret, V.

Carr of Hadley, L.

Mowbray and Stourton, L.

Chesham, L. [Teller.]

Munster, E

Clanwilliam, E

Murton of Lindisfarne, L.

clark of Kempston, L.

Norfolk, D.

Cochrane of Cults, L.

Northesk, E.

Courtown, E.

O'Cathain, B.

Cranborne, V. [Lord Privy Seal.]

Orr-Ewing, L.

Crickhowell, L.

Oxfuird, V.

Cumberlege, B.

Pearson of Rannoch, L.

Dean of Harptree, L.

Pender, L.

Denham, L.

Perry of Southwark, B.

Dilhorne, V.

Peyton of Yeovil, L.

Dixon-Smith, L.

Plummer of SL Marylebone, L.

Dormer, L.

Prentice, L.

Downshire, M.

Rankeillour, L.

Eccles of Moulton, B.

Rawlings, B.

Ellenborough, L.

Reay, L.

Elles, B.

Rennell, L.

Elton, L.

Renton, L.

Ferrers, E.

Rippon of Hexham, L.

Forbes, L.

Rodger of Earlsferry, L.

Fraser of Carmyllie, L.

St. Davids, V.

Gage, V.

Seccombe, B.

Geddes, L.

Sharples, B.

Goschen, V.

Shaw of Northstead, L.

Gray of Contin, L.

Skelmersdale, L.

Gridley, L.

Soulsby of Swaffham Prior, L

Grimston of Westbury, L.

Stodart of Leaston, L.

Hamilton of Dalzell, L.

Strathcarron, L.

Harding of Petherton, L.

Strathclyde, L. [Teller.]

Harmar-Nicholls, L.

Sudeley, L

Harmsworth, L.

Swansea, L.

Harrowby, E.

Thomas of Gwydir, L.

Hayhoe, L.

Torphichen, L.

Henley, L.

Torrington, V.

Hogg, B.

Trumpington, B.

HolmPatrick, L.

Tugendhat, L.

Hothfield, L.

Ullswater, V.

Howe, E.

Vinson, L.

Inglewood, L.

Vivian, L.

Kenyon, L.

Westbury, L.

Keyes, L

Wynford, L.

Kimball, L

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
5.43 p.m.
Lord Henley Lord Henley moved Amendments Nos. 8 to 10:
Page 5, line 43, leave out ("that the disabled person concerned").
Page 5, line 44, at beginning insert ("in the case of an applicant or potential applicant, that the disabled person concerned").
Page 5, line 45, at beginning insert ("in any case, that that person").
The noble Lord said: My Lords, I spoke to these amendments with Amendment No. 3. I beg to move.
On Question, amendments agreed to.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 11:
Page 6, line 26, at end insert—
("( ) This section does not apply in relation to any benefit under an occupational pension scheme or any other benefit payable in money or money's worth under a scheme or arrangement for the benefit of employees in respect of—

(a) termination of service;

(b) retirement, old age or death;

(c) accident, injury, sickness or invalidity; or

(d) any other prescribed matter.").

The noble Lord said: My Lords, I spoke to this amendment when I moved to Amendment No. 4. I beg to move.
On Question, amendment agreed to.
Clause 7 [Exemption for small businesses]:
Lord Henley Lord Henley moved Amendment No. 12:
Page 6, line 39, leave out from beginning to end of line 40 and insert ("Before making any order under subsection (2), the Secretary of State shall").
The noble Lord said: My Lords, as currently drafted, the Bill ensures that a review of the threshold number in Clause 7 would precede any order proposing a change to the threshold before the fourth anniversary of the clause coming into force. Any proposed changes to the threshold after the fourth anniversary would not be subject to such a review.
The House will recall that at Report stage of the Bill last July, my noble friend Lady O'Cathain raised the issue of whether there should be a review before any change in the threshold, whenever it was proposed. I agreed during the debate to consider the matter further and return with any necessary amendment at this stage.
I said then that I believed the Government should always hold a review before deciding to change the threshold. Amendment No. 12 shows that I have not changed my mind. It will ensure that the Secretary of State will hold a review, whether the order is to be made within the first four years of the operation of the section or at any later time. I beg to move.
On Question, amendment agreed to.
5.45 p.m.
Clause 10 [Charities and support for particular groups of persons]:
Lord Henley Lord Henley moved Amendments Nos. 13 and 14:
Page 9, line 19, leave out ("registered").
Page 9, line 34, at end insert—
1010
(""charity" has the same meaning as in the Charities Act 1993;").
The noble Lord said: My Lords, I spoke to these amendments with Amendment No. 3. I beg to move.
On Question, amendments agreed to.
Lord Ashley of Stoke Lord Ashley of Stoke moved Amendment No. 15:
Page 9, line 46, at end insert—
("( ) Local authorities and parish and community councils in England and Wales and local authorities in Scotland which adopt positive measures to redress under-representation of disabled people within the workforce shall be held to be acting in compliance with section 7 of the Local Government and Housing Act 1989.").
The noble Lord said: My Lords, the purpose of the amendment is to allow local authorities to discriminate in favour of disabled people; to discriminate positively for disabled people as local authorities have done for many years through the quota system. There is nothing new about local authorities doing that.
However, as the Bill stands, it prevents local authorities from discriminating positively in favour of disabled people. I should have thought that any Bill which prevents local authorities from discriminating positively must be an absurdity, especially when we are supposed to be legislating against discrimination.
It is all too easy to speak of choosing people on "merit". But we all know that prejudice and false assessments of disability distort the concept of merit. Positive discrimination is the only possible way to combat that. I do not suggest that we should have positive discrimination for ever. However, we need positive discrimination at least in the short term so that disabled people can have an opportunity when they obtain jobs to show their capability—to show what they are able to do.
It is also absurd that private employers can discriminate positively in favour of disabled people but local authorities cannot. On the grounds of equity and fairness, private firms and local authorities should be in exactly the same position.
Local authorities are particularly important because of the number and wide range of jobs which they cover. Their example is important. They can set a lead to many organisations. They have an important role in showing what can be done with positive discrimination. The amendment allows local authorities to do that. I hope that it will win support from both sides of the House. I beg to move.
Lord Campbell of Croy: My Lords, as the House will know, for some years I have been pointing out that the quota system needed to be replaced. It had outlasted its usefulness, although in the first 25 years or so after 1944 it had served a very good purpose. The reason was that the registration of disabled people was less than 3 per cent. of the workforce. Therefore it became mathematically impossible for employers and organisations to reach a quota of 3 per cent. We have been through this issue before. I believe that most noble Lords are in agreement about the system being replaced and this Bill presenting the opportunity.
Local authorities were among those unable to meet the 3 per cent. Some of the figures with which the TUC has provided me indicate the very low percentages

1011
reached. But that is not the fault of the TUC any more than that of other employers. It is because of the registration system being defective and disabled people simply not registering.
I do not know whether the amendment will be acceptable to the Government; I suspect that probably it will not be. All I say at this stage is that with the quota system going and with parts of the Bill taking its place, we need something to replace the aim of the quota system, even though the way in which it developed became unsatisfactory in the last 25 years of its life.
I should remind noble Lords that Labour Government Ministers had to give answers 20 years ago or more to questions and criticisms about various establishments not being able to reach the 3 per cent. figure. This has been going on for a long time. I hope that the Government will be able to explain how the aim of the old quota system, which is now to disappear, can be replaced satisfactorily either in the terms of the Bill or through additional measures.
Lord McCarthy: My Lords, most of the points have already been made about the amendment. The main one to which I wish to draw the House's attention is that this is an amendment to Clause 10. That clause contains exemptions from the employment provisions allowing for positive action in some specified cases. So the Government envisage positive action which is not unlawful. Charities and persons who provided support and employment under the provisions of the 1944 Act are permitted, under Clause 10, to continue with positive discrimination and to take positive action.
All the amendment proposes is that if we are to put institutions in such a position, then why should we not do so with local authorities? As has been said, there is a particular reason to do that as the authorities are in an anomalous position because of the provisions of the local government Act relating to selection on merit. Unless there is a specific provision to exempt authorities from the consequences of the local government Act, they would be less able to deal with and avoid discrimination than any other institution, public or private.
Lord Rix: My Lords, noble Lords will know that in the past, during the passage of the Bill through the House, I have regretted the passing of the quota system as it applied to people with learning disabilities. Even though it perhaps did not apply effectively to the general working population over the past 20 years, it has applied in regard to people with learning disability, particularly in local councils. Many people who have a mental handicap or learning disability have been able to work in parks and gardens. I believe that in Edinburgh that has taken place over the past 20 years. The work has been satisfactory in nature and has met the quota requirement because people with a learning disability are, sine qua non, already registered disabled without any let or hindrance. Therefore I support the amendment. I realise that I am making a last dying plea for a return to the quota system in a lateral way, but even so I hope that the amendment will commend itself to your Lordships' House.
Lord Henley: My Lords, Amendment No. 15 in the name of the noble Lord, Lord Ashley, would enable local authorities and parish and community councils in England and Wales to operate positive discrimination, as he put it, in favour of disabled people when employing staff, notwithstanding the principle in Section 7 of the Local Government and Housing Act 1989, to which the noble Lord referred, which requires such bodies to appoint staff on merit.
Perhaps I may briefly say a word about quota because it was mentioned by my noble friend Lord Campbell of Croy who welcomed its departure. It was also mentioned by the noble Lord, Lord Rix, who regretted that. The concern was expressed that local authorities will lose the ability to give preferential treatment to disabled people. I believe that the arguments for the abolition of the system are well rehearsed and I do not intend to repeat them. The simple fact is that the quota is not working, very much for the reasons which my noble friend mentioned. That applied to local authorities just as to other employers.
While I understand the concerns of the noble Lord, Lord Ashley, I do not believe that the approach he suggests is the best way to ensure that disabled people are able to take up and keep their jobs. That is certainly not the spirit behind the Bill. Disabled people want so far as possible to be treated on the basis of their abilities. That is the emphasis and the spirit behind the Bill which is about ensuring that that is exactly what happens. By the same token, employers should be free to appoint the people they consider best able to do the job. The Bill ensures that disabled people have a fair chance to get jobs, competing with other people. However, I believe that they do not wish to be patronised and I fear that, however well intentioned, the amendment which the noble Lord is proposing would have just that effect. Grouped with the two amendments—
Lord McCarthy: My Lords, if the Minister will allow me to intervene, perhaps I may ask him this. If that is his view, why have Clause 10 at all? It exempts registered charities and recognised bodies in pursuit of their charitable purposes, it says that they can positively discriminate and take positive action. If we took the noble Lord's view, we would not have Clause 10.
Lord Henley: My Lords, I believe that registered charities under Clause 10(1) are in a different position. With a registered charity for the blind, I see positive merits in it wishing to employ a large number of blind people. The same might be true of other organisations and I can think of one which I know quite well in my own home town, a charity for the deaf which employs a number of deaf people; it would wish positively to look for them.
As the noble Lord will recognise, the second part relates to supported employment which is completely and utterly different. It is funded by both local authorities and the Government. In the Department for Education and Employment, we spend of the order of £150 million to £160 million per annum on providing places for disabled people under the supported employment programme, whether through Remploy or another organisation. I do not believe that their inclusion

1013
in Clause 10((2) in any way negates the arguments that I was addressing in relation to concerns regarding local authorities.
Perhaps I may say a word or two about the two government amendments grouped with that of the noble Lord, Lord Ashley, if he will allow me, in order to save me speaking to them at a later stage. Section 7 of the 1989 Act enshrines the principle of "merit" in local authorities' employment practice. What we intend to do—and what government Amendments Nos. 79 and 80 clarify—is to ensure that there is no conflict between the requirement that appointments are made on merit and the duty of reasonable adjustment under the Bill. In other words, an authority will continue to have to appoint on merit but it will first have to consider whether a reasonable adjustment could help a disabled person achieve that state of merit.
At the moment, local authorities do not have to make any adjustments at all. Like other employers, they will have to consider a wider range of disabled people as applicants and to retain a wider range of disabled employees because they will have to consider whether a reasonable adjustment will make the disabled person the best person for the job. This seems to the Government to be a much more positive and effective way forward than the noble Lord's amendment. I hope, therefore, that the noble Lord will feel able on this occasion—as it is the final one—to withdraw his amendment and that in due course he will welcome the Government's Amendments Nos. 79 and 80 when we reach them.
Lord Ashley of Stoke: My Lords, it is a great pity that we cannot debate this on a free vote and see where we get. The Government have no case whatever. I do not intend to rehearse all the arguments about the quota system, but it is a fact that the system served a purpose. Any shortcomings were the fault of the Government because they failed to support the quota. That is why disabled people did not register. There was nothing wrong with the registration system but people derived no benefit from it because the Government were at fault. I do not wish to bore the House with the old arguments.
Lord Campbell of Croy: My Lords, I am grateful to the noble Lord for giving way. I do not wish to prolong the debate, but the noble Lord will remember that in earlier debates I referred to Commons Hansard in the 1970s, when the noble Lord made exactly the same criticism of the last Government. The Minister replied to his question about the quota system in exactly the same way as did my noble friend. I hope that the noble Lord, Lord Ashley, for whom I have the greatest respect—and he certainly acknowledged the fact then— recognised that, if it is the fault of government, it has been the fault of governments of all persuasions over at least 30 years.
6 p.m.
Lord Ashley of Stoke: My Lords, the noble Lord knows quite well that I am on record as criticising the Labour Government as well as the Conservative Government. One or two individuals and the All Party
1014
Disablement Group have fought off successive governments all these years. They caused every government to back away from ending the quota because they knew that all disabled people and organisations—this was expressed particularly by the noble Lord, Lord Rix—were in favour of the quota. Because of its importance they backed off. Now this Government are abolishing it. I regret that.
The principle in the quota system as relevant to this amendment is that it allowed local authorities to discriminate in favour of disabled people. Admittedly, some local authorities did not take advantage of that power but they did have the capacity to discriminate in their favour.
With the change now being introduced there is to be no quota. Because of the provisions of this Bill (it does not matter that the Minister could not remember the year; I have it somewhere in my notes but I shall not spend time looking for it) local authorities cannot now discriminate in favour of disabled people. That must be wrong. The Government cannot deprive local authorities of the power to help disabled people and then say: we, the Government, are bringing forward a marvellous anti-discrimination Bill which will outlaw discrimination against disabled people. That is absolute nonsense. It does not work. It is illogical. The Minister is on a very sticky wicket.
The Minister refers to the spirit of the Bill and to giving a fair chance to disabled people. The spirit of the Bill, as I understand it, is to outlaw discrimination. Yet if he refuses this amendment, he will prevent local authorities from combating discrimination. I find that very disturbing.
The Minister made a point about disabled people not wanting to be patronised. He is taking us back 13 years. Thirteen years ago a Member in the other place put forward the first Bill outlawing discrimination against disabled people. He was replied to then by a Tory Minister, who stated that there was no evidence of discrimination. Now the Minister is implying that there is no evidence of discrimination in jobs when he says that we want a fair spirit, a fair chance, for disabled people.
We know very well that they do not get a fair chance. All the research from voluntary organisations shows that if disabled people apply for jobs and state that they are disabled, they get no reply. That is the result of discrimination against them. The Minister stands up and says: we want to give them a fair chance. I want to give them a fair chance. The way to do that is to change this Bill to allow local authorities to discriminate in their favour. It is as plain, as simple and as logical as that.
Regretfully, I beg leave to withdraw my amendment, because of the Whips!
Amendment, by leave, withdrawn.
Clause 14 [Meaning of "discrimination" in relation to trade organisations]:
Lord Henley Lord Henley moved Amendments Nos. 16 and 17:
Page 12, line 3, after ("fails") insert ("without justification").
Page 12, line 14, leave out subsection (7).
The noble Lord said: My Lords, I spoke to Amendments Nos. 16, 17 and 18 with Amendment No. 3. I beg to move Amendments Nos. 16 and 17 en bloc.
On Question, amendments agreed to.
Clause 15 [Duty of trade organisation to make adjustments]:
Lord Henley Lord Henley moved Amendment No. 18:
Page 12, line 28, leave out ("other").
On Question, amendment agreed to.
Lord Henley Lord Henley moved Amendment No. 19:
After Clause 15, insert the following new clause—

Disability Discrimination Bill

  ALTERATIONS TO PREMISES OCCUPIED UNDER LEASES
  (".—(1) This section applies where—

  (a) an employer or trade organisation ("the occupier") occupies premises under a lease;

  (b) but for this section, the occupier would not be entitled to make a particular alteration to the premises; and

  (c) the alteration is one which the occupier proposes to make in order to comply with a section 6 duty or section 15 duty.

  (2) Except to the extent to which it expressly so provides, the lease shall have effect by virtue of this subsection as if it provided—

  (a) for the occupier to be entitled to make the alteration with the written consent of the lessor;

  (b) for the occupier to have to make a written application to the lessor for consent if he wishes to make the alteration;

  (c) if such an application is made, for the lessor not to withhold his consent unreasonably; and

  (d) for the lessor to be entitled to make his consent subject to reasonable conditions.

  (3) In this section—
  "lease" includes a tenancy, sub-lease or sub-tenancy and an agreement for a lease, tenancy, sub-lease or sub-tenancy; and
  "sub-lease" and "sub-tenancy" have such meaning as may be prescribed.
  (4) If the terms and conditions of a lease—

  (a) impose conditions which are to apply if the occupier alters the premises, or

  (b) entitle the lessor to impose conditions when consenting to the occupier's altering the premises,

  the occupier is to be treated for the purposes of subsection (1) as not being entitled to make the alteration.
  (5) Part I of Schedule (Premises occupied under leases) supplements the provisions of this section.").
  The noble Lord said: My Lords, in moving this amendment, I shall also speak to Amendments Nos. 28 and 78. In doing so, I apologise for their length and degree of complexity. I am sure that it is within the grasp of noble Lords opposite.
  The House will recall that we touched on this matter during Report stage when I mentioned the issue of employers who lease their premises and the implications for the duty of reasonable adjustment. The status of terms and covenants in leases is an important matter. I said that we would be giving the matter our careful consideration and make our position clear at Third Reading, when we would table any necessary amendments.
  There are obligations on employers under Part II to make reasonable adjustments. There can also be obligations in leases which for entirely non-discriminatory reasons prevent or restrict alterations
  1016
  to the premises. As the Bill stands, the relationship between these obligations is very uncertain. It is unclear whether Clause 9 would render void a term in a lease, and if so when and to what extent; or whether the prohibition in the lease would prevail by rendering the adjustment "not reasonable". An employer in his own premises would have to make reasonable adjustment to those premises where appropriate, but the position of an employer who leases the premises is not obvious.
  It would be inappropriate to leave this position as it stands. These three amendments make the Government's policy intention clear. We propose through these amendments that, where the employer-tenant would be under a duty to alter the premises but would be prevented from doing so by the lease, he would be under a duty to seek the consent of the landlord. The landlord would be under a duty not to withhold consent unreasonably. This approach would ensure that the lease will not operate to frustrate the duty of adjustment. It also has the advantage of protecting the landlord where he has a legitimate objection to allowing an alteration to premises. Amendment No. 78 deals with circumstances in which it would and would not be reasonable for a landlord to consent to adjustments. These would need to be established by use of a regulation-making power, including any conditions which the landlord might attach to his consent. We will consult on the use of such power. Provision is made for enforcement of the duty through industrial tribunals. The provisions that I have mentioned will also apply to trade organisations covered by Part II of the Bill.
  The same approach will be taken under the right of access to goods and services in Part III of the Bill. Service providers will be under the same duty as employers to seek their landlord's consent before making any adjustments to their premises. Landlords will be under the same duty not to withhold it unreasonably.
  Perhaps I ought to add that the new provisions do not cover the clauses that deal with the sale or letting of premises to disabled people themselves. These provisions are aimed mainly at the rented accommodation sector and will largely involve similar landlords; for example, one letting a number of flats in a shared house. In case there is any doubt, let me reiterate that there will be no duty on a landlord to make or consent to changes to his property when a disabled person is seeking to become his tenant. However, the Bill (at Clause 23) will ensure that any prejudicial term within an agreement which, for example, sought to prevent the sub-letting of a property to disabled people, would be unlawful and therefore made void.
  These amendments clarify the relationship between the duty of reasonable adjustment on employers and the implications for landlords. As I have said, these amendments provide a fair balance between the needs of disabled people and the requirements on employers and landlords. And, we will ensure that disabled people, employers and landlords are among those consulted on the regulations. I commend these amendments to the House. I beg to move.
  Baroness Hollis of Heigham: My Lords, we welcome these amendments. They are a very useful clarification of the law. The Government are quite rightly looking at the situation where an employer or a user of premises has behind him a landlord, and therefore where the duty, obligation and responsibility of making an adjustment might fall when there is a clash of contractual loyalties and responsibilities.
  Does this not put into context the amendment moved by my noble friend Lord Carter at the start of our debates today? Is this not the mirror opposite of the situation that he outlined; namely, a disability organisation might wish to rent or lease a property on behalf of disabled people and there was that third party, exactly as in the amendments outlined by the Minister a few minutes ago? The Government nonetheless rejected that amendment while proposing this. Will the Minister comment on that inconsistency?
  Lord Henley: My Lords, I find the logic of the noble Baroness extraordinarily tortuous. I do not believe that there is any connection whatsoever. However, if she wishes to make sophist-like points of that kind that is entirely open to her, although this is Third Reading. I am glad that in general she welcomes these amendments. I apologise for their length. As those of us who once studied law will know, land law is necessarily complicated. The noble Baroness will understand that the purpose behind the amendments is relatively simple.
  Lord Carter: My Lords, I was about to make the same point as my noble friend. It is not sophistry but an interesting example of the Government facing both ways. These amendments, which we welcome, raise an interesting point that I should like to have clarified. In Committee I mentioned a situation in which I was involved. We have an office which employs disabled people. At the time we took the lease one of the conditions was that the landlord, the owner of the building, should provide an access ramp, which he was willing to do. However, the local highways authority created certain difficulties. The point which arose in the debate, which was answered by the noble Lord, Lord Inglewood, was that in that case, broadly speaking, the planning Acts would take precedence over the requirements of this Bill. If I have it right, it now appears that in view of these clauses the Bill will take precedence over the normal law of property. It would be helpful if the Minister could confirm my understanding of the situation.
  My final question is whether, if the building is listed, that is a sufficient or reasonable ground to refuse consent.
  Baroness Hollis of Heigham: My Lords, yes.
  Earl Russell: My Lords, I should like to ask a question for clarification which is related to paragraph 3 of Amendment No. 78. That deals with regulations that may make provision as to circumstances in which a landlord is deemed to have withheld his consent, withheld his consent unreasonably or acted reasonably in withholding his consent. Can the Minister say what is likely to be in those regulations?
  Lord Henley: My Lords, to deal with the latter point last, I prefer to write to the noble Earl in detail on those regulations. However, I can assure him that we intend to consult all of the relevant people in due course because we want to ensure that they are right.
  I go back to the points raised by the noble Lord, Lord Carter. Obviously, if the building was listed and there were concerns about making alterations, it would be perfectly reasonable to refuse consent on those grounds. As to the planning point, I believe that that goes very wide of the amendments that we are discussing. The planning controls will still apply. I believe that in the example which the noble Lord put to me at an earlier stage, or perhaps outside the Chamber, the landlord, tenant and employees were at one in what they could do but there were problems caused by the local authority as both owner of the pavement and planning authority. Obviously, the planning regulations would have to apply. In a case of that kind one would have to continue to put pressure on the local planning authority to deal with these matters in planning terms. I hear the noble Baroness say that I am exactly right. It is gratifying to be told by the noble Baroness that I am correct. I thought that there were others who advised me on these matters, but I take no point.
  I believe that I have taken enough interventions on this amendment. We are considering this matter at Third Reading. I beg to move.
  On Question, amendment agreed to.
  6.15 p.m.
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 20:
  After Clause 15, insert the following new clause—

  OCCUPATIONAL PENSION SCHEMES
  (".—(1) Every occupational pension scheme shall be taken to include a provision ("a non-discrimination rule")—

  (a) relating to the terms on which—

  (i) persons become members of the scheme; and

  (ii) members of the scheme are treated; and

  (b) requiring the trustees or managers of the scheme to refrain from any act or omission which, if done in relation to a person by an employer, would amount to unlawful discrimination against that person for the purposes of this Part.

  (2) The other provisions of the scheme are to have effect subject to the non-discrimination rule.
  (3) Without prejudice to section 59, regulations under this Part may—

  (a) with respect to trustees or managers of occupational pension schemes make different provision from that made with respect to employers; or

  (b) make provision modifying the application to such trustees or managers of any regulations made under this Part, or of any provisions of this Part so far as they apply to employers.

  (4) In determining, for the purposes of this section, whether an act or omission would amount to unlawful discrimination if done by an employer, any provision made under subsection (3) shall be applied as if it applied in relation to the notional employer.").
  The noble Lord said: My Lords, I have already spoken to Amendment No. 20 and also Amendment No. 21 with Amendment No. 4. I would wish to move Amendments Nos. 20 and 21.
  Baroness Hollis of Heigham: My Lords, perhaps the Minister would care to move Amendments Nos. 20 and 21 separately given the difficulties of handling such amendments at Third Reading.
  Lord Mackay of Ardbrecknish: My Lords, I am content to do what the noble Baroness suggests. I beg to move Amendment No. 20.
  On Question, amendment agreed to.
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 21:
  After Clause 15, insert the following new clause—

  INSURANCE BENEFITS
  (".—(1) This section applies where a provider of insurance services ("the insurer") enters into arrangements with an employer under which the employer's employees, or a class of his employees—

  (a) receive insurance services provided by the insurer; or

  (b) are given an opportunity to receive such services.

  (2) The insurer is to be taken, for the purposes of this Part, to discriminate unlawfully against a disabled person who is a relevant employee if he acts in relation to that employee in a way which would be unlawful discrimination for the purposes of Part III if—

  (a) he were providing the service in question to members of the public; and

  (b) the employee was provided with, or was trying to secure the provision of, that service as a member of the public.

  (3) In this section—
  "insurance services" means services of a prescribed description for the provision of benefits in respect of—

  (a) termination of service;

  (b) retirement, old age or death;

  (c) accident, injury, sickness or invalidity; or

  (d) any other prescribed matter; and

  "relevant employee" means—

  (a) in the case of an arrangement which applies to employees of the employer in question, an employee of his;

  (b) in the case of an arrangement which applies to a class of employees of the employer, an employee who is in that class.

  (4) For the purposes of the definition of "relevant employee" in subsection (3), "employee", in relation to an employer, includes a person who has applied for, or is contemplating applying for, employment by that employer or (as the case may be) employment by him in the class in question.").
  The noble Lord said: My Lords, I have already spoken to this amendment with Amendment No. 4. I beg to move.
  Baroness Hollis of Heigham: My Lords, I thank the Minister for breaking down that grouping. With the leave of the House, I should like to ask some questions on Amendment No. 21. I realise that we had a more general discussion on the first of these amendments, but we warned the House that we would need some indulgence to deal with quite technical amendments.
  I should like to ask a general question followed by two specific ones. Under group permanent health insurance schemes where employers arrange long-term sickness payments with insurance companies, many insurers will not quote for blue-collar workers or exclude certain types of employee, such as part-time or temporary workers. Insurance companies can also load an employer's premium depending on the type of workforce. For example, an employer with a high
  1020
  proportion of manual workers, women or older people may have to pay a higher premium. Most companies exclude cover for HIV or Aids. Already some schemes require evidence of good health before an individual is covered, and cover may only be available for those who have a certain length of service, say five years. Can the Minister confirm that those practices will be lawful under the amendments? For example, will insurance companies be able to refuse to quote for a perceived high risk employer and screen employees before cover is offered?
  The specific question refers to subsection (3)(a) to (e) within Amendment No. 21. Can the Minister tell us what "termination of service" means in (a)? Does it mean that employers or insurers can reduce redundancy payments to disabled people? If so, what is the actuarial basis? What would be included under (3)(d)? What is the Government's intent behind "any other prescribed matter"?
  Lord Mackay of Ardbrecknish: My Lords, the new clause relates to insurance services provided under a group scheme which has been established by an employer through the medium of an insurance company. The noble Baroness asked me about termination of service. That is one of the risks to which this clause applies. It deals with insurance companies which provide group schemes on a wide range of risks that may relate to dismissal or resignation. It is not limited to redundancy. The effect is that an insurance company may not discriminate against employees any more than it can against a disabled member of the public. We come back to the point that when they are grouped they cannot treat them differently from the way they would treat a disabled member of the public separately under, I assume, Part III.
  The words "any other prescribed matter" tend to mean what they say. That gives us the power to add additional risks by regulation. I would say to the noble Baroness that if I had some examples I might put them on the face of the Bill with the others. However, as this is a fairly new field, we wish to be able, following consultation, to catch all the problems that may arise.
  As I understand the first question, I come back to the "actuarial" point. Would an insurance company be able to refuse to quote for a high risk employee?
  Baroness Hollis of Heigham: My Lords, employer.
  Lord Mackay of Ardbrecknish: My Lords, I imagine that they can do that at the moment. A company can chose to do business with an employer or not, if it is as general as that. However, the point is that this Bill is directed at disabled people. I am not sure that the noble Baroness is not asking me about discrimination on a rather wider basis than just disability. After all, that is one of the activities of insurance companies. They make decisions about the risks involved in taking on an individual, or groups of individuals, and the premium that they should impose given what they see as the risks. I have indicated that nothing in the Bill would prevent that actuarial risk-taking decision being made. That is the whole basis of insurance. What we are trying to do in the present group of amendments is to ensure that

  1021
  insurance companies cannot discriminate against disabled people without justification just because they are disabled. There has to be far better reason than that.
  The noble Baroness referred to employers and asked me whether screening was allowed by insurance companies. Insurers can refuse to quote for business provided that they do not screen out potential. customers on the grounds of disability. If disability is used to justify a refusal to insure, there would have to be those reasonable grounds for believing that there is a genuine risk involved. We shall regulate on this matter. It is tied in with how insurance companies would behave to an individual under Part III. I hope that I have satisfactorily answered the noble Baroness's three questions.
  Baroness Hollis of Heigham: My Lords, before the Minister sits down, will he confirm that he will consult the disability organisations on any guidance that he will be issuing to that effect?
  Lord Mackay of Ardbrecknish: My Lords, one thing I have learned in the Department of Social Security is that when we consult we do so quite widely. I can assure the noble Baroness that we shall be consulting disability organisations, insurance companies, pensions, etc.—I have no doubt—before we come to any conclusions.
  Lord Rix: My Lords, I am grateful to the Minister for allowing me to say a few words for clarity's sake. There is already the charities consortium of 30 or so major charities which have clubbed together to deal with the problems that arise from insurance and banking procedures with regard to disabled people. I believe that it is already having a marked effect upon the efficacy and the broader church which is now adopted by insurance companies and indeed by banks.
  Lord Mackay of Ardbrecknish: My Lords, I am grateful to the noble Lord for that intervention. As this is Third Reading, on that final point I commend this amendment to the House.
  On Question, amendment agreed to.
  Clause 16 [Discrimination in relation to goods, facilities and services]:
  Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 22:
  Page 14, line 20, at end insert—
  ("(i) services or facilities used by a disabled child under the pre-education vouchers scheme, in any establishment, whether provided by a private, local or public authority.").
  The noble Baroness said: My Lords, in moving this amendment I shall speak also in support of Amendment No. 23.
  Amendment No. 22 seeks to add a further example of services to which this clause and Clauses 17 and 18 apply. Whatever reservations there may be—from these Benches there are many—about the Government's proposals for a nursery education voucher scheme, nevertheless it is extremely important that, if such a scheme is brought into being, it ought to protect the interests of children with disabilities and ensure that they are fully encompassed within the protection against discrimination.
  At the moment it is at the pilot scheme stage. It is understood that the Government's intention is to broaden the scheme gradually county by county throughout the United Kingdom, to encompass all areas of the country. Therefore, it is of paramount importance—not only to individual children with disabilities but also so that there can be a rigorous examination of the effects of a pilot scheme—that disabled children be included. Within many local authorities, such children are given priority under the current system of provision of nursery education.
  It is inevitably the case that in many, but not all, cases provision for such children is more expensive than the general provision for pre-school education. Therefore it is important that the implications of the proposed scheme of nursery vouchers should be rigorously tested for the impact that it has on the continuing provision of high quality services for all children. I beg to move.
  Lord Henley: My Lords, I have to oppose the two amendments spoken to by the noble Baroness. Their intention is to secure that there is no discrimination in services for disabled four year-old pupils under the nursery education scheme announced early in summer, in July, by my right honourable friend the Secretary of State. I hope that the amendments possibly indicate a degree of support from the Benches opposite for that scheme. I live in hope.
  I can assure the House that the amendments are neither necessary nor desirable. Existing legislation is powerful and comprehensive and it ensures that full provision can be made for disabled four year-olds. In addition, despite the provision in Amendment No. 23, the measures would cut across the existing treatment of education within Clause 16(5) and would therefore cause immense confusion. Finally, we shall be bringing forward provisions later this year to enshrine the nursery voucher scheme in legislation. It is entirely inappropriate to have this single provision contained within this Bill.
  With your Lordships' permission, I shall expand briefly on some of the arguments. As I made clear, the voucher scheme is an exciting policy which will put power into parents' hands to choose the nursery placement for their four year-old that is right for the child and the parents' circumstances. But given that premise, I can assure the House that educational provision for individual disabled four year-olds will invariably be much more far-reaching and specific to their needs than the provision provided for the majority of that age group under the nursery voucher scheme. This is already the case under the Education Act 1993. Although the terminology of that Act speaks of children with special educational needs, this will encompass the disabled child who needs access to specialist facilities.
  In the great majority of such cases, the child will have a statement of special education needs maintained in law by his or her local education authority. That statement will be specific to the child, as a result of a careful and detailed assessment. It will denote the exact provision or facilities that the child needs and will name a suitable placement. In principle, the provision can be arranged in the reception class of a maintained primary school, in an LEA nursery school or class, in an independent

  1023
  school or sometimes in a playschool. The placement will of course be appropriate to the child's needs. A child with physical disability in a wheelchair or one with sensory impairment should gain access to the placement which best fits those needs.
  The voucher will therefore simply be a contribution towards the much greater cost of the placement; that is, the basic cost plus the specified provision documented within the statement, which ensures that the child has access to the facilities that he or she needs. In the majority of cases the placement will be full time.
  Moreover, the parental rights of preference under the 1993 Act will apply to the placement. LEAs have a qualified duty (under Section 160) to comply with that preference, provided that three conditions are met: the placement must be appropriate to the child's need; and it must he compatible with the interests of other children and with the efficient use of resources. Parents can appeal to the new SEN tribunal if they believe their preference to be unreasonably rejected by the LEA. If a four year-old child is being assessed to see whether a statement is necessary, it is normal practice for appropriate provision to be made in the meantime. The usual practice is for LEAs to give priority to such children in nursery classes or assessment centres or perhaps in the preferred placement, in anticipation of the completion of the statement.
  If a four year-old child has a disability which is not severe enough to warrant a statement, it is impossible to envisage a situation where the provisions of Part III of the Bill would need to be enforced. If a child needs specialist access, a statement should be produced.
  I can therefore see no reason why we should insert within this Bill a provision which specifies non-discrimination in goods and services to pre-school children. I believe that the existing legislation is more than sufficient.
  I come now to my second fundamental point. The amendments will be incompatible in principle with the Bill's treatment of education. As I stated, pre-school education can take place in maintained primary schools or independent schools. Indeed, we expect the majority of primary schools eventually to make such provision. These measures would, therefore, automatically cut across the carefully crafted provisions of Clause 16(5) and (6) by including establishments funded by LEAs, the funding agencies and voluntary bodies.
  I remind the House that extensive debate was given in another place to the education provisions of the Bill. The Government won the argument there on the questions of principle—for example, the fact that our existing legislation in special education is comprehensive and highly regarded. I will, if I may, stress one more point about resources, for these amendments would bring with them formidable financial implications
  The potential capital cost of making all mainstream primary schools accessible for disabled four year-olds is very high. It is at present unachievable given current constraints on all public expenditure. We do not want to see a situation, therefore, where an authority which has planned to use its capital resources where they will be most effective—both geographically and with an eye to
  1024
  where young pupils have the most pressing needs—has its plans thwarted. Under these amendments such an authority might well be forced into spreading its existing resources so thinly that fewer pupils benefit.
  Instead of being able to concentrate existing scarce resources to ensure that, in each area, there are primary schools or nursery classes each with excellent resources, able to take many pupils with a wide range of special needs, we might produce a situation with nearly all primary and pre-school provision with a few ramps, no lifts, and improved access for only a very small minority of pupils. I hope therefore that the noble Baroness will feel able to withdraw the amendment.
  6.30 p.m.
  Baroness Farrington of Ribbleton: My Lords, before pursuing one point with the Minister, perhaps I can express my grave concern in regard to his reply in relation to the adaptation of primary school buildings. It is clearly the case that since 1979 the expenditure on school buildings and capital allocations for school buildings has been woefully inadequate. It is also the case that for several years the Government have refused to provide enough capital allocation for anything other than basic needs and roofs over heads. It is therefore a tragedy to hear the Government say that access at local level, with parental choice for children for whom adaptation is necessary, is one of the reasons for rejecting the amendment.
  Can the Minister explain a little further the difference between the protection under this legislation given to a three year-old child and that denied to a child of four? Is it the case that a child of four with a voucher will be exempt from the Act? Will it be lawful for an early years centre to discriminate against a disabled child with a voucher, but if a three year-old child with a disability attends an early years centre, in principle that child will be covered by the Disability Discrimination Act, as it will be?
  It is not clear whether a centre will be allowed to discriminate against a three year-old with a disability if it accepted a four year-old with vouchers. The issue is whether the receipt of vouchers makes an early years centre an educational establishment for all children or just for four year-olds, and whether in this instance the Act will apply to the establishment or to the child with the voucher.
  It is clearly the case that three and four year-old children ought to be protected from discrimination. It is equally clear that, with the exception of, in most cases, charitable institutions in the voluntary sector, the majority of provision for children with disabilities is made by local education authorities and that provision is more expensive than the amount that the Government have indicated the voucher scheme will be able to purchase. Is it the case that the local authority can or should be required to make that more expensive provision available? It is clear that it would be better for such children to be included specifically within the remit of this legislation so that any problems that occur during the pilot experiment can fully be taken into account, including the needs of children with disabilities.
  Lord Henley: My Lords, I remind the noble Baroness that we are at Third Reading. If we are to be criticised for bringing forward amendments later, I should say that to bring an amendment forward of this sort that was not discussed at an earlier stage makes life extremely difficult.
  As regards the first point made by the noble Baroness, I remind her of a point which does not seem to have caught on with those opposite. Resources are by their nature finite and there is no point in trying to spread them willy-nilly over everything. We must use them as best we can. In relation to the second point, children of whatever age are far better dealt with under the Education Act. To bring them within this legislation would cause added confusion. It is not necessary so to do and that is why I made it clear that I do not believe the amendments to be necessary.
  As regards the third point made by the noble Baroness in relation to vouchers, we shall have ample opportunity in the coming months to discuss this matter and I look forward to discussing it with the noble Baroness and others.
  Baroness Farrington of Ribbleton: My Lords, I am disappointed with the reply given by the Minister. I do not feel that the points raised were answered adequately. It is because we are at such an early stage of becoming aware of the details of the Government's scheme and the trawling by the Government of local education authorities in order to provide a pilot scheme, that it was necessary to table this amendment at such a late stage. However, it is with regret that I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 23 not moved.]
  Clause 17 [Meaning of "discrimination"]:
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 24:
  Page 16, line 10, leave out from ("which") to end of line 13 and insert ("—

  (a) it is reasonable for a provider of services to hold the opinion mentioned in subsection (3)(a);

  (b) it is not reasonable for a provider of services to hold that opinion.").

  The noble Lord said: My Lords, in moving Amendment No. 24, I shall speak also to Amendment No. 25.
  Amendment No. 24 is a clarifying amendment which restructures subsection (6) of Clause 17. The key element of a justifiable refusal to serve is not simply that one of the conditions set out in subsection (4) is met, but that it is reasonable for the service provider to hold that opinion. An example of this could be if a swimming instructor, taking an adult beginners class, has to focus most of his attention on a disabled person and cannot cover the programme for each class. Other members of the class might be put at risk. This amendment makes the clause consistent and coherent regarding the concept of reasonableness, and the part that that plays in any justifiable refusal to serve.
  I mentioned Amendment No. 25 earlier. It allows regulations to be made to provide that, where a disabled person is incapable of entering into an enforceable
  1026
  agreement, but there is someone acting on their behalf—for example under an enduring power of attorney—the service provider may not justifiably refuse to serve them. This amendment recognises the value of a power of attorney for people with mental incapacity and also fits in with other legislation on enduring powers of attorney. I am aware that anxiety has been expressed concerning this part of the Bill and that there has been some confusion. This amendment clarifies the intention of this provision. I commend it to the House. I beg to move.
  On Question, amendment agreed to.
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendments Nos. 25 and 26:
  Page 16, line 13, at end insert—
  ("(6A) Regulations may make provision for subsection (4)(b) not to apply in prescribed circumstances where—

  (a) a person is acting for a disabled person under a power of attorney;

  (b) functions conferred by or under Part VII of the Mental Health Act 1983 are exercisable in relation to a disabled person's property or affairs; or

  (c) powers are exercisable in Scotland in relation to a disabled person's property or affairs in consequence of the appointment of a curator bonis, tutor or judicial factor.").

  Page 16, line 17, leave out subsection (8).
  The noble Lord said: My Lords, these amendments have already been spoken to. I beg to move.
  On Question, amendments agreed to.
  Clause 23 [Validity and revision of certain agreements]:
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 27:
  Page 21, line 16, leave out from ("for") to end of line 17 and insert ("modifying the agreement to take account of the effect of subsection (1).").
  On Question, amendment agreed to.
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 28:
  After Clause 23, insert the following new clause—

  ALTERATIONS TO PREMISES OCCUPIED UNDER LEASES
  (".—(1) This section applies where—

  (a) a provider of services ("the occupier") occupies premises under a lease;

  (b) but for this section, he would not be entitled to make a particular alteration to the premises; and

  (c) the alteration is one which the occupier proposes to make in order to comply with a section 18 duty.

  (2) Except to the extent to which it expressly so provides, the lease shall have effect by virtue of this subsection as if it provided—

  (a) for the occupier to be entitled to make the alteration with the written consent of the lessor;

  (b) for the occupier to have to make a written application to the lessor for consent if he wishes to make the alteration;

  (c) if such an application is made, for the lessor not to withhold his consent unreasonably; and

  (d) for the lessor to be entitled to make his consent subject to reasonable conditions.

  (3) In this section—
  "lease" includes a tenancy, sub-lease or sub-tenancy and an agreement for a lease, tenancy, sub-lease or sub-tenancy; and
  "sub-lease" and "sub-tenancy" have such meaning as may be prescribed.
  (4) If the terms and conditions of a lease—

  (a) impose conditions which are to apply if the occupier alters the premises, or

  (b) entitle the lessor to impose conditions when consenting to the occupier's altering the premises,

  the occupier is to be treated for the purposes of subsection (1) as not being entitled to make the alteration.
  (5) Part II of Schedule (Premises occupied under leases) supplements the provisions of this section.").
  On Question, amendment agreed to.
  Clause 24 [Advice and assistance]:
  Baroness O'Cathain Baroness O'Cathain moved Amendment No. 29:
  Page 21, line 25, leave out ("may") and insert ("shall").
  The noble Baroness said: My Lords, in moving Amendment No. 29, I shall speak also to Amendments Nos. 30, 31 and 74. Before I do so, I apologise to the House for my absence during the debate on Amendments Nos. 2 and 49, when I believe my noble friend made reference to the advice and assistance and dispute resolution detailed in the amendments to Clause 24.
  On Report I moved similar amendments which I withdrew for further consideration "with a warning". I return to this issue with an amendment to Clause 24 and its supporting Schedule 3 to elicit the Minister's full response and clarification of the Government's intention and proposals regarding the provision of advice and assistance. I am aware that in July the proposals were very much in genesis but I believe that since then some life has been breathed into the soul, so to speak, of Clause 24.
  First, I should like to be fully assured by the Minister that the interpretation of Clause 24 affords and effects equality of opportunity for disabled people and is not misinterpreted as a paternalistic measure. Secondly, my amendments seek also to clarify the law and gain a firm commitment that the Secretary of State will make arrangements for the provision of an equitable expert advice service and that such a service will be accessible to all affected parties and will promote and facilitate the settlement of disputes. Mechanisms which obviate a recourse to the courts are clearly in the best interests of disabled people, the business community and government expenditure. I beg to move.
  Lord Swinfen: My Lords, my name is attached to the amendment and I should like to support it. However, I wonder whether my noble friend can confirm and clarify that the advice and assistance provided will be open to all parties to a dispute—service providers as well as disabled people—and that persons as referred to on the face of the Bill include bodies corporate as well as individuals. Can my noble friend explain the different levels of advice and assistance that will be available under the access provisions? What is the structure envisaged for a mediation service? Can my noble friend clarify the procedures proposed for the settlement of disputes for smaller firms and larger organisations? Can he confirm when consultation on the mechanisms for settlement of disputes is likely to start? Can he also say something about the development of the Government's proposals for the helpline facility that was mentioned at the Report stage? Will the helpline be operational prior to implementation of the Bill? My noble friend has
  1028
  already said that he will be consulting with all parties prior to the start, but do the Government concur that the helpline will be the key to ensuring smooth implementation?
  My noble friend has been given advance notice of these questions. I hope that the answers will make it easier for the implementation of the Bill once it becomes an Act.
  Lord Ashley of Stoke: My Lords, I have not given the Minister advance notice of the points I intend to make. However, I should like to support the amendments and say that it is right that the Government should be required to provide conciliation on goods and services. The courts are far too costly and they are intimidating to disabled people. They tend to deter them, which is a very bad thing. The Government should also provide advice and assistance. We know now that the Government will not allow the National Disability Council to do that so the Government should take on that responsibility.
  The Bill should establish a continuous process—a continuum between disabled people and the conciliation and advice. The disabled person should get advice in order to establish whether he has a case. Then there could be conciliation, which would remove the grievance quickly and easily. Each of those stages hinges upon the other. If there is no advice, the disabled person will not know whether he has a legitimate grievance and the conciliation will be unused. If there is no conciliation the grievance will remain because people will be fearful of the courts. One will not work without the other. We must have both—conciliation, and assistance and advice. I hope that the Minister will be able to assure the House on those basic points.
  Baroness Masham of Ilton: My Lords, I support these amendments. As the Minister knows, I have said at previous stages of the Bill that advice should be available to all. One should avoid litigation at all costs. There is nothing more costly than going to court and many disabled people are among the poorest in the country.
  Lord Zouche of Haryngworth: My Lords, I support the amendment. The Confederation of British Industry has taken a very positive and healthy attitude towards the implementation of the Bill. It wants to make the Bill work. The CBI amendment seeks to ensure that any proposed mechanism for mediation is accessible to both disabled people and business. That will have many advantages. It will reduce the necessity for recourse to the courts. That is a terrible experience which no one needs, especially if one is disabled. It tends to polarise positions rather than help in working towards some sensible solution. I support the amendment.
  6.45 p.m.
  Lord Addington: My Lords, the aim of the amendments is to ensure that the widest possible amount of information is available in the most easily accessible manner. As has already been stated, the most consistent winners in a court case are the lawyers. We are trying to avoid that situation. An amendment along these lines

  1029
  should appear in the Bill. That would strengthen it. We have to make the secondary bodies as effective as possible. I believe that the noble Baroness has a very good set of amendments.
  Baroness Darcy (de Knayth): My Lords, I support these very helpful amendments. I look forward to hearing the Minister's replies to the various questions posed by the noble Lord, Lord Swinfen. I support the amendments entirely.
  Lord Mackay of Ardbrecknish: My Lords, I am grateful to my noble friend Lady O'Cathain for outlining her concerns and I am also grateful to other noble Lords who have spoken on the amendment. Those concerns centre around how the Bill will provide for the resolution of disputes which arise from the new right of access to goods and services. We touched on this area during our earlier consideration of Amendments Nos. 2 and 49. I shall try not to repeat some of the points I made then but I should like to take just a few minutes of your Lordships' time to explain how we envisage Clause 24 working. I hope that will reassure my noble friend.
  I imagine that some of your Lordships who were in the House at Report stage will remember that I said that it is disabled people who will generally be the more vulnerable party to a dispute arising out of the right of access and that our proposals for advice and assistance had been framed so that, where appropriate, they could receive a greater share of the amount of support on offer. I think my actual words were that it would be,
  "batting slightly more in favour of the disabled person".—[Official Report, 18/7/95; col. 276.]
  By that I meant that, while staying strictly within the confines of the law, the service would seek a resolution which ensured that the disabled person's rights were met. In my view, it is extremely important that Clause 24 retains the flexibility to allow us to do that. We would like a service which operates to serve the spirit in which the legislation was conceived: a desire to up the pace of the move to a more accessible environment for disabled people.
  I am not sure that my noble friend's amendment incorporates sufficient latitude to allow us to set up a scheme which might need to differ from existing dispute resolution mechanisms to take account of the very special and varied aspects of disability discrimination. However, we recognise that the primary source of advice and advocacy for disabled people will continue to be the multiplicity of advice agencies which already exist: whether generalist, like the citizens advice bureau service, or disability specific, like the disability information and advice line service or DIAL. We could not, and would not wish to, supersede or compete with those existing structures. Rather, it is more sensible to set up a complementary service which will help the existing disability advisers to do their jobs better. In other words, what is required is a secondary tier of advice to give help and assistance to those who have the day-to-day contact with disabled people: in essence a team of full-time disability advisers who, whether situated centrally or regionally, will together form a pool
  1030
  of expertise which can be utilised to stop disputes escalating to the point where court action is necessary. That would fall within the strictures of the noble Lord, Lord Addington, who advised me to keep things clear of the lawyers. I entirely agree.
  We feel that a scheme along those lines is the best way to make use of the existing networks of advice and assistance. The agencies—local agencies, specialist agencies and the generalist agencies, such as the citizens advice bureaux, which provide services locally—will screen out the majority of cases of alleged discrimination. Some of those will be misconceived while others could be dealt with simply. Where the case is more complicated, or the parties in question cannot agree on what the solution should be, the guidance of the advisers could be sought. In very difficult cases, the case could be referred on to the advice service, which will in this way build up expertise in the more difficult types of case which it can then apply more generally.
  At each point in this process, it is likely that there will be some contact with the service provider in order to arrive at a mutually acceptable solution short of a court summons. To answer my noble friend Lord Swinfen, there will be nothing to stop a service provider using the system in exactly the same way. Many small shopkeepers, for example, will be quite happy to avail themselves of the services of local advice agencies. I can, however, appreciate that such a scheme will not always satisfy the requirements of larger business, and I understand why many feel that a more formal dispute resolution mechanism along the lines of ACAS is required for Part III of the Bill.
  I should emphasise that we have deliberately not set out to duplicate ACAS's role in the goods and services field. As your Lordships know, ACAS becomes involved in a dispute only when an application has been made to a tribunal. I note that the amendment also envisages that the Clause 24 arrangements will primarily be triggered once a complaint has been made to a court. Our intention is to set up a system which can resolve disputes before people even apply to the courts. That will be best for both business and disabled people.
  Further, there is no doubt in my mind that the disability advisers would be able to perform the mediation role which my noble friend seeks, if there existed some way of filtering out inquiries on more straightforward issues. There must be a number of bodies which, when it is a businessman who has a problem, could perform the same operation for the advisers as will be performed by the CAB and other groups when disabled people have a grievance. One could perhaps imagine a role for trades associations or chambers of commerce. Further, most large service sector companies will have an existing mechanism for dealing with complaints from members of the public who feel that their statutory rights have been infringed. Customer relations staff could work together with the disability advisers to resolve problems before they began to escalate. We could reinforce such mechanisms through the use of a code of practice which directed disabled people down a particular route as an initial step. This is clearly an area where we need to talk in more

  1031
  detail to both business and organisations of and for disabled people and we will be looking for an opportunity to do so over the coming months.
  Finally, I should like to emphasise that we recognise that business needs a lead-in period so it has time to equip itself to cope with the more stringent provisions of Part III of the Bill. That is why the various rights of access are to be phased in over a period of maybe as many as 10 years, starting with the simple duty on service providers not to refuse service to a disabled person unreasonably and ending with the duty to remove physical barriers if there is no other means of providing access. This phasing period will also give us time to assess whether our proposals for advice and assistance are going to prove sufficient. If it transpires that a more formal structure is necessary, the power remains within Clause 24 to provide one. This is almost certainly an issue on which we shall be asking the National Disability Council to review the existing arrangements and to make recommendations. We would then consider the arguments for change and weigh the perceived benefits against the potential costs, taking account of such possibilities as incorporating funding from the private sector. Here again, the amendment is probably too prescriptive to allow us to adapt whatever service is set up under Clause 24 to meet the needs which may arise over time.
  My noble friend Lord Swinfen asked me about the telephone helpline. I dealt with that point when we considered Amendment No. 2 and I do not think that I can usefully add anything to what I said then. I do not want to repeat myself, but I believe that I said then that we shall start to consult shortly after Royal Assent. We shall also do that in relation to the advice and assistance service. Officials from my department will be seeking to discuss those matters with organisations of and for disabled people as well as those representing service providers, to ascertain the best way forward.
  I am sorry that I have gone on at some length, but this is an important issue and I wanted to spell out how our thinking has developed since I spoke on Report. I hope that I have sufficiently reassured by noble friend to enable her to withdraw her amendment.
  Baroness O'Cathain: My Lords, I thank my noble friend for a very full and detailed explanation of the development of the Government's proposals. I do not complain that he went on "at some length" as he put it, because it is important for us to have as much clarification as possible of what he has in mind. Speaking from the business point of view, I like his approach in terms of having at stage one the specialist agencies and at stage two the team of experts. We must realise that we have to build up expertise. The proposals are therefore helpful, as were my noble friend's points about the lead-in period.
  I am satisfied that the Government's proposals are in line with the amendment as moved. Of course, they are not precisely the same: otherwise, the amendment would be agreed to. However, I am satisfied that that further explanation amply clarifies the law and is now on the record. It goes much of the way to secure the commitment which the business community is genuinely seeking.
  1032
  It seems to me that the mechanisms proposed for Clause 24 are the Government's insurance policy for the long-term investment in achieving equality of opportunity for disabled people. That is good for disabled people and for business. As my noble friend said, the last thing that we want to do is to create a situation where everybody is running off to lawyers and into court.
  I remind your Lordships that this legislation is a social reform and as such I guess that it cannot be too prescriptive. I was struck by my noble friend's comments on this point because the last thing that I want is for the provisions to be prescriptive. Being a social reform, the legislation will evolve. The lead-in period will help in that respect.
  I remind your Lordships also that all of us in this House and the business community are clearly united in the determination to end discrimination against disabled people. Sometimes during the passage of the Bill, which seems to have been for ever, being both long and tortuous, we have tended to lose sight of that and to have got into slightly confrontational situations. We are all on the same side in our determination to end such discrimination. I believe in all conscience that there is no division in this House either on the amendment or on the Minister's full response, which, I repeat, is now on the record. In the true spirit of this legislation, I pray in aid the CBI parliamentary brief which most noble Lords have received, to remind ourselves that,
  "working together to reach lasting solutions, rather than short term gains, will ensure that the end to discrimination against disabled people, becomes a reality".
  In that spirit, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 30 and 31 not moved.]
  7 p.m.
  Clause 26 [Further and higher education of disabled persons]:
  Lord Henley Lord Henley moved Amendment No. 32:
  Page 22, line 28, leave out ("follows") and insert ("set out in subsections (2) to (6)").
  The noble Lord said: My Lords, I shall speak also to Amendment No. 34.
  In Committee and on Report noble Lords were, quite correctly, anxious to establish whether there was a clear division of duties between the further education funding councils and the local education authorities in order to satisfy themselves that the law had made provision for students with learning difficulties and disabilities. I believe that we have addressed that point. They were anxious to establish also that the courses provided by local education authorities enjoyed parity of esteem with those funded through the FEFCs. The Bill now includes amendments requiring further education institutions to provide "disability statements" about their provision of facilities for education for students with disabilities. Accordingly, on Report I undertook to consider whether I might bring forward an amendment placing a similar duty on LEAs.
  Taken with existing clauses, these amendments will ensure that disabled people are better informed of the full range of further education provision open to them,

  1033
  irrespective of whether it is funded by the FEFC or LEAs. LEA-funded further education centres as well as FE colleges will now have to provide useful and practical information for prospective disabled students to help them make informed decisions about their choice of education. Many LEAs already provide comprehensive information about their further education facilities for disabled persons; we aim, through this amendment, to make sure that all LEAs adhere to that good practice.
  These amendments, taken together with the other educational provisions in the Bill, will greatly increase the information available to pupils, students and parents when making choices about education, and I commend them to the House. I beg to move.
  Baroness Farrington of Ribbleton: My Lords, I welcome the amendment from the Government and the fact that discussions are taking place with the Department for Education and Employment, the FEFC and the LEAs. We hope that that will clarify in detail the respective responsibilities and duties with regard to course provision. I seek an assurance from the Minister that the form that the prescribed description will take will be the subject of consultation with the LEAs.
  Baroness Darcy (de Knayth): My Lords, I give the amendment a warm welcome and thank the Minister for a positive response to the concerns that we all voiced, first, about students falling between the two stools of the FE sector Schedule 2 provision and the LEA provision; and, secondly, about the quality and quantity of non-Schedule 2 provision.
  The new duty placed on LEAs to produce disability statements now brings them into line with the colleges. The noble Lord, Lord Henley, mentioned the other amendments brought forward at earlier stages of the Bill. I shall not take up the time of your Lordships on the Bill do now pass, so perhaps I may say briefly how welcome are all the amendments first heralded in the other place and then introduced in Committee by the noble Lord, Lord Mackay of Ardbrecknish. It is good that education now figures in Part IV of the Bill. That does not of course mean that it is subject to anti-discrimination legislation, which I regret. SKILL, the National Bureau for Students with Disabilities, still feels that education should be included in Part III which outlaws discrimination in the provision of goods, facilities and services.
  However I accept, as does SKILL, that the Government genuinely believe that bringing education into Part III would be detrimental to their strategic plan to improve further and higher education provision for students with disabilities and learning difficulties. We therefore very much welcome the useful statements made by the noble Lord, Lord Henley, on Report, first, about the complaints procedure for FE students; and, secondly, about the colleges' duty to meet the needs of disabled students whom they enrol. They will strengthen the strategic plan.
  I welcome also the commitment to look further into the question of transport to and from further education establishments which the noble Baroness has already mentioned.
  1034
  I should like to thank the noble Lord, Lord Mackay of Ardbrecknish, for being willing to meet and discuss matters in the first place, and also the then Minister for Education in the other place, Tim Boswell; and I recognise the hours of hard work put in by officials of the DFEE and the staff of SKILL to arrive at a solution.
  Finally, I thank the noble Lord, Lord Henley, for making the helpful statements on Report and for now coming forward with the amendment. I am grateful to the many noble Lords on all sides of the House who have given powerful and continued support. That is quite enough eulogistic chat from me, I think. I very much hope that the amendment will iron out the problems. If not, it may be necessary to consider in future bringing all communication and living skills under Schedule 2. For the moment however it is a welcome and positive step towards ensuring that students with severe learning difficulties learn to operate as effectively as possible in the adult world.
  Lord Henley: My Lords, I am most grateful to the noble Baroness, Lady Darcy, for getting in her retaliation first, if I may put it that way, or, rather, for getting in her Bill do now pass speech in advance. I apologise on behalf of my noble friend Lord Mackay that he had to miss part of it, but he will read it with enormous interest tomorrow when he has a chance. I take note of the points that the noble Baroness made.
  I also express my gratitude to the noble Baroness, Lady Farrington of Ribbleton, for reminding the House that we have already started on consultation with the LEAs, and obviously that is important. I can give her an assurance that the form of LEA disability statement will obviously be the subject of consultation with the LEAs. As far as is possible, we shall try to find something that is satisfactory to all parties concerned. Obviously in advance of that consultative process, I do not believe that there is much more I can say about what form that will take.
  On Question, amendment agreed to.
  Earl Russell Earl Russell moved Amendment No. 33:
  Page 23, line 39, after ("of") insert ("physical or other support").
  The noble Earl said: My Lords, I should like to speak also to Amendment No. 35 which is Amendment No. 33's Scottish cousin. There is, I understand, no difference save that of nationality between the two amendments.
  When I arrived here I was advised by my Whips that I could never declare an interest too often. Accordingly, in any university matter I do so. I should like also to thank the Ministers (both the noble Lord, Lord Henley, and the noble Lord, Lord Mackay of Ardbrecknish) and through them their officials for a meeting which I hope may much shorten the length of my remarks.
  The amendment concerns these statements which universities are to be required to provide about facilities for those with disabilities. It seeks to insert the words "physical or other support" before "facilities". The concern is this. First, disabilities, as we all know, are extremely multifarious. So are academic courses. The task of matching every disability to every course would

  1035
  be a truly exhausting one. We should like an assurance that universities will not be asked to attempt that labour of total enumeration.
  The other point upon which we would hope to hear reassurance is that matters concerning admissions and curriculum are matters of academic judgment. While it is, I think, generally recognised that universities will and must make an effort to adapt to the needs of students with any particular disability wherever they can, it must remain a matter of academic judgment what adaptations can be made and what cannot.
  I should like to clarify that point very briefly, if I may. There is, I think, and should be, a duty on universities to try to help, especially when a student has been accepted. There is a duty to that student. Some obstacles can be overcome. Some are harder. Some cannot yet be. But I do remember that many obstacles which now can be overcome could not be overcome 30 years ago. But we cannot accept at present an obligation to open every course to people with every disability. There are some obstacles which have not yet been overcome.
  The noble Baroness, Lady Darcy (de Knayth), asked me on Report whether universities recognised an obligation to look for leeway in a course where there is something in it that creates an obstacle to people with disabilities. I can now clearly give her the answer yes to that question. We will look. The modularisation of courses will make it easier to look.
  There is a duty to respect the freedom of academic judgment but that carries with it a reciprocal duty to use that judgment to be as helpful as we can be. I hope that that clarifies the position a little. I beg to move.
  Baroness Darcy (de Knayth): My Lords, I very much hope that the Minister can reassure the noble Earl that disability statements will in no way affect the academic standards or criteria of an institution. I am grateful to the noble Earl for replying to the question that I asked on Report and saying that the universities would exercise leeway. SKILL states that it knows of no institution which applies different academic criteria to disabled students as regards admissions and examinations and I look forward to the Minister's reply.
  On Report (col. 278) I said that I thought that the words "physical and other support" seemed wide enough not to cause concern. I plead that it was 1 a.m. and I was not sufficiently informed as to what "other support" did or did not cover. I now know that it would not include important areas such as policies, for example, examination and admission policies; information provision, for example, what is put into a prospectus; and staffing arrangements, for example, whom disabled students can contact for advice.
  SKILL points out that if the clause were amended as the noble Earl suggests the higher education institutions would be providing less information in their disability statements than would FE institutions and now LEAs. The consistency of information available to students across post-16 education would be compromised. I am sure that that is not the noble Earl's intention. Although I understand his worries I hope that he will find they are groundless. I also hope that having heard the Minister's reply he will feel able to withdraw the amendment.
  Lord Carter: My Lords, the noble Earl speaks with a great deal of knowledge and experience of this matter and he has made the case extremely well. There is no need to add to it and we are pleased to support him from these Benches. I am surprised that with his great facility for the English language he introduced a word such as "modularisation" into the official record.
  Earl Russell: My Lords, I thank the noble Lord for his point and I sympathise with him but it is the name by which it is known.
  Lord Henley: My Lords, we were pleased to hear the noble Baroness, Lady Darcy, even after her pre-emptive attempt at a Bill-do-now-pass speech. We hope to hear her many more times during the course of Third Reading. I believe, and I am sure that all noble Lords will agree, that there is scarcely a need for someone of the distinction of the noble Earl to declare an interest. He is far too well known and appreciated in higher education circles for that to be necessary. I echo what he said about our earlier meetings. I and my noble friend Lord Mackay were grateful to have an opportunity to discuss these matters outside the House—or rather inside the House but outside the Chamber—and for notice of his intention to table this amendment. The noble Earl, quite rightly, is seeking certain assurances on the effects of these clauses and I hope that my comments will be of assistance.
  The noble Earl is concerned that the clauses might constitute a threat to a university's academic autonomy. He is concerned, for example, that their effect might be to require a university to change its admissions arrangements, or modify its course structures, or alter its assessment programmes in order to meet the needs of disabled students. I am happy to state the Government's considered view that they are not meant to do so and that they do not do so. Nor is it the Government's intention that the disability statements should be used to put pressure on the universities or the higher education funding councils to change policies on the curriculum or admissions. Such matters are quite properly academic matters which are the responsibility of the institutions to determine. Naturally, we hope that universities will be as receptive as they can to the needs of disabled students, and we believe that the need to set out information about their policies will help focus their attention on this issue. But it will remain for universities to determine their own policies.
  The noble Earl is also concerned at the possible burden on universities of producing the disability statements. As he mentioned tonight and on Report, he envisages the possibility of very complex statements being required, which map every course in an institution against every possible disability of prospective students. I am happy to state the Government's considered view that we do not envisage disability statements being of that nature. I must temper that comment in one respect because, as the noble Earl is aware, it is not the responsibility of the Government to specify the information content of the statements. That is the responsibility of the higher education funding councils.
  I can, however, inform the House that the Higher Education Funding Council for England has already established a group to consider the nature of the

  1037
  information to be contained in disability statements, and it is clear that the group is not contemplating statements of that nature. The group believes that it will be able to specify information which will both be helpful to disabled students and the council but which will not impose an undue burden on universities. A representative of the Committee of Vice-Chancellors and Principals, which has been in correspondence with my right honourable friend the Secretary of State, is on the group, and I believe I am right in saying that the CVCP is working constructively with the group. Further, the HEFCE intends to consult institutions generally about the specification of information in disability statements, once they have the advice of their group.
  With those assurances, I hope the noble Earl will withdraw his amendment.
  Earl Russell: My Lords, I am most grateful to the Minister for that most helpful reply. I was aware of what was being done in the Higher Education Funding Council for England and, as the Minister said, the Committee of Vice-Chancellors and Principals is not in any way dismayed by what is going on there.
  I am very grateful to him for his comments about the ability to avoid totally exhaustive and exhausting statements. I am particularly grateful to him for his comments about academic judgment and about the absence of any pressure on the funding councils to bring about change. What he says is very fair but he hopes that the universities will be as receptive as they can to the needs of disabled students. In return, I give the Minister that assurance with all good will, thank him very warmly and beg leave to withdraw my amendment.
  Amendment, by leave, withdrawn.
  7.15 p.m.
  Lord Henley Lord Henley moved Amendment No. 34:
  Page 23, line 45, at end insert—
  ("(7) The Education Act 1944 is amended as set out in subsections (8) and (9).
  (8) In section 41 (functions of local education authorities in respect of further education), after-subsection (2) insert—
  "(2A) It shall be the duty of every local education authority to publish disability statements at such intervals as may be prescribed.
  (2B) For the purposes of subsection (2A) above—

  "disability statement" means a statement containing information of a prescribed description about the provision of facilities for further education made by the local education authority in respect of persons who are disabled persons for the purposes of the Disability Discrimination Act 1995; and

  "prescribed" means prescribed by regulations made by the Secretary of State."

  (9) In section 41(7), (8) and (11), for "this section" substitute "subsections (1) and (6) above".").
  The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 32. I beg to move.
  On Question, amendment agreed to.
  Clause 27 [Further and higher education of disabled persons: Scotland]:
  [Amendment No. 35 not moved.]
  Clause 28 [Taxi accessibility regulations]:
  Lord Renton Lord Renton moved Amendment No. 36:
  Page 24, line 37, leave out ("and") and insert ("or while seated on a swivel seat:").
  The noble Lord said: My Lords, in moving Amendment No. 36 I shall consider also Amendments Nos. 37 and 38. Clause 28 enables the Secretary of State to make regulations governing the accessibility of disabled people to taxis. Perhaps I may briefly explain my amendments. The new provision is an enabling provision, making what in other circumstances are called "construction and use regulations". They will govern the way in which taxis must be built for carrying disabled people with or without wheelchairs and the way in which drivers of taxis are to help disabled people to use those taxis.
  The regulations do not specifically deal with disabled people travelling on a swivel seat, preferably next door to the driver, with the wheelchair to be folded up and put elsewhere in the vehicle. Therefore, I have provided for that to be done. The amendments are self-explanatory and noble Lords will see that I have added a new paragraph (c) to Clause 28(1) so that the regulations will provide:
  "for providing space elsewhere on the taxi for the wheelchairs of those disabled persons who decide to sit on swivel seats".
  I put forward these amendments in a spirit of compromise and in order to achieve that greater flexibility which everyone wants and which the Minister was kind enough to stress that the Government want. However, the Bill as it is drafted does not require that to be achieved. That is the sad thing about it.
  I should point out also that besides dealing with the construction of taxis in the future, the regulations will prescribe the ways in which drivers of taxis are to help disabled people to use the taxis. By a strange drafting method, to that extent Clause 28 overlaps with Clause 31. Clause 31 imposes similar duties on drivers of taxis carrying passengers in wheelchairs. But in doing so Clause 31 deals with those who choose to sit in the passenger seat instead of in a wheelchair and have the wheelchair carried in the taxi. That is very good.
  My noble friend Lord Mackay of Ardbrecknish kindly wrote to me yesterday as follows:
  "I fully appreciate your concerns about the needs of the large number of disabled people who do not need or wish to travel in a wheelchair. However, Clause 31(3)(c) already makes provision for the stowage of an unoccupied wheelchair and it is also our intention to address the needs of that group of passengers in the taxi accessibility regulations, which will specify a number of design features. Swivel seats are one important mobility aid we will be looking at".
  That is absolutely splendid but it is not part of the Bill and would not bind a Secretary of State in the years to come.
  It is a very strangely drafted collection of clauses. We must make absolutely sure that the obligations under Clause 28 whereby the Secretary of State is to make regulations are consistent with the provisions of Clause 31, which are more flexible. We do not want the construction and use regulations to defeat the purpose of Clause 31. That is why I thought it necessary to table these amendments.
  There is a further important point that nowhere in the Bill is there a duty to provide swivel seats. As far as I know, they are not mentioned at all in the Bill either for those taxis which are not black cabs but are saloon cars or for any taxis.
  Lord Carter: My Lords, surely swivel seats are mentioned in Clause 30(5) and (6).
  Lord Renton: My Lords, I apologise to the House. That is very negligent of me. Perhaps I may quickly read that. The trouble is that it is limited to those areas in which an exemption order is in force. That is the trouble about that. As I said at an earlier stage, this business of exemption orders introduces a sort of bureaucratic impediment to the flexibility which we all need because it requires a licensing authority to apply to the Secretary of State—that is, the Department of Transport—in order to be exempt from the other provisions which are stricter. We do not know on what grounds exemption orders will be granted, how far they will go and what flexibility they will introduce.
  I must confess that I had not observed that indirect way of introducing swivel seats, but it is not quite good enough. I should much rather see it written into the construction and use regulations that are to be made. That is why I have tabled the amendment.
  As I mentioned in earlier debates, my very severely handicapped daughter prefers to drive in a saloon car next to the driver instead of in a black cab taxi. She certainly hates being in a wheelchair for too long, although she has to spend most of her life sitting down. But when she is put in the ordinary back seat of a black cab, because she is very small she cannot see out. She happens to be cared for 100 miles from my home in Huntingdon and I am very anxious that she and others like her—and there are an enormous variety of cases of disabled people that we should envisage—will not be forced merely to sit in the back seat of a cab. I personally find that a swivel seat is desirable for getting my daughter seated, and that is why I mentioned that.
  Let us take stock of the position we have reached according to what the Government have told us and according to previous legislation. In London all taxis are to be black cabs but if a disabled person wants to travel in a saloon car, it seems to me that he will have to travel either in a private hire car or in a minicab, which is also a type of private hire car.
  The Department of Transport has said that it wants all taxis in England and Wales to be as in London. Clause 28 of the Bill seems to make that possible, in spite of what my noble friend wrote to me and in spite of what my noble friend has wisely said at each stage of the Bill about the need for flexibility.
  However, I believe that in Scotland real flexibility will be achieved as a result of Clause 33(3) which states that the regulations may provide the circumstances in which an exemption from wheelchair provisions may be granted. That is a better kind of exemption because it is an exemption stated in advance instead of each licensing authority having to apply to the people in Whitehall.
  In rural areas of England, Wales and Scotland there are simply not enough minicabs or hire cars. If nearly all taxis are to be black cabs, built specifically for carrying
  1040
  wheelchairs at very great cost, there will be fewer taxis and disabled people will suffer from that. Therefore, the effect of these clauses of the Bill as drafted, far from preventing discrimination against disabled people, will cause discrimination against them.
  Perhaps I may say before I go further that my noble friend Lord Holderness, who is very severely disabled, has asked me to say that he supports my amendments and regrets that he cannot be here this evening.
  I suggest that my amendments to Clause 28 are necessary, especially to achieve consistency with Clause 31(3). I beg to move.
  Lord Northbourne: My Lords, I rise briefly to support the amendments in the name of the noble Lord, Lord Renton. As I understand the Bill as drafted, when the regulations come into effect it will be necessary for all taxi services in England and Wales effectively to have London cabs; that is, cabs which are specially constructed with a view to make it possible for them to carry persons sitting in a wheelchair. That may well be reasonable for London, but I would suggest that it is not reasonable for rural communities for two reasons. First, it would significantly increase the cost of rural taxi services because the capital cost of the kind of cab about which we are talking is some four or five times that of another suitable vehicle and the running costs are very much higher. The rural population in many areas are not now served by public transport. Therefore, without public services, this could be a crippling blow for those who do not have a car of their own.
  Secondly, as the noble Lord, Lord Renton, said, London taxis are uncomfortable and unsuitable for long journeys, especially for the disabled. I cannot understand why it would not be sufficient for taxi services to be required to have in every fleet a percentage of taxis which are suitable for carrying persons in wheelchairs who, incidentally, represent less than half of 1 per cent. of taxi users at present. If discrimination against disabled people can only be removed at the cost of discrimination against the rural poor, I suggest that the provision in the Bill as it stands needs revision. I support the amendment moved by the noble Lord, Lord Renton.
  7.30 p.m.
  Baroness Darcy (de Knayth): My Lords, when he has heard the Minister's response, I hope that the noble Lord, Lord Renton, will feel able to withdraw his amendment. I do not wish to repeat at length what I said at earlier stages about how having a taxi accessible to me while remaining in my wheelchair has revolutionised my life in terms of liberation and independence. In answer to the noble Lord, Lord Northbourne, when such taxis first became accessible we actually had to book them three days ahead. But now that the fleet is run on a half-and-half basis, one can almost hail them off the street, although one still cannot be certain to find one.
  I understand the fears expressed by the noble Lord, Lord Renton, and the reasons for his amendment. But, as I understand it, the new breed of accessible taxi about which we are talking—that is, the taxi that will be accessible to all those in wheelchairs, to the ambulant

  1041
  disabled, to people with guide dogs, to people with arthritic hips, and so on—will be a different sort of vehicle from the one that we and the noble Lord, Lord Northbourne, are thinking about. Indeed, there will be various models. However, let us think of something like a Renault Espace but at a lower level with a swivel seat by the driver into which one could also get one's wheelchair. The noble Lord's daughter could in fact transfer to the swivel seat and look out of the window as she travels while sitting next to the driver, which she likes to do. I hope that the Minister will be able to reassure the noble Lord and that he will be able to withdraw the amendment.
  Baroness Hollis of Heigham: My Lords, like the noble Baroness, Lady Darcy (de Knayth), I also hope that the Government will resist the amendments. I am sorry that I am unable to support the noble Lord, Lord Renton, who has carried out such admirable work for and on behalf of the disabled, both in the parliamentary group and in this House. However, on this occasion, I believe that his emphasis is wrong and I should like to make just a few points.
  First, although there may be a limited number of people—some 75,000 or so, I believe—who are permanent wheelchair users, something like 600,000 people are wheelchair users at some point in their lives. Even someone like myself was in a wheelchair for a few months when I was foolish enough to destroy an Achilles tendon by running in a relay race, passing hot dogs to celebrate the Queen's Jubilee. The consequence was that I learnt firsthand how the cambers of the roads in Norwich worked.
  The point about the Government's proposals—and this is why we welcome them—is that they seem to balance correctly the rights of disabled people to have full access with the need for flexibility in local circumstances. If a local authority is satisfied that there is no unmet need for wheelchair accessible vehicles, it may apply for exemption in exactly the same way as now, for example, a local authority which is satisfied that there is no unmet need for, say, gypsy caravan sites can apply for a designation certificate and not be required to make further provision. If the Secretary of State is satisfied that the local authority's case is well argued, the local authority may then go on to permit taxis not to be wheelchair accessible but merely to have swivel seats. That is the first point.
  My second point has already been mentioned by the noble Baroness, Lady Darcy (de Knayth), but it does perhaps need re-emphasising. Too much is sometimes made of the cost argument. The second-hand cost of the Metro cabs and the Fairways, and so on, is—certainly in my city—around £12,000. That still gives another 10 years or so of useful life at the very least to that vehicle. It seems to me that that is a perfectly acceptable cost when compared with the cost of a new saloon car or Cortina to join the taxi fleet. It would professionalise the trade, because it means that people whose only skill is car driving, who come into the trade to cream off the public before Christmas and then go out again, are not able to enter into and go out of the trade as is possible if they can turn their own private domestic car
  1042
  temporarily into a taxi. By requiring them to invest in a professional vehicle we will keep out the cowboys, professionalise the quality of driving and build up an expertise upon which people can properly rely.
  Thirdly, we have talked throughout about taxis, but there are at least as many cars outside London—and rather more in London—which are private hire vehicles that are not required to be wheelchair accessible. Indeed, they can be fitted with swivel seats and the like. It is entirely open to the family of the noble Lord, Lord Renton, to telephone for a car which meets the comfort and other requirements of his daughter from a private car hire company. That will remain acceptable. As a result of the provisions, I hope that users of such vehicles will continue to have choice, that the cost will be acceptable and that proper rights for disabled people will be ensured consistent with the needs of local circumstances. I hope that the Government resist the amendments.
  Lord Mackay of Ardbrecknish: My Lords, we have had some interesting debates on the subject of taxis during previous stages of the Bill. I have had correspondence with my noble friend, so I entirely understand the reasons behind his amendments. He is concerned—as I am sure we all are—that the new generations of taxis should be easily usable by all disabled people, including those who are not wheelchair users and who prefer to transfer from their wheelchairs into a car seat when travelling.
  I should like to try to help my noble friend who seems to see some internal inconsistency between Clauses 28 and 31. Indeed, I am not sure whether that is the basis of his concern. Clause 28 deals with the vehicle itself. It deals with the construction requirements of the vehicle about which we shall be consulting. As we see it, the vehicles that emerge will not necessarily be London taxis. I thought I made that rather clear on Report. I said that it was not mandating London taxis throughout the country. In fact, I believe that I gave an assurance that we would see to it that the regulations did not say so. Of course, London taxis which are accessible at present will come within the regulations, but the regulations will be a good deal wider and cover not just London taxis.
  As I said, Clause 28 deals with the vehicle itself—that is, the construction requirements, and so on. Indeed, some of them are mentioned in subsection (2). Clause 31 deals with the driver. It is one thing to have the taxi meeting the construction regulations, but, the driver may not choose to carry a disabled person and to use the facilities that are available in his taxi. That is another problem which we have addressed in Clause 31. Therefore, there is no internal inconsistency between Clauses 28 and 31. They address different parts of the problem: one addresses the vehicle itself; and the other addresses the driver, especially when he is driving a vehicle which obeys the kind of construction requirements which are set out under Clause 28.
  The powers to make taxi-accessible regulations under Clause 28 are sufficient to enable us to cover a wide range of features in a taxi to ensure safe access and egress by disabled people. One of the features about which we will be consulting will be the provision of swivel seats. The list in Clause 28(2) is not prescriptive.

  1043
  Swivel seats could, and most probably will, be included in the context of those provisions. As my noble friend pointed out, Clause 31(3)(c) would place an obligation on a driver of a regulated taxi to carry a disabled person's wheelchair if he or she chooses to sit in the passenger seat. I believe that it would be wrong to specify either swivel seats or any other feature, other than the limited features we have included, on the face of the Bill. We want to retain the flexibility which regulations give us to respond to changes and developments over time in vehicle design. I suspect that if we had had this debate 15 years ago people would have said that it was technically impossible to design a car to meet some of these requirements. However, we know that it is not. Some of the new cars coming on to the market appear to me, as a layman, to be suited to easy adaptation to carry a wheelchair, either with a person in the wheelchair or with the wheelchair in the boot or elsewhere in the vehicle.
  I do not believe that it would be helpful to manufacturers or the operators of taxis if the legislative framework were created in such a way that it was unresponsive and inflexible. The Department of Transport is already holding detailed discussions with all sides of industry and with disabled people on the shape and content of the regulations arising from Clause 28. I believe that that is the most appropriate way to deal with important issues such as swivel seats.
  My noble friend commented on the flexibility of the taxi law in Scotland as compared with that in England and Wales. I am inclined to say that that is not surprising, as the law in Scotland is in many ways superior. However, there is another reason for that. The law relating to Scotland dates only from 1982, as your Lordships will see from the appropriate clause, whereas the law in England and Wales belongs largely to the last century. The Town Police Clauses Act 1847 and the Metropolitan Public Carriage Act 1869 come to my eye in the Bill. That is why the provision for taxi accessibility regulations in the Bill for England and Wales is different from the provision for Scotland.
  I can reassure my noble friend that the Department of Transport will be working closely with the Scottish Office over the provisions of the taxi accessibility regulations and how the regime will work. It is our intention that the two sets of regulations, based as I said on two Acts almost a hundred years apart, will as far as possible and appropriate have the same effect and work in exactly the same way.
  I should also like to remind your Lordships that we intend to ensure that the taxi accessibility regulations reflect only what is technically and commercially practical. We do not want to see all taxis disappear because the accessibility regulations are either too onerous or too expensive to implement. I have made that clear in the past.
  I hope my noble friend will accept that, in addition to swivel seat requirements that will be contained in regulations, Clause 30(5) and (6) also provide for regulations requiring the fitting of swivel seats to be made in respect of taxis which would otherwise be exempt from the taxi accessibility regulations.
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  I hope that that explanation and my assurance that we can already require swivel seats in taxis under the powers contained in the Bill, and the fact that there will not really be a difference between the position in Scotland and that in England and Wales, will reassure my noble friend and that he can withdraw his amendment.
  7.45 p.m.
  Lord Renton: My Lords, I am grateful to all those who have spoken on the amendments, especially the noble Lord, Lord Northbourne, who was the only speaker who supported them.
  To answer the noble Baroness, Lady Darcy (de Knayth), and the noble Baroness, Lady Hollis, the regulations could achieve the flexibility that we all want. However, from conversations that I had with Mr. Steven Norris earlier this year, I was very much afraid—and that is partly why I tabled the amendments—that it was his original intention that all cabs throughout England and Wales should be black cabs and that that would be the basis for the regulations. They are also construction and use regulations.
  Perhaps I may say to the noble Baroness, Lady Hollis, that she is misinformed on the question of private hire cars being freely available in rural areas. Certainly in the rural area where I live they are not. Rural areas vary. Norwich is a large city, and in outlying areas private hire cars are no doubt available, as well as some taxis. However, living five miles from Huntingdon, having consulted the Yellow Pages and made other inquiries, I find that there are very few hire cars with a driver. To declare an interest, at the age of 87 I am anxious as to what will happen when I can no longer drive my car. If I can hire a driver and a car that will be helpful, but it will not always be possible.
  I now turn to the speech of my noble friend Lord Mackay. The best thing about the debate is that there is now recorded in Hansard the way in which this Government intend to use the powers in the regulations. They obviously intend to use them much more widely and sensibly than I was given to understand some months ago by the Minister for Transport. I say that deliberately, and hopefully.
  I am grateful to my noble friend for his full explanation and for the commitments that he repeated. In all those circumstances, I feel that it would be reasonably safe for me to withdraw my amendment. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 37 and 38 not moved.]
  Clause 29 [New licences conditional on compliance with taxi accessibility regulations]:
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 39:
  Page 25, line 30, leave out ("in an area").
  The noble Lord said: My Lords, in moving Amendment No. 39, I shall speak also to Amendments Nos. 41 to 48. These amendments are also related to transport. Most of them are intended simply to tidy up the wording of various clauses. However, Amendment No. 41 introduces a new clause.
  The Bill includes a requirement in Clause 31 that taxi drivers shall assist disabled people who have to use wheelchairs into and out of their taxis, and to load and unload their luggage. There is another provision in Clause 32 that would require taxi drivers to carry guide dogs or hearing dogs if requested.
  We realised that in both cases those provisions would give a minority of taxi drivers problems because of medical or physical conditions. For example, the driver may be disabled himself or be seriously allergic to dogs. Consequently, provision was made in those clauses for licensing authorities to issue exemption certificates to taxi drivers who would be unable to carry out those duties.
  Representations have been made to us by the taxi trade that there ought to be an appeals mechanism against a decision of a licensing authority to refuse an exemption certificate. That might, for example, be a borderline medical case, or where an authority has a policy that all taxi drivers they license shall be able to assist disabled passengers, or simply a bad decision. After all, there are 360 licensing authorities.
  It is government policy that there should be an appropriate appeals mechanism to protect people against unreasonable acts by enforcement authorities. The amendment would provide for an appeal within 28 days to the local magistrates' court, which is the traditional appeals mechanism for taxi licensing matters. This is a small but important change which I believe will be welcomed by the taxi trade.
  Amendments Nos. 42, 43 and 44 are amendments to Clause 33. They provide for equivalent regulation-making powers for Scotland to those already contained in Clause 32(9) for England and Wales. Both will provide for other categories of dog other than hearing or guide dogs to be prescribed which must be carried in taxis if they accompany and are trained to assist disabled people.
  Amendment No. 39 is intended to avoid ambiguity in the meaning of Clause 29 by deleting the words "in an area", which serve no useful purpose. The other amendments may be categorised as housekeeping amendments which bring the wording of PSV and rail clauses into line with the equivalent taxi clause. They simply allow for the making of regulations under the Bill which cover a range of areas, including the construction, use and maintenance of vehicles. I commend the amendments to the House. I beg to move.
  Baroness Masham of Ilton: My Lords, perhaps I may say how important these amendments are and how glad I am to see them. I give an example. My daughter went to the help of a man who was trying to hire a taxi. She stopped a taxi and helped him in. He told her that he had been waiting two hours for a taxi to stop. I believe that the amendments are necessary.
  On Question, amendment agreed to.
  Lord Gladwin of Clee Lord Gladwin of Clee moved Amendment No. 40:
  After Clause 31, insert the following new clause—

  ADMISSION OF WHEELCHAIR ACCESSIBLE TAXIS TO STATION ETC
  (".—(1) The owner of a transport facility shall be under a duty
  1046
  to admit regulated taxis to that transport facility for the purpose of taking up or setting down persons who have hired or may wish to hire such taxis.
  (2) Subsection (1) shall only apply to the extent that a transport facility is suitable for use by motor vehicles and at such times as it is ordinarily open to persons travelling to or from it otherwise than by taxi.
  (3) Subsection (1) does not apply to a transport facility which is situated in the area of a licensing authority in respect of which an exemption order made in accordance with section 30 is in force.
  (4) Subsection (1) does not apply to a transport facility where, prior to the passing of this Act, the owner has entered into a contract or agreement granting another person the exclusive right to provide taxi or private hire car services at that transport facility.
  (5) The Secretary of State may by order provide for subsection (4) to cease to have effect on such date as may be specified in the order.
  (6) Separate orders may be made under subsection (5) with respect to different areas or localities or transport facilities.
  (7) Where taxis are admitted to a transport facility in accordance with subsection (1) the owner may:

  (a) charge such fees for their admission as may be authorised by the Secretary of State;

  (b) designate places at that transport facility at which persons may be taken up by or set down from taxis; and

  (c) impose such conditions for the maintenance of safety or the control of traffic at that transport facility as in all the circumstances are reasonable.

  (8) Nothing in this section shall be taken to authorise a taxi to ply for hire outside of the area for which it is licensed.
  (9) In this section—
  "owner" means a person who—

  (a) is the owner of, or who has any right over, or interest in, a transport facility, and

  (b) whose consent is needed for taxis to be admitted to that transport facility;

  "private hire car" means a vehicle used for the carriage of passengers for reward, whether or not licensed as such, other than a taxi or public service vehicle;
  "public service vehicle" has the same meaning as in Part II of the Public Passenger Vehicles Act 1981; and
  "transport facility" means any land which forms part of any port, airport, railway station or bus station including the forecourt or roadways of or approaches to any such facility.").
  The noble Lord said: My Lords, the amendment seeks to close a loophole in the Bill which in my opinion and that of RADAR would allow discrimination against disabled passengers, in particular those in wheelchairs, when they arrive at airports, seaports, railway stations or bus stations and then require a taxi to complete their journey.
  Noble Lords may recall that I raised this anxiety at Committee and Report stages of the Bill when I sought assurances from the Minister but, regrettably, without success. I therefore must apologise to the House for going back over old ground.
  Briefly, the story starts with the Department of Transport's 1993 Green Paper on Taxis and Private Hire Vehicles when views were specifically invited on the desirability of requiring all vehicles plying for hire at airports and stations to be wheelchair accessible.
  We then move to March 1994 and the House of Commons Transport Committee Report on Taxis and Private Hire Vehicles. In paragraph 148 the committee stated:

  1047
  "Land, including roads, at airports and stations is usually privately owned and can be controlled by the airport operator or station owner. This gives them the right to regulate the use of their premises by taxis and PHVs and, in some cases, to levy charges. Sometimes, … the concession is granted to a single taxi or PHV company. While we note that the Government is 'not entirely convinced' of the merits of granting this type of concession, as opposed to allowing any locally licensed taxis to operate at such premises, there may on occasion be arguments for such an arrangement, for example in order to avoid congestion. Sole concessions should only be awarded after an open competition, which should give preference to companies which undertake to provide wheelchair-accessible vehicles".
  However, the Government's response to this recommendation, published in February of this year, was that while they appreciated the sentiment behind the recommendation it would not seem appropriate to control the situation by regulation. The Secretary of State for Transport stated:
  "Hire vehicles at airports and stations (taxis and private hire vehicles) are there to make access to and from the station or airport attractive to passengers. It is therefore in the interest of the owning authority or company to ensure that appropriate facilities are provided".
  That is quite right. Obviously the owner of a transport facility will wish to make it as attractive as possible to passengers. But what if he decides that it would be in the best interests of the majority of his passengers to enter into a contract with a private hire company to provide a taxi service from his station, airport or seaport? Those taxis would not be covered by this legislation.
  Therefore a disabled passenger in a wheelchair, having travelled in an accessible train, bus, aeroplane or ship, arriving at the station or port, and wishing to complete his journey by taxi, will not have the same freedom to do so as an able-bodied passenger; and that is discrimination. It really is not good enough for the owner of a transport facility who has entered into an exclusive contract with a private hire company simply to exhibit a notice stating how an accessible taxi can be obtained—probably by telephoning some other taxi company in the next town—or to say to a disabled passenger in a wheelchair (and I know that it is said), "It's a pity you didn't warn us in advance because we could have had an accessible taxi waiting for you".
  The amendment would not prevent the owners of transport facilities from entering into exclusive contracts with providers of taxi services. However, it would ensure that such services did not discriminate in any way against disabled passengers, in particular those in wheelchairs.
  Subsection (1) of the new clause achieves that end. Subsection (2) limits the time that taxis were admitted to the facility to the times that it was normally open to the travelling public. Subsection (3) states that if the station or port is in a town which has an exemption order in force then the owner of the transport facility involved would not be required to provide accessible taxis. Subsection (4) allows current exclusive contracts to continue until their expiry date, but new ones would have to abide by the provisions of subsection (1). If there were any long-term contracts, subsection (5) allows the Secretary of State to set a date when they should come to an end. I hope that the remainder of the clause is self-explanatory and that the amendment is not
  1048
  technically flawed. My final hope is that the Minister will recognise that the problem exists and will agree that the amendment is the way to solve it.
  Perhaps I may remind the Minister that during the debate at Report stage on 20th July he stated in a slightly different context, in answer to a speech by the noble Lord, Lord Renton:
  "We want to make sure that disabled people can have exactly the same freedom to travel and to get a taxi as able-bodied people".—(Official Report, 20/7/95; col. 452.]
  Without this new clause we shall not achieve that aim. I beg to move.
  Lord Finsberg: My Lords, several years ago I was the adviser to the LTDA, the major taxi organisation in greater London. Whether I should still declare that interest, I do not know. However, the amendment moved by the noble Lord deserves careful consideration in particular from this side of the House. All my political life I have believed in choice and in not allowing monopolies to exist. Yet in many areas there is no choice of a taxi and there is a monopoly. I should need to be convinced by my noble friend that there is merit in rejecting the amendment.
  It is almost certainly flawed. Over the years those of us who sought to move amendments have been told that they are technically incorrect. I always used to say, "Fine, let us accept a technically flawed amendment and then invite the Government to put it right through their highly skilled parliamentary draftsmen at a later stage". As the Bill has to go back with amendments to another place, that could be done. My noble friend may have answers that will convince me, but on the face of it I believe that a case has been made out for further consideration of the point.
  Lord Rochester: My Lords, I support the amendment. One may ask: what is the point of making all licensed taxis in England and Wales fully accessible to wheelchairs if they cannot then be guaranteed free access to bus termini, railway stations and airports, all of which are major delivery points for wheelchair bound people? I hope that on this occasion the Government will look more sympathetically on the amendment than they have done at earlier stages of the Bill.
  Baroness Darcy (de Knayth): My Lords, I, too, support the amendment. As the noble Lord, Lord Gladwin, said, it is a serious loophole. As the noble Lord, Lord Rochester, said, it seems a great pity if after all the splendid amendments that we have discussed we do not ensure that wheelchair accessible taxis are available at termini. It is the one hiccup in what could eventually be a completely trouble-free journey on other forms of transport for someone in a wheelchair. I thoroughly support the amendment.
  Baroness Masham of Ilton: My Lords, I wish to ask the Minister a question. If there are no wheelchair-accessible taxis for people using wheelchairs at places such as Gatwick Airport, would that not be discrimination against disabled people now that such taxis are available?
  Last Friday I travelled up to Doncaster from London by train to attend a charity race day. When I arrived at the station I found two taxis waiting for hire and both

  1049
  were accessible. That was a pleasant surprise and very welcome, especially as I was travelling with a steward of the racecourse and we did not have to wait; we went straight to the course. I believe that is what everyone wants and I support the amendment.
  8 p.m.
  Lord Mackay of Ardbrecknish: My Lords, I can see that your Lordships very much appreciate the aim of the amendment. It is clearly not in the interests of disabled people, particularly those in wheelchairs, to arrive at a station, airport or seaport and then find that they can go no further without a long wait or without other problems in obtaining suitable transport.
  Equally, I emphasise that it is very much in the interests of the owner of the facility or those who provide public transport to or from it to provide for disabled people. I have said it before: one thing that we must ensure in addition to the legislation is that we change the culture—and we hope that the legislation will help—so that it is the automatic response of a transport facility owner or operator to ensure that adequate, accessible transport is provided for all passengers' needs.
  At the Report stage we heard a great deal about Gatwick. I have looked into the situation there and passengers are normally provided with a saloon car or an estate car. Anyone wishing to travel in a wheelchair can have a suitable vehicle provided, either a taxi sent from Crawley or a vehicle from a specialised firm with premises on the perimeter of the airport.
  In practice, people who use wheelchairs do not fly into Gatwick totally unannounced, any more than anyone else does. Therefore, arrangements can be made for them in advance. Gatwick is by no means unique in that regard, although the reason is different from other airports. For example, Glasgow, Edinburgh and Birmingham—through which I flew the other day—are not in the licensing area of the city. The city may have wheelchair-accessible taxis, but the area outside, where the airport is situated, may not. At Glasgow airport—Renfrew, which I know well—the taxis that are lined up are essentially private hire cars. Glasgow taxis, a portion of which at least are wheelchair accessible, may drop passengers off but they are not allowed to pick them up because of the licensing regulations. So there someone who needs help has to make arrangements in advance. That is provided for. The airport has a system which works perfectly well to ensure that if someone flying in gives notice in advance, a wheelchair-accessible taxi will be available.
  Returning to Gatwick—as my noble friend Lord Goschen is here as Minister in the Department of Transport I had better put a plug in for transport—anyone coming from Gatwick to London would prefer to use the Gatwick Express, which I am assured is completely wheelchair accessible, as is a similar service from Stansted airport by rail.
  As to the amendment, subsection (4) would mean that there would be a requirement to admit regulated taxis. That would have to apply to areas where there was already an exclusive agreement with a person to provide
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  taxi or private hire vehicle services; and that would mean that nothing would change at Gatwick. The amendment looks forward, and I appreciate that looking back is not usually the way in which we frame legislation.
  It is worth saying that the great advantage of using contracts to provide taxi or private hire services is that they give the facility owner a degree of control over the fares charged for all journeys and the contract can insist that the passenger be taken where he wishes. That is particularly important at airports. As I mentioned, most airports are outside the area of the city and your Lordships will probably know that sometimes taxi drivers are either not keen to take people across boundaries or are fairly hard in their extra charging if they do. Cross-boundary charging is something of a controversy in certain parts of the country where people cross boundaries quite considerably.
  A contract with the owner of the airport can get round that problem because it can insist that passengers be taken anywhere, even outside the area of the licensing authority. The facility owner should have some control over the fares charged. It ought to be pointed out that that is an advantage. It helps disabled people as well because they may want to travel across boundaries and they would wish to know that there is a degree of control over the fares charged for such journeys.
  The amendment would give any driver of a regulated taxi—that is, an accessible taxi—the right to enter a transport facility on the payment of an entrance fee in order to ply for hire without any contract. Not that he would be required to confine his attention to disabled passengers; he could pick up anyone who hailed him. If accepted, the amendment would not necessarily benefit disabled passengers, but it would certainly benefit those taxis that are not involved in the contract. They would be able to go in and pick up passengers, not necessarily disabled passengers.
  There is a problem with allowing taxis into a transport facility without imposing a contract. Taxis only have to charge what is on the meter for the journey within the area for which they are licensed. Once they go outside that area, first, they are not compelled to take passengers and, secondly, they can charge what they like, often on a take-it-or-leave-it basis. Many airports are situated outside the area where the majority of the public wish to go, unlike Heathrow which is situated in London.
  There is no reason why taxi or private hire vehicle owners winning a contract for a transport facility, should not be operators of a fully accessible service or a mixed taxi or private hire fleet, which are quite common outside London. There is every reason for a contract of this kind to make provision for vehicles suitable for carrying disabled passengers to be made available quickly.
  I do not see why government should be required to interfere in commercial negotiations between facility owners and taxi private hire vehicle operators. The owners and operators of facilities should be free to make the arrangements appropriate for the facility without recourse to the Secretary of State, as the amendment proposes.
  Baroness Hollis of Heigham: My Lords, I am grateful to the Minister for giving way but I wish to press him on the point. He said that he saw no reason why the Government should intervene in what was essentially a commercial transaction between a transport facility and the station to which it applied or wherever it was. Does he accept that transport vehicles—taxis, private hire car vehicles or hackney carriages—are part of public transport? They are, therefore, part of the public service vehicle facility at such stations. Even if my noble friend's amendment may need further amendment in the Commons, nonetheless the point that has been established is that when entering a station or airport one is entitled to expect that those vehicles should act as public service vehicles to which the Bill should apply.
  Lord Mackay of Ardbrecknish: My Lords, I am not sure whether private hire vehicles could be so considered. I have made my point as to why there are considerable advantages to the travelling public who may wish to use the taxis for a facility owner to have a special arrangement with certain operators, or even one operator, in order to ensure that passengers coming in can take a taxi and cross a licensing authority boundary. They should be able to do so without prohibitive additional pricing. One must bear that in mind.
  As I have mentioned, there is a backstop and I have checked on it: if a disabled person flies into Gatwick, Glasgow or any other airport, it is not unannounced and unknown to him. At those airports there is in place a facility for ensuring that the taxi is there, just as that disabled person may have had to make arrangements with the airline and even the airport itself to be met with a wheelchair or to be helped to and from the aircraft. A disabled person in a wheelchair, when travelling by air, already has to make plans and make provision with the airline and the airport. My point is that as provision has to be made, any plans for using the taxi service also need to be made in advance.
  Baroness Masham of Ilton: My Lords, perhaps I may intervene on that point. I often take flights into Gatwick airport. Obviously one has to make arrangements with the airline because one has to be lifted on and off the plane. But the aircraft is often very late, and the process takes time. Any taxi might have to wait two or three hours. It would be important to have a fleet at the airport.
  Lord Mackay of Ardbrecknish: My Lords, I understand the point that the noble Baroness makes. However, my experience of airline travel is that a reasonable timetable is kept to, except perhaps in the case of transatlantic flights where there are technical problems with the windage up high—
  Noble Lords: Oh!
  Baroness Hollis of Heigham: The Minister is really scraping the barrel.
  Lord Mackay of Ardbrecknish: My Lords, I suspect that I travel in aircraft rather more often than do some noble Lords who are having a little jest at my expense. They travel remarkably well to time, given all the factors that are involved in flying.
  1052
  The key step forward in this Bill in relation to taxis is that we look to requiring that all taxis that ply for hire on the street should be wheelchair accessible. That is the measure in the Bill. That is different from the situation at an airport, where various facilities to help passengers will be available.
  I suggest that the vital provision being made in this Bill is—as I believe the noble Baroness, Lady Darcy (de Knayth) mentioned earlier—that disabled people should be able to hire a taxi on the street, making a journey decision as and when they wish, just as the rest of us do. I believe that airline travel is a little different. I at least plan my airline travel a short time in advance. That way I find that I get onto the aeroplane and have a seat waiting for me. We do want to continue—
  Baroness Darcy (de Knayth): My Lords, it is not only on airlines.
  Lord Mackay of Ardbrecknish: My Lords, I also plan somewhat in advance the transport that is to meet me at the other end. Clearly I live in a more planned environment than do some noble Lords. I do not want to continue with this discussion. This is Third Reading and we are beginning to behave as though it were Committee.
  As I said on Report, we intend to continue to encourage the provision of appropriate facilities for disabled people in the places that this Bill does not reach. Overall, this amendment is likely to cause more problems than it solves and does not address the problem that arises at many airports in the country because of the needs and demands of different licensing authorities.
  Baroness Hollis of Heigham: We are shocked!
  Lord Gladwin of Clee: My Lords, I am speechless! We have moved backwards. I really cannot understand the Minister's response. As I said in my remarks, one can well understand why the owner of a transport facility would want to reach a contract, an understanding, an agreement. It is in the interests of his passengers, for the reasons that the Minister gave this evening.
  Why should a disabled person in a wheelchair be discriminated against? The pressure is for the owner of the facility and the provider of the services to come to the best economic agreement. The best agreement will be with drivers and owners of saloon cars. As the Minister told us earlier in the debate, a disabled person in a wheelchair who wants to go to Glasgow airport can get a cab to take him or her there. That is not the problem. The problem occurs when you arrive. I spoke to people at Glasgow airport a few days ago and was told: it would be much better if you would tell us in advance that you are coming; then we could ensure that a taxi was there. That is discriminatory. It must be. If the Government's position is that a person in a wheelchair can go out onto the street, hail a taxi and get a taxi, I see no reason why that should not be so on arriving at a railway station. On arriving at my railway station you cannot get a taxi with wheelchair access because there is none there. I asked this morning what would happen and was told that none is available.

  1053
  The Minister's response is most unsatisfactory. My noble friend referred earlier to a hole in the Bill. I do not suggest that there is a hole, but this is surely a loophole. Let us forget about travelling by air. We shall face a situation at railway stations whereby people arrive on an adapted train in a wheelchair, go to the taxi rank outside the station and find no wheelchair accessible taxis. What do they do? They ask questions and the reply is: "We do not have one. We will ring somebody up and see whether we can get one for you". I am sorry, but the Minister's response is most unsatisfactory. I thought that we should get a little further. I have no choice but to divide the House.
  8.15 p.m.
  On Question, Whether the said amendment (No. 40) shall be agreed to?
  Their Lordships divided: Contents, 33; Not-Contents, 60.

  Division No. 4

  CONTENTS

  Addington, L.

  Jenkins of Hillhead, L

  Airedale, L.

  Jenkins of Putney, L.

  Ashley of Stoke, L.

  Lockwood, B.

  Birmingham, Bp.

  McCarthy, L.

  Carter, L.

  Mackie of Benshie, L.

  Craigavon, V.

  McNair, L.

  Darcy (de Knayth), B.

  Masham of Ilton, B.

  Elis-Thomas, L.

  Rea, L.

  Farrington of Ribbleton, B.[Teller]

  Robson of Kiddington, B.

  Rochester, L.

  Gladwin of Clee, L. [Teller.]

  Russell, E

  Graham of Edmonton, L.

  Taylor of Gryfe, L.

  Grey, E.

  Thomas of Walliswood, B.

  Hollis of Heigham, B.

  Thomson of Monifieth, L.

  Howie of Troon, L.

  Tordoff, L

  Hylton, L.

  Turner of Camden, B.

  Jeger, B.

  Wedderburn of Charlton, L

  NOT-CONTENTS

  Addison, V.

  Hemphill, L.

  Annaly, L.

  Henley, L.

  Balfour, E.

  Kenilworth, L.

  Blaker, L.

  Kingsland, L.

  3 rain, L.

  Lane of Horsell, L.

  Bridgeman, V.

  Long, V. [Teller]

  Brougham and Vaux, L

  Lucas, L.

  Burnham, L.

  Lucas of Chilworth, L.

  Cadman, L.

  McConnell, L.

  Camegy of Lour, B.

  Mackay of Ardbrecknish, L

  Carnock, L.

  Mackay of Clashfern, L. [Lord Chancellor.]

  Chesham, L. [Teller.]

  Cochrane of Culls, L.

  Macleod of Borve, B.

  Courtown, E.

  Marlesford, L.

  Crathorne, L.

  Monk Bretton, L.

  Crickhowell, L.

  Mountevans, L.

  Cumberlege, B.

  O'Cathain, B.

  Dean of Harptree, L.

  Orr-Ewing, L.

  Dixon-Smith, L.

  Rawlings, B.

  Dormer, L.

  Renton, L.

  Eccles of Moulton, B.

  Rodger of Earlsferry, L.

  Flather, B.

  St Davids, V.

  Goschen, V.

  Seccombe, B.

  Hamilton of Dalzell, L.

  Shaw of Northstead, L.

  Harmar-Nicholls, L.

  Skelmersdale, L.

  Harmsworth, L.

  Stewartby, L.

  Hayhoe, L.

  Stodart of Leaston, L.

  1054

  Torphichen, L.

  Vinson, L.

  Trumpington, B.

  Vivian, L.

  Wakeham, L.

  Ullswater, V.

  Wynford, L.

  Resolved in the negative, and amendment disagreed to accordingly.
  8.22 p.m.
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 41:
  After Clause 32, insert the following new clause—

  APPEAL AGAINST REFUSAL OF EXEMPTION CERTIFICATE
  (".—(1) Any person who is aggrieved by the refusal of a licensing authority to issue an exemption certificate under section 31 or 32 may appeal to the appropriate court before the end of the period of 28 days beginning with the date of the refusal.
  (2) On an appeal to it under this section, the court may direct the licensing authority concerned to issue the appropriate certificate of exemption to have effect for such period as may be specified in the direction.
  (3) "Appropriate court" means the magistrates' court for the petty sessions area in which the licensing authority has its principal office.").
  The noble Lord said: My Lords, I have already spoken to Amendments Nos. 41 to 48. I beg to move Amendment No. 41.
  On Question, amendment agreed to.
  Clause 33 [Requirements as to disabled passengers in Scotland]:
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendments Nos. 42 to 44:
  Page 29, leave out line 10 and insert (", hearing dogs and other categories of dog;").
  Page 29, line 18, leave out ("and").
  Page 29, line 20, at end insert ("; and
  "other categories of dog" means such other categories of dog as the Secretary of State may prescribe, trained to assist disabled persons who have disabilities of such kinds as he may prescribe.").
  The noble Lord said: My Lords, I beg to move Amendments Nos. 42 to 44 en bloc.
  On Question, amendments agreed to.
  Clause 34 [PSV accessibility regulations]:
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendments Nos. 45 and 46:
  Page 29, line 30, after ("may") insert (", in particular,").
  Page 29, line 32, leave out (", in particular,").
  The noble Lord said: My Lords, I beg to move Amendments Nos. 45 and 46.
  On Question, amendments agreed to.
  Clause 40 [Rail vehicle accessibility regulations]:
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendments Nos. 47 and 48:
  Page 33, line 3, after ("may") insert (", in particular,").
  Page 33, line 4, leave out (", in particular,").
  The noble Lord said: My Lords, I beg to move Amendments Nos. 47 and 48.
  On Question, amendments agreed to.
  Clause 44 [The National Disability Council]:
  [Amendment No. 49 not moved.]
  Lord McCarthy Lord McCarthy moved Amendment No. 50:
  After Clause 45, insert the following new clause—

  RESTRICTION OF PUBLICITY
  ("—.( ) Paragraph I of Schedule 9 to the Employment Protection (Consolidation) Act 1978 (regulations for industrial tribunals) shall be amended as follows.
  ( ) After sub-paragraph (5A) there shall be inserted—
  "(5B) The regulations may include provision—

  (a) for cases involving allegations of the commission of discrimination offences against disabled persons, for securing that the registration or other making available of documents or decisions shall be so effected as to prevent the identification of any person affected by or making the allegation;

  (b) for cases involving allegations of such offences, enabling an industrial tribunal or the Employment Appeal Tribunal, on the application of any party to proceedings before it or its own motion, to make a restricted reporting order having effect (if not revoked earlier) until the promulgation of the decision of the tribunal or Employment Appeal Tribunal.

  In this sub-paragraph—
  "discrimination offences against disabled persons" means those prescribed in the Disability Discrimination Act 1995." ").
  The noble Lord said: My Lords, Amendment No. 50 has been grouped with Amendments Nos. 54 and 55. They are government amendments. This amendment is exactly the same as that which we moved at Report. Its object is to ensure that there will be some restriction on publicity for anyone involved in an alleged disability case before an industrial tribunal, at least up to the moment when the tribunal announces its decision. At Report stage the Government showed considerable support for the idea. As a result, we withdrew our amendment.
  On the Marshalled List today we have Amendments Nos. 54 and 55 which we take to be the Government's sincere attempt to replace our amendment. I fully appreciate that there is not much chance of my amendment standing and being passed in the face of the Government's two amendments. I would, however, like to make one or two points on the contrast between them and see what the Government say. First, we have sought to protect our alleged disabilities. For reasons about which I am not quite clear the Government want to protect not disabilities but considerations of a personal nature. It is said that evidence of a personal nature may be subject to the restriction on publicity. I am not quite certain what evidence of a personal nature is and why we cannot have disabilities on the face of the Bill.
  Secondly, the Government have a long list of defences. It is a defence if the newspaper, radio station or whoever reports the case is not aware, does not suspect or have any reason to suspect. We have taken our words substantially from Schedule 9 to the Employment Protection (Consolidation) Act 1978 where it applies to sex discrimination. We do not see why those words should be put on the face of the Bill. Thirdly, it is at least five times as long as our amendment. I am not quite certain why it should be so long. Nevertheless, I will be very interested to hear what the Government say about their amendments and our amendment. I beg to move.
  Baroness Gardner of Parkes: My Lords, having sat as a lay member of an industrial tribunal for over 20 years, I should like to have answers to one or two questions. These amendments seem to cover the position up to the announcement of the decision of the industrial tribunal. There appears to be a separate provision to cover the Employment Appeal Tribunal procedure. But there is a period between these two when the person decides whether or not to appeal. I wonder whether or not that period is also automatically covered by the amendments. I should like to be reassured that this is so.
  I refer to Amendment No. 54 in particular and also to Amendment No. 50. In each case there is power to make regulations. I wonder why power cannot simply be given directly to the tribunal. The wording is that it may do it of its own motion or at the request of other parties. I wonder why it has to be done just by regulation. There may be a simple answer. I am pleased to see that one matter is being taken into consideration. I refer particularly to those who have been infected with HIV. If it was known that that was the position, future employment prospects might be greatly prejudiced.
  Lord Henley: My Lords, as the noble Lord, Lord McCarthy, has said, we discussed this matter at Report stage. I believe that the amendment tabled by the noble Lord is designed to address that problem, just as the Government's Amendments Nos. 54 and 55 are designed for that purpose. It will come as no surprise to the noble Lord if I say that I prefer the Government's amendments to his, despite the fact that I normally prefer the briefer of the two. His amendments, whatever other defects they suffer from, have the advantage over mine of brevity. Though mine are four or five times longer, they cover both the Employment Appeal Tribunal and industrial tribunals. I am not quite sure whether his would do so. But I do not feel that there is much between us in terms of what we are trying to achieve. It might help possibly if I were to explain what we are about.
  As noble Lords will remember, my noble friend gave an undertaking at Report stage that the Government would consult publicly on the possibility of an extension of the industrial tribunals' power to issue restrictive reporting orders (hitherto confined to sexual misconduct cases) to cases involving medical or other sensitive personal evidence. I do not believe that that needs any explanation. It is fairly self-explanatory of what might be of a personal nature. At any rate, that is something which could be covered in regulations. We can deal with it after further consultations. My noble friend also made clear that the Government would bring forward their own amendments on that point, if that were appropriate, and that is what we have done.
  Following that, a consultation exercise was carried out by officials at the Department of Trade and Industry. It was publicised by way of a press notice and for the specialist media there was a pre-briefing session. A total of 76 copies of the consultation paper were issued and 38 responses were received.
  Support for the extension of the restricted reporting order power to disability discrimination cases was very strong: some 27 responses in favour and six against. Those who opposed it did so on the grounds that such a

  1057
  step would be an unwelcome departure from the general principle, which I think we all accept, of open justice. Obviously, the Government recognise the importance of that principle. On balance, though, we consider that the weight of argument in favour of a limited extension of the restricted reporting order powers to cover disability discrimination cases is overwhelming.
  I should emphasise that the making of an order would not prevent all media coverage of a case. The press would still be free to report all the evidence and other details of the proceedings. The only thing that they would be prevented from doing would be revealing the identity of the applicant and any other individual specified in the order. Tribunal hearings will still, of course, be held in public.
  The noble Lord's amendment takes an approach similar to that of the Government in relation to restricted reporting orders. But it contains an additional element, whether or not by design, I know not. This provides for the industrial tribunal's decision and other public documents to be effected in such a way as to prevent identification of the applicant in a disability discrimination case. I have to say that I feel that that additional element is neither necessary nor justified.
  As the noble Lord made clear, he based his amendment on the measures that the Government introduced in 1993 in relation to sexual misconduct cases. Those measures comprised, similarly, two elements. They provided for the making of restricted reporting orders in sexual misconduct cases and they provided for the removal of the applicant's name from public documents in cases involving allegations of sexual offences. I must stress the difference between sexual misconduct cases and allegations of sexual offences. It is a very important distinction to make.
  The provisions in relation to sexual offences were broad in nature and introduced in order to ensure that the tribunals could comply with the Sexual Offences (Amendment) Act 1992, which requires permanent protection of a victim's identity in sexual offences cases. The appropriate analogy here is that of sexual misconduct cases not involving offences where the restricted reporting order provisions provide, we believe, sufficient protection.
  The Government consider that the media should be free to report an applicant's identity after the promulgation of the tribunal's decision, just as it can in cases of sexual misconduct not involving offences. It seems to us that the kind of exposure from which we are trying to protect disabled individuals would generally arise from the detailed medical and personal evidence given at the hearings rather than from the basic facts of the case set out in the tribunal's decision. We also wish to strike a balance between protecting the interests of individuals who have suffered discrimination and, just as important, exposing employers who have been guilty of it. Such exposure could have a powerful deterrent effect.
  My noble friend Lady Gardner asked two questions. First, she asked about the position between the industrial tribunal and the Employment Appeal Tribunal. Perhaps
  1058
  I may refer her to the definition subsection in Amendment No. 54, subsection (7), where it talks about promulgation:
  "'promulgation' has such meaning as may be prescribed by the regulations".
  I believe that that is a matter that may be addressed at that point. If that is not the case, I shall certainly let my noble friend know how we deal with that particular problem. I hope that by answering that question first I have to some extent dealt with her second point about why there should be regulations and why not set the matter out. I believe that further regulations are necessary. I think that we should like to consider that and if appropriate consult on. I hope that that deals with the questions from my noble friend.
  I hope too that the earlier comments that I made will be sufficient to enable the noble Lord, Lord McCarthy, to accept that his amendment, wonderful and brief though it is, for once is not so good as what the Government put forward. I hope therefore that he will be content to withdraw his amendment and accept the Government's Amendments Nos. 54 and 55.
  Lord McCarthy: My Lords, it is a case of force majeure, is it not? It is a case of half a loaf. Funnily, this half a loaf is so much bigger than my full loaf. But never mind. I am very pleased that we have made some advance. I beg leave to withdraw my amendment.
  Amendment, by leave, withdrawn.
  8.30 p.m.
  Clause 47 [Codes of practice prepared by the Secretary of State]:
  Lord Henley Lord Henley moved Amendment No. 51:
  Page 38, line 44, leave out ("subsection (1)(b)") and insert ("subsections (1)(b) and (3)").
  The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 3. I beg to move.
  On Question, amendment agreed to.
  Clause 50 [Help for persons suffering discrimination]:
  Lord Henley Lord Henley moved Amendment No. 52:
  Page 40, line 12, after ("make") insert (", or has made,").
  The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 3. I beg to move.
  On Question, amendment agreed to.
  [Amendment No. 53 not moved.]
  Lord Henley Lord Henley moved Amendments Nos. 54 and 55:
  After Clause 55, insert the following new clause—

  RESTRICTION OF PUBLICITY: INDUSTRIAL TRIBUNALS
  (".—(1) This section applies to proceedings on a complaint under section 8 in which evidence of a personal nature is likely to be heard by the industrial tribunal hearing the complaint.
  (2) The power of the Secretary of State to make regulations with respect to the procedure of industrial tribunals includes power to make provision in relation to proceedings to which this section applies for—

  (a) enabling an industrial tribunal, on the application of the complainant or of its own motion, to make a restricted reporting order having effect (if not revoked earlier) until the promulgation of the tribunal's decision; and

  1059

  (b) where a restricted reporting order is made in relation to a complaint which is being dealt with by the tribunal together with any other proceedings, enabling the tribunal to direct that the order is to apply also in relation to those other proceedings or such part of them as the tribunal may direct.

  (3) If any identifying matter is published or included in a relevant programme in contravention of a restricted reporting order—

  (a) in the case of publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical,

  (b) in the case of publication in any other form, the person publishing the matter, and

  (c) in the case of matter included in a relevant programme—

  (i) any body corporate engaged in providing the service in which the programme is included, and

  (ii) any person having functions in relation to the programme corresponding to those of an editor of a newspaper,

  shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
  (4) Where a person is charged with an offence under subsection (3), it is a defence to prove that at the time of the alleged offence—

  (a) he was not aware, and

  (b) he neither suspected nor had reason to suspect,

  that the publication or programme in question was of, or included, the matter in question.
  (5) Where an offence under subsection (3) committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—

  (a) a director, manager, secretary or other similar officer of the body corporate, or

  (b) a person purporting to act in any such capacity,

  he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
  (6) In relation to a body corporate whose affairs are managed by its members "director", in subsection (5), means a member of the body corporate.
  (7) In this section—

  "evidence of a personal nature" means any evidence of a medical, or other intimate, nature which might reasonably be assumed to be likely to cause significant embarrassment to the complainant if reported;

  "identifying matter" means any matter likely to lead members of the public to identify the complainant or such other persons (if any) as may be named in the order;

  "promulgation" has such meaning as may be prescribed by the regulations;

  "relevant programme" means a programme included in a programme service, within the meaning of the Broadcasting Act 1990;

  "restricted reporting order" means an order—

  (a) made in exercise of the power conferred by regulations made by virtue of this section; and

  (b) prohibiting the publication in Great Britain of identifying matter in a written publication available to the public or its inclusion in a relevant programme for reception in Great Britain; and

  "written publication" includes a film, a sound track and any other record in permanent form but does not include an indictment or other document prepared for use in particular legal proceedings.").
  Insert the following new clause—

  RESTRICTION OF PUBLICITY: EMPLOYMENT APPEALS TRIBUNAL
  (".—(1) This section applies to proceedings—

  (a) on an appeal against a decision of an industrial tribunal to make, or not to make, a restricted reporting order, or

  1060

  (b) on an appeal against any interlocutory decision of an industrial tribunal in proceedings in which the industrial tribunal has made a restricted reporting order which it has not revoked.

  (2) The power of the Lord Chancellor to make rules with respect to the procedure of the Employment Appeal Tribunal includes power to make provision in relation to proceedings to which this section applies for—

  (a) enabling the Tribunal, on the application of the complainant or of its own motion, to make a restricted reporting order having effect (if not revoked earlier) until the promulgation of the Tribunal's decision; and

  (b) where a restricted reporting order is made in relation to an appeal which is being dealt with by the Tribunal together with any other proceedings, enabling the Tribunal to direct that the order is to apply also in relation to those other proceedings or such part of them as the Tribunal may direct.

  (3) Subsections (3) to (6) of section (Restrictions of publicity: industrial tribunals) apply in relation to a restricted reporting order made by the Tribunal as they apply in relation to one made by an industrial tribunal.
  (4) In subsection (1), "restricted reporting order" means an order which is a restricted reporting order for the purposes of section (Restriction of publicity: industrial tribunals).
  (5) In subsection (2), "restricted reporting order" means an order—

  (a) made in exercise of the power conferred by rules made by virtue of this section; and

  (b) prohibiting the publication in Great Britain of identifying matter in a written publication available to the public or its inclusion in a relevant programme for reception in Great Britain.

  (6) In this section—

  "complainant" means the person who made the complaint to which the proceedings before the Tribunal relate;

  "identifying matter", "written publication" and "relevant programme" have the same meaning as in section (Restriction of publicity: industrial tribunals); and

  "promulgation" has such meaning as may be prescribed by the rules.").

  The noble Lord said: My Lords, I spoke to Amendments Nos. 54 and 55 with Amendment No. 50. I beg to move.
  On Question, amendments agreed to.
  Clause 60 [Interpretation]:
  Lord Henley Lord Henley moved Amendments Nos. 56 to 62:
  Page 47, line 28, at end insert—
  (""occupational pension scheme" has the same meaning as in the Pension Schemes Act 1993;").
  Page 47, line 28, at end insert—
  (""premises" includes land of any description;").
  Page 47, line 29, at end insert—
  (""profession" includes any vocation or occupation;").
  Page 47, line 39, at end insert—
  (""section 6 duty" means any duty imposed by or under section 6;").
  Page 47, line 39, at end insert—
  ('"'section 15 duty" means any duty imposed by or under section 15;").
  Page 47, line 39, at end insert—
  (""section 18 duty" means any duty imposed by or under section 18;").
  Page 47, line 44, at end insert—
  (""trade" includes any business;").
  The noble Lord said: My Lords, my noble friend spoke to Amendment No. 56 with Amendment No. 4. I spoke to Amendments Nos. 57 to 62 with Amendment No. 3. I beg to move Amendments Nos. 56 to 62 en bloc.
  On Question, amendments agreed to.
  Schedule 1 [Provisions Supplementing Section 1]:
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 63:
  Page 49, line 6, leave out ("it") and insert ("the illness").
  The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 64, 65, 66, 67, 68, 69, 70 and 71. These are all amendments to Schedule 1.
  As your Lordships will know, Schedule 1 makes provisions which supplement Clause 1 of the Bill, which relates to the definition of disability. Those of your Lordships who were present at Report stage will remember that I undertook to put HIV on the face of the Bill as an example of a progressive condition in response to speeches made by my noble friend Lady Gardner of Parkes and other noble Lords. I now return to the House with Amendment No. 70, which fulfils that commitment. It refers to:
  "infection by the human immunodeficiency virus".
  The effect of the amendment is to make clear on the face of the Bill that HIV infection is a progressive condition. The way in which paragraph 8 operates is that a person with a progressive condition will be regarded as a disabled person under the Bill from the time when the condition first has an effect (even if it is not substantial) provided that substantial effects are likely in the future—as, indeed, unfortunately is normal with such conditions. As with other progressive conditions, a person with HIV would be a disabled person under the Bill when the infection reaches the symptomatic stage. We have always made clear that people with asymptomatic conditions, including those with asymptomatic HIV, will not be regarded as disabled under the Bill.
  In addition to that amendment, which responds to an undertaking that I gave earlier, there are a number of very minor amendments in this group relating to the definition which clarify the position. Amendment No. 63 corrects a minor ambiguity by making clear in paragraph 1(1) that the term "mental impairment" includes a mental illness only if that mental illness is one which is clinically well recognised.
  Schedule 1, paragraphs 2 and 8 require that a judgment be made about the future course of an impairment. Amendments Nos. 64, 65 and 71 will standardise the drafting in each case.
  Amendments Nos. 66 and 67 are designed to simplify the rule that people with a condition where the substantial effects are masked by treatment are to be regarded for the purposes of the definition as having those substantial effects. For example, a person with diabetes which has been stabilised with insulin injections or people who are hearing-impaired whose hearing is enhanced by a hearing aid will still be covered by the Bill. Amendments Nos. 68 and 69 provide
  1062
  clarification that people who were on the register on 12th January 1995 and the date when the employment provisions take effect will continue to be deemed to have been disabled during the initial period, even after that period is over.
  Together this group of amendments serves to clarify the Government's position and fulfil our commitments. I beg to move.
  Baroness Gardner of Parkes: My Lords, I welcome these amendments, particularly Amendment No. 70, and thank my noble friend for bringing them forward.
  Baroness Masham of Ilton: My Lords, I thank the Minister on behalf of the all-party parliamentary group on HIV and AIDS for including infection by the human immuno-deficiency virus. The Government listened and we are all very grateful.
  Baroness Hollis of Heigham: My Lords, it gives us unexpected but nonetheless real pleasure to welcome these amendments from the Government. We are delighted that at least on this one issue the Government's open-mindedness has been so well exhibited.
  Lord Addington: My Lords, from all corners of the House we are glad to see these amendments.
  On Question, amendment agreed to.
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendments Nos. 64 to 71:
  Page 49, line 17, leave out ("can reasonably be expected") and insert ("is likely").
  Page 49, line 19, leave out ("can reasonably be expected") and insert ("is likely").
  Page 50, line 23, leave out from ("which") to end of line 28 and insert ("would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.
  (2) In sub-paragraph (1) "measures" includes, in particular, medical treatment and the use of a prosthesis or other aid.").
  Page 50, line 29, leave out ("(1)(b)") and insert ("(1)").
  Page 50, line 36, at beginning insert ("Sub-paragraph (2) applies to").
  Page 50, leave out lines 39 to 41 and insert—

  ("(2) That person is to be deemed—

  (a) during the initial period, to have a disability, and hence to be a disabled person; and

  (b) afterwards, to have had a disability and hence to have been a disabled person during that period.").

  Page 51, line 16, after ("dystrophy") insert ("or infection by the human immunodeficiency virus").
  Page 51, line 21, leave out ("expected") and insert ("likely").
  The noble Lord said: My Lords, I have spoken to these amendments already. I beg to move.
  On Question, amendments agreed to.
  Schedule 3 [Enforcement and Procedure]:
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendments Nos. 72 and 73:
  Page 53, line 7, leave out ("arrangements or conditions") and insert ("conditions or requirements").
  Page 53, line 8, leave out ("made, approved or").
  The noble Lord said: My Lords, I have already spoken to Amendments Nos. 72 and 73. I beg to move.
  On Question, amendments agreed to.
  [Amendment No. 74 not moved.]
  Lord Carter Lord Carter moved Amendment No. 75:
  Page 54, leave out lines I to 3.
  The noble Lord said: My Lords, the purpose of Amendment No. 75 is to remove the limit on the damages available for the injury to the feelings of disabled people caused by discrimination on the part of providers of goods and services. Although this may seem to be a technical issue, it is likely to be extremely important in determining how successful this law is in tackling discrimination in this area.
  The element of damages which produces really large awards is compensation for financial loss; that will rarely apply to service providers. The compensation awarded in these cases is likely to be almost entirely made up of damages for the pain caused by discrimination—the knowledge that one has been held up to, "hatred, ridicule or contempt", as one judge expressed it.
  Damages serve two purposes. First, it is compensation to the individual; secondly, it is a deterrent to potential discriminators. Damages awards which are too low will serve neither function. Judges have recognised that damages for injury to feelings, humiliation and insult due to discrimination should not be minimal since that would tend to trivialise or diminish respect for public policy and may leave the complainant feeling that a legal insult had been added to the initial injury.
  The absence of a commission with powers, which we would like, and the lack of legal aid for claims under £1,000 means that individuals will have to pay for the cases themselves. It will mean that even fewer people will feel able to contest the issue if the level of compensation is low.
  In other areas of equality legislation the trend is in the opposite direction, with the limits which previously applied to damages for sex and race discrimination having been removed over the past few years. We ask the Government to explain why disabled people should be treated differently in this one specific area. Discrimination in areas of social life can be just as wounding and humiliating as in someone's working life and yet there is no limit on the damages available for injury to feelings in the employment provisions of this Bill.
  The Bill as drafted is not a sufficient deterrent against discrimination in this area. It devalues the process compared with damages for sex and racial discrimination, the limits which previously applied having been removed. We urge the Government to accept the argument that, as drafted, the Bill does not give sufficient weight to the necessary deterrent effect. I beg to move.
  8.45 p.m.
  Lord Swinfen: My Lords, in responding to the amendment, perhaps my noble friend would indicate what the prescribed amount is likely to be.
  Lord Monson: My Lords, I hope that the Government will not accept the amendment. There may be a case for awarding modest damages to victims of discrimination over and above the damages awarded under other headings, but there is no case whatever for the preposterously high damages awarded by some politically correct industrial tribunals in certain race relations and sex discrimination cases. One thinks of the £15,000 additional damages awarded for injury to feelings to an ex-servicewoman who became pregnant despite the fact that she knew perfectly well what the rules of the game were when she enlisted; worse still, the £29,000 damages awarded to someone who had been called an "Irish prat" on a handful of occasions by his workmates.
  Those of us who were at boarding school in the harsher climate of 40 or more years ago will have been the butt of far more vigorous insults month after month, possibly even week after week, unless one happened to be as powerfully built as the noble Lord, Lord Addington. If we had been awarded tens of thousands of pounds every time our feelings were hurt, we would all be multi-billionaires.
  I agree that there is a case in logic and equity for damages for injury to feelings being harmonised across the range of discrimination legislation, but the convergence should be in the direction of the upper limit provided in this Bill rather than the other way round.
  Lord Addington: My Lords, the noble Lord, Lord Carter, is absolutely right in his approach. We are talking about goods and services employers. Let us hit those who are offending where it really hurts; that is, in the pocket. If we make sure that people will pay literally in cash, it will concentrate the mind wonderfully.
  I am sorry to inform the noble Lord that as a small, fat, dyslexic schoolboy I suffered rather heavily from bullying and one does not always have shoulders when one is only five years old.
  Lord Ashley of Stoke: My Lords, the noble Lord used the word "preposterous" and was quite right to do so; but he hit the wrong target. What is preposterous is the provision in the Bill which places a cap on the damages which can be awarded.
  No one is suggesting, and certainly not my noble friend, that there should be outrageous damages. They would not be awarded in any case because people's attitude to disability is far too conservative. However, disabled people are insulted if their damages can be capped whereas for sexual and racial discrimination there is no limit. Why should there be a difference of that kind? Does it not matter if the reputation of a disabled person is damaged? Of course it matters. If people who suffer from racial or sexual discrimination can be awarded damages with no cap, the same should apply to disabled people. In logic and in reason the amendment should be accepted and I hope the Minister will have better excuses than he had on the previous amendment.
  Lord Mackay of Ardbrecknish: My Lords, I might point out to the noble Lord, Lord Ashley, that the previous amendment was accepted by your Lordships with your Lordships' equivalent of applause. Clearly I will not have the same success here.
  Amendment No. 72 will delete paragraph 7 from the schedule and thus remove the provision allowing for a limit to be set on the amount of damages payable in compensation for injury to feelings. A similar amendment was moved during Committee stage by the noble Baroness, Lady Dean, and I explained the reasons then why I did not agree that the power to set such a limit should be removed. I have not heard anything this evening to persuade me to change my mind.
  Perhaps I may refer back to a debate we had earlier when I responded to amendments from my noble friend Lady O'Cathain. We want to ensure that as many cases as possible can be resolved without recourse to the court system. However, where that becomes inevitable, we want the system for redress to be as informal and easy to use as possible. We have made it clear that we believe that there should be a financial limit on the amount of compensation payable for injured feelings when a disabled person has been discriminated against in access to goods and services. I explained before that we wish to set the limit on the amount payable for injured feelings so as to help ensure that the vast majority of cases can be dealt with under the small claims procedure, with its advantages of cheap and informal resolution. There will, of course, be no limit set on the amount of damages payable for financial loss incurred in a case of discrimination.
  I believe that it is in everyone's interest for the procedures for redress to be effective and, wherever possible, to be informal so as to avoid expensive and lengthy litigation. The inclusion of this provision does not mean that we do not place as high value on the feelings of disabled people as we do on other groups. What the provision does mean is that we want to see a chance for practical solutions to be available to disabled people when they have been discriminated against.
  I should stress, as I said before, that there is no bar on a disabled person going to the county court if there is more at issue than injured feelings. If he has lost money because a service provider has discriminated, a disabled person would be able to complain to the county court and there would, of course, be no ceiling on the level of damages which the court could award. The advice and support service will also help disabled people to obtain advice and promote the resolution of disputes arising under the right of access without the need for legal proceedings. Where litigation does become necessary, the provision in the Bill currently will help to ensure that disabled people can obtain redress quickly and effectively and there is not the additional factor of the possibility of large amounts of money changing hands.
  I think it is in the interests of those of us who want to see the Bill work with as little trouble as possible, and certainly with as little recourse to the law as possible, to have this provision in the Bill. I therefore hope that, having listened to my explanation, the noble Lord will withdraw his amendment.
  Lord Carter: My Lords, I shall not detain the House for very long. The Minister said that he wants the system of redress to be informal. But relying on the small claims court for injuries to feelings is insulting to disabled people and builds discrimination into the Bill. The Minister did not deal with the deterrent effect which I mentioned. However, it is clear that the Government cannot be persuaded. I feel that disabled people and their organisations will feel insulted by the Government's answer. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 76:
  Page 54, line 7, leave out ("arrangements or conditions") and insert ("conditions or requirements").
  The noble Lord said: My Lords, I have already spoken to Amendments Nos. 76 to 80. I beg to move.
  On Question, amendment agreed to.
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 77:
  Page 54, line 8, leave out ("made, approved or").
  On Question, amendment agreed to.
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 78:
  After Schedule 3, insert the following new schedule—

  OCCUPATION BY EMPLOYER OR TRADE ORGANISATION
  Failure to obtain. consent to alteration
  1. If any question arises as to whether the occupier has failed to comply with the section 6 or section 15 duty, by failing to make a particular alteration to the premises, any constraint attributable to the fact that he occupies the premises under a lease is to be ignored unless he has applied to the lessor in writing for consent to the making of the alteration.
  Joining lessors in proceedings under section 8
  2.—(1) In any proceedings under section 8, in a case to which section (Alterations to premises occupied under leases) applies, the complainant or the occupier may ask the tribunal hearing the complaint to direct that the lessor be joined or sisted as a party to the proceedings.
  (2) The request shall be granted if it is made before the hearing of the complaint begins.
  (3) The tribunal may refuse the request if it is made after the hearing of the complaint begins.
  (4) The request may not be granted if it is made after the tribunal has determined the complaint.
  (5) Where a lessor has been so joined or sisted as a party to the proceedings and the tribunal finds that—

  (a) the lessor has—

  (i) refused consent to the alteration, or

  (ii) has consented subject to one or more conditions, and

  (b) the refusal or any of the conditions was unreasonable, it may make such declaration as it considers appropriate or order the lessor to pay compensation to the complainant.

  (6) A declaration or order under sub-paragraph (5) may be made in substitution for, or in addition to, any steps taken by the tribunal under section 8(2).

  (7) If the tribunal orders the lessor to pay compensation it may not make an order under section 8(2) ordering the occupier to do so.

  Regulations
  3. Regulations may make provision as to circumstances in which—

  (a) a lessor is to be taken, for the purposes of section (Alterations to premises occupied under leases) and this Part of this Schedule to have—
  (i) withheld his consent;

  (ii) withheld his consent unreasonably;

  (iii) acted reasonably in withholding his consent;

  (b) a condition subject to which a lessor has given his consent is to be taken to be reasonable;
  (c) a condition subject to which a lessor has given his consent is to be taken to be unreasonable.
  Sub-leases etc.
  4. The Secretary of State may by regulations make provision supplementing, or modifying, the provision made by section (Alterations to premises occupied under leases) or any provision made by or under this Part of this Schedule in relation to cases where the occupier occupies premises under a sub-lease or sub-tenancy.

  OCCUPATION BY PROVIDERS OF SERVICES
  Failure to obtain consent to alteration
  5. If any question arises as to whether the occupier has failed to comply with the section 18 duty, by failing to make a particular alteration to premises, any constraint attributable to the fact that he occupies the premises under a lease is to be ignored unless he has applied to the lessor in writing for consent to the making of the alteration.
  Reference to court

  6.—(1) If the occupier has applied in writing to the lessor for consent to the alteration and—

  (a) that consent has been refused, or

  (b) the lessor has made his consent subject to one or more conditions,

  the occupier or a disabled person who has an interest in the proposed alteration to the premises being made, may refer the matter to a county court or, in Scotland, to the sheriff.
  (2) In the following provisions of this Schedule "court" includes "sheriff".
  (3) On such a reference the court shall determine whether the lessor's refusal was unreasonable or (as the case may be) whether the condition is, or any of the conditions are, unreasonable.
  (4) If the court determines that the lessor's refusal was unreasonable it may make a declaration to the effect that if the lessor were to give his consent subject to such condition or conditions as may be specified in the declaration he would be acting reasonably.
  Joining lessors in proceedings under section 22
  7.—(1) In any proceedings on a claim under section 22, in a case to which this Part of this Schedule applies, the plaintiff, the pursuer or the occupier concerned may ask the court to direct that the lessor be joined or sisted as a party to the proceedings.
  (2) The request shall be granted if it is made before the hearing of the claim begins.
  (3) The court may refuse the request if it is made after the hearing of the claim begins.
  (4) The request may not be granted if it is made after the court has determined the claim.
  (5) Where a lessor has been so joined or sisted as a party to the proceedings and the court finds that—

  (a) the lessor has—

  (i) refused consent to the alteration, or

  (ii) has consented subject to one or more conditions, and

  (b) the refusal or any of the conditions was unreasonable,

  it may make such declaration as it considers appropriate or order the lessor to pay compensation to the complainant.
  (6) If the court orders the lessor to pay compensation it may not order the occupier to do so.
  Regulations
  8. Regulations may make provision as to circumstances in which—

  (a) a lessor is to be taken, for the purposes of section (Alterations to premises occupied under leases) and this Part of this Schedule to have—

  (i) withheld his consent;

  (ii) withheld his consent unreasonably;

  (iii) acted reasonably in withholding his consent;

  (b) a condition subject to which a lessor has given his consent is to be taken to be reasonable;

  (c) a condition subject to which a lessor has given his consent is to be taken to be unreasonable.

  Sub-leases etc.
  9. The Secretary of State may by regulations make provision supplementing, or modifying, the provision made by section (Alterations to premises occupied under leases) or any provision made by or under this Part of this Schedule in relation to cases where the occupier occupies premises under a sub-lease or sub-tenancy.").
  On Question, amendment agreed to.
  Schedule 5 [Consequential Amendments]:
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendments Nos. 79 and 80:
  Page 56, line 38, leave out ("section 5") and insert ("sections 5 and 6").
  Page 56, line 38, leave out from ("1995") to end of line 41 and insert ("(duty to make adjustments and circumstances in which less favourable treatment or failure to comply with the duty is justified).").
  On Question, amendments agreed to.
  Schedule 7 [Modifications of this Act in its Application to Northern Ireland]:
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendments Nos. 81 to 103:
  Page 57, leave out lines 35 to 39 and insert—
  ("2.—(1) In section 3(1) for "Secretary of State" substitute "Department".

  (2) In section 3 for subsections (4) to (12) substitute—

  "(4) In preparing a draft of any guidance, the Department shall consult such persons as it considers appropriate.

  (5) Where the Department proposes to issue any guidance, the Department shall publish a draft of it, consider any representations that are made to the Department about the draft and, if the Department thinks it appropriate, modify its proposals in the light of any of those representations.

  (6) If the Department decides to proceed with any proposed guidance, the Department shall lay a draft of it before the Assembly.

  (7) If, within the statutory period, the Assembly resolves not to approve the draft, the Department shall take no further steps in relation to the proposed guidance.

  (8) If no such resolution is made within the statutory period, the Department shall issue the guidance in the form of its draft.

  (9) The guidance shall come into force on such date as the Department may by order appoint.

  (10) Subsection (7) does not prevent a new draft of the proposed guidance being laid before the Assembly.

  (11) The Department may—

  (a) from time to time revise the whole or any part of any guidance and re-issue it;

  (b) by order revoke any guidance.

  (12) In this section—

  "the Department" means the Department of Economic Development;

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  "guidance" means guidance issued by the Department under this section and includes guidance which has been revised and re-issued;

  "statutory period" has the meaning assigned to it by section 41(2) of the Interpretation Act (Northern Ireland) 1954."").

  Page 58, line 17, after ("10(3)") insert ("in the definition of "charity" for "1993" substitute "(Northern Ireland) 1964",").
  Page 58, line 22, at end insert—
  (". In section 12(5) for "Great Britain" where it twice occurs substitute "Northern Ireland".").
  Page 58, line 38, at end insert—
  (". In section I7(6A)(b) for "Part VII of the Mental Health Act 1983" substitute "Part VIII of the Mental Health (Northern Ireland) Order 1986".").
  Page 59, line 19, leave out from ("if") to end of line 21 and insert ("such a licence was in force with respect to the vehicle at any time during the period of 28 days immediately before the day on which the licence is granted.").
  Page 59, line 31, at end insert—
  (".—(1) In section (Appeal against refusal of exemption certificate)(1) for "a licensing authority" substitute "the Department of the Environment".

  (2) In section (Appeal against refusal of exemption certificate)(2) for "licensing authority concerned" substitute "Department of the Environment".

  (3) In section (Appeal against refusal of exemption certificate)(3) for the words from "the magistrates' court" to the end substitute "a court of summary jurisdiction acting for the petty sessions district in which the aggrieved person resides.").

  Page 60, line 17, at end insert—
  ("(3) In section 39(4) for "he" substitute "it".").
  Page 64, line 22, at end insert—
  (".—(1) In section (Restriction of publicity: industrial tribunals)(2) for "Secretary of State" substitute "Department of Economic Development".
  (2) In section (Restriction of publicity: industrial tribunals)(7) for "Great Britain" where it twice occurs substitute "Northern Ireland".
  . Omit section (Restriction of publicity: Employment Appeal Tribunal).").
  Page 64, line 41, at end insert ("or who is a prison custody officer within the meaning of Chapter III of Part VIII of the Criminal Justice and Public Order Act 1994").
  Page 65, line 3, at end insert ("or localities").
  Page 65, line 15, after ("section") insert ("3(9),").
  Page 65, line 37, at end insert—
  (""benefits", in Part II, has the meaning given in section 4(4);").
  Page 66, line 5 at end insert—
  (""occupational pension scheme" has the same meaning as in the Pension Schemes (Northern Ireland) Act 1993;
  "premises" includes land of any description;").
  Page 66, line 6, at end insert—
  (""profession" includes any vocation or occupation;").
  Page 66, line 17, leave out ("Part II") and insert ("Parts I and II").
  Page 66, line 24, at end insert—
  (""section 6 duty" means any duty imposed by or under section 6;
  "section 15 duty" means any duty imposed by or under section 15;
  "section 18 duty" means any duty imposed by or under section 18;").
  Page 66, line 27, at end insert—
  (""trade" includes any business;
  "trade organisation" has the meaning given in section 13;").
  Page 66, leave out line 33.
  Page 66, line 50, leave out ("arrangement or conditions") and insert ("conditions or requirements").
  Page 66, line 50, leave out ("made, approved, or").
  Page 67, line 14, leave out ("arrangement or conditions") and insert ("conditions or requirements").
  Page 67, line 14, leave out ("made, approved, or").
  Page 67, line 21, at end insert—
  (".—(1) In Schedule 3A in paragraphs 2(1) and (5) and 7(1) and (5) omit "or sisted".
  (2) In Schedule 3A in paragraph 4 for "Secretary of State" substitute "Department of Economic Development".
  (3) In Schedule 3A in paragraph 6(1) omit "or, in Scotland, to the sheriff'.
  (4) In Schedule 3A omit paragraph 6(2).
  (5) In Schedule 3A in paragraph 9 for "Secretary of State" substitute "Department of Health and Social Services".").
  The noble Lord said: My Lords, your Lordships will be aware that Northern Ireland has its own separate body of legislation and administrative structures. Modifications to the provisions of the Bill in order that they fit in with the existing Northern Ireland legislation and structures are set out in Schedule 7. Further modifications to Schedule 7 are contained in these amendments to ensure that the provisions of the Bill are implemented in Northern Ireland as in the rest of the United Kingdom. I am certain that my final series of amendments will be widely welcomed in your Lordships' House.
  On Question, amendments agreed to.
  8.55 p.m.
  Lord Mackay of Ardbrecknish: My Lords, I beg to move that the Bill do now pass. Before I let that last event of the Bill happen perhaps I may say a few words. It has taken us moderately into the evening to conclude our deliberations on the Bill. Overall, the Bill has tested our stamina, but I should like to think that the effort has been well worth while. The debates have been constructive and there has been a great deal of knowledge of the various aspects of the subject matter in your Lordships' contributions, as, of course, I have come to expect. Those have reflected the immense concern which the House reserves for the question of disability discrimination and the knowledge and experience which so many of your Lordships have.
  I believe that we can be proud of our efforts. I am sure your Lordships will agree with me that we will be sending a greatly improved Bill back to the other place. The noble Baroness, Lady Hollis, was kind enough on a number of occasions to describe it as a good Bill, although this afternoon I noticed that she said "so nearly a good Bill". However, I feel that this evening I am justified in being a little more effusive.
  As I have said before, we in government set ourselves a very tough task when we announced that we intended to eliminate discrimination against disabled people. The Disability Discrimination Bill represents a huge step forward towards this goal. It has been said elsewhere that it is the most visible landmark yet on the road to a more accessible society and a Bill which marks the United Kingdom out as a world leader in the crusade against discrimination. Those of your Lordships who have worked particularly assiduously over many years on behalf of disabled people realise more than the rest

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  of us how hard disabled people and their representatives have worked for this moment and how the Bill stands as much as an achievement of theirs as anyone's.
  It would be wrong for me not to note the debt of gratitude that they and we owe to those of your Lordships who have worked so hard for disabled people and who, despite the reservations some might feel about the detail of the legislation, must be particularly proud this evening. I shall not read out a long list, although I think I shall proceed to do that, for fear of missing someone off it. However, perhaps I may in particular—I am sure other noble Lords will appreciate why I select them—pay tribute to the noble Lords, Lord Ashley and Lord Rix, the noble Lord, Lord Swinfen, who I sometimes find a little troublesome, if I may say so, my noble friend Lord Campbell of Croy and many other noble Lords on both sides of the House. I should like also to pay tribute to the noble Baroness, Lady Hollis, and the noble Lord, Lord Addington, and their colleagues on the Front Benches for the helpful and perspicacious way in which they have addressed our proposals.
  Our deliberations have been almost entirely convivial and the fact that the legislation has been so thoroughly considered and reconsidered bears witness to the constructive spirit in which we have all entered into these debates. I should also like to thank the officials who have helped me through this Bill. It has been a wide-ranging Bill. I am grateful to them. Indeed, I am sure that everyone is grateful, perhaps especially the Opposition parties, to those outside organisations which have given a good deal of briefing to your Lordships and to Ministers. I am grateful to those outside organisations which have come to meet me and have had many discussions with my officials.
  Perhaps I may make one other point slightly away from the subject. This represents the end point of the fourth social security Bill of this Session. I understand that there is to be a painting of your Lordships' House. I indicated to someone that if it was for this year it should certainly have me standing at the Dispatch Box; but it should also probably have the noble Baroness, Lady Hollis, standing at the Opposition Dispatch Box, although, as we cannot stand up at the same time, I suppose that there might be some problems. The noble Baroness has dealt, as I have, with four Bills. She has orchestrated her team, but basically, as would be said in the electricity industry, she has carried the base load. I should like to pay tribute to her for all the work that she has put in. I am sure that her colleagues will feel the same. Indeed, they are probably relieved that the noble Baroness has been available to put in all that work and thus to save the finger being pointed at them.
  Returning to the Bill, before the measure leaves us I should like to place on the record the scale of its achievements. Taken together, the provisions in the Bill amount to the most radical set of measures taken by any government to tackle discrimination against disabled people. It will be unlawful for employers to treat a disabled person less fairly. Disabled people will have a right not to be denied access to goods and services solely on the grounds of their disability. The Government will have the power to set minimum
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  standards of accessibility for public transport vehicles. The Bill will ensure that students, pupils and their parents will be better informed about the facilities available when choosing schools, colleges and universities. The National Disability Council will be established to keep the issue of discrimination under review and to advise the Government. The very extent of the endeavour is a little breathtaking and not a little daunting.
  This is a Bill with which I am proud to have been associated. I know that it will be welcomed by all those who care about the creation of a fairer society and that it will be of immense significance for present and future generations of disabled people. I commend the Bill to the House.
  Moved, That the Bill do now pass.—(Lord Mackay of Ardbrecknish.)
  Baroness Hollis of Heigham: My Lords, at this stage of a Bill's passage noble Lords usually say two things: that the Bill is better than when it started and they then thank each other generously for making it so. As the Minister said, this is now a better Bill. That is largely, although not entirely, due to the Government. We suspect that their original intention was to thwart civil rights legislation by a pale pastel version of their own, but the Government then found that they had opened a Pandora's box. The inherent logic and good sense of the arguments pressed by the disability organisations and the all-party parliamentary group—I refer to organisations such as RADAR, the Disability Alliance, Scope, MENCAP, MIND, the RNIB and the Deaf Alliance—as well as other voluntary organisations made the case so compellingly to the Government, Ministers and their advisers that I suspect that the Bill went far further than the Government originally intended. We all appreciate that very much.
  We on these Benches are delighted that the Government either brought forward or accepted amendments on transport and taxis. We should congratulate the Department of Transport on its initiatives on that score which will transform accessibility to public transport—and not before time. Amendments were also accepted on education and on the nature of disability, especially HIV infection. That amendment was ably moved by the noble Baroness, Lady Gardner of Parkes. The Government accepted amendments on the past history of disability and showed a willingness to institute a review of small employers after five years. We also won an amendment against the Government on the perception of disability with regard to goods and services. We very much hope that in the Commons the Government will not seek to overturn that amendment. That would be churlish as well as deeply undesirable. It would be sad if the Government's final act on such a landmark Bill was pettily to seek to overturn a verdict or judgment of your Lordships' House.
  The Bill started as a fairly good Bill. It became much better. However, from these Benches we have to say—the Minister suspected that we would say this—that this is not a good enough Bill. I say that for one very simple reason which we visited earlier this afternoon. We do not believe that at the core of the Bill there is a

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  sufficiently effective mechanism to make it work. The Bill lacks a single authoritative central body which could give advice and assistance, and which could review, conciliate and act to ensure that the intentions behind the Bill are delivered. The Government's National Disability Council remains an inward-looking body, responsible to and advising only the Secretary of State when it should look outwards to the people to whom the Bill belongs. All the history of social legislation shows that good intentions are not enough—and never more so than when dealing with a Bill which seeks to give rights and opportunities to disabled people who are not always very strong, not always very confident, not always particularly affluent and not always particularly assertive on their own behalf. Disabled people are entitled to have a disability commission, as are employers who need to know what the law is and that it will be imposed on the recalcitrant if all else fails.
  Twenty-five years after the landmark 1970 Chronically Sick and Disabled Persons Act, disabled people deserve more—and they are entitled to more than we have so far achieved in this Bill, good though it is in many ways. I think that the Government and their advisers will come to regret their obstructiveness on this issue. We shall certainly do our best to make them regret it. The Bill as it stands fortunately lends itself to further development. Re-reading the Bill at the weekend I was almost persuaded of the virtue of statutory instruments which would allow the next government to build on this Bill and to take it further forward to deliver the rights and opportunities that every disabled person should enjoy.
  The Bill is a good Bill. It has become a better Bill, but it is still not good enough because it lacks a central authoritative body to make it effective. I fear—I shall not be happy if I am proved right—that we shall see that as the next two years unfold.
  Having said that, however, like the Minister I should like to offer my thanks. I thank first my noble friends Lord McCarthy and Lady Dean who dealt with employment issues. I thank also my noble friend Lady Lockwood who dealt with issues relating to the commission; my noble friend Lady Farrington who dealt with education; my noble friend Lord Gladwyn who dealt with taxis; and my noble friend Lady Jay who covered HIV and medical issues.
  It will not surprise noble Lords that I should like to express special thanks to two of my noble friends. I refer first to my noble friend and colleague Lord Carter who is always industrious, stalwart, loyal, hardworking and expert in ways that the House will understand and appreciate. Finally, I should like to say a special "thank you" to someone on our side of the House whose name has been so identified with disability issues over the years. I refer to my noble friend Lord Ashley of Stoke. I am grateful to the Minister for singling him out. My noble friend has always been the most stalwart of campaigners. If the Bill is not good enough, it is through no fault of my noble friend. Disabled people and your Lordships' House are very much in his debt.
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  It also gives me very great pleasure to thank the spokespeople from the Liberal Democrat Benches, particularly the noble Lord, Lord Addington, who has fought so assiduously for the Bill on behalf of disabled people, often aided by the expertise of his noble friend Lady Seear. Together they have the gift of penetrating to the core of an issue, delivering it with speed and effectiveness.
  On an issue such as disability, we are all greatly indebted to the Cross Benches in particular. Their Members were led by the noble Baronesses, Lady Darcy (de Knayth) and Lady Masham, aided by the noble Lord, Lord Rix. They have the expertise that few of us on our Benches can match. They contributed and worked in such a way that we would expect nothing less.
  The Bishops' Bench has done its best, despite its crowded diary, always to take part and to show that issues of disability are issues of moral citizenship, raising issues of ethics as well as expediency at each and every step of the way. That is something of which we well need to be reminded. We ought also to thank the other opposition—the opposition behind the Treasury Bench—led by the noble Lord, Lord Swinfen, with tenacity and courage, aided, sometimes, although not as much as we should have liked, by his noble friends. Of that we are very appreciative.
  Finally, we should like to give our especial thanks to the noble Lord, Lord Mackay, and his ministerial colleagues. He is always a pleasure to oppose. He is an even greater pleasure—very occasionally—to defeat. He is always generous in victory, graceful in retreat, but, alas, we have not seen enough of him in defeat to know how he will take it. He has always been amiable, courteous, well-informed and up to speed. Like him, having come through a gruelling four Bills, the robustness and resilience with which he has handled this afternoon's proceedings is a tribute to the Government Benches.
  I have one very last thank you. It is to the disability organisations and disabled people themselves. At the end of the day, it is disabled people and their organisations that have put disability issues so insistently on the map, so that whether the Government wished to or not, they had to address those issues. We should congratulate them.
  The Minister said—I am not sure whether he realised the full import of his remarks, although I hope and believe that he did—that he did not believe this Bill would be the final word on this issue. He has said many true things today, but that is perhaps the truest. I can assure him that the next government will take the greatest of pleasure in using the statutory instruments in the first place, and then going on to build on the Bill, to ensure that disabled people enjoy the rights and can exercise the opportunities that they as disabled people are entitled to have.
  Lord Addington: My Lords, it falls to me from these Benches to wish the Bill well, and we do wish the Bill well. It is not the Bill we wanted. We wanted a general anti-discrimination Bill for the disabled. However, the present Bill is better than the one with which we started.

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  It has the capacity to achieve good. We may not have chosen the most direct route. It winds around the foothills rather than go straight up the mountain, but at least it is there.
  I thank the Minister for the way that he has handled the Bill. As the noble Baroness, Lady Hollis, has just said, he has at all time remained as even-tempered as one could possibly expect, as has his team. I should like to thank also the noble Baroness and her team on the Benches to my left. We have been able to co-operate to try to achieve a common goal. It is a pity we cannot do that with everything, but on this Bill I am glad we have been able to do so.
  Other noble Lords have been mentioned. The noble Baronesses sitting beside the Hansard Table have weighed in heavily throughout the Bill's proceedings. The noble Lord, Lord Rix, has made himself felt throughout the debate, as indeed have the noble Lord, Lord Swinfen, and the noble Baroness, Lady O' Caithain.
  As I said, the Bill is not the one that many of us wanted. We wanted a general anti-discrimination Bill. The Bill, as the noble Baroness, Lady Hollis, said, does not have what we regard as the driving force—a mission which is outstanding and campaigning. The Bill's long title is not designed to take on all disability issues. That is the main problem that we on these Benches have with it. I believe that is true in other parts of the House. If we can look at it as a first step, it may well be useful. Indeed one hopes that it will be. One can but wish the legislation well and hope that it is the start of many other pieces of legislation which will attack and dispense with the type of discrimination from which disabled people have suffered from time immemorial.
  9.15 p.m.
  Lord Campbell of Croy: My Lords, my noble friend generously referred to some of us who for many years have been involved in Parliament on this subject. As we near the end of this Bill's passage through Parliament, I must express particular pleasure that it has been introduced by a government. It is the first time that a government have introduced a Bill of this kind.
  I was one of the first to introduce a Private Member's Bill in Parliament in 1968. I have always said since then that it would be best if a government did the legislating. I wish to thank and congratulate my noble friend Lord Mackay on his explanations and stamina. I would also like to congratulate Members of the Opposition Front Bench on their assiduity throughout the Bill. The Bill does not go as far as some would wish but it does make great strides in several areas of life. It is needed and it will, I hope, transform attitudes widely. It can be built on in the future by governments of both persuasions.
  In my case, another reason for pleasure is that I was an active Member in the Parliament of 1959 to 1964, before later parliamentary stalwarts became MPs. I go back a long time. Because I was a member of the government for three of those five years, my activities could not be translated into Motions, debates or Private Member's Bills. That came later. But in the early 1960s
  1076
  MPs took notice. I hope that noble Lords will therefore understand the satisfaction that I naturally feel at this stage.
  It is appropriate to refer to the 1970 Act almost 25 years after it became law, as did the noble Baroness, Lady Hollis. In 1969 the right honourable gentleman, Mr. Alf Morris, came first in the annual ballot in another place. As a result, he was able to get that Bill through Parliament. I must record that he received wide support, about which I was delighted. In May 1970 an early election was suddenly called before the Bill had been completed. I am glad to say that the Conservative Opposition made special agreement that it should not fall, as did most of the other legislation, with the dissolution of Parliament. The result was that Royal Assent was received early in the new Parliament of 1970, which was 25 years ago last week.
  That was a landmark. My main contribution in the other place was to arrange the amendments which extended the Bill to Scotland. The right honourable gentleman, Mr. Alf Morris, with the little time available to him, could secure drafting only for England and Wales. At the time we thought that he was receiving drafting help from the government of the day in 1969 and 1970. However, he has since recorded that the late Richard Grossman, then Secretary of State, was strongly opposed to his Bill and tried to get him to drop it. Full credit should go to Mr. Alf Morris for persevering and succeeding and using such help as he could find.
  As the Bill leaves us, I wish to draw attention to the wide variety of disabilities which exists. We must spread knowledge among the public. The figure of 6.5 million disabled people in the United Kingdom is much used at present. That figure came from the 1991 census, which was very valuable in giving us the latest information. It overlaps with the number of elderly people, because more than 5 million are people over working age, most of whom were not disabled before old age. There is, therefore, the possibility of the figure giving the wrong impressions. The constituent parts of the census explain the various categories and that a large proportion of the more than 1 million disabled people who are of working age are employed and economically active.
  About 0.5 million people of all ages are dependent upon wheelchairs; that is less than one-twelfth of the total. The symbol of a wheelchair has been most effective as a logo. However, I hope that the general public will not unconsciously treat it as a stereotype. The blind, the deaf, the mentally ill and those in the many other categories of disability, as well as those with combinations of disabilities must be kept fully in mind. When the Bill is enacted I hope that we will help to spread awareness of the wide range of disabilities and the considerations affecting them.
  Lord Rix: My Lords, the word "troika" has been bandied around your Lordships' House this afternoon. I apologise: I see we are now a coach-and-four occupying the Cross Benches—from which I should like to say a few words.
  The Minister must, like Mark Antony, feel an urge to murmur, "Unarm me. The long day's task is done and we must rest". I marginally misquote, for the original

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  referred to "sleep" rather than "rest", but I vulgarise the text in case at this hour your Lordships' House might take amiss the reference to sleep.
  I have had cause to be grateful to the Minister and his hard-working team of officials for listening courteously even when not able to do quite what I wanted to be done. I also thank those who have argued along with me and who have allowed me to argue along with them.
  The Bill leaves your Lordships' House in moderately good heart. I hope that it will soon take its place alongside the Children Act, the 1970 Act, of which we have just heard, the 1970 Education (Handicapped Children) Act, which had such a dramatic effect on the lives of children with a learning disability, and the parts of the 1986 Act which made it to reality, as generally a good thing and in some respects, a very good thing. I use the 1066 And All That classification system.
  We lost on small employers. At this late stage I cannot resist expressing the hope that small employers being sent the code of good employment practice will at least be urged to make reasonable accommodation where they can and that they are pushed fairly vigorously towards not practising or advertising the practice of unfair discrimination where there are no costs at stake. If small employers are not to be subject to compulsory virtue, the least we can do is to say something fairly forthright about any of them who are minded to be bloody-minded for no reason. I am sure that the great majority will, as now, practise voluntary virtue.
  At one stage I had hoped for some mention in the Bill of what I might call incitement to Nimbyism as a form of unfair discrimination. I refer to the requirement to "consult" the neighbours about community care developments, even when there is no legal requirement so to do. I have had an opportunity to discuss that with the Minister and he has written to me. I accept the need for the change of use regulations. However, I hope that in line with the Minister's letter there will be firm guidance against the type of non-regulated consultation that we have seen, where personal details of prospective occupants are made available to neighbours, with the implication of a veto on people having a home of their own.
  Finally, I wish the Bill and the work that will now flow from it a fair wind and Godspeed.
  The Lord Bishop of Birmingham: My Lords, from this Bench I salute the prospect of the passage of this Bill. I shall not repeat all the thanks and congratulations which have been offered by people better informed than myself. But it is clear that many people have worked extremely hard to bring matters so far and the passage of the Bill will be a notable achievement.
  It seems to me that there are two moral principles at issue. The first, plainly grounded in the Scriptures, is the duty of public authority to defend those who find themselves on unequal terms in defending themselves. In the Scriptures one reads about the duty of public authority—kings or whoever—to defend the widow, the orphan and, someone we rather forget these days, the stranger. It is good that that moral principle is being
  1078
  embodied in legislation today with respect to the disabled. So thank God for a piece of legislation with such an evident moral base to it.
  The second moral principle is that of the need to put aspirations into action, because at the end of the day we shall be judged not by our intentions but by our deeds; not by what we say we would like to have done but by the effects; if you like, not by policies but by operations.
  There has been a worry all through the discussions on this Bill—it has been evident even today—about whether aspirations will in fact be put into effect. Only today we heard the noble Lord, Lord Mackay, speak about his concern for effectiveness. That is precisely the concern which has motivated those who have expressed anxiety at various points. Members on this Bench, with others, remain concerned that adequate instruments for putting aspirations into effect may not yet be in place; that is, that disabled people have not received the support that they might have been given in securing the rights which are being in principle acknowledged. We hope that we are wrong. But if we are not, this is surely a matter to which Parliament will later have to return.
  We can certainly say that, with the passage of the Bill, something irreversible will have been done: it will never be possible to turn the clock back again. As many have said from all sides of the House, it is already clear that the passage of the Bill will turn out to be the beginning and not the end of a process.
  Lord Ashley of Stoke: My Lords, it is very rare to hear a speech as gracious, as dignified and as realistic as that given by my noble friend Lady Hollis. She spoke for all of us when she summarised our appreciation of the situation with which we have been faced during our debates. It has been a great pleasure and privilege to work with my noble friend, with the rest of our Front Bench and, indeed, with our Back-Benchers. It has also been a particular pleasure to oppose the noble Lord, Lord Mackay, and his colleagues. I believe that between us we have managed to show that vigorous debating can still be civilised debating. We can enjoy the clash of opinions while all seeking the same ends; namely, to protect disabled people from discrimination.
  I should like to thank my noble friend and her colleagues and the noble Lord, Lord Mackay, and his colleagues. I should also like to thank the many researchers on our side who helped us by drafting speeches and notes and providing facts. I refer to Caroline Gooding and all her colleagues. I am indebted to them, as indeed are all my colleagues, for the marvellous work that they did. We sometimes just become spokesmen and women for the people who do the devilling and the hard work. There are one or two people that I cannot mention, but I am indeed indebted to many people.
  Perhaps I may describe the Bill as a limited advance. After the Minister's very kind words, it is hard to be realistic. However, we fail disabled people if we are not realistic. The fact is that the Bill has basic flaws; indeed, it has two basic flaws. First, it fails to cover a large number of severely disabled people—for example, workers in small firms. When the Bill is enacted it will still be perfectly legal to discriminate against them. So how can

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  we say that it is a marvellous Bill? We cannot. Moreover, as has been said, the Bill has no commission for enforcement, so how can we call it a marvellous Bill? We cannot. As I said, the Bill is flawed.
  I have two messages. The first is for the Minister and his colleagues. I believe that there will be yet another Bill coming forward from us, possibly in another place after the ballot in a few weeks' time, or indeed from this side of the House, seeking what we have been seeking all along during all these years. The second message is, I hope, from this House. It is for disabled people and it is a stark message: we still require hard pounding and vigorous campaigning to get comprehensive anti-discrimination legislation in Britain. I thank the noble Lord and my noble friends.
  Lord Swinfen: My Lords, I should like to congratulate my noble friend and his colleagues in the Government on bringing forward the Bill. As originally drafted, it was in my view a very much more practical Bill than the Civil Rights (Disabled Persons) Bill, although that was devised on the right principles to end discrimination. No law will end discrimination.
  The Bill is really an encouragement to the education of the population and the people as a whole. If the country is not educated not to discriminate against people because of disabilities, or for any other reason, the legislation will fail. It is from that point of view that I have considered the Bill and have endeavoured in a small way to improve it. It is but a first step but, as Confucius said, a journey of a thousand miles starts with but a single step. We are moving in the right direction.
  I should like to thank the noble Baroness, Lady Hollis of Heigham, for her kind remarks about me. My noble friend on the Front Bench said that he sometimes found me a little troublesome. I take that as an accolade because it means that I have made him, and I trust other Members of your Lordships' House, think and have helped to produce the improved version of the Bill that we now have. I hope that it will benefit not only people with disabilities but the population as a whole. I wish the Bill well.
  Lord Mackay of Ardbrecknish: My Lords, your Lordships will appreciate that I have to have the last word. Perhaps I may thank all noble Lords for their kind remarks about those of us who have sat on the Government Front Bench throughout the Bill and those outside who have worked on the Bill. I have no intention of revisiting some of the arguments of earlier stages. We should now look forward to the next stage, which is the implementation of the Bill and the work on the statutory instruments that go with it.
  I am particularly grateful to the right reverend Prelate for suggesting that I have been on a moral crusade. I have to say to your Lordships that occasionally when I was confronted with a mound of paper late into the night that was the furthest thing from my thoughts. However, I hope that the Bill will do what we all hope it will do and make a great change to the lives of disabled people.
  My last words are to thank my colleagues who have helped me with the Bill, my noble friends Lord Henley, Lord Inglewood and Lord Lucas. With those remarks, I trust that your Lordships will pass the Bill.
  On Question, Bill passed, and returned to the Commons with amendments.

Medical (Professional Performance) Bill
9.31 p.m.
Report received.
Clause 1 [Professional performance]:
Lord Rea Lord Rea moved Amendment No. 1:
Page 3, line 27, at end insert—
("( ) Where in the course of inquiring into the case of a practitioner, it appears to the Committee on Professional Performance that his fitness to practise may be seriously impaired by reason of his physical or mental condition, the Committee may refer that question to the Health Committee for determination.".").
The noble Lord said: My Lords, in moving Amendment No. 1 I should like to speak also to Amendments Nos. 2 and 3.
I put down the amendments at the suggestion of my honourable friend Nigel Spearing MP who, as the noble Baroness is aware, has been since the time of his Private Member's Bill of 1984 one of the prime movers in the process which has finally taken shape in the Bill before the House today.
The three amendments provide for the transfer of a case under consideration from one to another of the statutory committees of the General Medical Council without having to go back to square one and allowing the doctor to continue to practise in the interim if it is felt by either the Professional Conduct Committee, the Health 'Committee or the new Committee on Professional Performance that a particular case would be more suitable for consideration by one of the other two committees.
Since I put down the amendments it has been drawn to my attention that paragraph 19 of the schedule to the Bill as it stands permits the transfer of cases from the Professional Conduct Committee, the Assessment Referral Committee or the Committee on Professional Performance to the Health Committee. However, as far as I can see, the Bill does not contain the provisions in my Amendments Nos. 2 or 3 which would allow referral from the Committee on Professional Performance to the more serious Professional Conduct Committee or, vice versa, from the Professional Conduct Committee downwards to the Committee on Professional Performance.
The case of Dr. Oliver Archer, whose patient Alfie Turner of Canning Town died in 1982 from meningitis, could well have been dealt with under Amendment No. 3. As it was, Dr. Archer was cleared of serious professional misconduct although he was fined for negligence. However, he was then allowed to continue practising. Only two years later, after a further incident, he was found unfit to practise after a referral to the Health Committee of the General Medical Council. On the face of it, although he was found unfit on health grounds, his actions in the first case would probably have been regarded as a serious failure of professional performance, if such an offence had then existed. This

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obviously dangerous and incompetent doctor was able to continue practising for two full years after the first incident.
It would not be appropriate for me to press the amendments tonight. I concede that Amendment No. 1 is not necessary. However, I shall be interested to hear the noble Baroness's comments on Amendments Nos. 2 and 3. It is clearly possible, in fact highly probable, that Dr. Archer was not the only doctor to have been cleared by the Professional Conduct Committee but whose standard of work was still seriously below an acceptable professional standard.
Amendment No. 3 allows the transfer of such a case directly to the new Committee on Professional Performance and does not allow such a doctor, who could well be a danger to the public, to return to practise.
Similarly, under Amendment No. 2, if during a hearing the Committee on Professional Performance—under the provisions of the Bill that committee can only suspend a doctor and not strike him off the register—were to find out during the hearing, for example, about conduct which was not initially reported but which it felt was so serious that the doctor should be removed from the register, it could immediately refer the doctor to the Committee on Professional Conduct which has the necessary powers to remove him.
As drafted, I do not think that the Bill allows the two forms of transfer as outlined in Amendments Nos. 2 and 3. However, I shall stand corrected if the noble Baroness can show me that it does. I beg to move.
Baroness Robson of Kiddington: My Lords, I support the spirit of the noble Lord's amendment, in particular Amendments Nos. 2 and 3.
On Amendment No. 3, if a person is found not guilty of serious professional misconduct, and is therefore allowed to return to practise, as the noble Lord demonstrated, that can cause great danger to the public. I hope the fact that the Bill sets up the Committee on Professional Performance means that that referral would be automatic. I look forward to hearing what the noble Baroness has to say.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, each of the fitness to practise procedures starts with a screening stage and may go on to committee stages if necessary. Transfers may occur at any stage, but it is only transfers to the Health Committee that we considered needed to be specified in primary legislation. That is already contained in the Bill—both transfers from the Assessment Referral Committee and the Committee on Professional Performance to the Health Committee. As the noble Lord, Lord Rea, acknowledged, it is in paragraph 19 of the schedule. In our view the amendment would serve only to duplicate the change to the Medical Act 1983 already made by the Bill.
With regard to the second amendment, in earlier proceedings on the Bill in another place, it was queried why there were no other transfers between committees in the Bill. The reason is that the Professional Conduct
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Committee and the Committee on Professional Performance will consider very different kinds of evidence. In conduct cases the committee considers evidence from witnesses on a basis akin to the criminal court. In performance cases, the committee will consider the results of an objective assessment relevant to the doctor's specialty. It will not therefore be appropriate to transfer cases directly from the Professional Conduct Committee to the Committee on Professional Performance or vice versa. The transfer will be to the relevant screener to initiate the collection of appropriate evidence. Transfers from a committee to screeners do not require a specific power in the Bill. The transfers will be dealt with in the GMC's rules of procedure. These rules, when made, are subject to approval by the Privy Council in the form of a statutory instrument and will be subject to the negative resolution procedures in either House of Parliament.
With regard to the third amendment, it is of a rather different order in that the amendment introduces a new clause which deals with a possible case where, as the noble Lord said, a doctor has been through the conduct proceedings, but has been found not guilty of serious professional misconduct, though the evidence throws doubt on the doctor's general performance. The GMC has a number of different routes open to handle allegations it receives about a doctor. The screeners will be very skilled in sifting the evidence and deciding which route is most appropriate. But sometimes, as a case proceeds and new evidence emerges, it will be apparent that another route might have been better.
Where there is prima facie evidence of misconduct, it must be right that the case is dealt with by the Professional Conduct Committee. But where the evidence, when carefully tested by due legal process, does not support a finding of serious professional misconduct, then that should be the outcome of that case. The committee must be fair to the doctor. It may nevertheless suspect that there is still a problem in the doctor's standard of professional performance. It is important to emphasise that it can have merely a suspicion—the evidence presented about one or more acts of possible professional misconduct is not the same as the evidence needed in an assessment of overall performance. The most the Professional Conduct Committee could do, in fairness, is to suggest that the performance screener should consider whether the doctor should be invited to undergo assessment under the professional performance procedures.
The performance screener would have available all the evidence already gathered by the GMC and the statements made by the doctor and any witnesses during the Professional Conduct Committee's hearing. We can be in no doubt that the screener would consider very seriously whether assessment would be in the doctor's interests and that of his patients. In an appropriate case, proceedings could begin quickly and would continue under the normal procedures set out in the Bill. The GMC would not have to wait for a new complaint to be made. It can, if you like, act on its own information.
I therefore ask your Lordships to reject the new clause. It suggests that the Professional Conduct Committee should have available a new type of

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Finding—"suspicion" of seriously deficient conduct—in cases where it has failed to find, in the evidence brought before it, guilt of serious professional misconduct. We do not consider it helpful to create a further category of offence. Nevertheless I appreciate the valid point which the noble Lord is making, endorsed in spirit by the noble Baroness, that sometimes further investigation is warranted of the professional performance of a doctor who has been found not guilty of serious professional misconduct. The GMC will have, under this Bill, all the powers it needs to initiate a fair assessment of such a doctor's performance.
We have agreed with the GMC that the transfers between the conduct and performance procedures should be covered in rules. The GMC has given me its assurance that the rules it makes will enable such transfers to take place. With these reassurances, I hope that the noble Lord will feel able to withdraw his amendments.
Baroness Robson of Kiddington: My Lords, perhaps we may take the case where someone has been found not guilty of professional misconduct but there is a suspicion that he is deficient in his performance and the screener examines the evidence that has been produced in the first trial. Does that mean that for that time he is allowed to go back and continue to practise?
Baroness Cumberlege: No, my Lords, as I understand it the process is still in being and therefore the doctor would be suspended.
9.45 p.m
Lord Rea: My Lords, I thank the noble Baroness for replying so fully to my- amendments, especially Amendment No. 3. However, I am not absolutely sure that she has completely put my mind at rest. I shall read her remarks very carefully in Hansard and have further discussions about these matters, possibly with the noble Baroness herself, before Third Reading. For the moment, I beg leave to withdraw Amendment No. 1.
Amendment, by leave, withdrawn.
[Amendments Nos. 2 and 3 not moved.]
Baroness Cumberlege Baroness Cumberlege moved Amendment No. 4:
Page 12, leave out from beginning of line 26 to end of line 30 on page 13 and insert—
("National Health Service Act 1977
In section 29 of the National Health Service Act 1977 (arrangements and regulations for general medical services)—

(a) in subsection (8)(c), for the words "of the Preliminary Proceedings Committee of the Council under section 42(3)(b)" there shall be substituted the words "under section 42"; and

(b) after subsection (8) there shall be added—

"(9) Where the registration of a medical practitioner in the register of medical practitioners is suspended by a direction of the Committee on Professional Performance of the General Medical Council—

(a) under section 36A of the Medical Act 1983 (professional performance),

(b) under section 38(1) of that Act (order for immediate suspension), or

(c) under rules made by virtue of paragraph 5A(3) of Schedule 4 to that Act (procedure of committees),

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the suspension shall not, except in so far as is provided by or determined in accordance with regulations under subsection (2) above, terminate any arrangements made with him for the provision of general medical services; but he shall not provide such services in person during the suspension.".
National Health Service (Scotland) Act 1978
In section 19 of the National Health Service (Scotland) Act 1978 (arrangements and regulations for general medical services)—

(a) in subsection (7)(c), for the words "of the Preliminary Proceedings Committee of the Council under section 42(3)(b)" there shall be substituted the words "under section 42"; and

(b) after subsection (7) there shall be added—

"(7A) Where the registration of a medical practitioner in the register of medical practitioners is suspended by a direction of the Committee on Professional Performance of the General Medical Council—

(a) under section 36A of the Medical Act 1983 (professional performance),

(b) under section 38(1) of that Act (order for immediate suspension), or

(c) under rules made by virtue of paragraph 5A(3) of Schedule 4 to that Act (procedure of committees),

the suspension shall not, except in so far as is provided by or determined in accordance with regulations under subsection (2) above, terminate any arrangements made with him for the provision of general medical services; but he shall not provide such services in person during the suspension."
Health and Personal Social Services (Northern Ireland) Order 1972
In Article 56 of the Health and Personal Social Services (Northern Ireland) Order 1972 (arrangements and regulations for general medical services)—

(a) in paragraph (4C)(c), for the words "of the Preliminary Proceedings Committee of the Council under section 42(3)(b)" there shall be substituted the words "under section 42"; and

(b) after paragraph (4C) there shall be added—

"(4D) Where the registration of a medical practitioner in the register of medical practitioners is suspended by a direction of the Committee on Professional Performance of the General Medical Council—

(a) under section 36A of the Medical Act 1983 (professional performance),

(b) under section 38(1) of that Act (order for immediate suspension), or

(c) under rules made by virtue of paragraph 5A(3) of Schedule 4 to that Act (procedure of committees),

the suspension shall not, except in so far as is provided by or determined in accordance with regulations under subsection (2) above, terminate any arrangements made with him for the provision of general medical services; but he shall not provide such services in person during the suspension.".")
The noble Baroness said: My Lords, the Bill already makes provision to ensure that where a doctor has been suspended by the Committee on Professional Performance he will not automatically lose his livelihood. For GPs the Bill provides in paragraphs 28 to 30 of the schedule for the appropriate amendments to be made to the 1977 NHS Act, the 1978 NHS (Scotland) Act and the 1972 Health and Personal Social Services (Northern Ireland) Order.
The regulations governing GPs need to explain the limits on this protection. The amendment that I have brought forward seeks to do this. The amendment replaces paragraphs 28 to 30 of the schedule to the Bill and is different to the existing paragraphs in two respects.
First, we have created a separate subsection in the existing Acts and order so that they deal solely with the performance procedures. The second change is to qualify the sentence which says that the suspension shall not terminate the arrangements between the GP and the health authority by including the phrase,
"except in so far as is provided by or determined in accordance with regulations".
Regulation 7(2) of The National Health Service (General Medical Services) Regulations 1992 states that a doctor who has not provided services personally for six months may be removed from the medical list. But, any time that a doctor has spent suspended by the health committee must be disregarded for the purpose of this regulation. This exclusion is to ensure that a GP's livelihood is not threatened when poor performance has occurred due to ill health which could last for a considerable time. A doctor who is suspended cannot, of course, provide medical services personally, but would have to arrange locum cover.
We do not want a GP who is suspended by the Committee on Professional Performance to be removed from the medical list immediately and automatically. However, where a health authority considers it is in the interests of the patients on the doctor's list, it is important that it can remove that GP from its medical list after a period of time has elapsed. We propose that the regulations should allow the health authority to consider delisting the doctor six months after his or her suspension. We have therefore sought to reach a balance between protecting the livelihood of the GP with the responsibility of the health authority to ensure that the interests of the patients in its area are protected. I beg to move.
Lord Rea: My Lords, these Benches and the British Medical Association are very happy to accept this amendment. There is just one query in relation to it. In the case of general practitioners, will arrangements be made through the General Medical Services Committee of the BMA as to the details of how the finding of a locum is to be organised? It is possible, for instance, that the health of the doctor concerned may be so bad that he is not in a position to arrange this for himself. It could be that regulations will need to be updated and changed as a result of this amendment to the Bill.
Baroness Cumberlege: My Lords, I am sure that it is in everybody's interest that a locum should be supplied as quickly as possible. I am not sure about the details and whether the BMA would be involved or whether we should seek other organisations, or indeed rely on the present procedures that are in place. Perhaps I may write to the noble Lord on this matter. If he is dissatisfied, I am sure that he will bring it up at Third Reading.
With the leave of the House, I should like to correct something I said in the debate on the earlier amendment. The noble Baroness, Lady Robson of Kiddington, asked me whether a doctor would be suspended during the course of this process between two committees when that doctor had been found not guilty by the conduct committee but had yet to be referred to the screener. I
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understand that if the doctor has been found not guilty of serious professional misconduct he will not be suspended. If the papers are referred to the performance screener, everything will depend on the outcome of that assessment.
On Question, amendment agreed to.

Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1995
9.51 p.m.
Baroness Turner of Camden Baroness Turner of Camden rose to move, That an Humble Address be presented to Her Majesty praying that the regulations be annulled.
The noble Baroness said: My Lords, I rise to move the Motion standing in my name on the Order Paper. Very little time or opportunity has been given to either House to discuss these important changes in the arrangements about consultation on collective redundancies. They are due to become operative on 26th October. The only way in which this House will have the opportunity for discussion is on the Motion that I put forward.
As your Lordships know—at least those Members of your Lordships' House who take an interest in labour relations—the Government's provisions in regard to consultation about collective redundancies were found to be wanting by the ECJ. As a result, new regulations have had to be issued.
A period for consultation has been allowed. I am glad to say that the result of that consultation with the CBI, the TUC and others is that amendments to the original draft have been made. We certainly welcome that. Even so, in my view the proposed regulations do not meet the ECJ requirements either in the spirit or the letter.
The intention was certainly not to undermine existing systems of industrial relations or to encourage employers to de-recognise unions where recognition currently existed. That may be in line with the current philosophy of the Government, but it is not the philosophy generally accepted within the EU, where the concept of social partnership with organisations representative of employees' interests is firmly established and widely accepted.
As the regulations now stand, however, employers are given a unilateral choice as to whether to consult representatives of recognised unions or, alternatively, representatives elected by employees. It would be possible for an employer who was contemplating collective redundancies to consult with the representative of an ad hoc group that he might have been instrumental in setting up in order to bypass the recognised trade union. This aspect of the proposed regulations seems to me to owe more to anti-union ideology than to a genuine concern to make sure that employee representatives are properly consulted in advance of redundancies.
It is as well to remind ourselves of the reasons for the consultative process insisted upon by the ECJ. The handling of redundancies is, admittedly, a difficult—sometimes heart-rending—process. Unfortunately, it has become all too common in recent years. But the position is likely to be made worse if encouragement is given to employers by means of the regulations to exclude recognised trade union representatives from the consultation process. One of the main purposes of a consultative process is to enable discussions to take place with a view to minimising the negative effect upon employees. Hence, redeployment and retraining may be discussed within this context. The representatives most likely to be able to assist appear to be those whose job it has been to represent workers in the establishment on a continuous basis.
The regulations would appear to give an employer who just wants to cut the workforce without any concern for the welfare of the employees the opportunity to do so by giving him the right, even where there is a recognised trade union, to set up alternative arrangements of his own in opposition to the recognised union. It is quite true that, as a result of the consultations with the CBI and TUC, to which I have already referred, the Government have been willing in this draft to make provision opposing discrimination against employee representatives. Furthermore, rights to time off have been included for candidates who also will have some protection.
These are improvements on the original draft which, as I said before, I welcome. However, there are no real guarantees about the independence of elected non-union representatives. The reliance on ad hoc arrangements weakens the effectiveness of consultation as there is no element of continuity and the representatives, unless of course they come from a recognised union, will have had no training or preparation for their role. Moreover, the regulations give the employer control over the timing and arrangements for the elections, thus providing scope to frustrate the consultation process.
It is the view of the TUC that the proposed sanctions are inadequate where an employer fails to hold proper elections. There should be provision for obtaining a High Court order to ensure that proper elections are held, until which time the status quo should be maintained. Under the regulations only the employer can initiate elections and the only obligation on the employer is to issue an invitation to the employees who might he dismissed to elect representatives long enough before the time that consultation should start to allow them to elect representatives by that time.
The TUC's view is that the vague wording may very well not meet the terms of the ECJ's judgment. It is the employer who determines when an announcement on job losses is made and it should not therefore be the employer who determines when employee representatives are elected.
Moreover, the regulations are silent on the election process. They appear to give the employer a free hand in deciding on matters such as the number of representatives, constituencies, the nomination process and balloting arrangements. The fact that the regulations
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leave to employers the determination of election arrangements is another reason why the regulations may not comply with the ECJ ruling.
Furthermore, excluding redundancies involving fewer than 20 posts over 90 days is a serious erosion of existing rights of consultation. It will automatically remove from consultation rights the 5½ million workers in small firms as well as larger firms where fewer than 20 redundancies are proposed over a 90-day period.
Perhaps the Minister may argue this evening that it is unlikely that employers exist who might seek to frustrate the intention of the ECJ judgment and the regulations in the manner in which we have suggested. However, if everyone behaved reasonably, there would be no need for laws and regulations. Experience teaches us that there are always some who do not behave well; and in a general labour relations environment in which the Government have been actively seeking to get employers to bypass unions, it is not surprising that we should seek to close any loopholes which may exist.
As I said at the outset, it clearly was not the intention of the ECJ actively to discourage consultation with recognised trade unions. But we fear that that may be the result of the draft if it is not modified by the Government before it becomes operative. I beg to move.
Moved, That an Humble Address be presented to Her Majesty praying that the regulations be annulled.—(Baroness Turner of Camden.)
9.58 p.m.
Lord Rochester: My Lords, from these Benches I should like to support the Motion so cogently put forward by the noble Baroness, Lady Turner of Camden. I do so even though my approach to this matter differs from hers to some extent.
Like the noble Baroness, I spoke on the Unstarred Question asked by the noble Lord, Lord McCarthy, last March. Indeed, my interest in the subject goes back to the debates in this House on the Trade Union Reform and Employment Rights Bill in 1993. At that time I tabled amendments which questioned and sought to overturn the Government's contention that the relevant clauses of the Bill brought the detailed provisions of UK legislation fully into line with the requirements concerning consultation contained in the two directives.
As the noble Baroness reminded us, the Government's legislation at that time obliged employers to consult only the representatives of recognised trade unions, both when they were contemplating large scale redundancies and when the transfer of an undertaking was in prospect.
My amendments to the Bill sought to extend the right to information and consultation to employee representatives generally. Unfortunately the Government were unwilling to accept them. Now, however, following last year's judgments of the European Court, they have had to acknowledge the need to introduce procedures for the designation of employees' representatives whom employers must consult about proposed redundancies and business transfers. Whether the Government's arrangements provide a mechanism that will prove to be legally adequate for that purpose is highly questionable.

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At first sight it may be thought that my noble friends and I would welcome unreservedly the Government's concession on this basic point. The trouble is that, in conceding to employee representatives the right to be consulted, the Government propose to make it possible for the same right to be taken away from representatives of trade unions.
I cannot accept that, where trade unions are recognised, they should retain the exclusive right to be consulted on these matters. But in allowing employers to choose whether to consult either with union representatives or with representatives elected by employees generally, the Government seem almost to be inviting employers no longer to recognise trade unions for these and possibly even other purposes. That may not be of much concern to this Government, but to those of us on these Benches who share the view that, where strong support for trade unions can be demonstrated, employers should be obliged to recognise them, it is a matter of great importance.
For my part, I cannot see why there should not be, first, a general requirement for employers to consult employee representatives about prospective redundancies and business transfers; and, secondly, a requirement that where trade unions are recognised, their views should also be taken into account before decisions are made.
I shall be grateful for any comments the noble Lord, Lord Chesham, feels able to make when he replies to these suggestions. I can hardly expect a considered response, if only because of the unseemly haste, as it seems to me, with which the Government are planning to push through these regulations. It has taken them 16 months to respond to the judgment of the European Court and now it is intended that the regulations should come into force next week, even though they will not apply to redundancies or transfers until March 1996.
I should like to make a number of other points, on one of which I can compliment the Government. In the draft proposals circulated by the Department of Employment last April, I could find no reference to the obligation which the directives placed on employers to consult,
"with a view to reaching agreement".
I am therefore pleased to see that that phrase is now included in the regulations. We may wonder, as did my noble friend Lady Seear in our debate last March, what that phrase—a sort of half-way house between consultation and negotiation —actually means in practice. It should at least ensure, in the words employed by the noble Lord, Lord Inglewood, in winding up that debate, that,
"Both parties must engage in a constructive dialogue".—[Official Report;20/3/95; col. 1095.]
A number of proposals give the impression that in framing the regulations the Government have been keen to do the absolute minimum in responding to the judgment of the European Court. One of the most notable examples is the deregulatory proposal to amend UK legislation so that the requirement to consult will arise only when an employer plans to dismiss as redundant 20 or more employees over a 90-day period.
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That has the effect—the noble Baroness referred to this point—of removing the rights to consultation which millions of people working in firms with fewer than 20 people now enjoy, and appears on the face of it to be particularly mean minded.
The Government further claim, on the question of the timing of consultation on redundancies, that replacement of the phrase "at the earliest opportunity" by the words "in good time" provided for in the directive will avoid unnecessary disputes about precisely when consultation should begin. It is to be hoped that they are right in that. But my fear is that this change may result in even more legal quibbling as to what "in good time" means in the particular case.
Lastly, it appears that under the regulations it is left to the employer to initiate elections of the employee representatives who are to be consulted. In the draft proposals circulated by the Department of Employment last April it was specifically stated that,
"the Government does not propose to specify the means of election",
and that they believe it to be,
"a matter which should be left to employers and employees to arrange in the manner they think best, having regard to the particular circumstances".
No doubt in most cases the necessary arrangements will be amicably agreed. But in other cases there does not appear to be much by way of remedy available for employees who may object to the system that is adopted by a rogue employer wishing to make arrangements for a ballot that is calculated to produce the outcome he desires. Difficult problems could also arise if employers try to hold elections on an ad hoc basis, as they are entitled to do under the regulations, in the bitter atmosphere which often surrounds large scale redundancies. Such difficulties could be exacerbated by time pressures, since employers would have to leave enough time both to hold proper elections and to have meaningful consultation with employee representatives.
I hope that I have said enough to make it plain that these regulations as they stand are not a satisfactory response to the judgments of the European Court. I only hope that they do not prove too damaging to industrial relations in this country and necessitate further judgments having to be brought forward by the court.
10.8 p.m.
Lord Wedderburn of Charlton: My Lords, I rise to support the arguments already advanced, especially by my noble friend, at the outset declaring that I have in the past given advice professionally on some matters that are not central but germane to the two directives of 1975 and 1977. I preface my remarks by asking the Minister whether he will be so kind when he responds to address the two questions of which I have given him written notice, since there is some technicality in the matter. They relate to Regulation 3(2), excluding the duty of consultation on dismissal where there are fewer than 20 employees, and to Regulation 8, in part reversing the effect of recent decisions so as to exclude the rights of workers unfairly dismissed in transfers of undertakings who have no two-year qualification. My question in relation to each of those is: since neither of these issues is a necessary consequence of the Court of

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Justice's decision of 8th June 1994, on what ground do the Government find it proper to include them in these regulations made under the Act of 1972 rather than afford us an opportunity of a full debate and possible amendment in primary legislation, as was done on parallel matters in the Act of 1993?
On the regulations as a whole, in my submission the test is a legal test as to their validity. That test is clearly set out by the Court of Justice in the decision of 8th June 1994. It is put in two ways. The first is the question of whether the scheme of the domestic or national law would,
"allow the employer to frustrate the protection of the workers",
or secondly, "impede that protection" of the employees concerned. The question is not whether employers are likely to act so as to "frustrate" or "impede"—many sensible employers would certainly not do so—but whether the regulations and their national implementation leaves open the possibility that the rights accorded by the directives in European law will not be properly implemented. This is a matter not merely of legal technicality. As usual, the law in this area shrouds a very important and, as my noble friend said, profound social issue. We are discussing people who are going to lose their jobs.
The regulations provide that the elections are to be held as and when the employer chooses—even if an independent trade union is recognised for bargaining. I know that some people will say that there is not much difference between negotiating with the officials of a recognised union and negotiating with representatives resulting from elections. However, the regulations show that that need not necessarily be so. The employer may impose whatever electoral process he chooses. What is more, the appropriate representatives for elections designated by the employer are elected at his "invitation" issued to,
"any of the employees who may be dismissed"—
that is to say, in one part of the regulations it is clear that the representatives represent only the employees who may be dismissed. There is a clear contrast with the representatives of a trade union who can take account of the interests of the workforce and of the enterprise as a whole.
There are not just two types of electoral representatives in the regulations — there are four. First, there are the representatives of a recognised trade union. Secondly, there are the representatives elected by some or all of
"the employees who may be dismissed"
at the "invitation of the employer". Thirdly, there are the representatives elected "by employees" more generally, a constituency comprising not necessarily only the employees who may be dismissed. Finally, there is the special case of representatives who are elected at any time to a body or for a purpose other than consultation on dismissals, such as a staff council, where that is an appropriate body to make use of for consultation. I repeat the phrase "to make use of because it is for the employer to make use of any of those four avenues which he chooses to select.
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Against what must we test that quite remarkable power which is given to the employer? The only test—the only proper test—is what the directives of 1975 and 1977 both demand. They demand that there shall be,
"consultation with a view to agreement".
That requirement was inserted at long last in our domestic law in 1993. If there is to be consultation with a view to agreement, there must manifestly be representatives on both sides. On the employees' side, they must certainly be freely chosen without interference or constraint. They must be chosen in such a way that they are independent of the employer's control. They must be chosen by electoral procedures which are impartial and fair. They must have the resources and capacity to make and administer the agreement and, some would say, they must be chosen by secret ballot. Not a single one of those elementary principles appears in the legal part of the regulations—or in the regulations as law. As to free choice, the employer is told by the Department of Trade and Industry's note of guidance that that is something that no doubt he "will no doubt wish to consider". I repeat that it is suggested the employer "will wish to consider" the free choice of the employees in that process as he decides when is the reasonable time for nominations, what is a reasonable balance of constituencies, and all the other parts of the procedure.
Although elected representatives must be allowed access to the employees threatened with redundancy, at an earlier stage the employer is not obliged to be even-handed about access to candidates. He can, if he wishes, give certain candidates access to the voters, and exclude other candidates at his whim.
One might have thought, in passing, that, as this is a matter of the protection —the court will certainly take this view—of the employees, there might have appeared somewhere a legal right for the workers to trigger elections at their chosen time, since it is their jobs that are in issue.
Nor is there any provision in the regulations for independence. That is of course the most startling omission. The representatives, in order to negotiate an agreement, or consult with a view to agreement, must have independence from the employer. It is true that the regulations now—it is an improvement on the consultative document—afford some negative protection against discrimination or dismissal. But there is no provision to ensure that the employer does not discriminate by giving preference in the elections to his chosen candidates or by arranging the electoral machinery to suit some candidates rather than others.
A provision on independence would have been easy to draft. There is an analogy with the definition in Section 5 of the Trade Union and Labour Relations Consolidation Act 1992 on independent trade unions. As regards independence, the specific is perhaps more important than the general: that is to say, why is there no provision in the regulations outlawing interference or constraint on the voters? In every piece of trade union legislation passed by the Government since 1984 there has been a provision that in the ballot members must not be subject to interference or constraint by the union or its officials or employees. Why do these regulations

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so glaringly omit a similar provision to outlaw constraints imposed on employees or candidates by an employer?
In these regulations, it is clear that the interest of the employees which the directives purport to put forward can be impeded and could be frustrated by an employer making use of all these vast powers. It is not a scheme for representatives of employees in the proper sense. It is a scheme which would allow an employer to get what he wanted in terms of employee representation. That is exactly the type of scheme which the judgments of 8th June 1994 clearly outlawed.
The Government would save a lot of time and money in litigation and, I suspect, another weary dispute with the Commission, which might see them hauled off once more to the court in Luxembourg, if they agreed at this late hour to take back these regulations for extensive amendment in the matters to which I have referred.
10.18 p.m.
Lord McCarthy: My Lords, although it is comparatively late at night, we should congratulate ourselves on two things: first, we should congratulate ourselves on the fact that my noble friend Lady Turner has been instrumental in producing the debate. We are so far the only one of the two Houses of Parliament which has had a debate of this kind, and a debate which will take place before the regulations are law. If they have a debate down at the other end, it will have to be after they are law. At least we have managed to get the debate in. It was difficult to get it in. We got it in only late at night, but we got it in. I suppose that we should congratulate ourselves on that.
Secondly, the noble Lord, Lord Chesham, should congratulate himself on being, as I see it, the first DTI spokesman to reply on an industrial relations issue since 1915, when of course the Ministry of Labour and National Service, as it was then, was created. I take it that the noble Lord replies for the DTI, because I know that he has many responsibilities. He may be replying for the Foreign Office and he may he replying for the Whips' Office, but I take it that he is replying for the DTI. If he is, he will be the first Minister of the Crown to be replying on industrial relation issues for the DTI since 1915. We must congratulate him on that.
As regards the regulations, I wish to focus on a narrow, single issue in the hope that I shall receive an answer. It was mentioned by previous speakers and it is the issue of independence. On what possible grounds can the Government justify the denial of the simple test of independence? I refer to the Advocate-General who, after all, is frequently quoted by the Government in relation to the regulations. At paragraph 10 of his report he stated that the essential point was that,
"the designation of representatives ought not to depend on the free choice of the employer".
The Advocate-General said that that was the essential issue and, if it is, it is about independence.
I turn to what was said by the noble Lord, Lord Inglewood, who, unfortunately, has disappeared somewhere else and has some other departmental duties. I cannot recall them at the moment. He spoke to this
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House as a Minister on 20th March when he represented the now dead and gone Department of Employment. He said that workers' representatives,
"must clearly have appropriate guarantees of independence".— [Official Report, 20/3/95; col. 1095.]
Why have the Government gone back on that? Was the noble Lord, Lord Inglewood, speaking outside the brief? Were they the last dying spasms of the old Department of Employment which believed in the independence that we do not now get from the Foreign Office or the Department of Trade and Industry? Are the Government completely revoking everything that the noble Lord said—that workers' representatives must have appropriate guarantees of independence?
After all, the Government have not completely revoked the notion of independence. They apply it to trade unions, which is the fantastic thing. The House will know that there are two ways in which one can conform to the regulations: one can recognise trade unions or one can have an electoral system. If one recognises trade unions, they must be recognised trade unions and they must be independent. Independence comes in but only where trade unions are concerned. In other words, it is the definition of independence which is contained in Section 5 of the Trade Union and Labour Relations (Consolidation) Act 1992.
My next question to the Government is: why is not the definition of "independence" on the face of the regulations? Why does it not apply not only to recognised trade unions but to the funny little elected organisations? The Act states of an independent trade union that it:

"(a) is not under the domination or control of an employer or group of employers…

(b) is not liable to interference by an employer … arising out of the provision of financial or material support".

That seems to me to be a perfectly good workable definition of "independence". Why should not the elected representatives be not under domination or control of an employer or group of employers? Why should not they be not liable to interference from an employer via the provision of financial or material support? Why should not that be on the face of the Bill? Was not that what the noble Lord, Lord Inglewood, was getting at? But, of course, that was the old Department of Employment.
When we turn to the requirements of elected representatives, which is the second issue on the face of the regulations, we find:
"employee representatives [shall be] elected by them…as the employer chooses".
That is in direct contravention of what was said by the Advocate-General. As was said by my noble friends Lord Wedderburn and Lady Turner, that is not the only thing that the employer can decide. He can decide which employees will be eligible for election; whether they will be elected by universal ballot directly or indirectly; whether they will be elected by a show of hands or a secret ballot; whether he wants to count the votes or whether he will let his foreman do so; and whether there is any right to report back, and so forth.

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I mention those matters to noble Lords because, as my noble friend Lord Wedderburn said, all those matters—who is liable for election, whether the election shall be universal, direct or indirect, by show of hands or secret ballot—are very closely regulated in all the Acts affecting trade unions, now consolidated in the 1992 consolidation Act passed by this Government. All those rules regulate independent organisations when they are trade unions, but there is no sign of those rules applying to the other system. I ask the Government why.
It seems to me that there are only two possible conclusions. The first conclusion —and I ask the Government to say this—is that they do not believe at all in consultation. They do not believe in the passage of information. They believe that the best workers are the ignorant workers and the more they are told, the more trouble is created. If Europe makes them introduce this system, the less effective it is, the better. They do not believe in it from the beginning, through the middle to the end. Although it is twenty-five minutes past ten, if that is the case, I suggest that we should congratulate ourselves if they were actually to get up and tell us that.
The second possibility—and the two are not necessarily mutually exclusive —is that this is just one further attempt to undermine the trade union organisation. The reason that the TUC, the Labour Party and anybody who has any interest in the representation of workers has moved away from the old system, where they supported the Government in saying that these regulations, these directives, need concern only trade unions and that you had to join a trade union to enjoy those rights, is that they now know that those measures have been used as a way to encourage employers not to recognise unions. Therefore, we say that representation must no longer be a trade union monopoly. That would be quite wrong today. Representation has to be something to which individual workers have a right and if they wish action to be taken through a trade union, so be it. But if they do not wish that approach, they do not have to have it. However, the Government do not believe that.
The second possibility is that the Government want to find a way to penalise those who recognise trade unions, those who go through the union text. Therefore the Government say, "If you choose the first method of recognising a union, that has got to be independent and the union will have all kinds of rights and its members will have all kinds of rights against the employer and the union itself'. They would say that that is the organised, recognised bureaucratic way. But they say, "If you do not recognise an independent union, you do it yourself and you do it how you like". What could be a more constructive way in which to encourage employers not to recognise unions? The Government say that if you want to know how to take no notice of these regulations, the one thing you must not do is to recognise a union.
Therefore, the second possibility is that the purpose of the regulation is that it is one more way to discourage recognition of unions and encourage the de-recognition of unions. It is for the Government to say whether I am right on ground one or ground two or whether they have another ground. I look forward to hearing the answers.
Earl Russell: My Lords, listening to this debate, I have been persuaded that the Government have introduced these regulations in the spirit in which the noble Lord, Lord Tebbit, introducing some regulations against racial discrimination in another place, is alleged to have said, "I move these regulations in the spirit of a wine waiter asked to serve a Coke". My Lords, I like my spirits a bit stronger than that.
10.30 p.m.
Lord Chesham: My Lords, we have had an interesting debate this evening on these complex regulations. I am conscious that this is not the first debate in this House on the important subject of the Government's response to the judgments of the European Court of Justice of 8th June 1994. The noble Baroness has, as before, argued her case forcefully and articulately and has been amply supported by noble Lords opposite. I must however oppose the Motion to annul the regulations.
As your Lordships are aware, these regulations have two purposes. First and foremost, they give effect to judgments of the European Court of Justice concerning the implementation in the United Kingdom of the 1975 Collective Redundancies Directive and the 1977 Acquired Rights Directive. However, Regulation 8 deals with a separate matter and reverses the effect of the judgment of the Employment Appeal Tribunal in Milligan and Bailey v. Securicor Cleaning Ltd in which the EAT had interpreted the Transfer of Undertakings (Protection of Employment) Regulations 1981 in a way which Parliament had not intended.
Before I turn to the detail of the regulations, I shall deal first with the question raised by the noble Lord, Lord Wedderburn, concerning the inclusion in an instrument made under Section 2(2) of the European Communities Act 1972 of Regulation 8 and the provisions of Regulation 3 which limit the obligation to consult about collective redundancies. I am grateful to the noble Lord for giving me notice of his question. It concerns a matter to which the Government have given careful consideration. Section 2(2)(a) of the 1972 Act enables regulations to be made for the purpose of implementing any Community obligation; Section 2(2)(b) of the Act enables regulations to be made for the purpose of dealing with matters arising out of or related to any such obligation.
Article 1 of the Collective Redundancies Directive defines collective redundancies. It allows member states to choose between two thresholds for the number of dismissals concerned, below which thresholds the directive does not apply. The Government have chosen the second of those options; that is where the employer proposes at least 20 dismissals over a period of 90 days. The amendment made by Regulation 3 is entirely consistent with Article 1 of the directive. As the proposed regulation has the purpose of implementing our Community obligation, albeit in different terms from the manner in which it is at present implemented, or alternatively arises out of or is related to that obligation, the use of Section 2(2) of the Act is entirely appropriate.

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With regard to Regulation 8, Article 4(1) of the Acquired Rights Directive permits member states to exclude specific categories of employees who are not covered by national law concerning protection against dismissal. That is what Regulation 8 provides for. Indeed, Regulation 8 is intended simply to restate the position intended by the 1981 regulations which, I would remind the House, were made under the 1972 Act. Regulation 8, therefore, concerns a matter which is clearly related to our obligation to implement the directive and again it is appropriate that it be included in regulations made under Section 2(2) of the 1972 Act.
I turn now to the substance of the regulations. As your Lordships are aware, both directives require an employer to consult, in the relevant circumstances, workers' representatives defined in each directive as,
"the workers' representatives provided for by the laws or practices of the Member States".
In implementing the Collective Redundancies Directive in 1975 the then Labour Government required an employer to consult only where there was a recognised trade union. In 1981 the Government in implementing the Acquired Rights Directive followed the same approach. The ECJ ruled that by failing to provide for the designation of workers' representatives where an employer does not recognise a trade union the United Kingdom had not met its obligations under those directives. That is the history of the matter. The regulations now provide for consultation by an employer whether or not the employer voluntarily recognises a trade union. They therefore bring UK law into line with the directives as interpreted by the ECJ.
What we have done is to give effect to our Community obligations in a way which gives the maximum flexibility to employers in this country to decide how to meet their obligations. That has always been our intention. My noble friend Lord Inglewood told the House on 20th March (Official Report, col. 1095):
"Our aim, consistent with the points I have made tonight, will be to bring forward proposals which, while fully implementing the requirements of the two directives, which have been clarified by the ED judgment, provide the maximum flexibility for employers to make arrangements consistent with their business circumstances and the particular needs of their employees. They must recognise the need to minimise the burden on business: they must not interfere with the delicate balance of industrial relations generally and must ensure proper consultation with employees' representatives."
My noble friend could not have stated our approach more clearly. The regulations which we are discussing tonight are fully consistent with what he said then. I ask the House to look closely at what the regulations actually do. They require an employer to inform and consult, in the relevant circumstances, either a recognised trade union or representatives elected by the employees themselves. I shall repeat the point, for it is an important one—representatives elected by the employees themselves. An employer may choose whether to consult a union or elected representatives, but he cannot choose not to consult anyone at all. That is a significant extension of the obligation to consult. There are those who will argue, as has been argued here
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tonight, that an employer who recognises a union should not be free to consult anyone other than that union. I ask simply, why not?
We must recognise that the extent and nature of union recognition has changed substantially over the past decade and the next decade may well see further changes as employers and unions have to adapt to ever more competitive markets and changing employment patterns. Many—probably most—employers who recognise a trade union will wish to continue to consult that trade union about redundancies and business transfers. These regulations provide no obstacle to that, and unions which are confident that they speak for the majority of the workforce and act responsibly in the best interests of both their members and the business should have nothing to fear from this measure.
However, the regulations also recognise that some employers have developed other channels for consultation with their employees, whether or not they recognise a trade union for particular groups of employees. We want employers to be able to use such machinery where it exists and where the employer judges it right to do so. An employer who recognises a union for some categories of employee but not others may well, for example, feel that it would be simpler and more appropriate to consult elected representatives for all the employees affected by a proposal, rather than a mixture of union and elected representatives. We believe that it is right, therefore, to offer that flexibility and freedom of choice. But let me repeat, it is a freedom of choice concerning who to consult, not whether to consult.
It has been argued that the regulations should set out detailed rules for the conduct of elections and require standing machinery to be established. It is a fact that the regulations do not provide for such matters; we have deliberately chosen not to do so. Again, our watchword is flexibility. There are good reasons for not dealing with such matters by statute. The circumstances surrounding the employers' obligation to consult will vary considerably. This would inevitably lead to complex statutory rules designed to cover all possible circumstances. Such complexity benefits neither employers nor employees. Nor do we see any reason why employers with perfectly acceptable existing machinery should have to adapt it to fit with rigid bureaucratic requirements. Rather, we believe it is right to set out the purpose of the consultation and the necessary safeguards and leave it to those who know the particular business circumstances best to determine detailed arrangements. That is what we have done.
As to whether ad hoc arrangements are acceptable, we believe that they are, subject to certain safeguards. Of course an argument can be made for standing arrangements, and some larger employers may well wish to establish such arrangements. That is a judgment which they must make. But many employers will never, or very rarely, be faced with having to make collective redundancies or be involved in a business transfer. It would be absurd for us to require those employers to establish and maintain some machinery which might never be used. That would be bureaucracy gone mad.

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But I made clear that there must be some safeguard to prevent abuse and we have provided that. An employer cannot leave it to the last moment to begin consultation. Consultation must be in good time and, in the case of redundancies, the legislation prescribes a minimum time before the first dismissal takes effect. Regulation 3(8) requires that where there is no standing machinery and the employer therefore invites the employees to elect representatives, he must allow sufficient time for them to do so and for the consultations to take place. A similar provision is made in respect of transfers by Regulation 9(10).
The Government entirely accept that simply to provide for consultation with elected representatives where there is no recognised trade union would, without more, be inadequate protection. But we have provided substantially more than that. The regulations provide protection for elected representatives against dismissal or detriment short of dismissal on the grounds of their status or activities as a representative. Those protections have been drafted so as to provide protection not only to those who are presently representatives but also to those who have ceased to operate in that capacity and to candidates for election. They provide a right to time off with pay to carry out representative duties and a right to appropriate access to the affected employees and to facilities such as telephones. The regulations also amend the provisions concerning who may bring a complaint to an industrial tribunal. These are extended to include not only elected representatives but also in appropriate cases individual employees who have been affected by the proposal. Those are substantial rights and protections and I trust that the House will recognise their importance as part of a coherent package of measures.
We have spoken tonight of the deregulatory element of the proposal on redundancies. The Government considered very carefully what measures should be taken to ensure that the burden on employers resulting from these additional measures should be minimised. I would not expect some noble Lords opposite to accept that any deregulation can ever be a good thing, but the Government believe firmly that to hamstring employers with unnecessary regulations is to damage the ability of our businesses to compete, to grow and therefore to provide jobs for people in this country. In drawing up the package of measures in response to the ECJ judgments we believed it was right therefore to look for ways of balancing the additional obligations which would be imposed on employers. Restricting the statutory obligation to consult through representatives to collective redundancies, as defined in the directive, is just such a measure. We believe that it is vital to ensuring the coherence of the package of measures.
The directive imposes very specific and detailed requirements on an employer. By setting a threshold below which these requirements do not apply, the Council of Ministers recognised that these would not necessarily be appropriate to small firms or to small numbers of redundancies. That must surely be right.
Limiting the obligation to consult through representatives about collective redundancies will provide substantial relief for small and medium-sized employers in particular. But let me make it quite clear.
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It does not absolve employers from the obligation to act fairly and reasonably in handling individual redundancies, including informing and consulting employees individually as appropriate. There is ample case law showing the importance which industrial tribunals attach to such matters in considering whether or not a dismissal is unfair. It is simply not the case, as some may suggest, that our regulations now give employers a free hand to dismiss without any fear of sanction.
I return now to the change made by Regulation 8 of these regulations concerning the right to bring a claim of unfair dismissal in connection with a business transfer. When the draft TUPE regulations were debated in this House in 1981, my noble friend Lord Lyell stated (Official Report 10th December 1981; col. 1483) that the normal provisions governing unfair dismissal—for example, the qualifying period necessary to bring a claim—would continue to apply where employees were dismissed because of a transfer. That is how the regulations were understood to operate until earlier this year when the Employment Appeal Tribunal held, in the case of Milligan and Bailey v. Securicor Cleaning Ltd, that the 1981 regulations did not prevent an employee with less than the normal qualifying service from bringing such a claim. The EAT noted that member states were entitled under the Acquired Rights Directive to exclude categories of employees who do not qualify for dismissal protection. But it held that, as drafted, the regulations did not exclude such employees from bringing a claim.
The effect of that judgment would be to give employees greater rights on transfer than they enjoyed if there was no transfer. We do not believe that to be consistent with the purpose of the directive or, in light of what was said in the 1981 debate in this House, with the wishes of Parliament. Regulation 8 therefore seeks to clarify beyond any doubt that the normal qualifying conditions for unfair dismissal apply in these circumstances.
In conclusion, I wish to thank all noble Lords who have taken part for their contributions to tonight's debate and also for their approval of certain things that we have done, if not everything. There is much on which we do not and cannot agree, but I hope that the House will recognise that the package of measures contained in these regulations is a coherent and proper response to the ECJ judgment of 8th June 1994. It is one which provides for the maximum flexibility in approach consistent with an employer's obligation to consult in the relevant circumstances.
I repeat that, though we are providing flexibility and freedom of choice, it is a choice about how to meet the obligation to consult rather than whether to do so. The obligation is clear and the necessary safeguards are there. I commend the regulations to the House.
Baroness Turner of Camden: My Lords, the House will not be surprised to learn that I am disappointed with the response. We had hoped that, as a result of the arguments advanced from this side, the Government would take back the regulations and re-think them. I am sorry that we have failed to persuade the Minister to do so because we hold the view strongly on this side of the

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House that the regulations do not meet the requirements of the ECJ decision. We believe that that means that there may well be a situation in which again there will be a challenge to what has been done. Once again, the Government may be faced with a situation in which they have to re-vamp regulations and present a fresh set of regulations for consideration by both Houses.
We hold strongly to the view already expressed that the regulations as they stand allow employers to bypass existing trade union organisations and trade union representatives. We are concerned that there are no guarantees of independence for representatives. We note what the Government have had to say about maximum flexibility for employers, but we are also concerned about the rights of employees and their organisations. We regret that we have not persuaded the Government to re-think the regulations and are afraid that we may well be debating re-vamped regulations at some time in the future because they have failed to meet the requirements of the ECJ decisions. However, I beg leave to withdraw the Motion.
Motion, by leave, withdrawn.

Saint Paul's Churchyard Bill
A message was brought from the Commons, that they have made the following order, to which they desire the concurrence of the Lords:
That the Promoters of the Saint Paul's Churchyard Bill shall have leave to suspend proceedings thereon in order to proceed with the Bill, if they think fit, in the next Session of Parliament, provided that the Agents for the Bill give notice to the Clerks in the Private Bill Office not later than the day before the close of the present Session of their intention to suspend further proceedings and that all Fees due on the Bill up to that date be paid;
That on the fifth day on which the House sits in the next Session the Bill shall be presented to the House;
That there shall be deposited with the Bill a declaration signed by the Agents for the Bill, stating that the Bill is the same, in every respect, as the Bill at the last stage of its proceedings in this House in the present Session;
That the Bill shall be laid upon the Table of the House by one of the Clerks in the Private Bill Office on the next meeting of the House after the day on which the Bill has been presented and, when so laid, shall be read the first and second time (and shall be recorded in the Journal of this House as having been so read) and shall be ordered to be read the third time;
That no further Fees shall be charged in respect of any proceedings on the Bill in respect of which Fees have already been incurred during the present Session.
That these Orders be Standing Orders of the House.
House adjourned at twelve minutes before eleven o'clock.