§ 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 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 971 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 972 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, 154.977
|Division No. 1|
|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.|
|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.|
|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.978
§ 3.40 p.m.
§ Clause 3 [Guidance]:
§ 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.979
§ 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 989 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, 159.992
|Division No. 2|
|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.|
|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.|
|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.|
|Mackay of Clashfern, L. [Lord Chancellor.]||Rankeillour, L.|
|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.|
|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 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.993
§ 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 moved Amendment No. 4:
Page 4, line 29, at end insert—
("( ) Regulations under subsection (6) may, in particular—
§ 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.995
§ 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.996
§ 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 997 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 998 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: 999Our 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 1000 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, 1001 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 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 moved Amendment No. 6:
§ Page 4, line 43, leave out ("other").
§ On Question, amendment agreed to.
§ 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.1003
§ 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 1004 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 1005 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 asmodifying instructions or reference manualsandmodifying 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, 135.1008
|Division No. 3|
|Addington, L.||Kennet, L.|
|Airedale, L.||Kirkhill, L.|
|Archer of Sandwell, L.||Kirkwood, L.|
|Ashley of Stoke, L.||Lawrence, 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.|
|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.|
|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.|
|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.|
|Whaddon, L.||Williams of Elvel, L.|
|Wharton, B.||Wyatt of Weeford, L.|
|Wilberforce, L.||Zouche of Haryngworth, L.|
|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.]|
|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 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 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—
§ 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 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 moved Amendments Nos. 13 and 14:
§ Page 9, line 19, leave out ("registered").
§ 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 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 moved Amendments Nos. 16 and 17:
§ Page 12, line 3, after ("fails") insert ("without justification").
§ Page 12, line 14, leave out subsection (7).1015
§ 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 moved Amendment No. 18:
§ Page 12, line 28, leave out ("other").
§ On Question, amendment agreed to.
§ Lord Henley moved Amendment No. 19:
§ After Clause 15, insert the following new clause—