HL Deb 24 October 1995 vol 566 cc1059-66

(".—(1) This section applies to proceedings—

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

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

  1. (a) enabling the Tribunal, on the application of the complainant or of its own motion, to make a restricted reporting order having effect (if not revoked earlier) until the promulgation of the Tribunal's decision; and
  2. (b) where a restricted reporting order is made in relation to an appeal which is being dealt with by the Tribunal together with any other proceedings, enabling the Tribunal to direct that the order is to apply also in relation to those other proceedings or such part of them as the Tribunal may direct.

(3) Subsections (3) to (6) of section (Restrictions of publicity: industrial tribunals) apply in relation to a restricted reporting order made by the Tribunal as they apply in relation to one made by an industrial tribunal.

(4) In subsection (1), "restricted reporting order" means an order which is a restricted reporting order for the purposes of section (Restriction of publicity: industrial tribunals).

(5) In subsection (2), "restricted reporting order" means an order—

  1. (a) made in exercise of the power conferred by rules made by virtue of this section; and
  2. (b) prohibiting the publication in Great Britain of identifying matter in a written publication available to the public or its inclusion in a relevant programme for reception in Great Britain.

(6) In this section—

The noble Lord said: My Lords, I spoke to Amendments Nos. 54 and 55 with Amendment No. 50. I beg to move.

On Question, amendments agreed to.

Clause 60 [Interpretation]:

Lord Henley moved Amendments Nos. 56 to 62:

Page 47, line 28, at end insert— (""occupational pension scheme" has the same meaning as in the Pension Schemes Act 1993;").

Page 47, line 28, at end insert— (""premises" includes land of any description;").

Page 47, line 29, at end insert— (""profession" includes any vocation or occupation;").

Page 47, line 39, at end insert— (""section 6 duty" means any duty imposed by or under section 6;").

Page 47, line 39, at end insert— ('"'section 15 duty" means any duty imposed by or under section 15;").

Page 47, line 39, at end insert— (""section 18 duty" means any duty imposed by or under section 18;").

Page 47, line 44, at end insert— (""trade" includes any business;").

The noble Lord said: My Lords, my noble friend spoke to Amendment No. 56 with Amendment No. 4. I spoke to Amendments Nos. 57 to 62 with Amendment No. 3. I beg to move Amendments Nos. 56 to 62 en bloc.

On Question, amendments agreed to.

Schedule 1 [Provisions Supplementing Section 1]:

Lord Mackay of Ardbrecknish moved Amendment No. 63:

Page 49, line 6, leave out ("it") and insert ("the illness").

The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 64, 65, 66, 67, 68, 69, 70 and 71. These are all amendments to Schedule 1.

As your Lordships will know, Schedule 1 makes provisions which supplement Clause 1 of the Bill, which relates to the definition of disability. Those of your Lordships who were present at Report stage will remember that I undertook to put HIV on the face of the Bill as an example of a progressive condition in response to speeches made by my noble friend Lady Gardner of Parkes and other noble Lords. I now return to the House with Amendment No. 70, which fulfils that commitment. It refers to: infection by the human immunodeficiency virus".

The effect of the amendment is to make clear on the face of the Bill that HIV infection is a progressive condition. The way in which paragraph 8 operates is that a person with a progressive condition will be regarded as a disabled person under the Bill from the time when the condition first has an effect (even if it is not substantial) provided that substantial effects are likely in the future—as, indeed, unfortunately is normal with such conditions. As with other progressive conditions, a person with HIV would be a disabled person under the Bill when the infection reaches the symptomatic stage. We have always made clear that people with asymptomatic conditions, including those with asymptomatic HIV, will not be regarded as disabled under the Bill.

In addition to that amendment, which responds to an undertaking that I gave earlier, there are a number of very minor amendments in this group relating to the definition which clarify the position. Amendment No. 63 corrects a minor ambiguity by making clear in paragraph 1(1) that the term "mental impairment" includes a mental illness only if that mental illness is one which is clinically well recognised.

Schedule 1, paragraphs 2 and 8 require that a judgment be made about the future course of an impairment. Amendments Nos. 64, 65 and 71 will standardise the drafting in each case.

Amendments Nos. 66 and 67 are designed to simplify the rule that people with a condition where the substantial effects are masked by treatment are to be regarded for the purposes of the definition as having those substantial effects. For example, a person with diabetes which has been stabilised with insulin injections or people who are hearing-impaired whose hearing is enhanced by a hearing aid will still be covered by the Bill. Amendments Nos. 68 and 69 provide clarification that people who were on the register on 12th January 1995 and the date when the employment provisions take effect will continue to be deemed to have been disabled during the initial period, even after that period is over.

Together this group of amendments serves to clarify the Government's position and fulfil our commitments. I beg to move.

Baroness Gardner of Parkes

My Lords, I welcome these amendments, particularly Amendment No. 70, and thank my noble friend for bringing them forward.

Baroness Masham of Ilton

My Lords, I thank the Minister on behalf of the all-party parliamentary group on HIV and AIDS for including infection by the human immuno-deficiency virus. The Government listened and we are all very grateful.

Baroness Hollis of Heigham

My Lords, it gives us unexpected but nonetheless real pleasure to welcome these amendments from the Government. We are delighted that at least on this one issue the Government's open-mindedness has been so well exhibited.

Lord Addington

My Lords, from all corners of the House we are glad to see these amendments.

On Question, amendment agreed to.

Lord Mackay of Ardbrecknish moved Amendments Nos. 64 to 71:

Page 49, line 17, leave out ("can reasonably be expected") and insert ("is likely").

Page 49, line 19, leave out ("can reasonably be expected") and insert ("is likely").

Page 50, line 23, leave out from ("which") to end of line 28 and insert ("would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.

(2) In sub-paragraph (1) "measures" includes, in particular, medical treatment and the use of a prosthesis or other aid.").

Page 50, line 29, leave out ("(1)(b)") and insert ("(1)").

Page 50, line 36, at beginning insert ("Sub-paragraph (2) applies to").

Page 50, leave out lines 39 to 41 and insert—

  1. ("(2) That person is to be deemed—
    1. (a) during the initial period, to have a disability, and hence to be a disabled person; and
    2. (b) afterwards, to have had a disability and hence to have been a disabled person during that period.").

Page 51, line 16, after ("dystrophy") insert ("or infection by the human immunodeficiency virus").

Page 51, line 21, leave out ("expected") and insert ("likely").

The noble Lord said: My Lords, I have spoken to these amendments already. I beg to move.

On Question, amendments agreed to.

Schedule 3 [Enforcement and Procedure]:

Lord Mackay of Ardbrecknish moved Amendments Nos. 72 and 73:

Page 53, line 7, leave out ("arrangements or conditions") and insert ("conditions or requirements").

Page 53, line 8, leave out ("made, approved or").

The noble Lord said: My Lords, I have already spoken to Amendments Nos. 72 and 73. I beg to move.

On Question, amendments agreed to.

[Amendment No. 74 not moved.]

Lord Carter moved Amendment No. 75:

Page 54, leave out lines I to 3.

The noble Lord said: My Lords, the purpose of Amendment No. 75 is to remove the limit on the damages available for the injury to the feelings of disabled people caused by discrimination on the part of providers of goods and services. Although this may seem to be a technical issue, it is likely to be extremely important in determining how successful this law is in tackling discrimination in this area.

The element of damages which produces really large awards is compensation for financial loss; that will rarely apply to service providers. The compensation awarded in these cases is likely to be almost entirely made up of damages for the pain caused by discrimination—the knowledge that one has been held up to, "hatred, ridicule or contempt", as one judge expressed it.

Damages serve two purposes. First, it is compensation to the individual; secondly, it is a deterrent to potential discriminators. Damages awards which are too low will serve neither function. Judges have recognised that damages for injury to feelings, humiliation and insult due to discrimination should not be minimal since that would tend to trivialise or diminish respect for public policy and may leave the complainant feeling that a legal insult had been added to the initial injury.

The absence of a commission with powers, which we would like, and the lack of legal aid for claims under £1,000 means that individuals will have to pay for the cases themselves. It will mean that even fewer people will feel able to contest the issue if the level of compensation is low.

In other areas of equality legislation the trend is in the opposite direction, with the limits which previously applied to damages for sex and race discrimination having been removed over the past few years. We ask the Government to explain why disabled people should be treated differently in this one specific area. Discrimination in areas of social life can be just as wounding and humiliating as in someone's working life and yet there is no limit on the damages available for injury to feelings in the employment provisions of this Bill.

The Bill as drafted is not a sufficient deterrent against discrimination in this area. It devalues the process compared with damages for sex and racial discrimination, the limits which previously applied having been removed. We urge the Government to accept the argument that, as drafted, the Bill does not give sufficient weight to the necessary deterrent effect. I beg to move.

8.45 p.m.

Lord Swinfen

My Lords, in responding to the amendment, perhaps my noble friend would indicate what the prescribed amount is likely to be.

Lord Monson

My Lords, I hope that the Government will not accept the amendment. There may be a case for awarding modest damages to victims of discrimination over and above the damages awarded under other headings, but there is no case whatever for the preposterously high damages awarded by some politically correct industrial tribunals in certain race relations and sex discrimination cases. One thinks of the £15,000 additional damages awarded for injury to feelings to an ex-servicewoman who became pregnant despite the fact that she knew perfectly well what the rules of the game were when she enlisted; worse still, the £29,000 damages awarded to someone who had been called an "Irish prat" on a handful of occasions by his workmates.

Those of us who were at boarding school in the harsher climate of 40 or more years ago will have been the butt of far more vigorous insults month after month, possibly even week after week, unless one happened to be as powerfully built as the noble Lord, Lord Addington. If we had been awarded tens of thousands of pounds every time our feelings were hurt, we would all be multi-billionaires.

I agree that there is a case in logic and equity for damages for injury to feelings being harmonised across the range of discrimination legislation, but the convergence should be in the direction of the upper limit provided in this Bill rather than the other way round.

Lord Addington

My Lords, the noble Lord, Lord Carter, is absolutely right in his approach. We are talking about goods and services employers. Let us hit those who are offending where it really hurts; that is, in the pocket. If we make sure that people will pay literally in cash, it will concentrate the mind wonderfully.

I am sorry to inform the noble Lord that as a small, fat, dyslexic schoolboy I suffered rather heavily from bullying and one does not always have shoulders when one is only five years old.

Lord Ashley of Stoke

My Lords, the noble Lord used the word "preposterous" and was quite right to do so; but he hit the wrong target. What is preposterous is the provision in the Bill which places a cap on the damages which can be awarded.

No one is suggesting, and certainly not my noble friend, that there should be outrageous damages. They would not be awarded in any case because people's attitude to disability is far too conservative. However, disabled people are insulted if their damages can be capped whereas for sexual and racial discrimination there is no limit. Why should there be a difference of that kind? Does it not matter if the reputation of a disabled person is damaged? Of course it matters. If people who suffer from racial or sexual discrimination can be awarded damages with no cap, the same should apply to disabled people. In logic and in reason the amendment should be accepted and I hope the Minister will have better excuses than he had on the previous amendment.

Lord Mackay of Ardbrecknish

My Lords, I might point out to the noble Lord, Lord Ashley, that the previous amendment was accepted by your Lordships with your Lordships' equivalent of applause. Clearly I will not have the same success here.

Amendment No. 72 will delete paragraph 7 from the schedule and thus remove the provision allowing for a limit to be set on the amount of damages payable in compensation for injury to feelings. A similar amendment was moved during Committee stage by the noble Baroness, Lady Dean, and I explained the reasons then why I did not agree that the power to set such a limit should be removed. I have not heard anything this evening to persuade me to change my mind.

Perhaps I may refer back to a debate we had earlier when I responded to amendments from my noble friend Lady O'Cathain. We want to ensure that as many cases as possible can be resolved without recourse to the court system. However, where that becomes inevitable, we want the system for redress to be as informal and easy to use as possible. We have made it clear that we believe that there should be a financial limit on the amount of compensation payable for injured feelings when a disabled person has been discriminated against in access to goods and services. I explained before that we wish to set the limit on the amount payable for injured feelings so as to help ensure that the vast majority of cases can be dealt with under the small claims procedure, with its advantages of cheap and informal resolution. There will, of course, be no limit set on the amount of damages payable for financial loss incurred in a case of discrimination.

I believe that it is in everyone's interest for the procedures for redress to be effective and, wherever possible, to be informal so as to avoid expensive and lengthy litigation. The inclusion of this provision does not mean that we do not place as high value on the feelings of disabled people as we do on other groups. What the provision does mean is that we want to see a chance for practical solutions to be available to disabled people when they have been discriminated against.

I should stress, as I said before, that there is no bar on a disabled person going to the county court if there is more at issue than injured feelings. If he has lost money because a service provider has discriminated, a disabled person would be able to complain to the county court and there would, of course, be no ceiling on the level of damages which the court could award. The advice and support service will also help disabled people to obtain advice and promote the resolution of disputes arising under the right of access without the need for legal proceedings. Where litigation does become necessary, the provision in the Bill currently will help to ensure that disabled people can obtain redress quickly and effectively and there is not the additional factor of the possibility of large amounts of money changing hands.

I think it is in the interests of those of us who want to see the Bill work with as little trouble as possible, and certainly with as little recourse to the law as possible, to have this provision in the Bill. I therefore hope that, having listened to my explanation, the noble Lord will withdraw his amendment.

Lord Carter

My Lords, I shall not detain the House for very long. The Minister said that he wants the system of redress to be informal. But relying on the small claims court for injuries to feelings is insulting to disabled people and builds discrimination into the Bill. The Minister did not deal with the deterrent effect which I mentioned. However, it is clear that the Government cannot be persuaded. I feel that disabled people and their organisations will feel insulted by the Government's answer. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mackay of Ardbrecknish moved Amendment No. 76:

Page 54, line 7, leave out ("arrangements or conditions") and insert ("conditions or requirements").

The noble Lord said: My Lords, I have already spoken to Amendments Nos. 76 to 80. I beg to move.

On Question, amendment agreed to.

Lord Mackay of Ardbrecknish moved Amendment No. 77:

Page 54, line 8, leave out ("made, approved or").

On Question, amendment agreed to.

Lord Mackay of Ardbrecknish moved Amendment No. 78:

After Schedule 3, insert the following new schedule—