Disability Rights Commission Bill [H.L.]

HL Deb 04 February 1999 vol 596 cc1616-86

3.37 p.m.

The Minister of State, Department for Education and Employment (Baroness Blackstone)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Baroness Blackstone.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES in the Chair.]

Clause 1 [The Disability Rights Commission]:

Lord Ashley of Stoke moved Amendment No. 1:

Page 1, line 8, at end insert ("and fulfil its duties as established by section 2(1).").

The noble Lord said: My Lords, this amendment is set in the framework of an important and warmly welcomed Bill. It is a very significant measure. I hope that the amendment will be accepted by the Committee expeditiously. I intend to speak as briefly as possible to this and other amendments so that the Bill has a fair wind.

The purpose of the amendment is to discuss the adequacy of the amount of money allocated by the Government—which I believe to be inadequate. I am not saying that many more millions of pounds are needed; however, I believe that the commission will stutter along unless it is adequately financed. The £11 million allocated by the Government, plus £3 million for start-up, is nothing like the amount of money that the Commission for Racial Equality has. There can be no doubt that the problems of disability are far greater than those of race or sex in so far as disability issues are far more complicated. There are between 5 and 7 million disabled people. In addition, the Disability Discrimination Act is very complicated.

For all those reasons much more money must be provided. Susan Scott-Parker of the Employers' Forum on Disability, who is a considerable expert on these matters, has said that given the complexity of the legislation and the number of disabled people the commission's budget should be significantly more and not less than that of the CRE.

I believe that the Committee is entitled to an explanation of how the Government have reached this figure. I should like to receive a full explanation of it from my noble friend. In response to a Parliamentary Question in the other place all the Minister did was to explain how the money might be allocated. That is helpful information. But how did the Government arrive at this figure? On what criteria did they base the figure? If the Minister responds to those points we shall be able to discuss this Bill far more intelligently than at present. At the moment we are in the dark.

The word "reasonable" runs throughout the Act with which this Bill is concerned. As no one knows what is reasonable until the courts have decided the matter there will be many cases that seek to define what is reasonable. I hope that an adequate sum of money will be allocated for all of these cases. The commission must be a state-of-the-art model, fully accessible and provide information in alternate and alternative ways. For example, different formats are required for blind people, deaf people and those with learning disabilities. I hope that that will be accepted. The fact is that the full White Paper on the disability rights commission was not available in Braille even on request. Braille readers must make do with a very short summary. This is an inadequate provision. I hope that my noble friend will be able to give this amendment a fair wind. I beg to move.

Lord Campbell of Croy

I am glad that at the beginning of our debate in Committee the noble Lord, Lord Ashley, raises the question of the amount of money that is to be made available. As I understand it, the Government have indicated that about £3 million will be available to set up the commission and that it will run on £11 million a year. The disability organisations that have contacted me believe that that cannot possibly be enough. I recognise that nothing will ever be enough to meet all of the aspirations that have been raised.

Perhaps I may remind the Committee that there are all kinds of disabilities. This body is not like the Equal Opportunities or Race Relations Commissions. There are very many different kinds of disability, for example the blind and the deaf to whom the noble Lord referred. Within that there are many degrees of severity of disability. A huge number of rights of all kinds will be raised. As I indicated at Second Reading, it will be difficult for the commission to decide where to begin and what should and should not be recognised as serious rights that have been infringed. I should also like to hear at an early stage the Government's response to the noble Lord's amendment.

3.45 p.m.

Lord Morris of Manchester

As the Committee is aware, for many years my noble friend Lord Ashley chaired the All-Party Disablement Group of MPs and Peers, of which he is now joint chairman. What he said in moving the amendment reflects the concern of that important group about the vital necessity to ensure adequate funding of the disability rights commission. As he said, disability organisations are not convinced that the funding announced is adequate to support the substantial duties of the commission. They seek an explanation from the Government of how the figure of £11 million has been calculated. Nor are they alone. As my noble friend said, the Employers' Forum on Disability, too, has expressed concern about the budget. Its chief executive has commented: The Forum has sought a legislative framework which positions disability clearly on a par with race and gender as a national priority, and we welcome the establishment of a central authoritative body. Our concern, however, must be that unless sufficient moneys are allocated parity will simply not be achieved". Substantial funds need to be set aside for its work in supporting disabled people and on communication aids and advocacy. The commission will need to be a model of accessibility. This will include providing information in alternative formats and supporting people with learning disabilities, about which I am sure the noble Lord, Lord Rix, will want to speak.

It was most disturbing that, as my noble friend said, the full White Paper on the disability rights commission was not available in Braille even on request. Braille readers had to make do with a short summary. Full access for all disabled people may require a specialist team of workers within the commission. The commission itself will be liable under the Disability Discrimination Act and, as a public body, under the Human Rights Act. Should the commission use its power to set up regional offices to provide local information, advice and support to disabled people and business, £11 million is unlikely to be adequate. The Commission for Racial Equality has such a regional presence and has funding of £14.5 million. Given the extra costs related to accessibility and advising on the complicated issue of reasonable adjustments, the costs of the disability rights commission may be significantly higher.

This amendment like others tabled by my noble friend merits a positive response from the Government. I know that my noble friend the Minister will at least want to assure us today that the funding announced so far is not unalterable and that she will do all that she can to help in conveying our concern to her ministerial colleagues.

Lord Renton

I agree with the noble Lord, Lord Ashley, my noble friend and the noble Lord, Lord Morris of Manchester, that the commission should have the widest possible power to meet its expenses. But I am sorry to say that from a technical point of view the amendment proposed by the noble Lord, Lord Ashley of Stoke, would have the opposite effect. This is a technical matter. I hope that in the absence of the noble and learned Lord the Lord Chancellor I may be realistic and use the Latin expression, expressio unius est exclusio alterius". If one expresses one thing one excludes another or others.

Under subsection (2) as it stands there is no limitation: The Secretary of State shall pay to the Commission such sums as he thinks fit to enable it to meet its expenses". That is without limitation. Therefore, in my humble opinion, if the wishes of the noble Lord are to be fulfilled he should leave the Bill as it is and not press his amendment.

Baroness Darcy de Knayth

I should like to support the amendment briefly and touch on one or two matters referred to by the noble Lord, Lord Ashley. He made reference to the assertion of the Employers' Forum on Disability that the funding was inadequate. It is worth reminding ourselves that if it proves to be inadequate it will considerably disadvantage businesses as much as disabled people.

The noble Lord said that the commission needs to be a model of best practice, with all the support services required. Those are expensive. One nasty thought has been expressed to me. Might the commission be accused of discrimination if it is unable to provide adequate access to its services and building? No one wants that to happen. Everyone wants the commission to be a great success; we welcome it tremendously. I am sure the Minister also wants it to succeed. I hope that she can be encouraging and say that it will not falter through lack of funding.

Lord Rix

In supporting the amendment, I refer to the remarks of two noble Lords who have spoken. Perhaps I may say to the noble Lord, Lord Renton, that the only Latin I can remember from my school days is from Ovid: "Dum vires annique sinunt tolerate labores Iam veniet tacito curva senecta pede". Roughly translated, that means, "While years and strength allow, tolerate labour. Soon will come bent old age with silent foot". I regret that that probably applies to many of us in this Chamber. However, I think that the noble Lord, Lord Renton, is a shining example to us all.

The noble Lord, Lord Morris of Manchester, used the phrase "learning difficulties". At the outset of the Committee stage, perhaps I may stress that when we talk about "learning difficulties" we are not talking about "learning disabilities". The Bill applies to learning disabilities, originally known as mental handicap. "Mental handicap" is a phrase no longer used by the department, people with learning disabilities or, indeed, MENCAP. The phrase "learning difficulties" means something different. Millions of people in this country have learning difficulties which have nothing to do with learning disability: people with short sight; those who are hard of hearing; people with dyslexia. Those are learning difficulties. I hope that for the purposes of the Bill we shall stick to the phrase "learning disability".

I accept with great happiness my fourth billing to the amendment moved by the noble Lord, Lord Ashley of Stoke. Can the Government give us any assurances that they will take into full account the cost implications of providing advocacy support in addition to the standard operational costs of the commission to which reference has already been made?

Lord Swinfen

I, too, have put my name to the amendment. I take on board the point made by my noble friend Lord Renton. I would not wish to press the amendment at this stage. Its purpose is to elicit information from the Government. I hope that the Minister will be fulsome in her answer in providing a lot of information on how the figure has been worked out by the Treasury. Did the Treasury talk to any other department? Did it talk to the Department of Trade and Industry to see what would be required? Did it talk to employers' organisations and trade union organisations?

I suspect that once the commission is up and running there will be far more work than may be envisaged at present. Where will the commission be based? How many regional offices will it have? If it is properly to help employers to provide adequate alterations to their premises, equipment and working practices, it will need people based all over the country. It is a practical point; it is not nebulous.

There is no point in taking the time and trouble to debate the Bill in both Houses of Parliament if the Government are not prepared to produce the funds to make it work properly. I am sure the Government want it to work properly. When the Disability Discrimination Bill was going through this House some years ago, I was one who advocated that a commission should be incorporated in that Bill. Members on the Labour Benches—at that time in Opposition—gave me considerable support, for which I was grateful. They have now brought forward this Bill and I hope that their baby will be properly clothed and not allowed to come into the world naked and cold where it will perish through lack of proper funding.

Lord Addington

Has the Minister any figures as regards the number of man hours and the skills required? I refer to the supply of information about the workings of the commission. Can the amount of money provided be based on that information? It is not enough to say that there will be almost as much money as that provided for another commission.

The amendment may be technically defective, but we are at Committee stage and wish to elicit information. It is to be hoped that, if we receive the right answers, we can drop this matter and move to other issues. However, if the Government cannot assure us that sufficient funds will be available, we shall have to revisit the subject on numerous occasions. I hope that the Minister will give us answers which refer to the technicalities of the job.

Baroness Blatch

When the Minister replies to the debate, I hope she will confirm that the word "expenses" is understood in the wider sense rather than in the narrow sense of "expenses", and that any funding of the body is intended to fulfil the duties established by Clause 2(1). Clause 2(1) provides that the commission shall have duties, to work towards the elimination of discrimination …. ; to promote the equalisation of opportunities …. ; and to keep under review the working of the Disability Discrimination Act". There are two issues here. One is adequacy. My noble friends, Lord Renton and Lord Campbell of Croy, have said that there will never be enough money. Any government in power will have to make a judgment about what can be afforded. But the important point is that we want the commission to work. We also want to minimise the need for litigation. For this body to do its job properly and to keep cases out of court it needs to be practical on the ground, around the country, and proffer helpful advice in particular to business, commerce and institutions which will have obligations not only under this legislation but under the Disability Discrimination Act. It needs to work alongside people. That will be costly.

It is inexplicable why the Commission for Racial Equality is to be funded so much more generously. I believe that the work of the commission will be far more complex. It will address the needs of many more people in the community than does the CRE. Its work will be more practical and on the ground. It will involve all four corners of the country. For that reason it would be helpful to know the technical work which was undertaken by the Government to arrive at the figure referred to. What is their justification for funding the CRE more generously than this body?

The body must work effectively in the interests of disabled people in this country. It must do so in the most practical and positive way; that is, by helping people in a practical way to meet their obligations under the legislation without having to resort to the courts which, at the end of the day, will be more expensive.

Baroness Blackstone

I am not sure that I shall be able to match the Latin quotations. My O-level Latin may not run to that in responding to the debate.

The sums payable by the Secretary of State are intended to allow the commission to fulfil all its main functions. The wording of Clause 1(2) is intended to achieve that. As the noble Lord, Lord Renton, made clear, Amendment No. 1 is unnecessary and I hope that my noble friend will agree to withdraw it. The noble Lord, Lord Swinfen, indicated that it is a probing amendment.

Before answering the various questions, perhaps I may put the record straight. There appears to be confusion about whether the White Paper was available in braille. I understand that the whole White Paper was indeed available in braille on request to anyone who wanted it. A number of copies were sent to a member of the taskforce representing the RNIB.

The amendment raises an issue about the level of funding for the commission. That is what my noble friend and others who have supported the amendment wish to debate. I accept that and understand their concerns. The provisional estimate—it must be provisional at this time—of the running costs for the commission, which is £11 million a year, compares well with the existing commission, where the functions are similar. I shall turn to that issue in a moment.

The commission is a new organisation working in a complex area and therefore we have allocated it considerably more resources than its sister organisation, the Equal Opportunities Commission. However, Members of the Committee will appreciate that it is not right to compare the allocation for the disability rights commission with the £15 million budget of the Commission for Racial Equality. That issue was raised by the noble Baroness, Lady Blatch.

I must explain that £4 million of the £15 million is spent on funding racial equality councils. They are not part of the CRE, but seek to replicate the type of network which exists in the context of disability through many voluntary organisations and other arrangements. Therefore, the funding comparison should be with the £11 million remainder for the Commission for Racial Equality. On that basis, I hope that noble Lords will agree that the funding is equitable.

I assure the Committee that the Government are determined that the disability rights commission should be funded to carry out its role effectively. I confirm to the noble Lord, Lord Campbell of Croy, that the Explanatory Notes, which were published alongside the Bill, made it clear that £3 million had been set aside for 1999 to 2000 to establish the commission and that there will be a provisional allocation of £11 million for 2000 to 2001 and 2001 to 2002. The real point is that the figures for the two later years may be adjusted in the light of experience within the overall comprehensive spending review settlement of the Department for Education and Employment.

I am not sure whether I shall satisfy my noble friend Lord Ashley or other noble Lords who asked for a breakdown of the £11 million. The noble Lord, Lord Swinfen, asked about discussions between departments. Of course we have discussed with the Treasury the funding for this new body, but the final decision on how much was needed was made after extensive consideration, and with other departments, by my own department. The estimates were made using the best information available at the time, including experience with comparable public bodies. Obviously, there is no public body which is completely comparable and so the exercise is difficult. It will be for the commission to determine how to allocate its resources once it has been established.

I say to the noble Baroness, Lady Darcy de Knayth, that we would expect the commission to spend most of its budget on providing advice and information, conciliation, assistance to individuals, formal investigations and promotion and policy work, with central administrative costs being tightly controlled. The noble Baroness, Lady Blatch, rightly said that we want it to work without too much litigation. It will have succeeded if we have a minimal amount of litigation. We want practical, common sense approaches to ensure that discrimination against disabled people does not exist.

There is no reason to believe that the funding will not be adequate for the commission to undertake its enforcement work and promotional activities. However, it is always the case that when drawing up a budget for a new body we must rely on estimates. It is not possible to be as precise as the noble Lord, Lord Addington, implied. It would be asking a lot of the Government to work out now exactly what the man hours of the commission will be. It is rather early.

Lord Addington

I wonder what process has been undertaken in order to arrive at the figure. Many of us are worried about that. We would like to know what process has been undertaken in arriving at the figure and the amount of expertise required. We do not have that information, but if it could be provided we might be able to conclude the debate quickly.

Baroness Blackstone

As I have said, the figure is an estimate. I do not believe that it would be useful to go through longwinded processes. The estimate is based on comparable public bodies, including the Commission for Racial Equality. The amount is much more than the Equal Opportunities Commission has. I stress to my noble friend Lord Morris of Manchester that on Second Reading I made it clear that the Government are willing to review the position in the light of the operating experience of the commission. We would be unreasonable were we not prepared to do so. In the meantime, I am as confident as it is possible to be that the estimates are reasonable and that the commission will have the resources to enable it to make an effective start. That is in all our interests.

I hope that I have provided my noble friend and other noble Lords with as satisfactory an answer as possible about funding. While I recognise the wish to put down a marker, I hope that my noble friend and others will feel able to withdraw the amendment.

Baroness Blatch

The Minister referred to comparability with other bodies. A number of us who have spoken to the amendment made it clear that we believe that the work of the body will be infinitely greater than that of the CRE. The Minister also referred to £4 million being used by the Commission for Racial Equality for outpostings around the country. Is she suggesting that there will be no need for this body to outpost around the country? I believe that there will be a very real need for its work to be seen to be effective on the ground, and more so in that access for people whose rights are being protected by the commission are such that the more locally the service is delivered the better.

Lord Swinfen

I, too, asked the Minister whether there would be regional offices and if so how many. I believe that there must be regional offices so that in each region there will be places from which people can go out to firms, industry and employers of one kind or another in order to give advice and deal with all the duties of the commission. It cannot all be done from one place. Where does the Minister envisage their headquarters will be?

Baroness Blackstone

I cannot yet answer the question as to where the headquarters will be; that is still to be decided. We are anticipating a later amendment on the issue of regional offices and perhaps further discussion ought to wait until we reach that point. There will be regional offices in Scotland and in Wales. However, we should try to stick to the amendment we are considering and not discuss later ones at this stage.

Perhaps I may elaborate a little on what I said earlier to the noble Baroness, Lady Blatch. The Disability Rights Task Force considered carefully how the disability rights commission should operate within existing local and national networks. While it recognised the clear benefits of working with and developing further those networks, it did not feel that the statute should be prescriptive. The relationship between the disability rights commission and existing networks will be completely different to that between the Commission for Racial Equality and the race equality councils. They are different kinds of bodies. The commission will need to explore how best to develop the relationship.

It would be a mistake at this point, by putting provisions on the face of the Bill, to ask the commission to accept specific forms of network, particularly in view of the fact that many already exist. In the light of that explanation, I hope that Members of the Committee understand the difference between the CRE and the new commission.

Lord Rix

Before the Minister sits down, will she answer my question as to whether advocacy support provision has been included in the estimates?

Baroness Blackstone

The DRC will have to provide for advocacy for those who need it. Given that it is a commission for disabled people, it will certainly consider the needs of all people with disabilities and impairments. That may answer the second point the noble Lord raised.

Baroness Blatch

I have to say to the noble Baroness that I am no clearer as to the distinction between the work of the CRE and that of the commission. The noble Baroness did not address the specific point as to why the CRE has a stronger case for working through outposts than the new commission.

Baroness Blackstone

Perhaps I should try once again to explain that when the Commission for Racial Equality was set up, it did not have the kind of network that exists already in the field of disability and therefore it was decided many years ago that there should be race equality councils. As I understand it, they operate separately from the CRE itself and have slightly different kinds of functions.

Nothing is ruled out in terms of the commission wishing to establish at some later date a network along similar lines. But we must take into account what the Disability Rights Task Force said on this matter. It was quite clear. It did not wish it to be expressed on the face of the Bill; it did not want prescription. It would be wrong to reject that argument at this point.

Lord Ashley of Stoke

My noble friend the Minister said that there are differences between the proposed commission and the CRE, and she is right. But there are other differences too.

I suggest that the question of race or sex is far simpler than that of disability. Race is a simple matter of "ethnic or not". People are either male or female and there are just two choices. Disability is phenomenally complicated. There are around 8 million disabled people in Britain, every one with a different kind of disability. Most of them react differently and most are treated differently. They require all kinds of different assistance.

The Commission for Racial Equality has a simple task by comparison. How my noble friend can compare the two and conclude by saying that they get about the same money proves to me that her staff should do a bit more work on this. I hope that she will take into account the fact that practically everyone who spoke—with the glittering exception of the noble Lord, Lord Renton—is in favour of the amendment. My noble friend should take the matter away and think about it.

My noble friend says that she will review the matter later. But, again, that is the wrong kind of judgment. It is better to get it right now rather than botch it at the beginning and come back saying, "We have made mistakes; it was penny-pinching; we were short. What shall we do?" If my noble friend will take this away and come back with something positive on Report, then we will make progress.

Lord Renton

Before the noble Lord sits down, perhaps I can say this. I agree with all his motives, but I am afraid that his amendment may defeat them.

Lord Ashley of Stoke

I am grateful to the noble Lord. I shall leave the matter with my noble friend and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

4.15 p.m.

Clause 2 [General functions]:

Lord Ashley of Stoke moved Amendment No. 2:

Page 1, line 19, at end insert ("; and ( ) to keep under review those parts of the Human Rights Act 1998 which it deems applicable to the elimination of discrimination against disabled people.").

The noble Lord said: In moving Amendment No. 2, with permission I shall speak also to Amendment No. 15 which has a similar objective.

Lord Campbell of Croy

Before the noble Lord continues, perhaps I can intervene; the noble Lord has been given notice of this. The grouping shows that Amendments Nos. 2 and 6 are to be taken together. That seemed to me to be most inappropriate. Amendment No. 2 deals with the Human Rights Act whereas Amendment No. 6 is the one to which the noble Baroness referred just now and deals with regional offices. That is a completely different subject and is not dependent on human rights.

The noble Lord, Lord Ashley, said, as I imagined would be the case, that he wants to speak to Amendment No. 15 which also deals with human rights. If the Committee agrees, perhaps Amendment No. 6 could be dealt with separately.

Lord Ashley of Stoke

We welcome guidance on this matter. Judging from the face of the noble Baroness, Lady Blatch, and that of the Minister, that will be warmly welcomed. It worried me enormously. I do not propose to speak to Amendment No. 6, but to Amendments Nos. 2 and 15 instead.

Amendment No. 2 provides for the Human Rights Act to be included in the statute rather than sanctioned by regulation. It has been argued that inserting the Act through regulation gives it some flexibility, given that the Human Rights Act is not to be implemented until the year 2000 and these issues need clarifying. That is a reasonable point of view. On the other hand, if the Government have that in mind, there is no reason why the power should not be on the face of the Bill.

The issues about the implementation of the Human Rights Act ought to have been clarified by the time the new commission is active. Amendment No. 2 simply seeks to put the Human Rights Act on the face of the Bill. That will offer important new rights to individuals in relation to how they are treated by public institutions. It does not apply to private sector organisations.

These amendments will give the commission the power to assist individuals at proceedings and help in the elimination of discrimination. To include a reference to the 1998 Act in this legislation would cause no delay for disabled people in cases where the Act would help them and would be most valuable.

The amendment confers no new rights on disabled people but merely provides for the commission, as the repository of expertise on disability, to help disabled people to secure their rights. The Human Rights Act 1998 does not concern business but relates to what is due to individuals from public institutions, many of them part of government.

I was pleased to hear my noble friend the Minister quoting the Disability Rights Task Force. She obviously thinks the world of it, as we all do. As my noble friend thinks so much of it, I am sure that she has noticed that that authoritative body recommended that the 1998 Act should be on the face of the Bill. In view of the fact that my noble friend thinks so highly of the task force, I am sure that she is minded to say, "Yes, we accept". I beg to move.

Lord Rix

I have put my name to Amendment No. 15, which I presume we are now taking with Amendment No. 2.

The Human Rights Act 1998 is of the greatest possible importance in the protection of people with learning disabilities. I support both amendments in the name of my noble friend Lord Ashley of Stoke.

Lord Swinfen

Both amendments are so logical that the Government may have some difficulty with them. I hope not.

Lord Hunt of Kings Heath

This group of amendments is concerned with advising the Government on the Human Rights Act 1998.

In addition to its general duties, noble Lords will be aware that Clause 2(3)(a) of the Bill already includes a power for the commission to give advice to the Government on any aspect of the law or proposed changes to the law, for any purpose connected with the elimination of discrimination and the performance of its other functions. That extends to all legislation applying to England, Scotland and Wales, including Community law and the international obligations of the UK.

Turning to Amendment No. 2 tabled by my noble friend, Lord Ashley of Stoke, and the noble Baroness, Lady Darcy de Knayth, the Government are not opposed in principle to the commission providing government with its views on the Human Rights Act 1998 where its provisions have relevance to the elimination of discrimination. There is, then, nothing to prevent the commission from making recommendations to government concerning that Act.

We do not, however, believe that it is necessary to express that power as a duty to be included on the face of the Bill. The disability rights commission will pursue its duties vigorously and it will certainly take an interest in the 1998 Act where it considers it relevant to do so. We believe that the core duties of the commission in relation to legislation should be focused more directly on addressing disability discrimination issues. That is why we have provided in Clause 2(1)(c) for it to have a duty to keep under review the workings of the Disability Discrimination Act 1998 and this Bill when it becomes an Act.

Amendment No. 15 concerns the disability rights commission's power to assist individuals in cases that involve breaches of the Human Rights Act 1998. The Government share the determination of the noble Lords and the noble Baroness who have spoken that the commission shall be a body with sufficient powers to tackle effectively discrimination against disabled people. In recommendations on the role and functions of a disability rights commission, the Disability Rights Task Force urged the Government to consider carefully the impact of the 1998 Act and the European Convention on Human Rights. That is why we raised the issue in the White Paper, Promoting Disabled People's Rights. We intend to keep faith with that recommendation.

We have included powers in Clause 6(1)(b) that would allow the extension of the commission's powers, and we have made clear our intention to consider extending through regulations the range of legal proceedings in which the commission can assist individuals. That will provide a degree of flexibility, to allow us to respond to changing circumstances and needs, and also to review the powers of the commission in the light of experience.

The explanatory notes that accompany the Bill indicate that we will certainly consider including in the regulations Section 6 of the Human Rights Act 1998, which requires public authorities not to act in a way that is incompatible with a right under the European Convention on Human Rights.

This issue involves complex questions of law and practice and we want to consider the detail carefully in consultation with others. The Human Rights Act 1998 has only recently received Royal Assent. Many of its provisions have yet to come into force and many will not do so for some time. We do not expect Section 6 to come into force before the year 2000. By then, we hope to have considered the issue in more detail.

We do not need to rush into taking a decision. We have time to approach it in a measured way. I hope that noble Lords will see that there is wisdom in that approach. We are advocating caution, which should not be mistaken for avoidance. I stress that the reasons for proceeding that way are entirely practical. The regulation-making power will give us time to consider the many complicated issues involved and to seek advice where necessary. I hope that my noble friend Lord Ashley agrees that including a regulation-making power, as has been done in Clause 6, is the proper way to approach this complex issue and will agree to withdraw his amendment.

Lord Ashley of Stoke

I am grateful for that explanation but I was not happy to hear my noble friend say that the commission will "take an interest". We are seeking something much more. My noble friend said that the Government will need time to consider the matter, which I appreciate and understand. I ask my noble friend to give the issue consideration before Report stage and return with a more constructive response. I appreciate the difficulty that faces him. The matter is terribly complex and difficult. I am not pressing the matter strongly at this stage but I hope that my noble friend will be able to do a bit better and accommodate us more at a later stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendment No. 3:

Page 1, line 20, leave out ("may") and insert ("shall").

The noble Baroness said: I wish to couple my remarks on this amendment with Amendment No. 4. There will be a ring of familiarity about an amendment to leave out "may" and insert "shall" because it comes up in almost every Bill and is the bugbear of every official in Whitehall. They do not like such amendments, and neither do the Treasury counsel, but it gives this particular Bill important emphasis.

One key concern is to ensure that the commission does not merely litigate or encourage litigation. Returning to my old theme, the commission should not be legalistic but work with people, employers and others, to ensure that they understand the obligations and how to apply the Disability Discrimination Act 1995, which is practical work for the commission in eliminating as far as possible the need to end up in court.

An essential element of the commission's work is education, and that will be high-profile. The amendment proposes strengthening the reference to the commission's role in encouraging good practice, by making it a requirement, not permissive, to do just that. We do not want the commission abandoning the encouragement of good practice to focus on a legalistic approach. Nor do we want its educational role to be permissive. We want a requirement that the commission gets into the business of providing information and practical support. That way, the commission is more likely to achieve what is needed for disabled people. That will encourage the right environment and atmosphere for companies to meet their requirements and obligations, rather than view the commission's work as an unwelcome imposition leading to greater costs.

I have a simple point to make on Amendment No. 4. The Bill does not refer to agencies, so the purpose of my amendment is to ensure that the power covers government agencies. That may well be implicit in the wording of the Bill. However, in the light of Pepper v. Hart and the importance of having a full understanding of what the Bill means, I should like to have on the record the fact that agencies are subsumed in the wording of the Bill. I beg to move.

4.30 p.m.

Lord Addington

As the noble Baroness says, the argument about "may" and "shall" is familiar. I think that this is the first time that we have been on the same side in a "may" and "shall" argument. I hope that that is a sign of good things to come.

As the noble Baroness said, the provision encourages the commission to take on the role of providing information. That would be good practice and would strengthen the Bill. The lawyers already have enough paydays!

The Government should welcome Amendment No. 4 with open arms, at least in principle, because it calls for "joined-up government". I believe that that is the expression. I hope that the Government will tell us that at least that concept is taken on board. It would help if they could point to the exact part of the Bill which achieves that, even if the amendment is not necessary.

Lord Hamilton of Dalzell

I support my noble friend Lady Blatch on this amendment. Since the passing of the 1995 Act, Queen Elizabeth's Foundation for the Disabled, for which I work, has put an enormous amount of effort into selling the merits of that Act to people by way of persuasion, which I understood was the original purpose of the Act. We are anxious that the commission handles legal proceedings with delicate hands. We spend over £600,000 every year—money collected from the public—to pay for our work. Included in that is a lot of propaganda about getting disabled people into employment. We have now had two presentations of the Ease of Access, Services and Employer (EASE) awards, first, at the Dorchester and this year at the Hilton Hotel. Awards are given for employing and providing services for disabled people.

My anxiety is that by bringing the law into this arena in a heavy-handed fashion people will be put off and that much of the work done and the money spent will disappear down the drain because people will become antagonistic towards disabled people. Therefore, I could not endorse the amendments more, and I support them entirely.

Lord Swinfen

I think that it is intended in the Bill—the Minister will correct me if I am wrong—that the commission will encourage good practice, and it will have a duty to do so. The word "may" is purely permissive and may also be considered as "may not". The word "shall" is an imperative and has to be obeyed.

Lord Rix

I consider that the word "may" is as much a weasel word as the phrase "when resources allow". I should have thought that it was perfectly easy to remove subsection (2) and to make it part of Clause 2(1) as a new paragraph (d). Clause 2 would then read: The Commission shall have the following duties—… (d) to encourage good practice regarding the treatment of disabled persons in any field of activity". That would seem to be a simple amendment and one that would follow on naturally.

Lord Hunt of Kings Heath

I have not been a Member of your Lordships' House for very long, but long enough to know that the issue of "shall" and "may" provides us with many happy hours of debate. I would hazard a guess that the noble Baroness, Lady Blatch, has been on the other side of the fence, in times past, on this issue.

The noble Baroness seeks, through Amendment No. 3 to make it a duty of the commission to encourage good practice. It may be helpful if I provide some clarification. Clause 2(1) of the Bill sets out the commission's primary duties, which include working towards the elimination of discrimination against disabled people and promoting the equalisation of opportunities for disabled people. There is some overlap between the duty to promote the equalisation of opportunities and encouraging good practice. However, to avoid any doubt, Clause 2(2) makes clear the commission's ability, within its general duties, to encourage good practice.

Noble Lords are, of course, aware of the importance of encouraging good practice in the context of disability. It will be essential that organisations learn from each other, and from disabled people, how to avoid discrimination and how to find solutions to difficulties which may arise.

Sometimes what is useful and most effective goes beyond what is strictly required by legislation. Simple things like disability awareness and disability etiquette training can do much to change attitudes as well as help to avoid unlawful acts of discrimination. There is no doubt that the disability rights commission will have a key role to play in identifying good practice and helping to spread the message to others who may benefit from adopting it.

I do not disagree at all with the noble Baroness and other noble Lords who have remarked on the importance of education.

The intention of the drafting of Clause 2(2) is to allow the commission flexibility in how it promotes good practice where it thinks it appropriate. I hope that all noble Lords will agree with me that the commission should be free to decide—and indeed would be best placed to know—what that is at all times. I fear that placing a duty on the commission to do so may well have the effect of constraining it, rather than giving it flexibility.

Perhaps I may illustrate that. The duty extends to any field of activity in the context of disability discrimination. That covers many fields. One must ask whether it would be right to make it mandatory for the commission to be active in every one of those fields at all times, or does the best use of the DRC's time and resources require the exercise of good judgment and discretion? Therefore, I ask the noble Baroness to withdraw the amendment.

I turn now to Amendment No. 4. Of course, the commission should have the ability to offer advice on the practical application of the law—to government agencies, for example, the Health and Safety Executive, and to others—whenever it believes it necessary or sensible in connection with its general duties, with a view to eliminating discrimination or equalising opportunities for disabled people. I can confirm that the Bill allows for it to do so.

Clause 2(3)(a) refers specifically to providing advice and information, but Clause 2(1) provides the terms of the commission's general duties and allows the commission to do anything that it wants, within those general duties—that is, anything that works towards the elimination of discrimination against disabled people and/or equalises opportunities for disabled people in any field of activity. That applies to government agencies also.

I hope that noble Lords are persuaded that Clause 2 allows the commission sufficient powers in this respect and that this amendment is unnecessary. I therefore ask the noble Baroness not to move it.

Baroness Blatch

I am grateful to the Minister for his response. However, I am not entirely satisfied with what has been said. Nevertheless, it is still only "may" encourage good practice regarding the treatment of disabled persons in any field of activity. The noble Lord has not emphasised the duty to do so. The Bill provides only for the commission to do what it wants to do. Given that encouraging good practice will be the commission's predominant task, there should be a requirement on it to do so, rather than the commission having merely a discretionary power, as is provided on the face of the Bill.

I do not mind how that is achieved. The noble Lord, Lord Rix, made a good and practical suggestion. I would support achieving our objective in that way. We shall certainly return to this amendment at the next stage because it is important to press such a duty on the commission.

On Amendment No. 4, I am grateful to the noble Lord, Lord Addington, for specifically asking for us to be guided to the part of the Bill where the Government's intention is made clear. In fact, the Minister guided us to Clause 2(3)(a). There is nothing in that provision which, in a legal sense, gives a duty to advise government agencies. It simply says that there is no limit to the commission's powers and that it can, if it wishes, advise anybody it likes. What I was trying to say is that it should be required and have a duty pressed upon it to advise government agencies as well as government. Why, for example, have a subsection (3)(a) and a subsection (3)(b) if we are not prepared to consider including government agencies? They provide a very large part of public services these days.

I am decidedly dissatisfied with the response given by the noble Lord. I am sorry he cannot be more encouraging in saying that it will be spelt out somewhere on the face of the Bill that "government departments" includes government agencies. I believe the noble Lord, Lord Ashley, too, has put down an amendment referring to government programmes. I feel that agencies should be referred to in a much more specific way. We shall certainly return to this, and I beg leave to withdraw Amendment No. 3.

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved.]

Lord Ashley of Stoke moved Amendment No. 5:

Page 2, line 7, at end insert—

("() The Commission shall have the power to initiate proceedings in its own name or to apply to intervene in proceedings if it believes that an unlawful act has occurred or is about to occur under the 1995 Act.").

The noble Lord said: I beg to move Amendment No. 5. This is very important and I hope it will be given a warm welcome by my noble friend the Minister. It is going to save the Government money, and anything put forward in that respect ought to be welcomed by any Minister.

Basically, this amendment will enable prevention—which, as we know, is far less costly than expensive cures—and as it stands the Bill means that the commission can only assist individuals to bring cases. The CRE and the EOC have greater powers, which enable them to take action under their own name in some circumstances. If the commission could initiate such proceedings and prevent discrimination from occurring, there would be no need for all the paraphernalia of non-discriminatory notices, tribunals, courts and all the rest of it.

My noble friend says that she is anxious not to have too many legal cases and so become too involved and too absorbed in the law. I fully agree; and we all hope that this commission will be constructive. Nevertheless, if we are going to avoid that kind of thing, the sooner we can stop discriminatory action arising the better. In situations where discrimination has been practised, it would be more effective if the commission could act with disabled people as witnesses.

The experience of other commissions has shown that the promotion of equality and the eradication of discrimination cannot be achieved through individual cases alone. The combined strategy of test cases, powers to investigate and provision for action plans is required. Relevant powers should be in place from the start. To take a point I was making a little earlier, if we are able to stop something from happening, it is far better than trying to fix it if it is not broken. A classic example perhaps might be if a bus company decided to build a new bus station that was inaccessible, contrary to the requirements of the Act. The commission should not have to wait for someone to complain to it while the bus station is being built. If it had the power to bring an injunction to stop that building going ahead, we could avoid a very great deal of trouble.

The EOC and CRE have called for the power that we are asking for by means of this amendment to be granted. Experience has indicated very clearly to them that this power is vital to the proper running of a commission and these commissions know from their own experience that it is necessary. I should be very surprised if my noble friend is unable to meet us on this issue. This is one of the most important amendments of this whole batch brought before the committee. If my noble friend is unable to agree, then I am afraid this is something which will be fought very strongly both in your Lordships' Chamber and in the other place. We feel very deeply about this and, given her usual co-operative attitude, I fully expect this amendment to be met with the words, "We accept this amendment without debate".

4.45 p.m.

Lord Swinfen

I support this amendment. Disabled people, as a general rule, are not as wealthy as those who are not disabled and they may well not be able to bring cases on their own behalf because they cannot afford it. With the changes that are being made to the legal aid system, in my view they are going to be even less likely to afford it.

If the commission has the power to bring actions, that power alone will very often be sufficient to persuade those who are being discriminatory to stop their bad practices, and to move them in the right direction. If you do not have a stick you cannot wave it. I am not advocating that people should go round with sticks, waving them or using them, but they are very useful to have in the back of the car on occasions.

Baroness Gould of Potternewton

I should like to support this amendment. I agree very much with the point which the noble Lord, Lord Swinfen, has made. It is a question not only of whether a disabled person can actually afford it but a question of the distress and the very long time that it takes for these cases to be heard in court. There are some very complex cases and I wonder, both in terms of money and of people who have the ability to sit through long cases and those who cannot, whether the Act in itself is not being discriminatory, since it is discriminating between those people who can afford it and those who cannot, and those who have the ability to take a long case and those who have not.

If there are many people involved in a case, why should one name have to be picked out as the person who actually takes that case? I feel that is very wrong indeed. Surely it is just common sense and, as my noble friend Lord Ashley said, much better and more cost-effective for a joint case to be taken. There may also be instances where a case should be taken but the person concerned does not have the ability to take that case, either because he or she has learning disabilities or communication disabilities, and has nobody to look to for support. I feel that this matter really does deserve serious examination.

Nor is the concept new. I remember many years ago being involved in the case of Sikh men who wished to wear turbans in order to travel on Leeds city buses, which is where I was involved. It seemed to me then that it was necessary for them to take a case jointly in order to succeed. They did that and they actually got the law changed. So this is not new and it should be something which we are prepared to accept. As I understand it, the noble and learned Lord the Lord Chancellor is already considering the question of class actions, and if he were to decide in favour of allowing them, provision would still be needed in the Act to allow the commission to proceed. I hope that the Minister will be able to give us an assurance that that is the case and that this will be built into the Act.

Lord Morris of Manchester

This is a deeply important amendment. When your Lordships gave the Bill a Second Reading on 17th December last, I paid warm tribute to Sir Peter Large who, as long ago as 1982, spelt out the case for a disability rights commission in the report of the committee of inquiry he chaired into hurtful discrimination against disabled people. His thoughts have again been most helpful to me in relation to this amendment and others we are debating today. I am most grateful to him, as I am also to Agnes Fletcher of the All-Party Disablement Group, Alun Thomas of the RNIB, Rowena Daw of the RNID and Hadas Altwarg of Scope for all their work on the amendments and the briefing in which they have documented the cases.

Giving the commission power to initiate proceedings in its own name would greatly increase its ability to perform its agreed basic functions, which are set down in Clause 2(1). It might be argued that such powers are unnecessary as the commission is already empowered to undertake formal investigations and issue non-discrimination notices. Some may think that these powers are sufficient. In this respect, Sir Peter Large says in a letter to me: In some instances, however, a formal investigation culminating in a non-discrimination order would constitute a mail order for a sledgehammer to crack a nut". He goes on to say that this would certainly be the result of serving an injunction to stop a company constructing some inaccessible public facility. His fear is that, by the time a non-discrimination order is posted, the facility would be complete and discrimination have become unavoidable.

The use of such a power to initiate proceedings in its own name could be particularly valuable to the commission in the early days of the Disability Discrimination Act when knowledge of its scope, the reasons for it and how discrimination can be avoided are still rare among the public at large. It is interesting to note that both the Equal Opportunities Commission and the Commission for Racial Equality asked for similar powers to those now sought by this amendment. Let us learn from their experiences over many years and provide the disability rights commission with such powers from the start. In my opinion some swift, inexpensive mechanism to prevent wrongdoing would greatly enhance the ability of the commission to fulfill its responsibilities.

That unjustified discrimination against disabled people is still alive and well is clear to everyone who knows the realities of life for disabled people seeking equal opportunities at work. Many noble Lords will have seen the disturbing report today which shows that disabled people emerged as the biggest losers in the Government's performance pay system, which it is hoped to extend to millions of people in the public sector. Only 1 per cent. of disabled staff at the Department of the Environment, Transport and the Regions received a grade "A", which compared with 5.8 per cent. of able bodied employees. That, like so much other evidence, points to the importance of this Bill and the urgency of the need to make it as strong and effective as we can. I know that my noble friend the Minister will again want to respond as helpfully as she can to the debate.

Baroness Darcy de Knayth

The noble Lord, Lord Ashley, said that this was a very important amendment and stressed that we feel most strongly about it. Indeed, I have attached my name to it. I should like to say briefly that I think that it is extremely important. The noble Lord, Lord Ashley, mentioned that it is a useful power because it would enable swift action to be brought to avoid, for example, a bus station being made inaccessible. I have in mind Oxford Station a few years ago, which was made inaccessible and cost a tremendous amount of money. I see the noble Lord, Lord Hunt, nodding his head in agreement. It was a disaster and such a power would perhaps have been most useful at that time. The power will also be useful for bringing test cases to clarify the law. It would also be a cheap and cost-effective way to develop law; and there is a dearth of this in the disability field.

Baroness Blatch

I have one brief question for the Minister. My understanding is that the Lord Chancellor is already considering the whole issue of bringing class actions before the courts. I just wonder what progress that work has achieved. If the noble and learned Lord were to bring forward an amendment to the law specifying that class actions could be brought by organisations, can the Minister say that that would include the commission?

Lord Addington

Most of what I had intended to say has already been said by other speakers. However, I ask the Government to bear in mind one very simple fact. If we managed to insert such a power in the Bill, we could end up saving money and not wasting time. Before I add great eloquent words about carrying a large stick but speaking softly, perhaps I may point out that basically that is all we are asking for. We have got to try to create a situation where people know what the law is. It should not be dependent on someone having to go through the heartache and disturbance of finding himself discriminated against and then having to take legal action.

Surely these are very laudable aims and we should do something to bring them about. If the amendment is not acceptable, perhaps the Government can bring something forward at the next stage. Indeed the noble Baroness, Lady Blatch, just put forward a suggestion which may well be the answer. I hope that the Minister can give us a positive answer.

5 p.m.

Baroness Blackstone

At the outset, I have to emphasise that, while in appearance the amendment seems quite simple and may well save money and lead to some of the other benefits that have been mentioned, it is in fact a very radical and legally complex proposal. In explaining the great difficulties associated with it, I am afraid that I shall have to draw heavily upon the legal advice that I have received. I am sorry that the noble Lord, Lord Renton, is no longer in the Chamber, because I believe that he might well be able to support me in what I am saying. Therefore, I hope that the Committee will forgive me if I set out in some detail the legal points which may seem a little arcane in places. In effect, it means that I have to say to my noble friend Lord Ashley that I shall not be able to agree with him as he requested. It is not that I want to dismiss in any way what I think lies behind the proposal; it is just that it is legally not possible.

First, it seems to me that there is some kind of misunderstanding involved. Contrary to what my noble friend said, neither the Commission for Racial Equality nor the Equal Opportunities Commission has any comparable power to that which the amendment seeks to give to the disability rights commission. The reason they do not, and the reason the Bill as drafted gives the DRC no such power, lies in the way in which our courts necessarily—I emphasise the word "necessarily"—approach litigation of the kind arising under Part II and Part III of the Disability Discrimination Act, and the respect which must be given to the right of the individual disabled person to be able to decide when and if he or she wishes litigation to be initiated which concerns him or her personally.

It is fundamental to proceedings under the Disability Discrimination Act that a person must: first, establish that he or she is entitled to come before the court or tribunal; secondly, establish by evidence that the actions of the other party damages him or her; and, thirdly, establish that the court or tribunal can give some form of relief to alleviate that damage. By giving the DRC an entitlement to initiate proceedings and so come before the court or tribunal, this amendment addresses only the first of those matters. In order to have any effect it would have to address both of the other requirements. I do not point that out merely to make a point about defects in the drafting but much more as a prelude to examining the second and third requirements.

In addressing those requirements the starting point is, of course, that the DRC could never itself establish a cause of action under Part II or Part III of the 1995 Act. Quite simply, the DRC is not itself a disabled person—that, I believe, is fairly obvious—and cannot be discriminated against as such. Rather the intention of the amendment is for the DRC to be able to show by evidence that one or more specific disabled persons have been discriminated against and have suffered damage. Then, the DRC will not ask the court or tribunal to award compensation to itself but rather to award compensation or give other relief to those disabled persons. It would not suffice in such a case for the DRC to ask the court to speculate that some unknown disabled person might have suffered discrimination, nor to try to demonstrate by argument rather than evidence that all disabled persons must of necessity have suffered or be about to suffer damage. To establish that such an unlawful act has occurred or is about to occur under Part II or Part III of the 1995 Act, it is a necessity for the court to be satisfied by evidence that a particular disabled person has suffered unlawful discrimination or will suffer it and has been or will be damaged by it.

That brings me to the main point. If the DRC is able to call before the court or tribunal willing evidence from one or more disabled persons who themselves have a cause of action under the 1995 Act, why can it not do the simple thing; namely, provide assistance to that disabled person to bring his or her own case? That is exactly what the provision in Clause 6(1)(a) of the Bill allows the DRC to do. The only case where the act of discrimination could not be brought before the court or tribunal in that perfectly straightforward way is when the disabled person concerned did not himself or herself want to initiate legal proceedings.

We have to ask whether it can really be right for the DRC—the very body which a disabled person can perhaps most expect to give respect to his or her views and dignity—to be in a position to act in such a way. We have to ask ourselves whether it can be right for the DRC to have the power to initiate proceedings which could end up dragging disabled persons unwillingly before courts or tribunals to give evidence which they themselves do not wish to advance and to have unwanted redress forced upon them.

I must add a secondary point. My comments are addressed only to legal proceedings of the kind referred to in the amendment; that is, proceedings which focus on individual redress for wrongs suffered by particular individuals. I indicated at the outset that neither the CRE nor the EOC enjoy any comparable power to that which the amendment gives. But I stress that both those bodies can perfectly well initiate applications to the High Court when they wish to challenge decisions made by any of the bodies amenable to judicial review where the decisions concerned lie within their proper frame of reference. Likewise, this Bill as drafted allows the DRC to initiate applications for judicial review. It is important that I make it clear that the DRC is able to initiate proceedings of that kind.

But, over and above that, the contrast between the nature of applications for judicial review and the nature of the proceedings addressed by the amendment may assist your Lordships in considering the legal points which I have made. Judical review proceeds on affidavit evidence about matters in which the bodies concerned can and do have direct knowledge and the remedies sought can perfectly well—indeed usually do—have a wide application, benefiting a class rather than an individual. No individual disabled person need be involved in a judicial review; in other words, the same objection as exists to the power given by this amendment does not exist and there is no question of dragging any disabled person unwillingly before the court to deal with matters personal to them.

I turn now to the question of the DRC intervening in litigation. There is nothing in the Bill as drafted which prevents the DRC from making an application to any court whose procedures allow such applications to be entertained. That certainly includes appellate courts such as the Court of Appeal and the Judicial Committee of this House. The Committee may recall that in the recent consideration of Mr. Pinochet's case Amnesty International and later the Government of Chile made successful applications to be heard. It is usually only at the appellate stage, when issues of fact have been decided, that it is possible to see that a question of principle has arisen so as to make representation to the court by a body such as the DRC appropriate. I repeat that the DRC is fully entitled under the powers it is given in this Bill as drafted to make application to be heard in such circumstances. On this point there is no need for the amendment.

Perhaps I may refer to the point raised by my noble friend Lady Gould and the noble Baroness, Lady Blatch, who raised the issue of class actions. This issue is raised in Amendment No. 14 and perhaps we could therefore deal with it when we reach that amendment. My noble friend Lady Gould raised issues that are covered by Clause 6, which allows the DRC to give all the necessary help, financial and otherwise, for bringing cases. If a group of disabled people, rather than a single disabled person, want to bring a case, they can certainly do so as long as they have all suffered the same unlawful discrimination.

I hope that, with that rather long and complicated legal explanation, I have clarified the position. If my noble friend obtains different legal advice between now and Report, perhaps he would let me know.

5 p.m.

Lord Morris of Manchester

Before my noble friend sits down, she said that neither the Equal Opportunities Commission nor the Commission for Racial Equality have the powers sought by this amendment. But am I not right in thinking that, on the basis of their long experience, both bodies have recommended that they should have similar powers to those that we are seeking?

Baroness Blackstone

No, I do not think that that is right. Again there is a confusion here with issues which arise under a later clause. I think we can discuss this matter when we reach Amendment No. 14.

I hope that, in the light of what I have said, my noble friend will feel able to withdraw his amendment. He may, of course, wish to seek further legal advice between now and Report stage.

Lord Swinfen

Before the noble Baroness sits down, so that it is on the official record, will she confirm that the disability rights commission will be able to fund a disabled person in taking an action under the Disability Discrimination Act?

Baroness Blackstone

Yes.

Baroness Darcy De Knayth

Perhaps I may ask a question before the noble Lord decides what to do. I am not an expert in this field, but is it not true that the EOC and the CRE can, in very limited circumstances, initiate proceedings in their own name in the case of discriminatory advertisements and of persistent discriminators? I may be wrong.

Baroness Blackstone

I believe that that is the case, but I do not believe that that matter is covered by this amendment. It raises a different set of issues.

Lord Ashley of Stoke

I am sure that the Committee will agree that my noble friend has done justice to the amendment in taking so much trouble to put forward a very sophisticated and, as she called it, arcane legal argument, as she ought to do. It is clear that her advisers and our advisers differ. Our understanding clearly was that the CRE and the EOC had some of these powers and that they had recommended that these powers should be given in the Bill. We shall find out in the course of the next few weeks before Report who is right. We are taking no bets on it.

My noble friend used some rather far-fetched phrases that I have never heard of when she talked about dragging disabled people before the courts and "unwanted redress". I have never in my life heard the phrase "unwanted redress". Every human being that I know who is hurt or damaged in any way naturally wants redress. What is unwanted redress? What kind of story is the Minister telling us? Is she saying that disabled people by the million say: "No, no, no, we do not want the money, we do not want justice; we want to do nothing". I do not believe it. I believe that disabled people, like anyone else, want fairness and justice. They will get that if the commission has the power to initiate proceedings.

My noble friend said that under the provisions of the Bill the commission will be able to initiate proceedings in certain circumstances. I do not dispute that. We are seeking broader power, that is all.

I find it very difficult to accept my noble friend's general thesis. In terms of legal complexity, she is right. We shall consult our lawyers—whom we do not pay, by the way—and she can consult hers and before Report we shall try to get all these issues clarified. Meanwhile, I am grateful to her for the trouble she has taken. However, I reiterate my point that this is a crucially important amendment for which we have fought strongly. Nevertheless I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ashley of Stoke moved Amendment No. 6:

Page 2, line 7, at end insert—

("( ) The Commission shall have the power to set up regional offices as it deems necessary in pursuance of its duties under this Act.").

The noble Lord said: This amendment seeks to establish regional offices for the commission. A few moments ago my noble friend said that she was not sure where the headquarters would be. That is understandable. However, I think it is wrong to claim—as this Bill does—that it is enough for the commission to be able to decide the matter of regional branches after it is established. I believe that funding is essential here. This issue is so important that it must be decided by Parliament; otherwise, the money will simply not be available.

It is also wrong to assume that everything can be done by letter, fax or telephone. Clearly in some circumstances there is no substitute for personal contact. This is even more the case as regards disabled people than as regards any other group of people. We simply must enable disabled people to obtain the advice, guidance, or any other help they need from the commission in ways that suit them. This measure is also relevant to businesses, especially small businesses.

It is unrealistic to assume that disabled people can go trotting off to London when they need face to face contact with the commission. The mind boggles at the thought of the stress, inconvenience, frustration, annoyance and distress that would be suffered by disabled people struggling to get to London when what they need is to talk directly to a near by informed person.

I recognise that the commission may not be based in London, the Midlands or the North. However, one location will be inadequate. As my noble friend has said, there will be offices in Scotland and in Wales, but what we really need is a regional and local presence to supplement the national one. That is what this amendment seeks. I hope very much that we shall obtain that provision because disabled people, local employers and service providers need a regional or local point of contact staffed by people who know the characteristics of the local environment. Some severely disabled people may need home visits and face to face contact. I believe they should have that. I hope that my noble friend will be sympathetic to this amendment. I beg to move.

Lord Campbell of Croy

I believe it has already been announced that it is proposed the commission should have separate offices in Scotland and Wales. I should be grateful if the Minister will confirm that. There may well be a case for regional offices in England, perhaps in Manchester. The noble Lord, Lord Morris of Manchester, would probably have something to say about that. It may also be found necessary to establish a regional office or two within Scotland because of the great distances involved in Scotland and the wide spread of population. Is it possible for that to be done under the Bill, both in England and in Scotland? If so, would the commission take the decisions with regard to those offices?

It is not widely known that health in Scotland is a completely devolved subject and has been for at least 40 years. I can vouch for that because I was a junior Minister in the Scottish Office 36 years ago. When I was Secretary of State for Scotland early in the 1970s I was responsible for health in Scotland. The Department of Health has no functions in Scotland, although of course it is the lead department and leads on international matters for the UK.

There are two other subjects that have great relevance to disabled people. The departments which deal with those subjects are Great Britain departments and therefore they cover both England and Wales. Those subjects are employment and social security. Those departments have local offices spread throughout Scotland as well as throughout England. I should, of course, mention education which is now combined with employment as one department. That department does not have functions in Scotland because again education has been completely devolved to Scotland for many years, as is the case with health. The proposed office of the commission in Scotland will therefore need to establish good communications with the Scottish presences of these other departments. I, too, would be glad to hear what the Government have in mind concerning the setting up of offices in different parts of Great Britain.

Lord Rix

In supporting this amendment, to which my name is added, I remind the Committee that the noble Lord, Lord Ashley of Stoke, touched on the point that providing regional offices for the disability rights commission would offer great benefits to the business community. I stress that the benefit would be mutual both to service providers and to people with disabilities. The noble Lord, Lord Ashley, stressed the difficulties that people with disabilities experience when travelling to London and the cost of telephone calls to London etcetera. I cannot stress enough the importance for people with learning disabilities of establishing regional offices.

As is mentioned in one of my amendments to Schedule 1, I believe there must be scope for reviewing the constitution of the commission so that the operation of regional offices, or indeed the, option of commissioners overseeing regions, can be formally investigated.

5.15 p.m.

Baroness Gould of Potternewton

I support this amendment. On Second Reading of the Bill my noble friend the Minister indicated—I hope I have interpreted this correctly—that rather than establishing regional offices at this stage consideration might be given to setting up regional seminars and workshops and to commission staff travelling from one site to another. What worries me about that comment is that such provision might be fine once contact has been made, but it is the initial contact that disabled people need to be able to make. They need to know where to go. The place they must go to needs to be accessible. The peripatetic nature of the activities that are proposed will not assist those people who may be unaware that such activity is taking place. I believe that nothing can replace face to face contact and talking through the issues. One cannot do that in the same way in a letter or on the telephone. Even in these days of new technology I do not think one can do that satisfactorily by e-mail. Disabled people need to receive a sympathetic hearing in a sympathetic setting. Therefore I believe it is absolutely essential that regional offices are established.

Baroness Blatch

I have studied the Bill to ascertain the basis for establishing regional offices in Scotland and Wales. I note also that my noble friend Lord Mackay when speaking at Second Reading posed a number of questions in relation to Scotland. He asked whether a reserved power or a devolved power was involved and the degree to which the commission would be accountable to the Scottish Parliament, who would appoint the Scottish members of the commission and so forth. I may be missing something but I did not notice any answers to those questions in the wind-up speech. I do not know whether the noble Baroness has written to my noble friend between Second Reading and today's proceedings and I have not seen the letter. However, it would be helpful to be given answers to those questions. I should like to know the basis on which the regional offices will be established.

If there are powers to establish regional offices in Wales and Scotland, can I assume from that that the commission would have the freedom and the powers to set up regional offices anywhere else in the United Kingdom where it wished to do so? That, of course, raises the thorny question of finance and does not totally tie up with the response the noble Baroness gave to an earlier amendment when she said that she would respond in detail to this issue when responding to this amendment.

Whether the commission sets up outposts around the country, or simply puts some of its work out using the organisations that already exist on the network of organisations concerned with services to disabled people, either way, it will need funding. I come back to the point about the £4 million which the CRE has to fund out-posting of its work, albeit the way in which it started off is slightly different. Nevertheless, if there is to be a delivery of some of these services at a local level, it will need to be funded. That brings us back to the basic question.

There are two issues: first, the particular specific Scottish dimension; and, secondly, if the power is in the Bill, where is it—and does that power subsume the right of the commission to set-up regional and/or area offices anywhere it wishes throughout the United Kingdom?

The Lord Bishop of Bath and Wells

I support this proposal. I am surprised that when noble Lords talk about regions they seem to run out of examples after Wales and Scotland, and maybe Manchester. There are other regions in this kingdom—and if you lived in Norwich, you would not be very grateful for a regional office in Manchester.

Part of the commission's duties relates to the provision of advice for employers, and certainly one of the elements in the legislation relating to regional development authorities concerns social exclusion—the addressing of social regeneration in the regions. Would it not be a good thing if there was a determined effort from the very beginning to ensure that the interests and concerns of disabled people were fully on the agenda in regional developmental authorities?

As the noble Baroness has just said, it is clearly a matter of money. One has to look and ask what will be the most effective deployment of the undoubted limited resources which will be available to pursue this work. We already have plenty of regional structures which are charged with policies relating to social regeneration. Social exclusion is part of their brief, and therefore there is a ready-made vehicle for the intentions of this amendment.

Earl Russell

I support what the noble Lord, Lord Rix, has said about the costs of travel to other parts of the country. Recently I was listening to a member of a working group from the north of England who was complaining that it cost him £150 a time to attend meetings of the group. This is a very considerable sum of money. In the context of the Bill, we are discussing the concept of equality. When you hear people expressing concerns about equality, it is increasingly often a concern for equality between London and the rest of the British Isles. If you look at the situation from north of the Trent or from west of the Tamar, you tend to see London as an over-privileged place. It does not of course seem that way to me, but then "it wouldn't, would it?".

I apologise if my next point was covered in the debate on Amendment No. 1, from which I was unavoidably absent. I think I can script in my sleep the ministerial reply to an amendment of this kind: "This amendment is unnecessary. The Government have the power to do this already. Why is this brought before the House?" On the hypothesis that that is the reply we are likely to get, I would ask the noble Lord this question: when the funding level for the commission was reached, was it intended to be sufficient to fund the setting up of regional offices? If so, on what scale?

Lord Morris of Manchester

I would like to thank my noble friend Lord Burlison, for informing me that the noble Lord, Lord Campbell of Croy, had suggested that I might wish to comment on the proposal that there could be a regional centre in Manchester. I hope very much that there will be. I remind the Committee that the head office of the Equal Opportunities Commission was in Manchester and, by common consent, succeeded extremely well there in its important work. I thank the noble Lord, Lord Campbell, and I hope that the Minister will bear in mind this suggestion when he comes to reply.

Lord Swinfen

I, too, welcome this amendment. I make no apologies whatever for having raised the subject under Amendment No. 1. It has a bearing on the necessary funding for the commission, and the funding of the commission has a bearing on the number of offices it will have.

The noble Baroness has said that there will be an office in Scotland, which is a very large place. I think that there will need to be more than one office, purely to do away with the additional time and costs incurred in travel. Wales could also need more than one office. I understand that if you live in North Wales and need to go down to Cardiff, you have to leave the Principality and go via England, which is quicker and easier. There may well need to be two offices in Wales.

The right reverent Prelate mentioned having an office in Norwich. From some parts of the country it is extremely difficult to get to Norwich. It is also difficult to get to Exeter, Leeds, Newcastle and all sorts of places. In order for the commission to do its job properly, it is absolutely essential that it does not operate from one place; it must have several different offices. I hope that the noble Lord will tell us that the commission will have several offices, and possibly give us an indication of the number. The Government have avoided answering this question; now is the time when an answer would be very helpful.

Lord Hunt of Kings Heath

We have had a good debate on the issue of regional offices, both here and in the discussion on Amendment No. 1. I refer your Lordships to the consideration of the disability rights task force which gave this matter its full consideration and concluded that regional offices did not necessarily offer the best way forward for making services to disabled people as accessible as possible. Nor did they offer best value for money. The task force felt that much in the way of service delivery might be achieved through alternative methods. For example, as my noble friend Lady Gould suggested, the commission could conduct regional seminars or workshops.

As to the suggestion that disabled people might be required to travel to the national office of the commission, one would rather put it the other way round; equally, the commission staff could travel to the client rather than the person being required to come to them.

Any of us who have been involved in national organisations which have regional structures, will know from experience that very often regional offices are not at all accessible, particularly in large regions. Nor must we forget the use that could be made of modern technological methods, which for some disabled people could mean accessing the commission from home.

Having said that, the commission will be free to establish regional offices if it decides in the light of experience that it is appropriate. It is that experience which will be invaluable in deciding not only whether to have regional offices but where they might be located and what resources they should have.

In relation to funding, I must reject any notion that not providing immediately for regional offices can simply be presented as a cost-saving exercise. Value for money is a two sided equation and one that has to be balanced—

5.30 p.m.

Earl Russell

Would I be correct in construing what the Minister has just said as an admission that the budget is not sufficient to cover the costs of regional offices?

Lord Hunt of Kings Heath

No, I do not think the noble Earl can construe that at all. I am talking about the priorities which the commission will have to set for the various tasks that it is being called upon to play. Like any organisation, it has to balance those priorities. In the light of experience it will be better able to make that kind of judgment.

A number of questions were asked about the potential headquarters of the commission. I remind the Committee that at the Second Reading of the Bill my noble friend Lady Blackstone said that the commission will be established with an office in England and also one in Wales and one in Scotland. As regards the office to be placed in England, we are clearly at a very early stage. We cannot be in a position to know where the office will be located.

The noble Baroness, Lady Blatch, asked about the impact of devolution. Equal opportunities are a matter reserved to the Westminster Parliament. The commission will cover Great Britain and the matter will not be devolved to Scotland and Wales post-devolution. Provision has been made by government agreement for one commissioner to be appointed in consultation with Scottish Ministers and one in consultation with the First Secretary for Wales on behalf of the Welsh Assembly. The annual reports of the commission will be provided to the Welsh Assembly and the Scottish Parliament. As I have already said, an office of the commission will be located in both Wales and Scotland.

I was asked about the performance and operation of the offices in relation to racial equality councils. It is worth making the point that these are independent organisations that work locally to support local networks. The distinction with disability is that those networks in relation to disabled people are already in place. The role for the disability rights commission is to work with those networks that are in place and not to replace them.

Perhaps I may conclude my remarks by re-emphasising that the Bill does not constrain the commission in this area. It allows the commission to establish regional offices but I believe that these decisions are best made in the light of experience and in the judgment of the commission.

Baroness Blatch

Can the Minister name some of the organisations to which he is referring when he talks about the network of organisations concerned with disability in local communities? My experience is that organisations such as Scope and MENCAP rely almost entirely on voluntary fundraising, whether it be local fundraising or national fundraising. That is different from the funding of the Commission for Racial Equality at local level, which receives statutory funding both from national government and local government.

Lord Hunt of Kings Heath

In contrast to the position in relation to racial equality issues at the start, we are fortunately blessed with many effective local groups for disabled people. Therefore, an important role for the new commission will be to work with those networks. Such networks were not in place in relation to racial equality issues.

Baroness Blatch

The Minister is missing my point. We are now placing on the commission statutory obligations. If the commission determines to use those organisations which rely at the moment on voluntary contributions, it will, just as the racial equality organisations do, expect to receive statutory funding to meet those statutory obligations.

Lord Hunt of Kings Heath

Many of those local organisations are, in one way or another, in receipt of grants. If the disability rights commission is to be effective, it will need to have in place an effective network in order to communicate with these local groups. What I dispute with the noble Baroness is the case that, necessarily, one needs regional offices to assist that process. That decision is much better taken by the commission when it has had time to establish itself.

Lord Rix

Before the Minister sits down, perhaps I may correct the impression that the majority of MENCAP's local societies, of which there are more than 400 in this country, certainly receive government funding. They may do indirectly—occasionally for projects and there is some European funding—but as a weekly, monthly or annual income, that is certainly not so.

Lord Hunt of Kings Heath

I certainly did not mean to convey the impression that the noble Lord picked up. I was simply making the point that grants and resources from statutory organisations are available to many groups. I would certainly wish to acknowledge the work that many groups do without statutory support. The substantive issue is the role of the commission in ensuring an effective network with these groups and with disabled people locally. The question of whether regional offices can help that process is best left to the commission. It has that power to establish those offices. I think it best if we leave it to the commission to make those decisions.

Lord Rix

Before the Minister sits down, perhaps I may make one final point. I think I speak on behalf of MENCAP even though I am now president and not chairman, when I say that if the Government felt so minded as to fund our MENCAP family adviser service in the regions—it will also cover Scotland, Wales and Northern Ireland—so that we were able to act as, as it were, a conduit for the disability rights commission, I am sure that we would be delighted to receive the money.

Lord Hunt of Kings Heath

I take note of the noble Lord's point but there is no commitment.

Lord Ashley of Stoke

It has been an excellent debate. However, I now find that we are beginning to hurl recommendations of the task force at each other. The score now is two to the Government and one to us. I was able to quote the task force against my noble friend on one occasion. But now it is two to one against us so I think we will call it a draw and not use the task force to support our argument, as we may lose it anyhow.

My noble friend managed to convey some criticism of regional organisations. I accept that there can be things wrong with regions but it is not simply a matter of regional organisations. In these amendments, I was thinking of local organisations as well. The argument that regions cannot be brilliant is not necessarily a good one.

I wish to turn to the argument about networks. My noble friend seems to think that the commission will be able to work with what he calls a network of voluntary organisations—I am sure it can—but the functions are entirely different. What the commission will be doing is very different from what MENCAP and the RNIB are doing. But if he wants them to work together, surely a network can work better with a network. Regional and local organisations will be better able to work with the network of voluntary organisations to which he referred.

We have covered this issue very well in this debate. I am grateful to my noble friend for his words. We may return to this issue on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 2 shall stand part of the Bill?

Baroness Darcy de Knayth

Perhaps I may take this opportunity to focus briefly on the question of access to polling stations, which was mentioned briefly at Second Reading on 17th December, when regrettably I could not be present. I have no wish to delay the progress of the Committee or take away from the general thrust of the amendments. I therefore raise the matter at this point in order to clarify the position.

During the Second Reading debate, the noble Lord, Lord Campbell of Croy, envisaged (at col. 1468) that commissioners might have to decide whether right of access to polling booths should be enforced. He later said that,

nobody would regard it as a right when there is the perfectly good alternative of postal voting". The Minister replied: The Government entirely accept that that is a perfectly good alternative"—[Official Report, 17/12/98; col. 1494.] Yes, it is fine as an alternative—that is, if there is a choice—but it is not acceptable as the only available voting method for a person with a disability. It is segregation on what is a very important day for everyone.

The noble Lord, Lord Campbell of Croy, knew that I should raise this matter. He knows that we disagree about it. He also knows how much I appreciate all that he has accomplished for himself and for disabled people in general, and that he has had a good many more years' experience of living with a disability than I have. What we do agree on is that the commissioners should not have to spend time sorting this matter out. I hope that that will be because we shall move swiftly towards ensuring that polling stations can easily accommodate people with physical, sensory and learning difficulties. The proposal would also accommodate people with arthritis, or those with pushchairs etc. It would apply to the general public.

Many disabled people feel very strongly that they should have the opportunity to vote in person, along with the rest of the community. Scope and RADAR have long campaigned for access to polling stations, and successive governments have been supportive.

I wish to make two main points, the first on polling stations and the second on the postal vote. The vast majority of polling stations are in public buildings—schools, libraries and community centres—which should be accessible to everyone all the year round, not merely on election day. Scope's latest survey, taken in 1997, of over 1,200 polling stations indicated that 92 per cent. were in public buildings.

Postal voters must send off the envelope some days before the election date to be certain of its arrival. Yet politicians campaign right up to the last moment. I do not need to tell your Lordships, who unlike me have parties, that people sometimes take voting decisions extremely late in the day. Noble Lords are aware of how elections have been lost and won during the final days of a campaign. The postal vote may suit those who are very sure in their choice, but it should not be the only method of voting instead of allowing people the choice of taking part with everyone else on the day.

I hope that the Minister will be able to give a strong and encouraging message to electors with disabilities, many of whom feel very strongly about this issue.

Lord Campbell of Croy

The noble Baroness, Lady Darcy de Knayth, kindly gave me notice that she intended to raise this issue as she was unable to be present at Second Reading. I gave this as an example of what might be claimed as a right, but said that I hoped it could be settled locally without it being a matter that the commission had to look into in great depth. There are alternative arrangements. I have always voted by post. At various times over the past 54 years I have been in a wheelchair or on crutches and have decided, even when I was an MP voting in my own constituency where my home is, that the sensible thing was for me to apply well beforehand and be registered as a postal voter.

My concern since then, in the other place and as the Member of the Cabinet responsible for these matters, was to attempt to enable as many people as possible to know about the need to register long beforehand if they were going to have difficulties. I entirely understand some people's preference for being there in person. However, I hope that this matter will not take up much of the commission's time and the money which it is so difficult to produce, as there are so many important areas where discrimination needs to be removed.

Baroness Gould of Potternewton

Perhaps I may intervene briefly. Local authorities receive small grants in order to enable them to make polling stations accessible. The question is whether they ever use those grants. The Scope survey that was referred to indicated that only 6 per cent. of polling stations are fully accessible. That is absolutely disgraceful considering that money is available.

Other matters need to be mentioned which do not cost anything. For instance, within a polling station the polling booth is often too high for wheelchair users. Also, the ballot box is often placed on a table, presumably so that able-bodied people will not have to bend down, but it does not help anyone who is in a wheelchair and cannot reach it.

On the question of the postal vote, I agree with the noble Baroness. It is not an alternative; it should be an available option. The right to vote in person is fundamental. The postal vote is complex. There is a problem over timing and many people find out about it much too late. In addition, an examination is needed of the electoral registration process itself, which is complicated. If political parties want people to be involved in the political process, they should examine the way in which they communicate their policies.

A Home Office committee is examining various aspects of the electoral process. I hope that the commission will be able to ensure that when its work is complete and legislation is passed, which will ultimately happen, all these points are taken into account in that legislation.

Baroness Blackstone

I am grateful to the noble Baroness for raising this issue. The entitlement to vote is at the heart of our democracy. At the same time I wish to reassure the noble Lord, Lord Campbell of Croy, that I do not believe this matter need take up the time of the commission.

It is the case that some disabled people feel effectively almost prevented from exercising their right to vote as they are unable to gain access to a polling station. The Government are committed to helping disabled people to exercise their right to vote and to do so in person if that is their choice. It is important that we should try to make that choice available to as many people as possible. Polling stations are public facilities. They are covered by the goods and services provisions of the Disability Discrimination Act. The decision as to which building to select for a polling station is a matter for the relevant local authority. However, the Home Office provides guidance to returning officers on issues that they ought to consider when making that decision and suggesting how access to a polling station might be assessed.

I confirm the remarks of my noble friend Lady Gould. The Home Office makes substantial grants available to returning officers to help them provide auxiliary aids and services in the form of temporary ramps and accessible polling booths. Further consolidated and enhanced guidance, including advice on national access standards, will be issued to all returning officers shortly. I very much hope that they will take that guidance on board, and indeed my noble friend's remarks.

Noble Lords may also be aware that the Government's working party on electoral procedures has recommended to the Home Secretary the need to introduce legislation proposing changes to provide for the introduction of polling aids for disabled people to assist voting in person at polling stations. The working party will continue to consider the question of access for disabled people to electoral services of all kinds, including the possibility of introducing in the future pilot schemes to test the effect for all electors of alternative electoral procedures. These pilots may include: voting anywhere in an electoral area; mobile polling; early voting; all-postal ballots; and electronic voting. All of those may well have considerable benefits for those electors who are disabled and everyone else.

Clause 2 agreed to.

Clause 3 [Formal investigations]:

Baroness Blatch moved Amendment No.7:

Page 2, line 14, leave out ("decide to").

The noble Baroness said: I rise to advocate the deletion of "decide to". In doing so I hope that I may qualify for a plain English award. My argument is that those words are otiose. If the commission decides to conduct a formal investigation it does not need to decide to do so; it will do it. Therefore, these words are superfluous. I hope that parliamentary counsel will allow the Minister also to agree that they are superfluous. I beg to move.

Baroness Blackstone

Parliamentary counsel has not allowed or advised me to say that this amendment can be accepted. However, I am content to take the amendment away to see whether we can accommodate the suggestion of the noble Baroness.

Baroness Blatch

I am very grateful to the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clause 4 [Non-discrimination notices]:

The Deputy Chairman of Committees (Lord Skelmersdale)

I must advise the Committee that if Amendment No.8 is agreed to I cannot call Amendments Nos. 9 to 11 inclusive.

Baroness Blatch moved Amendment No.8:

Page 2, line 43, leave out from beginning to ("provisions") in line 2 on page 3 and insert ("The notice may include").

The noble Baroness said: I beg to move Amendment No. 8 and speak also to Amendment No.12. I leave others to speak to Amendments Nos. 9 to 11. As drafted, the clause provides that certain items may be included in regulations from the Secretary of State on the content of non-discrimination notices. My amendments aim to bring those items that may be included into the Bill rather than leave them to secondary legislation. The Bill sets out those matters in any case, but leaves them to secondary legislation. Presumably, it is accepted by the Government, if I read it correctly, that these are valid items for inclusion in a non-discrimination notice. In that case, why not include them in the Bill? If one looks at sub-section (4) one sees:

1. "(a) to take steps with a view to avoiding the commission by [the individual] of unlawful acts and to inform the Commission that he has taken such steps;
2. (b) to inform the Commission of any other steps which he needs to take in order to comply with the notice …
3. (c) to give the Commission any other information for the purpose of verifying that the notice has been complied with; and
4. (d) to take steps with a view to making available to other persons any information about the notice or the things [required] to be done".

That is pretty comprehensive and allows almost anything to do with the effective enforcement of the Disability Discrimination Act 1995. I beg to move the amendment.

Lord Ashley of Stoke

I rise to speak to Amendments Nos. 9 to 11. Their purpose is to move the powers that the Secretary of State may give to the commission directly onto the statute rather than by regulation which is the current intention of the Bill. We have rehearsed these arguments in the context of a different amendment. I do not know whether we are going over similar ground. I believe that the value of this commission will be considerably enhanced if it has statutory powers to prescribe changes. This is particularly the case if in addition a timetable is prescribed.

The unfortunate experience of other commissions illustrates this difficulty. A non-discrimination notice issued by the CRE or the EOC cannot prescribe particular changes in practice although both commissions have asked for this power. It may well be that our advisers have reached different conclusions on this matter. I shall be glad to hear from my noble friend if that is the case. If both of these established commissions have asked for this power it is a very significant argument in favour of giving it to this commission. It is notable that the Fair Employment Commission uses these powers to co-operate with business. I emphasise the co-operative aspect.

These powers will be especially important as structural barriers place disabled people at a very big disadvantage. It would be far more effective if the commission specified that a service provider must instal a ramp or, say, an induction loop rather than merely promote general non-discriminatory attitudes within an organisation. Business will find it very helpful if the commission has the power to tell it exactly what should be done to avoid discrimination and to work within the law rather than to wait for a court decision. Given the value of this power to all interested parties it would be very helpful if the Minister could accept the amendment.

Baroness Darcy de Knayth

I agree that these amendments are tremendously important, and I agree with all that the noble Lord has said.

Lord Addington

When it comes to action to help avoid discrimination and to help the disabled this amendment should already have been included in the Bill. It gives power to tell organisations what they should do. This is not guidance and people should not have to struggle with it. If something like this can be included in the Bill we can carry out the age-old task in this House of ensuring that the lawyers do not have another case. This is what we should be about here. If we can do something along these lines it should be done. It may well be that the noble Lord's amendment is not perfect, but I believe I know him well enough by now to appreciate that if he is told that there is a better form of words he will readily accept them. We should put something in the Bill and become proactive. If we merely say, "Thou shalt not", it will take a very long time to establish what thou shalt do. Let us find the most direct and positive way forward in the hope that we can discover what can be done, and do it quickly.

Lord Morris of Manchester

I rise to speak to the amendment in the name of my noble friend Lord Ashley. In the consultation process on the establishment of a disability rights commission the Association of Disabled Professionals made the following comment about regulatory powers:

We think that the principal Act setting up the DRC should be as flexible as possible to allow changes in the future to be made easily in the light of experience. We suggest that this could best be achieved by means of powers in the principal Act to make and amend regulations covering all the various issues that are as yet not entirely clear or on which future changes may be desirable". Clearly, because they are so precisely worded, the reason for placing these important—indeed essential—features of non-discrimination notices in regulation-making powers cannot be to provide this flexibility. Why are these important provisions left to the whim of the Secretary of State? Why are they not covered by the constructively decisive "shall" of subsection (2) rather than the worryingly woolly "may" of subsection (3)? It seems to me to be of the first importance to have these provisions in non-discrimination notices. Without them the value of a non-discrimination notice would be less and the work of the commission made more arduous and costly.

If, then, these provisions are required, as the careful drafters of this Bill appear to concede they are in so precisely wording them and calling for them to be included, why should they have to await the Secretary of State's decision on other possible requirements that could be included in non-discrimination notices? It is crucially important to establish time limits by which someone served with a non-discrimination notice is required to act. Without any such time limits one can foresee procrastinators having the time of their lives emasculating the powers of the commission and devaluing the purpose of a non-discrimination notice. Such procrastination could easily add unnecessarily to the costs of the commission.

To some extent I can understand why the setting of times within which the requirements of a non-discrimination notice have to be met has been left to regulations. Arguments about legislative flexibility apply here. Not all the requirements have been set down and what may be reasonable time limits for different requirements have not yet been determined. However, I cannot possibly understand why this crucially important issue of time limits has been left so vaguely within the powers of the Secretary of State. He or she may make regulations which may specify the time within which some requirement must be met. It is merely a "may" and another "may". Could anything be more unsatisfactorily vague?

6 p.m.

Earl Russell

The noble Lord, Lord Morris of Manchester, has touched a chord with us all with his invocation of the phrase "a worryingly woolly may". But that, like all our views here, is a parliamentary view. If we consider the issue from the other side of the net, the word "may" is all too delightfully precise. The purpose of parliamentary legislation is to tie the hands of the Executive. The purpose of the Executive, regardless of party, is to untie its hands. So as soon as the word "may" appears in a statute, the Executive has untied its hands to that extent. That is why I say that from that point of view it is all too delightfully precise.

I am sure the Minister will reply that all these amendments are unnecessary. Executives love saying that amendments are unnecessary. The Minister will point to the word "may" and say that the whole thing can be done by regulation. Yes, exactly. But the disadvantage of doing something by regulation is that it cannot be amended. In extreme circumstances it can be voted down, but it cannot be amended, and voting down is an extremely blunt instrument. So the wealth of experience in this Chamber—it is very considerable—cannot be brought to bear on the wording of a regulation. The Executive may do whatever it likes.

The Executive reply—I have heard it so many times that I could script it in my sleep—will be that it gives flexibility, that it makes the provision easier to change if it finds that it has made a mistake. On that argument it is perfectly correct. But the Executive's flexibility is our inflexibility. Because the Executive can change when it finds it has made a mistake, we can do nothing when we find there is a mistake.

That seems a slightly one-sided arrangement. I understand why it commends itself to Ministers, but is that a good reason why it should commend itself to the rest of us?

Baroness Blackstone

I welcome the amendments as they demonstrate agreement between us that the arguments for extending the scope of non-discrimination notices issued by the disability rights commission are strong. I think on that there can be no disagreement between us. Our differences arise on whether the detail of how that might be best achieved should be on the face of the Bill or in regulations.

The Bill makes provision for the disability rights commission to issue a non-discrimination notice when it becomes satisfied in the course of a formal investigation that a person is committing, or has committed, an act of unlawful discrimination. The notice allows the commission to state that it has found the person concerned to have committed, or to be committing, an act of unlawful discrimination and requires the person to stop discriminating and acting the same way in future. I am sure noble Lords will agree that, where the commission has found a person to be discriminating, it should be able to issue a notice to that person which would be enforceable requiring him to stop discriminating. That underlies what all noble Lords who spoke in the debate said.

The purpose of the amendments is to specify on the face of the Bill the ability of the disability rights commission, in addition, to prescribe in a non-discrimination notice particular changes in practice that it considers are required to avoid unlawful acts. I can confirm what my noble friend Lord Ashley said. This proposal emanates from the reviews by the Equal Opportunities Commission and the Commission for Racial Equality of their establishing legislation. In that context, perhaps I should say that I may have misled my noble friend Lord Morris of Manchester earlier. The CRE and the EOC have asked in their review to be able to initiate proceedings. But that raises the complicated legal issues which I mentioned earlier.

This proposal was considered by the disability rights task force. The task force was keen to ensure that the non-discrimination stage of the formal investigation process should be made as effective as possible. There was concern that prescription in all the areas that the amendments would cover may not be the best way forward. In particular there were concerns that the proposal may allow the disability rights commission to impose a particular way of addressing an issue which has led to discrimination when there might be other ways of addressing them than those prescribed. The Disability Discrimination Act is relatively new and more complex than other anti-discrimination legislation. There is no well-established body of accepted practice upon which the disability rights commission could draw in framing the requirements on employers and service providers. There was concern, too, that a very high level of understanding as to the way businesses operate is required in order to determine exactly what might be practical in a particular situation. The task force recommended that the issue should be considered in the light of the outcome of the reviews of the existing equality commissions.

The Bill makes provision for the Secretary of State to be able to make regulations extending the scope of a non-discrimination notice and to make related provisions. I noted what the noble Earl said on that, but I wish to reassure him that, were the Government not to accept the amendment, regulations would be made. The regulation-making power would allow a degree of flexibility so as to ensure that a consistent approach is taken for each equality commission where this is appropriate and allow the detail of the administrative arrangements to be specified and modified in the light of experience. However, in the light of the strong views expressed today I should be happy to consider the issue again at Report stage.

Baroness Blatch

In the light of the promise that the Minister will consider the issue between now and Report stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos.9 to 12 not moved.]

Clause 4 agreed to.

Clause 5 [Agreements in lieu of enforcement action]:

Baroness Blatch moved Amendment No.13:

Page 3, line 34, at beginning insert ("to suspend or").

The noble Baroness said: The purpose of the amendment is to tease out whether an agreement of the kind referred to is intended always to replace an investigation. As soon as an agreement has been entered into does a case fall? Alternatively, in some circumstances the commission might enter into an agreement, having suspended the investigation but with the proviso that it might return to the investigation. It appears that once an agreement has been entered into the only action is recourse to the court if the terms of the agreement are not met. If the commission had the power to return to an investigation, that might provide another tool to its armoury.

It is possible that some people might object to the measure in that it might lead to a further delay and a court action, but it would provide another course of action for the commission. My proposal to insert the words "to suspend or" will reinforce the commission's armoury in cases where notice has been given and an unsatisfactory attempt at suspension has been applied. It will enable a case to be kept out of court for as long as possible; in other words, living up to my constant theme of using recourse to the court as a last resort. I beg to move.

Lord Renton

Clause 5 is an unusual provision. I do not remember seeing anything like it previously. I believe that it will be difficult to administer. Instead of coming to the rescue of people whose disability rights have been infringed, there may be a compromise agreement. That is most unusual. I believe that my noble friend's amendment is commendable because it enables the commission either to suspend the investigation or to take no further steps in investigating the unlawful acts.

We must be very careful about granting such an unusual power to the commission. I believe that my noble friend's amendment gives a desirable flexibility.

Baroness Darcy De Knayth

I support the amendment.

Lord Hunt of Kings Heath

I hope that I can set noble Lords' concerns at rest. The amendment seeks to allow a formal investigation to be stopped if the disability rights commission and a person being investigated agree to enter into a written agreement. It may be helpful if I briefly explain the background to this provision and how it is intended that it should operate.

If the disability rights commission has reason to believe that a person has committed or is committing an unlawful act and decides to conduct an investigation, Clause 5 gives it the power to stop the investigation and enter into a written agreement with that person. By entering into a written agreement, the person whose actions were under investigation will agree to abide by the requirements set out in the statutory agreement. These requirements must be within the scope of those which could be specified in a non-discrimination notice.

The Equal Opportunities Commission and the Commission for Racial Equality have both made use of written agreements informally and consider them a valuable tool in the formal investigation process. Indeed, there are a number of advantages to this approach. In contrast to non-discrimination notices, they could be arrived at relatively quickly; they are likely to be less confrontational than non-discrimination notices and more effective in encouraging employers and service providers to tackle discrimination in a positive manner; and they could limit the need for lengthy and expensive formal investigations. I would like to reassure noble Lords that there will be no requirement to enter into a written agreement—it will be voluntary for both parties.

I noted with interest the point made by the noble Lord, Lord Renton, about the potential compromise character of those agreements. I would prefer to write to him about that.

Compliance with a written agreement would be enforceable by the commission through the courts. However, it is open to the parties to agree, when deciding the terms of a written agreement, that a breach of the agreement should result in the formal investigation being re-opened. This is one of a range of possible steps allowed by the provision as drafted. Specifying that a formal investigation should be suspended as one of the alternatives neither adds nor subtracts anything and I hope that the noble Baroness, Lady Blatch, will feel able to withdraw her amendment.

6.15 p.m.

Baroness Blatch

The Minister rightly said that entering into an agreement is a voluntary activity on the part of both parties. However, a sword of Damocles hangs over the party being taken to task by the commission because if he does not enter into an agreement the investigation proceeds. I wished to put in place a degree of flexibility and I am grateful to my noble friend Lord Renton for his support. I propose that where there is an attempt to conform, and for one reason or another either wittingly or unwittingly it does not conform, the investigation can be suspended but if necessary proceeded with at a later stage. I am not sure whether the Minister is saying that all that I want from my amendment is subsumed and assumed in the Bill, or that my amendment is not necessary, in which case I would disagree with him.

Lord Hunt of Kings Heath

I believe that I made it clear that it is open to the parties when deciding the terms of a written agreement that a breach should result in a formal investigation being re-opened. That seemed to meet the point raised by the noble Baroness.

Baroness Blatch

If once an agreement has been entered into voluntarily by both parties the only action which can be taken is to the court if the terms of the agreement are not met. My argument for allowing a suspension to be one more tool in the armoury of the commission is to postpone going to court by reinstating the investigation. The agreement could then be modified and re-agreed, which would keep the case out of court, because the breach may have been the result of a misunderstanding. My amendment allows a little more flexibility.

Lord Hunt of Kings Heath

The provision as drafted allows a range of possible steps to be agreed, including simple suspension. That would allow the revival of a formal investigation, but it would also allow the investigation to be brought to an end. Specifying one of the various alternatives neither adds to nor subtracts from the clause.

Baroness Blatch

I wish to read more carefully what the Minister has said and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 5 shall stand part of the Bill?

Lord Renton

I have not given notice, but I wish to raise a short, general point. I am very much afraid that the clause will give rise to considerable difficulties. I believe that it will be open to anyone who feels aggrieved to take the matter to court—it would have to be to the High Court—in order to have the application of the clause put right or to seek an injunction for the annulment of any unsatisfactory agreement.

I do not expect an answer from the Minister today, but I would ask him to bear the matter in mind. I hope that between now and the Report stage the Government will reconsider the clause. I believe that it will give rise to litigation and to practical difficulties, and will occasionally result in injustice, the rectification of which will be delayed for some months. It is a difficult matter and I hope that the Government will give it careful thought.

Lord Hunt of Kings Heath

I am grateful to the noble Lord, Lord Renton. As he requested, we shall consider the points he raised alongside the earlier point in relation to the character of the agreement.

Clause 5 agreed to.

Clause 6 [Assistance in relation to proceedings]:

Lord Rix moved Amendment No.14:

Page 4, line 27, after ("individual") insert ("or organisation representing groups of individuals").

The noble Lord said: In moving Amendment No. 14, I shall speak briefly also to Amendments Nos.16 and 17.

A number of references have been made this afternoon to class actions, but I hazard a guess that this amendment may not be strictly appropriate until the outcome of the Lord Chancellor's Department's investigation into their feasibility. Nevertheless, it is important to look towards the introduction of group representation under the Disability Discrimination Act because it may prove to be particularly effective in supporting groups of excluded, vulnerable people who are lacking individual support. It is evident that there will be circumstances in which the commission would wish to bring class actions to protect against institutional discrimination and that should be made clear on the face of the Bill.

In relation to Amendment No. 16, the Government rightly recognise that the commission will need to provide assistance to individuals in relation to proceedings on the grounds that the applicants may be unable to deal with their cases unaided. It is an important measure in the Bill and will ensure that people with learning disabilities are given practical help and support to redress their grievances under the law—something which many other people take for granted.

I should like to draw one rather obvious point to the Committee's attention: that is, that it is highly unlikely that a person with a learning disability will approach the commission independently for help in relation to proceedings. That means that a supporter, a relative or carer may be involved very early on and continue to be involved right through the person's experience with the commission—assisting in new situations, helping the individual to handle detailed documents or helping the individual to communicate effectively. For that reason I wish to add to the list of forms of assistance that the commission may provide. I believe that support, including financial support, should be provided or arranged for an applicant's relatives or carers because those people may be put to a lot of time and effort supporting the person who has been discriminated against. Amendment No. 16 clearly covers that point.

Finally, Amendment No. 17 concerns a minor point, but one that may have a bearing on assistance available to individuals in relation to proceedings. If the commission itself cannot provide assistance which it deems appropriate, then it ought to be able to arrange for that assistance to be provided by somebody else. The focus here should be on what helps the individual, not on forcing the commission to be an expert on providing support for every eventuality. I beg to move.

Lord Renton

I strongly support the amendment moved by the noble Lord, Lord Rix. Here we are trying to protect people who are essentially vulnerable. I am thinking not only of those who are represented by MENCAP—perhaps I may say in passing, as the father of a daughter who is severely handicapped both physically and mentally, that the expression "learning disabilities" is an unfortunate, limited and unrealistic one—but of any organisation which can help the person or the group of people involved. They should have the opportunity of representing disabled people under Clause 6.

MENCAP is one of our largest charities, but there are many others; for instance, the British Legion. I am sure the Committee will agree that nearly every human ailment now has a charity or pressure group to represent and support it. It would be most unfortunate if, in the administration of this Bill, those charities and pressure groups were not given the opportunity of helping vulnerable people.

Lord Addington

I too support this group of amendments. The noble Lord, Lord Rix, has brought forward the reality of the situation; that is, that support staff will be involved with any action under the Bill. That must be recognised and brought within the scope of the Bill.

There will always be pressure groups helping the vulnerable in the field of disability. They may not always have been legally recognised, but we all knew that they were there. Indeed, many such organisations will have helped to draw up these amendments. That is the reality and I suggest that by squaring up to that reality and accepting these amendments we will be doing ourselves a great favour.

Baroness Pitkeathley

I wish to speak briefly, though strongly in support of Amendment No. 14. The disability rights commission represents a huge step forward for people with disabilities, their support organisations and families. It is vital that we make it work as well as we can. That means making it as relevant and accessible as possible to as many people as possible. For many people access to the functions of the commission will be dependent on whether or not support can be provided to their relatives, carers or an organisation in the form of expenses, access to papers and extra time. I hope that the Government will be able to accept these amendments.

Earl Russell

As my noble friend said, Amendment No. 14 recognises the reality of the situation. When we were discussing the Human Rights Bill we came to exactly the same point of issue. The Minister may remember—if not, the noble Lord, Lord Renton, certainly will—that my noble friend Lord Lester of Herne Hill raised exactly the same point about the definition of "victim" in the Human Rights Bill. So we are faced here with the same failure to make a good design, which we welcome, effective and fully complete on exactly the same point in both Bills.

People outside, even if not people here, are bound to ask whether that is a coincidence. If the Government do not accept the amendment, they may risk giving the impression which I am sure they do not intend that their sympathy with campaigning organisations is a little less than total. I am sure that they do not want to do that so perhaps they will accept the amendment.

Baroness Blatch

I rise simply to reiterate my question raised on an earlier amendment which was deferred till now: that is, my understanding is that the Lord Chancellor is working on this issue. If class actions were to be agreed and the law modified, would it be intended to extend the power to the commission just as it would presumably apply to other organisations such as the EOC and CRE?

The Lord Bishop of Ely

I want to support the noble Lord, Lord Rix, in his amendment and add to the point he has already made on behalf of those who suffer from learning disabilities. These amendments are extremely important, especially Amendment No. 16, for those who suffer from problems of mental ill health. Everything that the noble Lord said in relation to those with learning difficulties applies a fortiori to this other group and therefore I support Amendment No. 14.

Lord Swinfen

My name is to this group of amendments and obviously I want to support them. Civil rights can only be individual rights, but sometimes it needs groups of people to support individuals in their effort to gain and keep those rights. These amendments will help that. It may be an advance in the law towards class actions. It is possible that some would consider that premature but sometimes we have to take the first step. This is possibly that necessary first step. We should put something of this kind into the Bill, even if the wording is slightly different.

6.30 p.m.

Baroness Blackstone

Everyone agrees that the Disability Rights Commission will have a key role to play in assisting individuals to secure their rights. The effect of Amendment No. 14 would be to allow the commission to back legal proceedings in which the applicant was a pressure group, not a particular disabled person or a group of particular disabled persons.

The only proceedings that a pressure group can presently institute on behalf of disabled people is an application for judicial review. Under the general law, the commission could perfectly well decide to take any part it sees fit in such proceedings where it considers that to do so helps it to fulfill its general duties. It could join with another pressure group to institute such proceedings, give evidence in such proceedings or agree to fund such proceedings in which it is taking no other part.

As the law stands, a pressure group cannot bring a representative, or class action on behalf of a group of disabled people because such proceedings are, as yet, unknown to our law. Like the noble Lords, Lord Rix, Lord Swinfen, and Lord Addington and the noble Baroness, Lady Darcy de Knayth, I see some merit in representative actions—to be able to resolve, through one action, a matter involving a number of disabled people against, perhaps, a single employer or service provider. However, while I have some concerns about eroding the principle that the commission should be there to assist individuals who have experienced discrimination rather than groups who represent them, that is not my main concern about the amendment.

My noble and learned friend the Lord Chancellor is presently considering the issue of representative actions in a much wider context. This is a fundamental issue of law and one which therefore raises some significant and complex issues. I understand that a consultation paper is expected to be published later this year.

As regards the ability of the disability rights commission to take representative actions, we have already made clear our intentions on this matter in our White Paper, which set out proposals for the establishment of the commission. That made clear that, subject to the outcome of the Lord Chancellor's consultation, the commission should be able to bring representative actions in the same way as other bodies to which a new right to bring such actions may extend. That reflects also the recommendations of the Disability Rights Task Force, who considered the matter carefully. Responses to the White Paper also indicated that this proposal attracted considerable support.

To sum up, the amendment relates to an issue that is part of a wider legal review and it is important not to pre-empt that review. We must allow proper, detailed consideration of what is a complex matter, and one that goes well beyond the confines of the Bill. In view of that, I hope that those who put their names to the amendment will withdraw it.

Amendments Nos. 16 and 17 relate to the range of assistance that the commission might provide. Amendment No. 16 seeks to allow the commission to provide or arrange support for relatives and carers of disabled people whom it is assisting in relation to proceedings. I recognise that there may be instances where it is appropriate to provide or arrange support for relatives or carers of disabled people—for example, when the disabled person needs their help to make his or her case. The Bill makes provision for the commission to provide any other assistance which it thinks appropriate". I hope that the noble Lord, Lord Rix, will not press his amendment.

Amendment No. 17 seeks to make provision for the commission to be able to arrange for any other assistance that it thinks appropriate in relation to assisting individuals as well as providing it itself. I recognise that there will be cases where the method adopted by the commission in the course of providing assistance will be by way of arranging that the particular assistance needed is given by others. The Bill contains a general provision for the DRC to provide any other assistance that it thinks appropriate, but I agree that the wording suggested by the amendment may be clearer. I am happy to concede that point.

This has been an interesting debate and I hope that I have provided sufficient reassurance as to our intentions in relation to assisting individuals and the class action issues raised earlier.

Lord Rix rose—

Lord Renton

Before the noble Lord, Lord Rix, replies, I feel obliged to mention to the. Minister that Amendment No. 14 offers a short, simple solution to a practical problem that is bound to arise as soon as the Bill comes into force. Of course there can be a wider inquiry into all kinds of legal and judicial matters by the Lord Chancellor but that does not dispel the need for an amendment on these lines. Would there be a solution in time for it to be implemented in the Bill by Report stage in your Lordships' House? Failing that, when the Bill goes to another place, could the solution be implemented there? Or would that happen some months after Royal Assent? If that is the position, it is unacceptable.

Earl Russell

In thanking the Minister for her reply, I ask her to go a little further. I ask her for a small undertaking that I hope will not be too much to give. Could she draw this debate—and in particular the remarks made just now by the noble Lord, Lord Renton—to the attention of the noble and learned Lord the Lord Chancellor?

Lord Hamilton of Dalzell

The noble Baroness may already have answered this question but I would like her to make something clear. We are all totally persuaded by the arguments of my noble friend Lord Renton and of the noble Lord, Lord Rix, that there will be people who require the support of organisations. I thought that I caught an inkling of a suggestion that the Minister would not be so enthusiastic about a lobby that chose somebody who happened in a predicament to pursue a cause in the interests of that particular lobby. While one cannot help being totally in favour of the one, at the same time one is introducing the possibility of the other.

Lord Swinfen

The Minister said that the matter is already being considered by the Lord Chancellor. Am I right in thinking that if Parliament wills it, it will be done; that Parliament is paramount; and that if both Houses agree on the matter, it will become law?

Baroness Blackstone

I shall be extremely happy to draw this debate to the attention of my noble and learned friend the Lord Chancellor. It is right and proper that I do so. However, we are in some danger of getting ourselves into a legal quagmire, by pre-empting something being considered and where there is a larger issue of representative class actions. I am advised that such proceedings are as yet unknown in our law and that we need to consider the matter in a fundamental way. It is a complex issue. The right thing will be for me to draw this debate to the attention of my noble and learned friend, then we can return to it at the next stage.

Lord Rix rose—

Baroness Blatch

I am sorry to continue to prevent the noble Lord, Lord Rix, from coming in. Can the noble Baroness give us a ballpark figure as to when the Lord Chancellor will come to a conclusion on this matter? The question posed by my noble friend Lord Renton is a very real one. There are two issues. First, there is the general issue as to whether a power should be taken for class representation in such cases. The second issue is whether the case for class representation stands alone in its own right and on its own merits. I believe that the Committee would like to take that into consideration if it knew, in advance, that it was unlikely that the Lord Chancellor would come to a conclusion either in time for it to be considered in this place or in another place.

Baroness Blackstone

I am sorry; I had meant to reply to that point earlier. I forgot that it had been asked by the noble Lord, Lord Renton. Regrettably, there will not be a conclusion to this matter before the Bill has gone through both this House and another place because the Lord Chancellor intends to consult widely about what I believe is a fairly major and complex change to our legal system. It would be wrong to introduce such a change without proper consultation with many different parties. I regret that I cannot give the reassurance for which I was asked that this matter will be dealt with before the Bill receives Royal Assent.

Lord Rix

In that case, does not that underline the comments made by the noble Lord, Lord Renton, and to a lesser extent the noble Baroness, Lady Blatch, in as much as the Bill could be on the statute book when the Lord Chancellor brings forth the conclusions of the review and then it will be too late to include such a provision on what will then be an Act? It seems that practically every Member of the Committee is on the side of this amendment or a form of this amendment. I cannot believe that it can be delayed until such time as the Lord Chancellor's Department comes forward with conclusions on class actions. Could the Minister give me an answer?

Baroness Blackstone

As I said earlier, this is a matter for consultation with the Lord Chancellor. I have already agreed to that. I can write to the noble Lord, and others who have taken part in the debate, to give him the answer, if that would be helpful.

Lord Swinfen

Before the noble Baroness sits down, will the Government consider including such a measure in the Bill, but bringing it into effect at a later date, possibly by order? There is a provision allowing various clauses of Bills to come into effect at varying times. Perhaps that is a way forward.

Baroness Blackstone

Yet again, I think that it is right for me to consult on this before giving a clear answer.

I have just been handed a note which says that if the outcome of the Lord Chancellor's review is legislation, the necessary consequential amendments will be made, including to this legislation. I was going to say that it is never too late to amend an Act of this sort. The outcome of the consultations will probably require legislation and all existing Acts that need to be amended can be amended by that legislation.

Lord Rix

With that assurance, I shall seek leave to withdraw Amendment No. 14. However, I have two final questions before the Minister sits down. Am I to understand that the wording in Clause 6(3)(d), provide any other assistance which it thinks appropriate", will cover a range of support for advocates, relatives and carers? Am I also to understand that my Amendment No. 17, which seeks after the word "provide" to insert "or arrange", has been accepted? If the Minister can give me those assurances, I shall withdraw Amendment No. 14.

Baroness Blackstone

Yes, I can give that assurance to the noble Lord.

Lord Rix

With that assurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 15 to 17 not moved.]

Clause 6 agreed to.

Clause 7 agreed to.

Clause 8 [Codes of practice]:

6.45 p.m.

Baroness Blatch moved Amendment No. 18:

Page 6, line 21, at end insert— ("(5A) A written statement under subsection (5) may include proposals for changes to the code. (5B) Where the Secretary of State has proposed changes to the code under subsection (5A), the Commission may undertake further consultation as it considers appropriate on the proposals from the Secretary of State.").

The noble Baroness said: I can be relatively brief in speaking to Amendments Nos. 18 and 19. The Bill enables the Secretary of State to refuse to approve a code of practice and to give his reasons, but not to provide proposed changes. I am introducing into the Bill flexibility for the Secretary of State to do just that: to propose changes and to enable the commission to consult on any such changes.

My second amendment allows for the affirmative resolution to be used, should an order be made under subsection (6)(c). I believe that it would be appropriate to seek the approval of both Houses in such circumstances. I beg to move.

Lord Hunt of Kings Heath

The provisions in the Bill for the disability rights commission to produce codes of practice are very similar to the arrangements for similar bodies. However, they have been updated in the light of experience to ensure that changes to draft codes on which the Secretary of State and the disability rights commission agree can be made speedily and would not involve a bureaucratic process. Therefore, I hope it would be a rare occasion that the Secretary of State would need to refuse to approve a code of practice.

However, turning specifically to the first amendment tabled by the noble Baroness, Lady Blatch, this seeks to give the Secretary of State the power to propose changes to draft codes of practice which he is unable to accept for any reason and then to allow the commission to consult further on his proposals. Far from having any argument with the purpose of this amendment, the present provisions of the Bill already allow both processes to take place. They would allow the Secretary of State to explain how the code might be improved. Similarly, if the commission felt that any of the Secretary of State's proposed changes significantly altered the code, there would be nothing to prevent the commission consulting further on it. I hope that that has allowed clarification. I hope that it has also persuaded noble Lords that such a provision as suggested is unnecessary on the face of the Bill.

On the second amendment tabled by the noble Baroness, Lady Blatch, I recognise that there may be circumstances relating to the revocation of a code of practice about which Parliament might well have views because it would indeed be unusual for a code to be revoked rather than revised and reissued.

It is for this reason that orders revoking codes of practice will be subject to the negative resolution procedure and, as such, a copy of the order will be laid before Parliament and Members of both Houses will be free to request a debate if they so wish. This is in line with the advice of the Select Committee on Delegated Powers and Deregulation. It has given consideration to the appropriateness of the regulation-making powers in the Bill and has made no comment. In the light of that, I hope the noble Baroness, Lady Blatch, will withdraw her amendment.

Baroness Blatch

I am grateful to the Minister for his reply to my first amendment. I shall read carefully what he said, but I assume that everything that I sought to achieve by Amendment No. 18 is subsumed in the Bill and that, therefore, my amendment is surplus to requirements.

On the point about the affirmative resolution, that is an old argument that I had put to me many times when I sat on that side of the House. I am afraid that I used to do battle in my department on behalf of those who argued for the use of the affirmative resolution. The argument was that it takes up valuable parliamentary time. However, there is a powerful argument for the affirmative resolution procedure to be used automatically and not to wait for people to pray against a regulation when it comes before the House. I am sorry to say that I have to put the noble Lord the Minister on notice that I will return to my plea at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 19 not moved.]

Clause 8 agreed to.

Clause 9 agreed to.

Clause 10 [Procedure for amending s.7(1) of the 1995 Act]:

Lord Ashley of Stoke moved Amendment No. 20:

Page 8, leave out lines 9 to 17 and insert—

1. ("(a) such organisations representing employers as he considers appropriate;
2. (b) such organisations representing disabled persons as he considers appropriate; and
3. (c) once it has been established, the Disability Rights Commission.

(4) A consultation under subsection (3) shall be commenced on or before 1st January 2000.

(5) In the event that the Secretary of State decides to make an order under subsection (2) the order shall be made within six months of the completion of the consultation process under subsection (3)."").

The noble Lord said: I beg to move Amendment No. 20. The trouble with Clause 10 is that, as it stands, there would have to be some very considerable time to elapse before the Government could change the small employer exemption in the Disability Discrimination Act, because we would have to await the establishment of this commission, and the long wait is both unnecessary and undesirable.

Your Lordships will recall that the Government lowered the exemption from that Act from firms with 20 or fewer workers to firms with 15 or fewer. To the uninitiated this sounds impressive, but the reality is very different. The fact is that the Government bought a pup. The Government have accepted the view of the Small Employers' Federation. This is a crazy view; that by including more small firms within the scope of this Act the Government would impose unreasonable burdens on them. Well fancy that!

The Disability Discrimination Act says specifically that employers are required to do all that is "reasonable" to avoid discrimination. What is "reasonable" will vary with the size and the resources of an employer and so I suggest that it is impossible to impose "unreasonable" burdens on a small employer because of the provisions of the Act. Even the most cunning and sophisticated barrister could bamboozle a court into believing that the provisions of an Act containing the word "reasonable" could be defined as "unreasonable", but Ministers accepted that.

Naturally, business will oppose any change with a potential cost implication, but I believe that Parliament must take a wider view. The benefits need to be pointed out of associating with disabled people and being able to provide them with goods and services. The Government's reasons for wanting a staged approach for lowering the exemption are, I believe, feeble. What is required now is an early review and a ministerial change of mind.

All that we are asking is that there should be an early movement on bringing more small firms into the Disability Discrimination Act, and asking for no discrimination against disabled people. That is all we are asking for—by law, that no unreasonable burdens be placed on them. What more could one ask for? How much more reasonable could one be with an amendment of this kind? I beg to move.

Lord Addington

Very simply, I agree totally with the noble Lord, Lord Ashley, and it comes as no surprise to me, because when we were originally dealing with the Bill I fought for a clause to be withdrawn. The Labour Party followed me into the Division Lobby, and I believe they provided the tellers for it.

The argument does not seem to have changed dramatically since then. If something is unreasonable, I suggest that means that it is unreasonable no matter what the size of the firm may be. The noble Lord, Lord Ashley, put it most clearly, and I support him. If we are going to get into the position where you can draw an arbitrary line and say that for some reason this arbitrary line applies now and it does not matter about the reasonableness of the case, you are actually throwing out the main protection that employers have in the whole Bill, in theory anyway.

There is the idea that it is not reasonable to do it in this case because of the nature of the work, or because the work cannot be done efficiently or that it will be damaging to the employer, in which case they will not be able to carry on their business. That is all we are asking here: that this very strong safeguard to the employer is kept in place and this arbitrary line thrown away. That is all it is.

Lord Morris of Manchester

Time is now at a premium and I will be brief. The aim of my noble friend's amendment is to speed up the process by which small employers are brought within the DDA. The Government committed themselves to reviewing the current threshold of 15 employees with a view to a phased reduction, but they have set no time when this should occur. It is the unanimous view of disability organisations in the last review that the threshold should be reduced to two employees.

Far too much emphasis has been placed on the difficulties that employers with fewer than 15 employees have to face in employing disabled people. So I am delighted to know that the conference to be held soon by RADAR, the Royal Association for Disability and Rehabilitation, will offer specific advice to such employers. In particular, detailed guidance will be given on the kind of "reasonable adjustments" that this Bill, when enacted, will stipulate should be made to accommodate disabled employees. As Nick Goss, RADAR's education, training and employment officer says: This may be as simple as giving someone time off for physiotherapy". He believes that operating and monitoring a policy on disabled employees is easier in a business with a small staff. Allowing staff to work from home could also be easier to monitor. RADAR has given an imaginative lead by arranging this conference: one which I hope will persuade others not to exaggerate the problems to which approval of this amendment would give rise. Where there is a will there is a way, and RADAR deserves high praise for its initiative.

Lord Rix

A somewhat mischievous point has been made to me by the noble Lord, Lord Renton. Clause 10(3)(c) reads: such organisations representing the interests of disabled persons in employment or seeking employment as he considers appropriate"— which is virtually the same wording as I placed in Amendment No. 14. I hope that the Minister will draw this to the attention of the parliamentary draftsman and to the noble and learned Lord the Lord Chancellor and his department when they are considering the class action matter.

On a less frivolous note, I should like to support the noble Lord, Lord Ashley, in this amendment. I think it is a monstrous assumption that people with a disability will be forced upon small employers. I believe they will be employed if they are suitable for the work, capable of work and can provide the same value for money at all times—which most of them can—as a fully able person.

Baroness Darcy de Knayth

I believe that this is a very important amendment. As he has done on many occasions, the noble Lord, Lord Addington, summed it up in a sentence. If the concept of "reasonableness" is to mean anything, the arbitrary line negates the whole principle: it should go. I think an employer of 16 people will find it extremely difficult to understand why an employer of 14 people needs that line as well, if the concept of "reasonableness" means anything.

Lord Swinfen

I should also like to support this amendment very briefly. I shall not come out with any statistics because I was told I was wrong at Second Reading: I never have been very good at statistics. I think it is quite unreasonable not to have a level playing field among employers. It is unfair on the employers and it is also unfair on disabled people. The vast number of disabled people do not want to travel very far from their homes, and that very often means that they can only go to small employers.

We should also bear in mind, as has been mentioned, that it is a reasonable adjustment that they have to make: not very expensive and not very much. However, what has not been mentioned is that there is a period in which employers can get rid of an employee after they have joined who turns out not to be suitable. That applies to able-bodied people: it applies just as well to disabled people. I believe this to be a very important amendment. I hope the Government will be able to see their way to agreeing to it.

7 p.m.

Earl Russell

The noble Lord, Lord Morris of Manchester, pointed out that perhaps too much has been made of the difficulties of small employers, but possibly not enough has been made of the difficulties of employees in small firms. If you are dealing with an employer because you want some sort of adjustment to allow you to continue to do your job and you are doing this in a large company, it is a reasonably impersonal process. Indeed, however it is done, it goes through channels; there is no personal element.

However, if you are dealing with a small employer, you will probably do so face to face. Workforces in businesses that small are not very easy to unionise, so you cannot expect to do it through a formal channel and have someone to represent you. You have to confront a person to whom your proposal may create certain practical difficulties. In fact, you may create a real degree of irritation. If you are going to do that, you need some form of legal or institutional protection. Because the institutional protection is less available in a small business, I should have thought that that might be an argument for saying that more rather than less legal protection is needed.

Baroness Blatch

Like the noble Lord, Lord Addington, I shall be interested to hear the Government's response to the amendment. This is an extremely difficult issue. It would be helpful to know whether the Government have carried out any current work on cost-compliance because, if we are to make legislation in this way, it is important for us to know what the costs of meeting the obligations under the law would be for small businesses.

I am afraid that I am going to touch upon one or two statistics, even at the risk of being marginally longer in my remarks. The ballpark figures show that about 10 per cent. of companies in this country, which can be deemed to be large, do in fact employ a very large proportion of the population. However, something like 90 per cent. of all companies employ very few employees. Therefore, we are talking about a large number of companies but a smaller number of employees. I take the point about a level playing field for employees; indeed, it is a very powerful point.

I have two further comments to make about small employers. The noble Earl, Lord Russell, touched on a very important point as far as concerns small employers; namely, the fact that they do meet their employees face to face on a daily basis. It has always been my view that, rather than being very critical of them, employers are very often extremely sensitive to the needs of their employees and, in a wholly voluntary capacity, do in fact go a long way towards meeting their needs, including the needs of the disabled.

We are about to embark on the setting up of a commission. I think it would be wise to do two things: first, we should continue talking to employers about the degree to which they are able, in a voluntary capacity, to meet the needs of disabled employees. Secondly, I also believe that with the advent of the commission there should be an increased impetus that will actively work with employers right across the board, whether or not they have an obligation under the law, to help them meet their obligations more and more. The obligations for many companies will be legal. The obligations in respect of employers with fewer than 15 employees will not be legal obligations; nevertheless, there will be a moral obligation to do the best that they can for their employees.

At the end of the day we cannot get away from the fact that the choice for a small employer, especially a very small employer—that is, one employing three to half-a-dozen people—may well be a matter of survival. It may not be a question of whether or not he can meet all his obligations under the law. The heavy hand of the law can be pretty inflexible and unremitting. It may mean that some employers will be unable to meet the costs involved with the arrangements for disabled employees, which may not be perfect but which, nevertheless, allow them to go to work and to hold down a job with their needs being met as far as possible by the employer. Indeed, the cost to some employers of meeting such obligations under the law may be beyond their ability. In that case, as I said, it may be a question of survival.

I believe that we must be somewhat cautious in going down this road without greater consultation with employers. We must also give the commission the opportunity to work with employers to help them meet the needs of the disabled, without necessarily resorting to the heavy hand of the law in the case of very small employers.

Lord Hamilton of Dalzell

I agree absolutely and entirely with what my noble friend has just said. I believe that small firms do employ disabled people, but they do so because they are enlightened and have goodwill, not because they are compelled to by law. When we were discussing the 1995 Act, I questioned how one actually manages to corner someone for discrimination as regards not employing a disabled person. For example, there may be half a dozen prospective employees sitting in a room, one of whom has a disability. If the employer knows the law, I have never been able to understand how he can be accused of discrimination. Of course, if he turns round and says, "We don't employ people with disabilities here", he will find himself in court. However, if he simply says, "I think that there is a most magnificent collection of candidates here; you all have marvellous qualifications, but I think that A fits the bill better than B"—who may have a disability—I do not understand how he could be accused of discrimination.

I wonder whether we are going to have something like the process suggested to me by an American. He told me how they do it there. Apparently, one looks around a whole collection of firms and if, for a number of years, some of them never employ a person with a disability, you prosecute them. That would be totally undesirable. I have never been able to understand how this works. Perhaps the Minister can explain it to me.

Lord Rix

Following on from what the noble Lord has just said, I have one question to ask. I am inclined to agree with him. I do not believe that small employers are forced to take on disabled people just because they are disabled. Surely there is no positive discrimination in any part of the legislation. When people are in front of you seeking a job, you have a choice and you take the best person available. If that person happens to be disabled, so be it. However, you make that choice at the time. If you discriminate against that person because of his disability then, as the noble Lord, Lord Hamilton, pointed out, you would be contravening the Act. If there were six equal people in front of you, you would have the choice of one of them. Am I not correct in so thinking?

Baroness Blackstone

I should like to begin by responding not to the point that the noble Lord has just made but to the tongue-in-cheek comment he made earlier. I shall certainly be delighted to draw the similarity in drafting to the attention of parliamentary counsel. I have to say that, in practice, the effects of this amendment would be ambiguous. However, I am sure that the purpose of the noble Lords, Lord Ashley, Lord Addington and Lord Swinfen, in tabling the amendment was to try to encourage the Government to reduce the small employers' threshold without waiting for the DRC to be established.

The Government's aim is to ensure comprehensive rights for disabled people. In response to the comment made by the noble Lord, Lord Addington, I should point out that we are of course sympathetic to the idea that smaller firms should be covered by the DDA's employment provisions. I think the noble Lord spoke a little unfairly and seemed to suggest that we had done absolutely nothing in this respect. In fact, we lowered the threshold very soon after coming to office. Where we differ from those who attached their names to the amendment is largely in the timing of such change and how we ensure that it is effective.

The Government believe that effective rights for disabled people can best be achieved with the support of business. The noble Baroness, Lady Blatch, said that we need actively to work with employers. I strongly agree with her. It is not in the interests of disabled people if employers try to avoid employing or retaining disabled people because they misunderstand the issues or fear the consequences of the law. Again, as the noble Baroness said, the disability rights commission itself has a very important role to play both in advising us and in improving awareness among employers. That is, I am sure, an objective that we all share.

The Committee will recall that the reduction we made in December from 20 employees to 15 was not insignificant. I believe that it was an important step forward. It has widened the coverage of the employment provisions of the DDA to bring in 45,000 more employers with around 800,000 employees, any of whom might need protection in the future and 70,000 of whom are currently disabled. All disabled applicants for jobs in these firms are now also covered. In all, over 75 per cent. of disabled employees are now covered by the DDA's employment provisions.

That does not mean that we think enough has been done, and I recognise how strongly people who have campaigned on this issue for so long, including Members of this House, feel about it. It does mean, however, that we want to avoid going too far too soon. It also means that we intend to involve the commission on this issue, which seems entirely right given that we are establishing it in part to advise us on reviewing the working of the DDA.

I am pleased to say that many small firms already employ disabled people. However, many do not and many do not know as much about disability as larger firms, nor always how to respond effectively to the needs of individual disabled people. We have to deal with the situation as we find it and I think we would be foolish to assume greater understanding of the issues than is the case.

It has been argued in the debate that the concept of reasonableness protects small employers. The Committee will recall that the DDA places a duty on employers to make reasonable adjustments in certain circumstances which might help disabled people get or keep jobs. This might involve changes to their employment practices or their premises in a range of ways.

Clearly "reasonableness" is likely to go a long way to ensuring that small employers are not unfairly burdened. But we need to find out more about how the courts and tribunals are interpreting the concept of reasonableness to help us inform and reassure these small employers. At the moment, for example, early evidence from research, which we hope will be published in the spring, is that there was concern about what might count as reasonable among employers who were asked. These employers are those who have been covered by the DDA since December 1995. There was an expectation among such employers that case law would probably make the position clearer over time but also a belief that more guidance was needed despite a detailed code of practice. Guidance is one of the things which the commission will be able to provide.

We have to help improve the situation for disabled people, but I am not sure that the right way is to have the very smallest employers simply learn by trial and error how this law applies to them and their disabled employees and recruits. Such employers do not generally have specialist personnel who can devote time and expertise to dealing with some of these issues. I know that some small firms and their representative organisations are concerned about the consequences of making relatively small mistakes but paying a heavy price at an employment tribunal. Legal costs, even if an employer is in the right, can be large.

Of course, disability issues are often fairly straightforward, particularly if the employer is sensible enough to ask the disabled individual about what might be needed. As regards what my noble friend Lord Morris of Manchester said, I certainly would not want to give the impression that disability is a problem for employers, nor that employing disabled people is an expensive issue.

The noble Baroness, Lady Blatch, asked about compliance costs. The cost of lowering the threshold further is not huge when spread over all the employers concerned. Our consultation document suggested that it might cost employers an extra £2.7 million had the threshold been lowered to its minimum of two. However, in practice, as I am sure the noble Baroness had in mind when she spoke earlier, the costs are not spread evenly but fall unevenly on individual employers. Much of the extra costs are legal costs and it is those which understandably concern small employers, who fear that they may be the ones who face the cost of having in some cases made an unintentional mistake.

The Employment Service will continue to provide specialist help to employers wishing to take on or keep disabled employees, although it cannot give advice on the law; but the DRC will also help to ensure that there is appropriate awareness-raising and provision of information and advice.

We have already begun the process by improving the DDA helpline. It provides an increasing range of information on the DDA and can now assist business and others with queries about employing disabled people by helping them make contact with specialist organisations. I am pleased that so many voluntary organisations have joined with us to make this system work. My honourable friend the Minister for disabled people is also developing a communications strategy, in co-operation with the National Disability Council and disability and employer bodies, to help ensure that small businesses and others are more informed and aware. We are also undertaking a range of research which will help us further inform and reassure business and underpin future decisions concerning small employers.

In response to the question of the noble Lord, Lord Hamilton, where the DDA is not clear, case law will establish uncertain points. I am confident that our courts will never resort to resolving such issues by counting up total numbers of disabled employees.

In the ways that I have set out, we are trying to establish a climate in which the DRC can look positively at whether the time is right for further change and we are building up evidence to ensure that any change is effective. On that basis, the Government consider that they should wait for the establishment of the DRC before considering when and how the threshold should be lowered. Recognising how strongly my noble friend feels about this, I hope that in these circumstances in the light of what I have said, he will feel able to withdraw his amendment.

7.15 p.m.

Lord Ashley of Stoke

I do feel strongly, as my noble friend said. This has been an extraordinary debate. I am very disappointed with the noble Baroness, Lady Blatch; I am astounded at some of the points she raised. I am also disappointed with my noble friend the Minister. The noble Baroness, Lady Blatch, said that small businesses are sensitive to the needs of their workers. I do not see how she can generalise in that way. Does she mean all small businesses? We are not concerned with those who are sensitive to the needs of their workers. Good luck to them; we all support them. We are concerned only with those who are insensitive. Unless the noble Baroness can prove to the Committee that all small businesses are sensitive, there is a need to tackle the minority—admittedly, it is a minority—of small businesses which are insensitive. That must be taken into account.

Someone mentioned moral obligations. That is wonderful language and a fine and noble concept, but we do not guarantee a defence against discrimination by moral obligations. We are concerned only with those small employers who do not care about moral obligations and are prepared to discriminate.

It is said that small employers want to act voluntarily. That again is a great philanthropic attitude. I support and applaud those small employers who want voluntarily to avoid discriminating against their workers, but we must take into account the small minority.

My noble friend talked about timing. I do not see that timing is relevant; it is utterly irrelevant. All we seek to do to implement this change is to enable the Government to include practically all small employers in the measure, apart from those with fewer than two workers. That is all we seek. Where is the problem as regards timing?

As regards difficulties of small employers, I repeat that it is not possible for any barrister, solicitor or judge to say that unreasonable burdens can be imposed on small employers. The Disability Discrimination Act specifically states that only reasonable accommodation must be made. Therefore it is not possible to establish a ruling in the courts that unreasonable burdens will be imposed.

My noble friend also referred to the concept of going too far too soon. I am prepared to forgive her for that as it is the first cliché she has used in two hours of debate. Therefore I shall let her get away with that. But why are we going too far? We are simply asking small employers not to discriminate. What is unreasonable about that? What is so horrific in that for small employers? What is horrific about not discriminating against disabled people? We are not asking for the moon. We are simply asking for fairness and, to mention a high-flown concept, justice.

I am afraid that my noble friend has let us down today. We cannot accept that because Margaret Hodge and her colleagues are discussing a communications strategy and research, that is the answer. That is not the answer. We welcome a communications strategy and research, but what we want basically is a defence for disabled people against those small employers who are prepared to discriminate against them. However, as my noble friend will obviously consider this matter, lose much sleep over it, and try to come back on Report with a positive suggestion, I beg leave to withdraw the amendment.

Baroness Blatch

Before the noble Lord sits down, I wish to return to a point that he made. If I referred to all small employers, I apologise. I thought I had said that many employers address the needs of their employees in a sensitive manner, particularly as regards their disabled employees. I made the point that the noble Earl made; namely, the likelihood of an employer addressing the needs of his employees is greater where a small number of employees is involved and where therefore the employers come face to face with their employees and with the physical difficulties that many of them experience. Therefore, as I say, I think in that case it is more likely that those needs will be attended to.

I made an appeal for the commission to be set up and to allow it to spend some of its time and its energy working with small employers to help them meet the needs of their employees—sometimes these needs are not met through ignorance—at a cost which they can bear. However, at the end of the day, the cost of compliance may threaten the survival of some small employers. That fact cannot be completely disregarded. One must consider the implications of having a job, albeit with imperfect arrangements being made for employees, as opposed to having no job at all. That is at least a consideration that has to be taken into account. I was appealing for that factor to be taken into account, but for the commission to continue to work with employers in this regard.

Further, I see no argument for exempting businesses with two employees. I can see an argument for exempting a business comprising one person as at least a self-employed person can reach a judgment as to whether the arrangements he or she is working under are acceptable. However, if we include firms with two employees in the provision, why not include those with one employee as and when that is possible with the agreement and consensus of employers, and when the Government have assessed how the commission is working?

Amendment, by leave withdrawn.

Lord Carter

Before we proceed to the next amendment, I must put a proposition to the Committee. I know that there is a desire to finish the Committee stage before we discuss the orders. However, to be fair to those who will discuss the orders we should try to finish the Committee stage by about eight o'clock. I do not in any way wish to curtail the debate. If it is not possible to finish by that time, we shall have to break for dinner and then return to the Committee stage. However, if we could finish the Committee stage by eight o'clock I believe that would be in everyone's interest.

Clause 10 agreed to.

Clauses 11 to 14 agreed to.

Clause 15 [Short title, commencement and extent]:

Lord Rix moved Amendment No. 21:

Page 9, line 6, after ("day") insert ("no later than 1st January 2000").

The noble Lord said: I firmly believe that by securing an early legislative opportunity for the establishment of a disability rights commission this Government have signalled their commitment to civil rights for disabled people. This is a move which all of us here wholeheartedly welcome. Some may therefore consider it a trite point to seek a definitive date for the full operation of the commission. However, history has taught caution in these matters. We should consider the Disabled Persons (Services, Consultation and Representation) Act which was given Royal Assent in 1986. Four sections of the Act have never been implemented over a decade later. Five sections were implemented in the year following Royal Assent and only two sections came into effect in the same year as the Bill was passed. We need a commission to enforce the rights of disabled people as a matter of urgency. The Disability Discrimination Act has lacked teeth for far too long. I beg to move.

Lord Swinfen

I support this amendment. In the 22 years that I have spent in this Chamber I have seen many parts of Acts passed which have not yet been brought into force. Some of those have been repealed before they have been brought into force. That adds weight to the argument of the noble Lord, Lord Rix. I believe that to impose a deadline with regard to this measure is a sensible step and would concentrate the Government's mind wonderfully.

Lord Hunt of Kings Heath

The noble Lord, Lord Rix, is in a hurry to establish the commission, and understandably so. I know that view is shared by many Members of the Committee who over the years have spent so much time in promoting the rights of disabled people. As the noble Lord, Lord Rix, was kind enough to say, the Government share that sense of urgency. The Disability Rights Task Force was announced within months of the Government coming into power and established in December 1997. It made its recommendations on the role and functions of the disability rights commission before Easter 1998. Those recommendations formed the basis of a White Paper that was launched in July 1998. The public consultation lasted until October and the Bill received its Second Reading on 17th December. I am sure that noble Lords will agree that we have worked to a tight timetable.

As the noble Lord, Lord Rix, has pointed out, his amendment seeks to include on the face of the Bill a deadline for the establishment of the commission and bringing into effect all the provisions of this Bill.

However, we must ensure that when the commission is established, it is able to begin to address the tasks that will face it. The preparatory work involved in setting up a new commission is considerable, for example the appointment of commissioners; the recruitment and training of staff; the procurement and possible adaptation of premises; and the design and installation of communication and office systems. Initial planning of this work has already begun but much of this work cannot commence until the Bill has received Royal Assent and the Chairman and Commissioners are appointed. It must be right for them to lead the work on putting in place the arrangements for this independent body.

While I am sure we all share the view that the commission should be operational as soon as possible, we do not believe that it would be realistic to complete the preparatory work in six months. My honourable friend the Minister for Disabled People has indicated that we expect the DRC to be established in spring 2000. We think that this is the earliest practicable date if we are to expect this new body of commissioners to get things right. But of course final decisions will need to be taken in consultation with the chairman. For those reasons I ask the noble Lord to withdraw his amendment.

7.30 p.m.

Lord Rix

If the Minister could possibly define when the spring of 2000 will be, I would feel able to withdraw my amendment.

Lord Hunt of Kings Heath

It would be a very unwary Minister who defined the meaning of "spring" in parliamentary or Whitehall terms. I cannot do anything more than say that spring 2000 is the date when the commission is expected to be established. The Government are determined to speed this along as much as we possibly can.

Lord Rix

I assume that we are now talking about the spring equinox, 21st March 2000. I hope that that date will be noted by the Minister. With that possible prompt for a speedy introduction of the disability rights commission, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15 agreed to.

Schedule 1 [Constitution etc.]:

Lord Morris of Manchester moved Amendment No. 22:

Page 10, line 11, at end insert (", some of whom shall have knowledge and experience of sensory impairment, learning disability and mental health problems").

The noble Lord said: At the suggestion of my noble friend Lord Ashley of Stoke, whose name is on the Marshalled List, I rise to move Amendment No. 22 and I shall speak also to Amendment No. 23. Again, I shall be brief.

The purpose of Amendment No. 22 is to trigger debate on the necessary breadth of knowledge, understanding and experience—both of types of impairment and disability discrimination—that it will be necessary to have among the commissioners. It is important that between them the commissioners should have knowledge of the full range of impairments and of disability discrimination. It is also important that among them there should be people with direct experience of the major types of impairment: physical and sensory impairments, as well as learning disabilities.

The purpose of Amendment No. 23 is to ensure that the proviso that more than half the commissioners should at all times be disabled people holds for all appointments. This is an issue of principle for disability organisations, which believe that personal experience of disability should be an important aspect informing the work of the commissioners. While there are many other necessary attributes for the post, if one accepts the premise that personal experience is desirable, the clause exempting the Secretary of State from applying the 51 per cent. quota for the position of chair sends the message that there are no suitably qualified disabled candidates. The chairman is the public face of the commission and can send a powerful message to employers and service providers about the abilities and rights of disabled people, among whom there will be many suitable candidates for the chairmanship.

I look forward very much to what my very good friend the noble Lord, Lord Rix, will say about the amendment. I know that it will be eminently worth our attention. I beg to move.

Lord Rix

In withdrawing my amendment which was specifically about learning disability in order to support the more general amendment, Amendment No. 22, tabled by the noble Lord, Lord Ashley of Stoke, and moved by the noble Lord, Lord Morris of Manchester, I still wish to press the point regarding the importance of a person with a learning disability, with appropriate support, serving as a commissioner. I have already expressed this view to the Minister and I received a most courteous but, alas, fairly negative reply.

I agree that to capture the range of impairments in five or six categories may seem artificial and that it would tend towards the medical rather than the social model of disability—I am referring to her letter. Nevertheless, I believe that people with a learning disability are in a very definite category of their own. To begin with, the greatest cause of disability at birth is a learning disability. At first, the problems may be confined to the medical arena. However, as learning disabled people grow from babyhood to childhood, from childhood to adolescence to adulthood, the medical needs of many become no more and no less than their peers born without a disability. The problems then are social, educational and of course the quality of life.

Recently MENCAP has altered its constitution to ensure that people with a learning disability are on its councils. The Minister, Paul Boateng, when involved with the Department of Health, promised at the MENCAP conference in September last year that people with a learning disability would be serving on the health authorities and health boards before the end of this Parliament. The Royal College of Psychiatrists believes that these changes will have a profound effect for the better on the self-belief of people with a learning disability.

Recently the Millennium Commission awarded MENCAP nearly £2 million to ensure that people with a learning disability would receive training to enable them to take up many more responsible positions in life. Some of the money will be spent on training 150 people with a learning disability each year for three years, plus their enablers-900 people in all—to make it possible for them to serve on committees, councils, boards—and to be commissioners.

I know that there are many who believe that a person with a learning disability serving on a committee is a contradiction in terms. If you have been concerned with learning disability as long as I have, you will know that the range of ability is very great indeed—from those who are profoundly and multiply disabled, to those who are severely disabled, like my daughter, to those who have a learning disability which is barely indistinguishable from a learning difficulty.

Unhappily, the world outside seems to think of the needs of a person with a physical disability as being paramount. Next in the queue—if they are lucky—come people with sensory impairments, while people with a learning disability or a mental health problem are not considered to be fit to join the queue at all.

Acceptance of the amendment of the noble Lord, Lord Ashley, will ensure that the Government are in no way a party to that view, and a major step will have been taken to ensure that the least respected and least represented in our society are truly being granted their disability rights.

Lord Swinfen

I support these amendments. There is a fear of people with learning disabilities which also extends to people with physical disabilities. As the noble Lord, Lord Rix, said, there is a range of learning disabilities. The Committee knows that for a number of years I have spoken in the House about disability. For a number of years I have been briefed on Bills by people with learning disabilities—and very good they have been too. They know their subject very much better than I do and I found it extremely useful. I say this to emphasise the fact that the commission must have among its commissioners people with a wide range of experience of different types of disability.

As to Amendment No. 29, I am sure that there will be commissioners who are profoundly deaf. They will need interpreters for sign language. We must have people there for the purposes of advocacy or communication support for the commissioners. There will be other support staff, but let us not forget these special ones.

Lord Addington

The purpose of these amendments is to draw the Government's attention to the fact that the people who know these problems best are those who have direct experience of them. If you are disabled, you know what that is like and you know what discrimination is like. These amendments draw to the Government's attention that unless they include these people they are ignoring those who have the best knowledge of the subject. If they accept these amendments—or some like them—they will be drawing in expertise to the exact place where it can do the most good.

Baroness Darcy de Knayth

I warmly support Amendment No. 22. It is important to have commissioners with experience of each of the major types of disability. It is particularly important to mention those with learning disabilities and those with mental health problems. MIND says that the latter face particular discrimination and stigma. I was horrified to read on page 15 of the February issue of Disability Now that David Grayson, who is the chair of the National Disability Council, says that when a person with a mental disability tries to explain in a job interview the gaps in his CV he will sometimes attribute it to his being in prison because he thinks that someone who has been in prison has a better chance of getting the job than someone who has a history of mental health difficulties.

I just want to say from personal experience—my noble friend Lady Masham would also say this but, unfortunately, she cannot be present today—that the best way of getting to understand people's problems is by getting to know them and going around with them. When I have been the only person with a disability on a committee the other members have learnt by going to the canteen with me and going around seeing things. That is the way they learn. They say, "My goodness, I did not realise the problems you face". It is not the obvious problems but the others in day-to-day life that they discover. In its briefing MENCAP says that choosing a commissioner with a learning disability will be a positive message to people with learning difficulties. I think it will be an extremely positive message and a real learning experience for the other commissioners and the people with whom the commissioners will come into contact in the course of their work.

Lord Ashley of Stoke

As we will run past eight o'clock if we are not careful, I want just 30 seconds to express my support for the amendment in my name. Only disabled people know what disability means. Therefore, that knowledge is crucial to being on the commission. I believe that the chairman should be disabled. I know of the argument that there should be a random sample, but I believe that the chairman should be disabled. That would send a signal to the great British public about how well disabled people can do the job. The experience is vital.

Baroness Blatch

I rise to speak briefly to my Amendment No. 28, which is looking more and more anomalous in this group of amendments. It should be for the commission to appoint its chief executive and not the Secretary of State.

Lord Thurlow

I should like strongly to support the substance of Amendment No. 22 in relation to mental health. I say "the substance" because I am not happy about the amendment's wording. My point is that the field of mental health is a separate universe in the realm of medicine. One cannot handle problems of mental health unless one has had experience of it. I do not think the present wording would meet the problem. One does not necessarily want on the commission people who are mentally ill or have mental illness. It is more important that the other half of the commission should have someone with this specific knowledge and experience. I do not see how the commission can responsibly deal with mental health problems otherwise. Subject to that reservation about the wording, I strongly support the substance of the amendment.

7.45 p.m.

Baroness Blackstone

Perhaps I may begin with some general remarks about this group of amendments. In common with all public bodies, the appointment of commissioners to the commission will be made in accordance with guidance issued by the Office of the Commissioner for Public Appointments. As such, the process will be open, transparent and fair.

Through Amendment No. 22, my noble friends seek to ensure that some commissioners have knowledge of sensory impairment, learning difficulties and mental health problems. It must be right that between them the commissioners have the range of experience necessary to ensure from the start that the commission establishes credibility with all its key stakeholders. To do its job properly, it must understand the needs of disabled people and also those of employers and service providers. The Secretary of State will of course seek to appoint commissioners so that, collectively, they have a wide range of knowledge and experience and so that an appropriate balance is struck between the relevant interests. Much can be expected of a commission of 10 to 15 strong, and when making the appointments the Secretary of State will, I am sure, be keen to try to ensure that there are commissioners with a knowledge of the issues affecting people with sensory impairments, learning difficulties—about which so many Members of the Committee have spoken in the debate—and those with mental health problems.

The Disability Rights Task Force considered the question of whether the legislation should specify the type of experience the commissioners should have. It concluded that that would not be appropriate as it would incline towards the medical rather than the social model of disability. It also concluded that it would be impossible to ensure that people with personal experience of all types of disabilities and impairments were appointed, given the need to keep the number of commissioners at a reasonable level.

I am sure noble Lords will appreciate the difficulties of including a list in legislation. Were we to accept that approach, would we not have to consider extending the list further? For example, what about people with a knowledge of physical impairment? Any list is unlikely to be exhaustive; and if it were, it would be impossible that a commission of 10 to 15 members could have direct knowledge and experience of everything on the list.

The commission will be able to draw in expertise from elsewhere, as and when required, and it will have an important role in working with organisations representing the whole range of interests. This will help in no small measure to ensure that the commission has at its disposal the range of expertise that it will need.

Before addressing Amendment No. 23, I shall need to speak first about Amendment No. 24, which seeks to ensure that the chair or deputy chair has personal experience of disability. I can be very brief about this. It seems inconceivable that people with a disability will not present themselves as the best people for the job of chairman or deputy chairman or possibly both.

I return now to Amendment No. 23. I welcome the debate on the issue of the first three appointments in that it gives me an opportunity to clarify the Government's intention. I can assure the Committee that the intention is not that the first three appointments should not be disabled people. Indeed, the provision would allow the first three appointments to be disabled people. But to do without the provision would mean that the first two appointments must be disabled people. Noble Lords will, I am sure, understand that there needs to be flexibility in the order of the appointment of commissioners. The provision to include the first three appointments from majority arrangements is just a practical one. The ultimate aim is to ensure a majority of disabled commissioners. We certainly will not want to lose sight of that.

I turn briefly to the amendment of the noble Baroness, Lady Blatch. It is important that the first chief executive has a role in shaping the commission before it is open for business. Indeed, he or she must be appointed early enough in the process to take a lead in setting up the practical arrangements for the commission. We want to get on as fast as possible with that. It is important that he or she is appointed as soon as possible after Royal Assent if we are to be up and running by the Spring of 2000. The commission would hardly be in a position to undertake the appointment at this early stage but I can assure the noble Baroness that the Secretary of State will consult fully the newly appointed chair over the appointment of the chief executive. In the light of what I have said, I very much hope that the noble Lord will be able to withdraw the amendment.

Lord Morris of Manchester

Although I am strongly convinced that we must return to this issue, I beg leave to withdraw the amendment at this stage.

Amendment, by leave, withdrawn.

[Amendments Nos. 23 and 24 not moved.]

Baroness Blatch moved Amendment No. 25:

Page 10, line 22, at end insert ("so long as his total continuous term of office does not exceed 10 years").

The noble Baroness said: I shall be brief. Amendments Nos. 25 and 27 are in my name, and Amendment No. 26 is in the name of the noble Lord, Lord Ashley; however, they all meet the same point. We seek to introduce into the Bill limited terms of office both for commissioners and for the chairman and deputy chairman. The amendments are self-evident regarding the time limits for the appointments. However, I wish to point out that I have included the word "continuous" in Amendment No. 25 in order that a person could be re-appointed at some later date but could not serve a continuous appointment for longer than 10 years. I beg to move.

The Deputy Chairman of Committees (Baroness Gardner of Parkes)

I must inform the Committee that if Amendment No. 26 is agreed to, I cannot call Amendment No. 27.

Lord Hunt of Kings Heath

Amendment No. 25 from the noble Baroness, Lady Blatch, seeks to put a 10-year limit on the amount of time a commissioner may serve. Amendment No. 26 tabled by the noble Lords, Lord Ashley, Lord Addington and Lord Swinfen, and the noble Baroness, Lady Darcy de Knayth, seeks to ensure that the chair and deputy chair of the commission serve for specified periods. Amendment No. 27 from the noble Baroness, Lady Blatch, has a similar effect.

The guidance from the Office of the Commissioner for Public Appointments indicates that we should allow flexibility so that appointments can be made for between two and five years and Schedule 1 to the Bill replicates that. The guidance recognises that re-appointments are also acceptable. It stipulates that, overall, and taking account of one re-appointment, posts should normally be held for no longer than between six and 10 years. Given the terms of the guidance, it is inconceivable that a commissioner will ever serve longer than 10 years.

Regarding chairs and deputy chairs, noble Lords will, I am sure, understand that to appoint a chairman and deputy chairman rigidly for a minimum of four years—or indeed a fixed term of five years—is inflexible and may not necessarily prove to be in the best interests of the commission and its key stakeholders. I am sure that noble Lords will recognise the wisdom of avoiding a situation in which several, if not most, of the commissioners, including the chair and deputy chair, are required to stand down during the same year, for no reason other than that the Secretary of State was required by this amendment to appoint them for a similar fixed term. Furthermore, noble Lords will sympathise with the personal circumstances of potential commissioners who are simply not in a position to accept re-appointment lasting for a minimum of four years, and who may be forced therefore to decline the offer of appointment or re-appointment. Generally, it will be our intention to make these appointments for more than two years in the first instance.

For those reasons, I ask the noble Lords and the noble Baroness to withdraw these amendments.

Baroness Blatch

I shall read the Minister's remarks. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 26 to 29 not moved.]

Baroness Gould of Potternewton moved Amendment No. 30:

Page 12, leave out line 28 and insert ("publish it within six weeks").

The noble Baroness said: I, too, wish to lend my support to Amendments Nos. 30 and 31.

I tabled this amendment in order to receive clarification that the annual report would be publicly available. The report is important for three reasons. It will provide ways in which the public and people with disabilities will be able to judge how effectively the commission is working, how it is carrying out its functions and responsibilities. A study of the proceedings of the Disability Rights Commission will provide an indicator as to the effectiveness of the Disability Discrimination Act, its strengths and weaknesses. Thirdly, and perhaps most importantly, an understanding of the work of the commission will help voluntary organisations to be more effective in their own work of campaigning, raising awareness etc. Information such as the details of the number of cases, the type of issues and what kind of action was undertaken by the commission will enable organisations which represent people with disabilities to see where particular difficulties arise. A voluntary organisation might then, for instance, choose to direct awareness-raising campaigns towards training for a particular group—employers, cinema managers, social security or council officers etc.

To satisfy any of those points, publication of the report will need to be prompt and not be delayed for any reasons. I am not certain that the present wording ensures that. It may be that it is mandatory on the Secretary of State to publish the report. If that is the case, it should be clearly expressed.

I specified a period of six weeks in the amendment. It is a rather arbitrary limit. I should be happy if the period were much shorter.

I wish to say a brief word on Amendment No. 31 on accessible formats. The commission must clearly comply with the Act and publish the report in accessible formats for people with disabilities. Further, it should be in plain English and simple language so that it is easily communicable to all people with disabilities. I beg to move.

Baroness Darcy de Knayth

I support this group of amendments. In relation to Amendment No. 31 on accessible formats perhaps I may put in a little plug for a brownie point for the White Paper which contained the proposals for establishing the commission. MENCAP said that it was a model of good practice from the point of view of clarity for people with learning disabilities. Therefore, it is only logical that the report should be equally so.

Lord Rix

Amendments Nos. 31 and 32 stand in my name. I shall be brief as the time available is very short. It is a sine qua non that the report needs to be published in a formula accessible to people with sensory impairments or learning disability. I cannot believe that the Government would rule against Amendment No. 31.

Turning to Amendment No. 32, the constitution of the commission should be subject to review so that improvements could be made—possibly the guaranteed insertion of people with physical disabilities, sensory disabilities, learning disabilities and mental health problems.

Earl Russell

I support Amendment No. 30. All governments have published controversial reports on the day before the Summer Recess!

Lord Swinfen

I wish to ask a rather impish question. Some time ago the noble Baroness, Lady Blackstone, said that the report would be presented to the Welsh Assembly. Will it be in Welsh?

Baroness Blackstone

Starting with Amendment No. 30, on speed of publication, I assure my noble friend Lady Gould that publication of the annual report will occur as soon as is practicable after all the necessary administrative procedures have been dealt with. Indeed, I believe it is common practice for the reports to be published on the day that they are laid before Parliament. To provide a statutory timescale in legislation would, I believe, unnecessarily constrain matters. I hope that my noble friend will agree not to press her amendment.

I turn now to Amendment No. 31. It must be right that the Disability Rights Commission should produce its annual report in a range of formats that will make it accessible to a wide range of disabled people—not just on demand, but in anticipation of a clear need. To that extent, I welcome the intention behind the amendment. Noble Lords will appreciate that experience and time will inform what that need is. Indeed, I hope and expect that the commission will adopt this principle when it issues other documentation intended for use by disabled people.

I turn now to Amendment No. 32. As a non-departmental public body, the commission will be subject to a review every five years, during which it will have to show that it provides the best framework for carrying out the functions with which it is charged. The review may consider both the powers and the constitution of the body. In addition, the Department for Education and Employment has a policy of subjecting every new non-departmental public body to a financial management survey 18 months after establishment. The commission will also have to produce and lay before Parliament an annual report. Noble Lords need be in no doubt that the commission will be under close scrutiny from many quarters to ensure that it is meeting its obligations. We do not believe that an additional review of the constitution of the commission will add anything to the quality of its service. In response to the noble Lord, Lord Swinfen, the DRC report will need to comply with the requirements of the Welsh Language Act.

8 p.m.

Baroness Gould of Potternewton

In light of the Minister's reply and the assurance that there will be early publication of the report, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 31 and 32 not moved.]

Schedule 1 agreed to.

Schedule 2 agreed to.

Schedule 3 [Formal investigations and nondiscrimination notices]:

Baroness Blatch moved Amendment No. 33:

Page 16, line 7, at end insert—

("(5) Where the Commission refuses to receive oral representations under sub-paragraph (4), it shall give reasons for that refusal in writing to the parties concerned.").

The noble Baroness said: I shall be very brief in moving Amendment No. 33. The simple request behind this amendment is that where the commission refuses to receive oral representations under sub-paragraph (4) it shall give reasons for that refusal in writing. I believe that the Minister will find it hard to refuse that request. I beg to move.

Baroness Blackstone

Schedule 3 provides for the person on whom a non-discrimination notice is served to have the opportunity to make both written and oral representations. Furthermore, it allows a period of 28 days for any such representations to be made. Paragraph 8(4) enables the commission to refuse to receive oral representations on behalf of the person concerned by someone whom it has reasonable grounds to consider unsuitable. Similar provisions to this are to be found in the Sex Discrimination Act and the Race Relations Act. As far as I am aware, there have been no suggestions that the existing commissions have exercised their powers inappropriately, and I believe the new commission must be trusted to exercise its judgment in a fair and balanced manner.

I reassure the Committee that the Government fully expect that almost invariably it will be right for the commission to give its reasons and that in 99.9 per cent. of cases it will do so. However, should it decide in the unusual circumstances of a particular case that some good reason exists to refuse to do so, then the courts, which will be able to approach the matter knowing the exact circumstances that have arisen, will be well placed to adjudicate. I hope that the noble Baroness will understand the case for being chary about imposing a rigid rule on the commission in such circumstances and therefore will agree to withdraw her amendment.

Baroness Blatch

I shall withdraw the amendment, but I believe that the arguments for giving reasons are very powerful. I shall return to this matter at Report stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 3 agreed to.

Remaining schedules agreed to.

House resumed: Bill reported without amendment.