§ 7.15 p.m.
§ Lord Ashley of Stoke
My Lords, I beg to move that this Bill be now read a second time. Despite the Disability Discrimination Act, discrimination is still rife against Britain's disabled people. This Bill seeks to transform the legislation into a package of genuinely comprehensive and enforceable civil rights.
1532 Its message is that discrimination in any area will no longer be tolerated. It is time for it to go and we want urgent government action, complete with a timetable. Despite the legislative advances made since the admirable Chronically Sick and Disabled Persons Act. initiated by my noble friend Lord Morris of Manchester in 1970, vast numbers of disabled people are still excluded from the protection of the Disability Discrimination Act. Much of transport is excluded, and so too are private clubs. Tribunals lack the powers to be able to dispense justice for disabled employees and the Disability Rights Commission needs to be able to take proceedings on behalf of disabled people under the Human Rights Act.
All these serious and significant shortcomings are addressed in my Bill. When I was preparing it, I had very much in mind the recommendations of the Disability Rights Task Force and the Government's response in Towards Inclusion. But we now want government action rather than words on the recommendations of the task force.
Many disability organisations strongly support the Bill and the Disability Rights Commission has called publicly for the changes that it proposes. I greatly appreciate the help that I have received from the commission in preparing my Bill. It prepared an excellent briefing for noble Lords. I am also grateful for the help that I have received from RADAR and the Public Bill Office.
Of course, I am aware that some of the proposals in the Bill can be implemented by regulations. But a unified, focused approach, as in this Bill, is preferable to a piecemeal one. The elements all hang together, affecting the lives and the happiness of many disabled people.
In a debate on the need for a new disability Bill on 8th November last year, the Minister was sympathetic, but reserved. That is an understandable posture for a cautious Minister, but it is not good enough. This Government deserve credit for some measures on disability, such as the Disability Rights Commission Act, the Special Educational Needs and Disability Act, the Disability Discrimination Act and the Carers Act, but they have failed to keep their categoric promise in their 1997 manifesto of "comprehensive and enforceable rights" for disabled people and they are not moving fast enough on most of the task force recommendations. It is time to get a move on as disabled people cannot wait indefinitely.
Now a word of explanation about the Bill's clauses. Clause 1 deals with the problem that people with progressive conditions can suffer discrimination well before they have symptoms. Yet the DDA does not cover a person until symptoms have emerged, which is preposterous. So Clause 1 ensures, for example, that HIV is included from the point of diagnosis, and that cancer patients are included from the point at which significant treatment is required.
Clause 2 includes private clubs in Part III of the Disability Discrimination Act, which relates to goods, facilities and services. This will help prevent discrimination in applications for membership and, 1533 specifically, in terms of membership. Let us take the following example. A British Legion branch is citing the DDA's exemption for private clubs in its shocking decision to bar a long-standing and active member from attending with an assistance dog. This lady has been a member for 10 years, and was recently elected branch secretary of the Royal Air Forces Association. When people can behave in that manner and use the DDA in order to defend such an indefensible posture, it seems to me that it is time for this Act to be changed and improved.
Clause 3 addresses the problem of some important rights for disabled people that are established not by the DDA but by the Human Rights Act. These include the right that no one should be deprived of life intentionally or be subjected to inhuman or degrading treatment. Perhaps I may give the House an example. A company director with spinal muscular atrophy, a qualified solicitor, was admitted to hospital with a chest infection. To her horror, she found that a doctor had placed a "Do Not Resuscitate" notice on her medical notes because it was considered that her quality of life did not warrant such intervention. Do not noble Lords find that quite incredible? Nevertheless, it is what actually happened. As yet, there is no commission to enforce the Human Rights Act. The power to represent such people should, therefore, be given to the Disability Rights Commission, along with the Equal Rights Commission and the Commission for Racial Equality. Indeed, it should be done without delay.
Clause 4 extends the cover of the DDA to the police, prison officers, fire fighters and the Armed Forces. There is no valid reason why they should not have been included in the first place. While including them in this Bill, we can ensure that, for the Armed Forces in particular, there should be nothing to interfere with their operational effectiveness.
Clause 5 would ensure that all firms were covered under the DDA. I think, as I have always thought, that it is ludicrous that 382,000 disabled employees are without protection from even the most blatant forms of discrimination. The Act provides for 92.5 per cent of employers a continuing legal licence to discriminate. It is a funny old piece of legislation: it does not really protect people because of these absurd exemptions. The original Act included only firms with 20 or more workers. The Labour Government's change to firms with 15 or more workers was helpful, but insufficient. It merely brought in 70,000 employees, whereas this Bill will bring in 382,000. Nor is the Government's decision to include all firms by 2004 acceptable. There is absolutely no need for delay because including these firms now simply means that they should not discriminate; that is all. It asks them not to discriminate against their disabled employees and to take "reasonable" steps to accommodate them. Therefore, no unreasonable demands would be made on any firm. So why not get on with it, and bring in all these firms under the legislation pronto? The size of the firm should he irrelevant.
Clause 6 'would give employment tribunals power to order reinstatement of an employee who had suffered discrimination. At present, they can only order 1534 reinstatement for cases of unfair dismissal Clause 7 removes the short clauses in the DDA that exclude transport. It is absurd that transport was mainly excluded in the first place. Transport is currently an enormous hole in the provision. Accessible jobs and services are useless if inaccessible travel prevents disabled people from getting to them. As my noble friends will confirm, that is often the case.
Clause 8 seeks to ensure that the vast majority of public authorities are forbidden to discriminate against disabled people. Obviously, we need to exclude the Security Service, Government Communications Headquarters, and any judicial bodies making decisions such as not to institute criminal proceedings and related actions. These would mirror the Race Relations (Amendment) Act exclusions.
Clause 9 is based on the belief that it is inappropriate to leave responsibility for change on such vital issues to disabled individuals protesting and establishing case law because it would take far too long. It is unfair to leave it to them. The clause places a duty on the public sector to promote equality of opportunity for disabled people. It also gives the Secretary of State power to specify appropriate duties. If anyone fails to do so, the Minister can issue a compliance order, which is very necessary. This clause would speed up understanding and awareness of disability rights.
Clauses 10, 11 and 12 are linked. They ensure that the duties in Part III of the DDA are extended to landlords. There is evidence of landlords withholding consent for disabled people to make much needed changes to property, such as installing a stairlift. It beats me why they should have the power to veto improvements that are vitally necessary for disabled people. This Bill would certainly deal with that anomaly.
The background to Clause 13 is that the DDA has already established a questionnaire procedure for discrimination in employment claims which enables applicants to assess from employers' responses whether or not they have a case. It is a very valuable questionnaire that can clarify the strength of a potential claim and prompt an early resolution—something that we all want. The clause would extend this provision to the goods and services sections of the Act.
Clause 14 ensures that all goods and services discrimination cases under the DDA are commenced in an employment tribunal. The Disability Rights Commission quotes research by Income Data Services showing that the number of cases alleging discrimination regarding goods, facilities, services and premises brought before the county court in the first four years of operation was very small—only some 50 odd—compared with the thousands of claims to employment tribunals. I have seen an estimate of some 11,000, which, when compared with 50, speaks volumes because people are equally discriminated against in the provision of services. The reason for that difference is that, unlike county courts, tribunals do not charge fees. They are flexible and informal, and they do not frighten and deter disabled claimants.
1535 I have reached the end of my speech. I hope that the Government will support and assist the Bill's progress. What we really need are specific dates for action. I am, of course, willing to consider any amendments. If I can help my noble friend in any possible way, I shall be only too glad to do so. If the Government can give a guarantee of some kind to introduce their own Bill on similar lines, it would provide significant reassurance to my noble friends, to the many disability organisations, and to me. I commend the Bill to the House.
§ Moved, That the Bill be now read a second time.— (Lord Ashley of Stoke.)
§ 7.29 p.m.
§ Lord Swinfen
My Lords, the whole House will be very pleased that the noble Lord, Lord Ashley, has explained his Bill in such a clear way. I am sure that all noble Lords will extend a warm welcome to the Bill. The noble Lord is now, and has been for many years, a tireless fighter on behalf of people with disabilities. This is but another action in his long campaign.
As the noble Lord said, the Bill is designed to put into effect the recommendations of the task force established by the Government in its report of December 1999 entitled, From Exclusion to Inclusion. We should all remember that this Bill, as well as benefiting disabled people today, could in the future benefit those of us who are not disabled, as there is always the chance that we ourselves could become disabled.
I particularly welcome Clause 2 which prohibits discrimination by associations. That will bring disability legislation into line with the laws on both racial and sexual discrimination. Why should private clubs be exempt from the general law?
The House knows that when the Conservatives were last in power I was often a thorn in the flesh of our Front Bench on disability matters. For over 20 years I have fought in this House for disabled people.
I have serious doubts about Clause 4 as it affects the Armed Forces. I speak as someone who was at one time a regular soldier. The Armed Forces already do their best to keep employed servicemen and servicewomen who become disabled. But it is not in my view practical to recruit disabled people. All service people, whatever their task and wherever their service, must be able to fight. A disabled recruit, unlike an able-bodied recruit, cannot acquire the experience or training that would enable him to effectively assist his colleagues in the way that an able-bodied person could who later suffered a disabling injury. I say sorry to the noble Lord, Lord Ashley, whom I greatly respect, but I cannot support him on that particular point.
I do not have experience of the police or of fire fighters. Therefore, I shall not comment on them. However, I wonder whether some of the points that I have made about the Armed Forces may apply also to them. The matter needs to be carefully looked at.
1536 I very much welcome Clause 5—the extension of the Disability Discrimination Act to small employers. I welcome the fact that the Government have already reduced the threshold from 20 to 15 employees. I, along with others, tried unsuccessfully to have this new proposed lower limit written into the original Disability Discrimination Act when it was a Bill passing through this House. The noble Baroness, Lady Hollis of Heigham, will recall that point because we worked together on it at the time.
Clause 7 of the Bill brings transport within the remit of the Disability Discrimination Act. I welcome that. For example, why should a bus driver who is possibly late be allowed to refuse a disabled person from boarding his bus just because he would take longer to get on board than someone more active?
Clause 9 provides a general duty to promote equal opportunities for disabled people. It is to be welcomed. In the long run, it will lead to a general improvement in our society of the position of people with disabilities.
Clauses 11 and 12 deal with rented property. They may need to be looked at in Committee to ensure that they work properly because I can see that there are likely to be certain difficulties. On the whole, I welcome the idea behind the clauses.
I do not need to say a great deal more. Generally, I welcome the Bill, but with the exceptions that I have mentioned. I trust that the Government and the usual channels will help it to have a speedy passage through this House. I look forward with great interest to its Committee stage.
§ 7.34 p.m.
§ Lord Rix
My Lords, first, I must declare my long-standing interest in the world of learning disability as president of Mencap. We are all grateful to the noble Lord, Lord Ashley of Stoke, for giving us a further opportunity to fine tune the 1995 Disability Discrimination Act. I know that he will have many allies, for your Lordships are among the foremost advocates for disabled people and none more so than the noble Lord, Lord Ashley, himself.
We have come a long way, particularly in the world of learning disability, since our Down's Syndrome daughter was born some 50 years ago. The first improvements surfaced in 1971, with the White Paper, Better Services for the Mentally Handicapped, and with the enactment of the Education (Handicapped Children) Act 1970, which included children with severe learning disabilities in the education system for the first time. It was at that time too that the noble Lord, Lord Morris of Manchester, as we have heard, was piloting his Private Member's Bill through another place—eventually the Chronically Sick and Disabled Persons Act. All these ground-breaking achievements—for they were ground-breaking achievements, believe me—came only a year or two after the population of the old "subnormality hospitals" had peaked, with the appalling number of 70,000 men, women and children still virtually incarcerated and cut off from all normal communication with the outside world.
1537 Today, there are still about 1,500 people with a learning disability in English hospitals. Hopefully, they are living under greatly changed circumstances, while those still alive from that peak figure of 70,000 have become part of the care-in-the-community population, to the great enjoyment of the majority of them.
Successive governments deserve great credit for their policies on disability. Our current rulers are, I am glad to say, no exception. There is a vast range of legislation for which we are all very grateful. All have, with various degrees of enthusiasm, vigorously promoted the interests of disabled people over the years. I congratulate them warmly on so doing.
However, there is still a long way to go before disabled people gain equal rights and opportunities in all areas of life. The noble Lord, Lord Ashley, has already highlighted the need for further progress and I wholeheartedly support his Bill.
The first of my concerns is the thorny issue of employment and the exclusion of small employers from the DDA. While I recognise the Government's wish to carry these small employers with them, giving them time to understand in full the meaning of the DDA, 1 must remind your Lordships how pitifully few people with a learning disability are afforded full employment, or employment that is anything other than token, and many of the smaller employers would never consider employing them anyway. Other disabilities, well, maybe; learning disability, frankly, no. Yet the Government have set a target for the employment of learning disabled people in their recent, excellent White Paper, Valuing People, of 30 per cent in order to achieve parity with other disabled persons. They will never achieve that figure unless smaller employers join the ranks of the already proactive big boys—the Marks and Spencer's, the Sainsbury's, the Tesco's et al—in realising the potential of people who until recently were probably considered to be hopeless basket cases.
Even when disabled people secure jobs, therefore enhancing their independence, there is no guarantee that they will be able to travel to those jobs. In recent years we have seen many improvements in public transport. We have to thank the Disabled Persons Transport Advisory Committee for these improvements, but unnecessary problems still abound.
Twenty years ago, while working with the BBC, I presented the programme "Let's Go" for people with a learning disability. It is an interesting fact that one of these programmes highlighted transport issues and mobility training. Twenty years later, we still do not have accessibility for the majority of disabled people right. That can be rectified only by the omission of Section 19(5)(b) from the DDA.
Although physical access is a major issue for disabled people, people with a learning disability experience discrimination on a different scale. In Mencap's recent report on bullying, people with a learning disability stated that they were regular victims of bullying while using transport, often by groups of fellow passengers. Many felt isolated and trapped in an 1538 enclosed environment. Unfortunately, the bullying was not just by members of the public but by transport staff. People with a learning disability reported that bus drivers often harassed them, so much that many were forced to leave the bus.
Clause 7 of the Bill introduced by the noble Lord, Lord Ashley of Stoke, is much needed. It will not only greatly enhance the ability of disabled people to travel throughout the United Kingdom but will remove the somewhat anomalous situation in which rail and bus stations must provide access while transport itself is not covered by the DDA. I do not believe that access to training will impose great costs that threaten our already beleaguered transport service.
Like the noble Lord, Lord Swinfen, I welcome Clause 2 of the Bill, which takes away the right of any association—public or private, small or large—to discriminate against disabled people. The noble Lord cited the British Legion as an example of the DDA being used unfairly. I shall add a further illustration. Last year, a number of parents of children with a learning disability wrote to Mencap expressing their concerns about the withdrawal of riding lessons for their children by the Riding for the Disabled Association. The children are between eight and nine years old. Some have profound learning difficulties and some have additional physical disabilities. Horse riding has been a valuable activity for them.
I respect enormously the achievements of t he RDA, and I do not want to demand the impossible, but the rationale given for the withdrawal of the service was that staff were having difficulties lifting the riders onto the ponies. There were no male volunteers to help with lifting, and there was no hoist available. Some of the children in question weigh well under six stone. Although some are profoundly disabled, they were never unruly in the saddle. Even so, there was little that parents could do about it, for the DDA excludes membership organisations that provide social, cultural and recreational activities, such as the Riding for the Disabled Association and, of course, the Scout Association. That goes against the spirit of the Government's policy of integration and inclusion of disabled people in recreational and leisure facilities. Once again, the noble Lord, Lord Ashley of Stoke, is on the side of the angels.
Whether we like it or not, we live in a doctrinaire age. A number of interested parties are determined on change for change's sake. In this case, I argue strongly that change is needed sooner, rather than later, to ensure that disabled people have the rights and opportunities that the rest of us take for granted. I would welcome a reassurance from the Government that, if the Bill does not gain parliamentary time, they will introduce a comprehensive new disability Bill in the next Queen's Speech. I hope that we can set an example that will be a beacon to all other countries and will further tackle widespread discrimination, enabling even more disabled people to live fuller and happier lives.
In 1941, Franklin D. Roosevelt, the severely disabled President of the United States, proclaimed the four essential human freedoms: freedom of speech, 1539 freedom of religion, freedom from want and freedom from fear. He might well have added a fifth: freedom from discrimination. The Bill introduced by the noble Lord, Lord Ashley of Stoke, is one further step in granting that freedom. I wish it well.
§ 7.44 p.m.
§ Baroness Wilkins
My Lords, I strongly support the Bill. My education in the necessity of civil rights legislation to create equal opportunities for disabled people began over 20 years ago with a television documentary called "We won't go away", which I made with Patricia Ingram. The documentary was an exciting revelation to us here in Britain, showing the integrated schools, accessible buses and subway trains, signed TV and other wonders that had resulted from America's first civil rights legislation for disabled people. That was Section 504 of the Rehabilitation Act 1973, passed nearly 30 years ago. Since then, the Americans have built a comprehensive body of anti-discrimation law on those initial foundations, most notably with the Americans with Disabilities Act 1990.
I am delighted to say that my noble friend Lord Ashley of Stoke has the same staying power as the title of our documentary. Fortunately, he won't go away either. He has been a tireless advocate, and this is one of his many Private Member's Bills promoting the civil rights of disabled people. I support the Bill wholeheartedly.
As the Minister will no doubt be reminded many times during discussion of the Bill, the Government made a manifesto commitment in 1997 to ensure full civil rights for disabled people. To that end, I hope that the Minister will be able to give the Bill her invaluable support. The Bill would take us well down the road from our partial civil rights legislation towards the full and enforceable civil rights provisions pledged by the Government. The Bill is doubly effective. It identifies and fills many of the loopholes in the Disability Discrimination Act 1995, and it takes a new, more proactive approach to equality for disabled people that would make it easier for us to access and enforce our rights.
I shall briefly mention the main loopholes that my noble friend's Bill identifies. Our current legislation falls far short of full civil rights for disabled people in key areas of life where discrimination continues to be sanctioned by the law. The most glaring of those, as noble Lords have said, are in employment, housing and transport. I support the clauses that seek to address those shortcomings.
Clauses 4 and 5 would end the current employment exemptions and bring small employers, police officers, fire fighters and the Armed Forces within the DDA. The Government have agreed in principle to end those exemptions, apart from the Armed Forces, so why should we not grasp the nettle and act now? No employer is asked to recruit or retain people unable to carry out the job required or to make unreasonable adjustments. If disabled people are not to continue 1540 pointlessly being barred from the Government's policy of providing work for those who can, the Minister must support those clauses.
I particularly welcome Clause 7, which would bring transport operators under Part III of the DDA. The current exclusion has meant that people continue to experience discrimination in ways that non-disabled people would be shocked to hear about. MIND has reported to me the case of a woman who declared her diagnosis of schizophrenia when she booked a coach ticket, explaining her need to sit at the front. She was sold the ticket on that basis, but when she tried to take her seat and explained her reason to the driver she was told to get off the bus. Another instance involved deaf passengers on a train who were denied service at the canteen because the attendant was too impatient to communicate on paper.
Clauses 10 to 12, which would apply duties to make reasonable adjustments in housing, are also extremely welcome. The lack of accessible housing is a major difficulty for physically disabled people, and it is one of the major hurdles in pursuing job opportunities. Under the Bill, a landlord could not withhold consent unreasonably if a disabled person needed to make physical alterations to the premises. It would also mean that basic forms of discrimination such as guide dog bans could be challenged more effectively.
As I said, the Bill not only addresses loopholes in the current law but tackles no fewer than five of the key barriers to access to justice for disabled people and the effective enforcement of our civil rights. Having rights by law will have little practical impact unless there is an easy and effective means of enforcing them. The clauses would give the Disability Rights Commission the power to assist disabled people under the Human Rights Act 1998; introduce positive duties on public authorities; and enable Part III cases to be commenced in tribunals. I shall resist the temptation to expand on those parts of the Bill but will give them my full support during the passage of the Bill.
I turn to the definition of disability, which is one of the major deficiencies in the current law. Many disabled people have discovered that they are excluded from its protection. Indeed, the DRC has found that one in four—a quarter—of the cases of alleged discrimination, fall at the first hurdle.
I strongly support Clause 1 of the Bill which calls for the extension of DDA protection to those with cancer and HIV from the point of diagnosis. However, the Bill does not go far enough. I hope that the Government are willing to consider amendments during progress of the Bill to extend the definition of disability in order to ensure that people with mental health problems and blind or partially sighted people are also given protection against discrimination.
Despite being registered as blind or partially sighted, visually impaired people have often had problems establishing that they are covered by the DDA. That is either because they have developed coping mechanisms, or because tribunals have failed to apply the guidance correctly.
1541 The matter of definition was one of the most complex issues facing the Disability Rights Task Force and one which it acknowledged needed further work. Case law has already provided evidence that people with mental health problems are particularly ill served by the Act's current definition of disability.
First, they have to prove that their condition is clinically well recognised. That is not required for someone with a physical condition, even though diagnosis can often be just as difficult—as in the case of ME.
Secondly, the claimant must show,a mental impairment which has a substantial adverse effect on normal day to day activities".However, the list of activities is focused principally on physical impairment. It contains six physical activities and only two mental ones. In most cases the only relevant activity for people with mental health problems is, "inability to concentrate".
As the task force acknowledges in its report, since "normal day to day activities" does not cover impairments of "thinking, feeling, or social interaction", it may not serve people with mental health problems well. In a recent unpublished survey of decided cases at employment tribunals, the DRC found that the definition caused more problems for people with mental health conditions than for any other group.
There have been numbers of cases where employees with depression have failed to satisfy the definition—either because the period was shorter than 12 months, or because they failed to convince the tribunal that their ability to concentrate was impaired. Out of a total of 210 cases in which the employment tribunal found against the applicant, around a quarter were mental health cases. Of these 210 cases, 67 were criticised as being unfair.
The issue of definition of disability needs much further consideration and I hope to return with amendments at Committee stage of the Bill.
Since coming to power the Government have done much to further the civil rights of disabled people with the creation of the Disability Rights Commission, the setting up of the Disability Rights Task Force and the passage of the Special Educational Needs and Disability Act. However, there is still a long way to go before they fulfil their pledge of full and enforceable civil rights for disabled people.
I hope that the Government maintain the momentum of the past few years and demonstrate that the civil rights of disabled people are high on their agenda by supporting the Bill. By now, the Minister must be only too aware that, as the demonstration placard said of disabled in that documentary all those years ago, "We won't go away".
§ 7.54 p.m.
§ Baroness Darcy de Knayth
My Lords, I would like to congratulate the noble Lord, Lord Ashley of Stoke, on bringing forward this excellent Bill which will be welcomed by all disabled people and by all who campaign for a genuinely inclusive society.
1542 The noble Lord gave a wonderfully clear and comprehensive introduction, and I would like to concentrate on one or two of the measures it introduces which I feel are essential improvements to the 1995 Act.
First, I am delighted that the definition of disability should be widened to include people who have been diagnosed as HIV positive or who have cancer likely to require substantial treatment. The mere mention of either of those conditions sometimes leads to panic discriminatory measures long before the people concerned can qualify as disabled people under the Act. That leads to unacceptable injustices.
The same is true of people with a mental health problem, and I very much hope that it will be possible to expand the definition of disability to cover more effectively the hundreds who now face discrimination on account of a mental health problem. The noble Baroness, Lady Wilkins. has already spoken of this and I know that the noble Lord, Lord Bragg, will speak in much more detail and with much more expertise.
However, it seems that Australia, Canada and now Ireland have arrived at a definition which has been tried and tested and works and that no floodgates have been opened, as people always fear. Therefore. I would wholeheartedly support any amendment which may be brought forward in Committee to end the discrimination. I believe that the statistics on discrimination against people with a mental health problem are horrific.
I very much welcome Clause 4, which will make it illegal to discriminate against disabled people in relation to employment in the police forces, the fire services and the Armed Forces. I fear that those who argue that discrimination against disabled people is essential if those important services are to function properly are being misled by watching too many Rambo-style police and special forces television programmes and films.
I heard what the noble Lord, Lord Swinfen, said and I stress that I am certainly not referring to him. He spoke with experience, but I am talking generally about people. Surely there are many non-combative jobs that people in the Army can do.
As the noble Baroness, Lady Wilkins, has already said in what I thought was an excellent speech, there are numerous jobs in all these services which many disabled people could do effectively with or without reasonable adjustments. I have never heard anyone advocate that those services must employ disabled people to do the jobs for which their disabilities make them justifiably unsuitable.
Unfortunately, however, the existence of some jobs requiring high degrees of physical ability is used to justify banning disabled people from every job. As the noble Lord, Lord Swinfen, said, some of those services already keep employees who have been disabled in the course of their work. That shows that the opportunities are there in the forces and yet, surprisingly at present, the employers would be 1543 entirely justified in refusing employment to others with identical disabilities in identical jobs who were not already in their employ.
I am delighted that Clause 5 of the Bill will abolish any exemptions, no matter how many employees a firm might employ. I find it very difficult to justify any number when it comes to discrimination. I found it difficult in 1995 and I found it even more difficult in 1999. Therefore, this is a most welcome measure.
However, despite the proviso of reasonable adjustments, I can foresee difficulties that might arise because of human nature and a conflict of personalities in small two or three-person businesses. It could be made difficult, but rather than exempt such firms on those grounds, might it not be possible to arrange added safeguards to protect the interests of those employing one or two people against malicious prosecutions?
The RNIB would like to bring voluntary work and work placements fully within Part 2 of the DDA, and I totally agree. I tried hard, in conjunction with SKILL, of which I am the president, to get work placements covered during the passage of the Special Educational Needs and Disability Act.
The further education and higher education institutions will be responsible for the accessibility of courses, including work placements, but they do not fully cover students on work experience against discrimination in the workplace. We really must do something about that. Work experience is becoming an increasingly central element of the curriculum in secondary education, as well as in FE and HE.
To ensure that disabled learners have access to the same opportunities as their non-disabled peers must be a priority for the Government—a government who place such strong emphasis on boosting the employability and employment of disabled people. Yet disabled learners on work placements and disabled volunteers are denied the protection of the DDA in the workplace unless they are paid.
Employers are not required by law to make any kind of reasonable adjustments for them. I hope that we can find some way of removing the disincentives to employers against giving work placements to disabled students. The task force stated that a code of practice should be developed to cover volunteers and that if necessary a reserve power should be taken to include them in the DDA. The question of work placements was not even addressed.
When she comes to reply, can the noble Baroness, Lady Hollis, detail what steps are being taken to develop the code of practice? Can the DRC be asked to consult as regards what form DDA protection for disabled volunteers and students on work experience should take? What systems of support need to be put in place to protect and encourage such students? I have not given notice of this question so I shall be content if the noble Baroness replies to me in writing.
Another remedial measure that I wholeheartedly support is Clause 7, which excludes transport from the effects of measures covered by Part III of the Act. 1544 Surely it is totally illogical to allow discrimination in respect of goods and services provided on trains and buses whose accessibility has been prescribed under Part V of the Act. It has led to some gross injustices, in particular in respect of blind people. Transport is an issue particularly close to my heart because I am a member of the Joint Committee on Mobility for Disabled People. Furthermore, it is a subject which is close to the heart of its president, Sir Peter Large, whom noble Lords will know instigated the CORAD Report, in which anti-discrimination legislation was first advocated. I am greatly indebted to him for his thoughts on this matter, which have informed much of the speech I give tonight.
Whether and how Clause 7 will affect physical access to aircraft and ships not presently covered in the Act remains to be seen, but I hope that the possible difficulties here will not preclude goods and services on accessible transport vehicles being made subject to the Act.
I must confess that there are certain measures in the Bill the full ramifications of which I cannot yet assess. I look forward to further enlightenment on those issues during the course of our discussions on the relevant clauses.
I should like to flag up two areas of uncertainty in the 1995 Act which I hope will be clarified during the passage of the Bill or taken note of in good time before they become significantly important in October 2004. I do not think that either will require primary legislation; both can probably be remedied in regulations.
The first concerns uncertainty about the application of the Act. What exactly is meant by "facilities"? Do they include, for example, bridges, roads, on-street and off-street parking, children's playgrounds, village greens, nature reserves and nature trails? Further clarification and specific examples of what is and is not a facility would be extremely useful. As president of the Disabled Ramblers—although I must say that I have never been a rambler myself—I know that this is a point of great interest to the members of that association. Issues such as the accessibility of footbridges over rivers, towpaths and so forth have created huge problems. If some or all of these examples are deemed not to constitute facilities, there will be ample scope for making the lives of disabled people more difficult. narrower and less enjoyable than they need to be.
The second area of uncertainty is when the greater expense or additional cost of making reasonable adjustments can or cannot be passed on to a disabled customer. When an accessible taxi is available. is it permissible to charge a disabled passenger something extra, as I have been told has happened? Other possible examples include adaptations to a powered wheelchair to enable it to be controlled by a particular disabled person; ticket surcharges levied to pay for the hire of helpers to enable disabled people to attend or take part in New Year's Eve celebrations at an hotel; loading disabled people who cannot walk into aircraft seats; hiring a BSL interpreter to allow a deaf person to hear 1545 a paid lecturer at a function in a village hall; and a woman with cerebral palsy being charged more at a hairdressing salon because of her uncontrolled head movements. Those examples should show which of the additional charges are legitimate and which are not.
This is a hugely welcome Bill. No doubt some will argue that one or two of the clauses do not go far enough. Others will point out that there are still areas of discrimination that are excluded. No doubt others will think that we have done enough to eliminate discrimination and that some or other element, or even the entire Bill, goes too far and is yet another unwelcome addition to legislation governing people's rights. Perhaps those people should read what was said by the noble Lord, Lord Swinfen, in his speech. I hope that we will be able to make progress and will improve the Bill during its passage through this House, in particular with regard to mental health.
To those people who say that we have gone too far and to those who say that we should not pass the Bill because it will not plug all the gaps, I would point cut. as did the noble Lord, Lord Ashley, that several of its clauses fill holes in the existing legislation that were exposed and well delineated during debates held in 1995 when the original legislation was being considered in this House. I very much hope that those acknowledged gaps will not he allowed to persist merely because this amendment Bill omits some desirable extension to the DDA or because someone might consider that one or other measure goes too far to be contemplated at this time.
I wish the Bill a safe and speedy passage and that it will receive the Government's blessing. Better still, as suggested by the noble Lord, Lord Ashley, perhaps the Government will come forward with a Bill of their own.
§ 8.6 p.m.
§ Lord Bragg
My Lords, I thank my noble friend Lord Ashley for bringing the Second Reading of this Bill to your Lordships' House. Over the past months we have heard many reasons for the continuation of this House. Some have been to do with the number of amendments considered—I believe that well over 4,000 were considered and sent back to the other place, where most of them were adopted—while others have to do with the independent voices and deeply informed experience which make the opinions and the cases of some noble Lords heard in this place. I would suggest that none has been more successful and more important than that of my noble friend Lord Ashley in the area of disability.
I have known my noble friend since the 1960s when we worked together at the BBC Lime Grove studios. I admired him then as a television producer. I admire him even more now, if that is possible, as a fighting Member of your Lordships' House.
I hope that the House will excuse me for a moment while I clean my contact lens which is disabling me from reading my speech. It is ironic and rather trivial, but I shall have to see to it. That is better.
1546 Tonight marks the first occasion on which I have had the opportunity to make such remarks about my noble friend. I could not let it pass by.
I should also like to point out that I, like many others concerned in the general area of disability, welcome the Bill. I welcome also all that the Government have done so far. There are shortcomings. Those shortcomings are seized on by the usual standing army of the Government's critics and, rightly, they are being addressed here tonight. However, I would suggest that disability is one of several areas in which the Government are now making steady, if unspectacular—certainly unsung—but definite progress. The Bill marks a fundamental and important step forward and I support it, but in one area, at least, it is not yet enough. More steps are needed.
I speak as the president of MIND. I have been associated with MIND for over 15 years and now have the privilege to serve as its president. Nevertheless, I hope that the House will be assured that I also speak, as do all noble Lords, independently on this issue. Others have covered many and different areas of disability, but I shall concentrate on mental illness. mental ill health and, in this context, mental disability, as did my noble friend Lady Wilkins in her excellent speech, and the noble Baroness, Lady Darcy de Knayth. Inevitably there will be some overlap—something which is not entirely unusual in your Lordships' House.
The ambition to work is widespread among people who use mental health services, yet exclusion from employment is very extensive for this group. The employment rate for people with mental illness is 19 per cent, compared with 47 per cent for all disabled people, and is the lowest for any disability group. In one survey, over one-quarter of employers said that they would never or only occasionally employ someone who had had mental illness in the past. That rose to almost half for people with current mental illness. Yet it is estimated that up to 40 per cent of people with a psychiatric disability are well capable of holding down a job.
Strengthening the Disability Discrimination Act to combat discrimination against people with mental health problems who wish to enter the work force or who are dismissed from employment is a vital reform. The Bill addresses this issue and we at MIND welcome that.
While we support the Bill, we should like it to be amended in terms of the definition of "disability" to provide greater protection for people with mental health problems. By amending the list of "normal day-to-day activities" in Schedule 1, by amending the definition of "long term" and by deleting the requirement that mental health illnesses be "clinically well-recognised", this aim would be achieved.
A comparative survey of the 11 countries whose disability discrimination laws contain a detailed definition of "disability" shows that the UK DDA is the most disadvantageous for people with mental health problems. The Irish and Australian federal law., for instance, specify, 1547a condition, illness or disease which affects a person's thought process, perception of reality, emotions or judgement or which results in disturbed behaviour".The Americans with Disabilities Act 1990, upon which the UK Act is based, has been amplified in regulations and guidance to ensure full coverage of people with mental health problems.
The Disability Rights Task Force report made several recommendations on this issue. The Government's response was, I am afraid, very disappointing. They recommended that the Disability Rights Commission should keep these issues under review as part of its general monitoring of the operation of the Act. None of the task force recommendations appear in the proposed Bill. I suggest that this should be thought through again and that a truer measure of need be put in the Bill.
There are three main problems with the current definitions. First, the long term. The "mental impairment" must have a long-term adverse effect on normal day-to-day activities. "Long term" is defined in Schedule 1 to the Act to be a period of at least 12 months, or likely to last for 12 months. This is particularly problematic for a person who suffers a period of depression, or who suffers from post traumatic stress disorder, which may last for only six months or less but be sufficiently severe to require sickness leave or hospital treatment. It is estimated that 20 per cent of people who have a first episode of manic depression do not get another. These people would therefore not be covered by the provision in the definition for recurrent conditions. Several of the cases found by the DRC to have been rejected in employment tribunals concerned people with severe depression lasting up to six months only.
The second problem concerns the list of "normal day-to-day activities". The effects of mental health problems do not fit readily into the categories listed as "normal day-to-day activities", and some effects not at all. The problem is also compounded by the fact that the substantial effect must be to one of the activities, not spread across them with a cumulatively substantial adverse effect.
Finally, I turn to the point of clinically well-recognised mental illness. This requirement sets an extra condition for people suffering from mental illness who wish to rely on the Act. That is very unfair. It is problematic because medical definitions and diagnoses of mental illnesses are both uncertain and controversial. To have a different rule for physical and for mental conditions is itself discriminatory and out of place on the face of the Disability Discrimination Act. However, there is very little evidence to suggest that this is causing problems in practice.
Let me take depression as an example. People who have a depressive condition may exhibit a variety of symptoms—disruption to normal sleep patterns, a withdrawal from social life, difficulty in going out of the house, agoraphobic symptoms, intermittent panic attacks and a persistent pattern of self-harming or attempting suicide may all he characteristic of a 1548 diagnosis of depression. None of these distressing symptoms is satisfactorily encapsulated in "normal day-to-day activities". It is difficult to estimate accurately how many people are denied protection by the Act because of the deficiency in the definition, but people with a diagnosis of depression are the group most likely to find problems.
The ONS 2000 report, Psychiatric Morbidity Among Adults, found that at any one time in Great Britain, of people aged between 16 and 64, one in six suffer from mental distress. Of these, 9.2 per cent have mixed anxiety and depression; 4.7 per cent generalised anxiety disorder; 2.8 per cent a depressive episode; 1.9 per cent phobia; 1.2 per cent obsessive compulsive disorder; and 0.7 per cent panic disorder.
One in five people in our country will be affected by depression, and one in 100 people will experience manic depression at some point in their life. More than 2.9 million people in the UK are diagnosed as having depression at any one time—that is, at this moment in time, now. There are 30 working days lost due to depression and anxiety for every single day lost to industrial disputes. About one in six people who experience severe depression eventually commit suicide. Seventy per cent of recorded suicides are by people who have experienced some form of depression. On average it takes 10 years for someone to receive an accurate diagnosis of bipolar affective disorder, which is manic depression. One in five people who are not accurately diagnosed go on to commit suicide.
I said at the beginning of my remarks that I spoke as president of MIND, as indeed I do. I also speak as someone who has had two unhappy experiences of depression. I have some experience then of the blight that this can bring to people's lives. It is, in every sense and by any comparison, disabling.
Although we are undoubtedly making progress, it is still true that mental illnesses are simply not regarded as equal to physical illnesses, although they can be just as disabling if not more disabling. You pull a muscle or damage a disc in your back and everyone sympathises. You suffer from a depression which fells you equally and people are nervous and shy away. Obviously I generalise. The mood is changing and many people in our society are becoming much more tolerant and understanding. These people include the Government, I think. Once again, I welcome the Bill, but I hope and trust that in the area of mental distress they will take up the suggestions made here, by MIND and by other associations and go further. Like my noble friend Lord Ashley, I commend the Bill to the House and hope for the speedy passage of a strengthened version through your Lordships' House.
§ 8.17 p.m.
§ Baroness Masham of Ilton
My Lords, I shall speak exceedingly briefly, but I want to give my support to the noble Lord, Lord Ashley of Stoke, and to most parts of his Bill.
I spent today chairing the Winston Churchill Fellowship in the category of "Long term medical conditions". The Bill follows well the debate on the 1549 National Institute for Clinical Excellence. One of the applicants we interviewed today was a professor with multiple sclerosis. I asked him if he had tried beta interferon. "No", he sadly said. Postcode prescribing discriminates. For severely disabled people who might have their quality of life improved, it is a tragedy that drugs which can help so many people with complicated disabling conditions are not available. I hope that the drugs will become cheaper and available to all those who need them.
It is not surprising that this Disability Discrimination (Amendment) Bill is now before us. Disability is very complex and very varied, as the noble Lord, Lord Bragg, said. People have many different needs, but discrimination must be eliminated wherever possible. The Bill aims to fill some of the gaps in previous legislation.
I welcome the extension of the DDA protection to those with cancer and HIV. There have been problems and serious cases of discrimination when people have been diagnosed with HIV. The registered blind and partially sighted people should be included, as stated by the noble Baroness, Lady Wilkins, in her excellent speech.
I welcome the removal of employment exemptions in regard to police officers, fire fighters, prison officers and the Armed Forces under the DDA. I hope that suitable employment can be found for people who wish to work in their chosen profession. But a realistic and safe framework should be found; they must never put fellow workers at risk because of their disability.
I have some reservations about the proposals relating to small employers—some of whom are having great difficulty surviving as it is. I hope that the Minister will comment on this point.
Helpful in formation should be available to all those who want to improve the many facilities and needs of disabled people. I have heard from many who would like to help but who do not know where to obtain information. Could the Minister ensure that local authorities do more to make information available to all those who need it? That would be helpful.
§ 8.20 p.m.
§ Lord Clement-Jones
My Lords, I am speaking in the gap because, when the list of speakers was drawn up, I was not sure that I should be able to be present. I strongly support the Bill. It will have a beneficial effect on many of those who are not covered by the current terms of the DDA. In particular, as a member of the All Party Parliamentary Group on AIDS, I welcome the extension of the Act to cover people with HIV from the point of diagnosis rather than onset of symptoms. HIV/AIDS organisations have long wanted such a provision. There is no doubt that discrimination in such cases begins at diagnosis rather than at the point of actual ill health. As a trustee of Cancer Backup, I very much welcome the provisions relating to cancer patients, as I do those abolishing some of the exemptions under current legislation.
Secondly, I very much hope that the noble Lord, Lord Ashley of Stoke—whom we all hold in high regard—will consider certain amendments to the Bill; 1550 for example, those so ably dealt with by the noble Baroness, Lady Wilkins, and the noble Lord, Lord Bragg. Mental illness may soon overtake physical illness as a disabling condition in this country. There are currently some 650,000 people with a diagnosed severe mental illness. At any one time, the vast majority are economically inactive. Yet most of them want to work—and work could contribute greatly to their well-being. A survey conducted by the Mental Health Foundation in 2000 demonstrated the extent of the discrimination that such people face in finding employment.
As has been made clear, the current Disability Discrimination Act does not deal with the matter satisfactorily. I shall not repeat the points made by the noble Baroness, Lady Wilkins, or those so ably made by the noble Lord, Lord Bragg, in relation to the wording of the Act; for example, in terms of mental illness being a clinically well recognised mental impairment which has,a substantial adverse effect on a person's ability to carry out normal day-to-day activities",the actual list of "normal day-to-day activities", and so on. In reality, these tilt the balance against those with mental health problems. The Act is inadequate to deal with mental illness. It is often difficult for those with conditions such as depression to bring themselves within the terms of the DDA. The Act desperately needs amendment in that respect, as both the National Schizophrenia Fellowship and MIND have pointed out. The result is that the DRC has found that the definitions within the Act clearly cause major difficulties for those with mental health problems.
There are issues relating to the blind and the partially sighted, who have also experienced problems in establishing that they are covered by the present legislation. I hope that the noble Lord, Lord Ashley, will take on board some of the suggested amendments during the forthcoming stages of the Bill. Apart from that, we strongly support the provisions of the Bill as it stands.
§ 8.24 p.m.
§ Lord Addington
My Lords, most of the "usual suspects" are present for this debate, with one newcomer, but not all of them. It seems odd not to hear the views of the noble Lords, Lord Campbell of Croy and Lord Morris of Manchester. However, I am sure that they will soon join this particular fray. The noble Baroness seems to be slightly ambiguous about the prospect.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis. of Heigham)
Not at all.
§ Lord Addington
My Lords, it is also good to see the noble Baroness in her place on the Government Front Bench. In the past she has been on the other side of the Chamber when we have debated these matters I remember her being on my side in certain Divisions during the passage of the original Bill. Unfortunately, when people move across to the other side of the 1551 Chamber, one suddenly finds the brakes of government being applied. Perhaps this happens to all of us, and one day perhaps I shall find out. However, we have not moved as fast as we had hoped.
The 1995 Act was never seen by most of those involved as an end to the argument; it was merely a starting point. It was not happy in its inception—it was effectively dragged from the then government as a result of pressure from both outside and inside Parliament. As a result, the Act has a series of glaring holes.
The exemption for small firms is one that I particularly remember. I have never felt that having one more employee provides the grounds for not discriminating, when one less means that discrimination is possible. That is simply not right. There is something basically flawed about it. The series of exemptions in the Act does not make sense.
The defence of reasonableness runs through the 1995 Act. It states that if a person cannot do the job, he or she does not have to be employed. That is how I have always interpreted it. Then surely that relates to the Armed Forces exemption, referred to by the noble Lord, Lord Swinfen. Surely it is the case that if a disabled person cannot fulfil the basic criteria, the person should not be included. If, as a result of future technical developments, disabled servicemen and women can do their jobs satisfactorily, their entry to the services should be accepted.
Perhaps I may refer briefly to the disability that I know best. How many dyslexic infantrymen have there been in the Army? We do not know. There have always been such groups in the service. Let us not pretend that the barrier is rock-solid. That has never been the case. It is possible that the Army does not know the extent to which it has included disabled servicemen under the definitions in current legislation. I merely put that as a point of argument to the noble Lord and others who have spoken.
I have been on a steep learning curve in one area of disability. The noble Lord, Lord Bragg, and the noble Baroness, Lady Wilkins, spoke at considerable length about mental illness, as did my noble friend. When I first heard the suggestion that the Disability Discrimination Act should be extended to cover mental illness, I asked myself whether such a provision belonged in the Act. The Bill extends the Act to cover two new groups. Should we add a third; or should we opt for an amendment to bring all these areas together? We are all familiar with the "list" argument. Should we have a huge list including every possibility, or should we opt for a general definition at the beginning, so as not to miss anyone out?
I have concluded that a definition at the beginning might be a better way forward; and that a better approach would be to include in disability discrimination legislation the history of illness and its effects. Let us not kid ourselves. There will be other groups who are affected. We must bear that in mind. Having heard many of the arguments, I believe that the noble Lord, Lord Bragg, and the noble Baroness, 1552 Lady Wilkins, have put their finger on a major flaw in our anti-discrimination legislation, even if there is a semantic argument as to whether mental illness is a disability. The history of illness means that people can be discriminated against. We could go on arguing the point. However, we are now down to tactics as opposed to principles. Our approach should be: how can we achieve the best objectives?
I cannot say much more about the rest of the Bill because I shall simply end up agreeing with virtually everybody who has spoken. The muddle of transport at the moment is ridiculous. The possibilities and permutations of a journey on public transport are farcical. It is very black humour, but there you are. The idea that somebody should be refused entry to public transport because they are taking slightly longer to pay a fare is also ridiculous. It is beyond words.
We have to take a stab at a broader brush approach. The Bill contains sensible proposals on housing. The principle is unarguable.
I shall try not to repeat everything that has been said. The Bill is another brave attempt at more comprehensive anti-discrimination legislation. I strongly suspect that the noble Lord, Lord Ashley, does not regard it as the final word because the foundations are not what we would have chosen. If the Government do not see sense and accept the Bill, we may have a look at expanding the foundations. As has already been said, this issue is not going to go away. I look forward to the Minister's response.
§ 8.31 p.m.
§ Lord Astor of Hever
My Lords, I thank the noble Lord, Lord Ashley, for introducing his Private Member's Bill and explaining its objectives so clearly. Disability and disability discrimination are matters that demand and deserve our attention. I welcome this opportunity to consider these important issues.
The Disability Discrimination Act 1995, which was introduced in the other place by William Hague, who was then the Minister for Social Security and Disabled People, represented the first attempt by a British Government to legislate on the concept of disability discrimination. It was a wide-reaching piece of legislation, which sought to enable all disabled people to engage fully and profitably in society. Despite what the noble Lord, Lord Addington, said, it has been described by the Equal Opportunities Review as,the most important discrimination legislation in a generationand,in some respects, the most radical of our discrimination laws".However, on these Benches we accept that the time has come for a more proactive approach to equality for disabled people to make it easier for them to access and enforce their rights. It is becoming apparent that the legislation in its current form has a number of gaps that we must seek to close. For example, the extent to which electoral services, the built environment or highways are covered by the DDA is at present unclear. I note that Clause 8 would ensure that all such service functions were covered, thus sweeping away some of the uncertainty about what is and is not 1553 subject to the Act. Inequalities remain real and persistent for disabled people and the law sanctions discrimination in too many areas.
On these Benches we were pleased to support government legislation establishing the Disability Rights Commission. We believe that the commission has started well by emphasising the importance of example and conciliation as a first resort, but with underpinning legal sanctions for wilful and unacceptable behaviour. However, the Government have been slow to act further on the provision of greater protection for disabled people. The 1997 Labour manifesto contained a commitment to,comprehensive. enforceable civil rights for disabled people".In March last year, the Government's response to the recommendations of the Disability Rights Task Force was published. The 2001 Labour manifesto affirmed the Government's commitment to implementing that response. Yet still we await definite action. The Disability Rights Commission has asked the Government to introduce a disability Bill in the 2002 Queen's Speech. If the Government do not back this Bill, they should take heed of the strength and breadth of support for it and introduce their own legislation at the earliest opportunity. As the noble Lord, Lord Ashley, said, it is time to get a move on.
With the Government apparently giving no indication of when and how they plan to implement the remaining Disability Rights Task Force recommendations, I turn to the Bill. Like the noble Baronesses, Lady Darcy de Knayth and Lady Masham, and the noble Lord, Lord Clement-Jones, I welcome the extension of DDA protection in Clause 1 to those with cancer and HIV. The complexity of the current definition encourages defendants to make spurious challenges to the claimant's status as a disabled person, adding to the length and cost of litigation and deterring disabled people from bringing or continuing cases.
I am particularly aware of the continuing unhappiness of organisations such as the RNIB, which has found that visually impaired people often have problems establishing that they are covered by the Act, sometimes because they have developed coping mechanisms and sometimes because tribunals have failed to apply guidance correctly.
Equally, I have received representations from MIND, which is unable to support the Bill fully, as the definition of disability does not include people with mental health problems. The noble Lord, Lord Bragg, spoke eloquently about mental health problems. I look forward to helping to improve the Bill on that important issue in Committee.
The Bill addresses the immensely important issue of disability and the workplace. Disabled people make up a large and growing proportion of the working age population. Properly implemented internal grievance procedures can help employers to resolve complaints in the workplace, meaning that fewer cases are taken to tribunal, which can be a lengthy and difficult process for everyone concerned. Employers must create work cultures in which discrimination cannot 1554 exist. Businesses react better to new legal frameworks when they can appreciate the strong business case for disability-friendly policies.
However, a recently published survey showed that employers are failing to introduce innovative, multi-disciplinary approaches to managing disability at work. That suggests that disability policies have become static, with few going beyond the basic administrative requirement. Moreover, the poll showed that only 45 per cent of respondents had made use of government funding in that area. Wider awareness of such schemes would mark a big step forward for disabled people—those already in the workplace and those looking to join.
None the less, like my noble friend Lord Swinfen, I must profess some concern at the provisions laid out in Clauses 4 and 5, in particular the proposal to end the current employment exemptions to bring the Armed Forces within the DDA. I am sorry to disappoint the noble Lord, Lord Ashley, the noble Baronesses, Lady Wilkins and Lady Darcy de Knayth, and the noble Lord, Lord Addington, but on this point I find myself in agreement with the Government. It would not be appropriate at this time to bring the Armed Forces under the remit of the Act. We have arguably the best Armed Forces in the world, and they must have full fighting capability.
With reference to Clause 7, I find myself turning again to the failure of the present Government. The travel choices for all disabled people should be increased, and easier access to public transport should be made a priority. However, here I sense that the Government have failed to build on the earlier model set down by the DDA. In their 1998 transport White Paper, the Government agreed that,public transport must meet the needs of all".However, save for introducing new accessibility regulations for public transport, the Government have been slow to improve transport choices for the disabled. We have been expecting the Government to publish a consultation document on transport for the disabled, but little has been forthcoming. Perhaps the Minister can advise the House when that document might be launched. I quite appreciate that I have not given her notice of the point, but perhaps she can write to me and put a copy of her letter in the Library.
I move on to the issues highlighted by Clauses 10 to 12. The Bill would apply to duties to make "reasonable adjustments" for the sale and rent of premises. That would be welcome. Basic forms of discrimination, such as guide-dog bans and refusing to communicate simple information, could be challenged more effectively. However, I must express some concern at the extent to which these "reasonable adjustments" could be taken. Under the Bill, a disabled person could request permission to make a physical alteration to the premises and the landlord would not be able to withhold consent unreasonably. My concern is that such provisions could overburden a landlord and the sense of "reasonable" could be applied too subjectively. A scenario could arise in which different pieces of legislation were applying different pressures 1555 to a landlord. It might, for example, be ruled illegal for a landlord to refuse to convert a property for a disabled occupant, while it might simultaneously be ruled illegal for him to perform that work under the planning regulations.
I conclude by saying, as did the noble Lord, Lord Bragg, how much I admire the work of the noble Lord, Lord Ashley, on disability issues. The thrust of his work is both valuable and admirable and he provides an example for us all to follow. It is clear that we still have barriers to overcome in ensuring that all disabled people are able to live in dignity and independence and play their full part in society. I hope that today's debate has gone some way to ensuring that that happens.
§ 8.43 p.m.
§ Baroness Hollis of Heigham
My Lords, my noble friend Lord Ashley has introduced a Bill that clearly has wide support in the House. Extending and enhancing disabled people's rights is a topic that we debate regularly, and I think that we do it—as many of your Lordships have said—with considerable expertise. As other noble Lords have said, the issue is not one that will go away. I also do not think that, reading today's Hansard, one would be able to tell the party allegiance of any of the speakers in the debate. I think that that shows the bond we have between us.
For once, as this is a Private Member's Bill, I do not have the customary responsibility of replying to the debate and answering points. However, as even newly ingrained habits die hard, I am happy to have a go at answering just a couple of the wider, more salient points that have been made.
The noble Baroness, Lady Darcy de Knayth, asked when additional costs can be passed on to customers and gave hairdressers as an example. The costs can he passed on when the differences in treatment can be justified as a specialist bespoke service to an individual disabled person which costs more than the standard service. That is the basic position.
The noble Baroness also asked about what is meant by "facilities" in Part III, and whether they include footpaths, towpaths and bridges. The term facility is very wide ranging and is generally interpreted generously by the courts. I should expect footpaths, towpaths and bridges to be covered by the Act when they are part of public footpaths.
The noble Baroness, Lady Masham, asked about local authorities' responsibilities in disseminating information. When information is a service, it will have to be provided in an accessible manner, such as in mail-packs, by local authorities. She also asked about small firms. Small employers will obviously not have to do anything unreasonable, as other noble Lords have commented. However, I am sure that she will be happy to know that, with the DRC, the Government will be helping to provide effective advice and information so that small employers understand the 1556 Act and are not burdened by it. We shall use the time before the changes are due to meet just those needs and seek to allay just those worries.
§ Baroness Darcy de Knayth
My Lords, the Minister said that she expects that bridges and footpaths will be covered by the legislation. Has she said that in a Pepper v. Hart sense? May one apply that interpretation to her comments?
§ Baroness Hollis of Heigham
My Lords, it may be interpreted more as "Yes, Minister" than as "Yes, Pepper and Hart". However, the guidance that I have been given on the specific point is that they are likely to be covered by the Act when they are part of public footpaths. I cannot say, beyond that, what weight the courts will give to that assertion. It is the courts who will ultimately interpret the word facility, but my understanding is that we expect them to be covered by the word facility.
§ Baroness Hollis of Heigham
My Lords, it might be more helpful if the noble Baroness and I followed up the matter in correspondence. If she wishes to write to me more fully on the issue, I shall seek more expert advice than I have been able to receive today. The issue was somewhat thrown at us, and it is one of the very few not precisely addressed by the amendment that my noble friend Lord Ashley makes in his Bill.
In framing his Bill, my noble friend has—with his usual wily perspicacity—taken elements from the Government's response to the Disability Rights Task Force, Towards Inclusion, and found inspiration from other sources. However, whatever our view of the Bill's content, the Government do not believe that it is the right vehicle at the right time for taking forward legislation to amend the Disability Discrimination Act 1995 or the Disability Rights Commission Act 1999.
The Government have a positive agenda on civil rights for disabled people, and we have taken action to deliver on our commitments. I shall return to that point. However, before addressing the issue of the Bill itself, I should like to remind the House of some of our achievements and to outline recent progress, to help put discussion in context.
When we came to government in 1997, our manifesto made it clear that the DDA was neither comprehensive nor easily enforceable. I am delighted to welcome the noble Lord. Lord Astor of Hever, from the then government, to that view. We said that we would put that right and we started to do so very quickly. We established the Disability Rights Task Force within a few months to advise us on what to do and how best to do it. The task force was chaired by the Minister for Disabled People, with members from disability organisations, the business world and the public sector. Many members were disabled people or people with other personal experience of disability.
1557 Setting up a commission to enforce civil rights was its first task. In March 1998, the task force made recommendations to the Government about what the role and duties of a disability rights commission might be. We then consulted and produced the Disability Rights Commission Act 1999. By April 2000, the Disability Rights Commission was up and running. Since then, as your Lordships may be aware, the commission has established itself as an important source of information and advice for disabled people and also for business and employers.
In its first 18 months the commission's Helpline has received almost 100,000 calls; its website has received around 400 visits each day and its caseworker service has assisted over 3,000 disabled people who have brought forward complaints of discrimination. It has also established a conciliation service for disputes arising under the goods and services provisions of the DDA and has provided legal representation in nearly 80 cases. I am sure that noble Lords will agree that that is an excellent start and will want to join me in thanking Bert Massie, the chairman of the commission, and his staff for what they have achieved over this time. It is remarkable and effective.
The task force then looked at a wide range of complex issues which impacted across all areas of society. It published its final report From Exclusion to Inclusion. Noble Lords may recall that the report made 156 recommendations for change, including some which involved legislation. Prime among those was the need to bring within the scope of the DDA the provision of education to disabled children and adults in schools and in further, higher and adult education.
We immediately announced our intention to take forward that recommendation. The Special Educational Needs and Disability Act 2001 ensures that, from September this year, disabled children and adults seeking to access education services will be protected against unlawful discrimination and education providers will have to consider making reasonable adjustments.
Aside from the work of the task force, the setting up of the Disability Rights Commission and the SEN Act, we also committed ourselves to implement the final phase of Part III of the DDA in October 2004. As your Lordships are aware, that will require reasonable adjustments to physical features of premises where access to a service is impossible or unreasonably difficult. The duty will be supported by a revised code of practice, which the DRC has prepared. That was laid before Parliament in November and completed its laying period today. It is a significant document that will help service providers and the courts understand the new and existing access duties.
I understand that the DRC intends to publish the code towards the end of February. And it is our intention to bring the code into force around the middle of the year. That will ensure that service providers have it well in advance of the new duties coming into force thus enabling them to prepare properly. Indeed, we are encouraging service providers 1558 to make adjustments to physical features before the new duties come into force; for example, while they are refurbishing their premises.
Implementation in 2004 of this final phase of the duties will be a major move forward in improving access to goods and services for disabled people. It will open up to them many more services and bring closer an inclusive society, one in which disabled people can enjoy the services that non-disabled people, such as those of us in this Chamber, often take for granted—simple things like eating out in a restaurant, using the local library, using train services or visiting a cinema or a theatre in due course.
In preparation for that, we have today launched "Open to Change", the latest in a series of publicity campaigns. These advertisements are aimed at small service providers and encourage them to make minor adjustments to ensure that disabled people can use their services. The campaign invites businesses to contact the Disability Rights Commission Helpline or website for help and advice.
Towards Inclusion was our response to the task force's final report. It outlined the progress we had made on issues of importance to disabled people and explained our position on all the task force recommendations. Although we are well forward on considering responses to the proposals in Towards Inclusion, we now have to do so in the light of what is needed to implement the employment directive brought forward under Article 13 of the EC Act.
That directive provides a common framework of protection against unfair discrimination in employment, vocational guidance and vocational training across Europe. It covers discrimination on grounds of age, disability, sexual orientation and religion or belief. This Government played an active part in its negotiation and adoption in November 2000. The Government are currently consulting on the implementation of this directive and also a directive on race equality. That consultation—in a document called Towards Equality and Diversity—does not end until 31st March.
During negotiations we ensured that the employment directive takes an approach to tackling discrimination—both direct and indirect—againstdisabled people which allows us to continue with the main, familiar elements of the DDA using the concept of reasonable adjustment, while underpinning our commitment to bringing into coverage a range of currently excluded employment and occupations. The consultation looks at options for amending the DDA in the few instances where it is possible that reasonable adjustments may not be the better approach; that is, in relation to performance pay schemes, occupational pension arrangements, group insurance schemes and bodies which control entries to professions or trade generally known as qualifying bodies. In each case we are consulting on whether the interests of disabled people and the sectors concerned will be best served by adopting an approach to indirect discrimination which involves objective justification or one which relies on making reasonable adjustments.
1559 We will also be making improvements to the DDA which did not form part of Towards Inclusion. For example, we will be specifically outlawing harassment and including provisions on the burden of proof so that, once a disabled person can show a prima facie case that discrimination has taken place, it will be for the respondent to show that their actions were not discriminatory.
We have to decide exactly how to reflect the directive when we amend the DDA, and what implications that might have for other things we may wish to do to improve the Act. We believe that the right approach is to look strategically at how all that impacts on the DDA and then to take forward appropriate legislative changes for securing effective civil rights in this area. That clearly has implications for proposals which are in Towards Inclusion, not least because, in a number of respects, we will be going further than envisaged even by the task force.
We have an opportunity to ensure that, as we seek to implement the directive's requirements across a wide range of areas, we do so in a coherent way which takes account of our other plans. What we have proposed in the Article 13 consultation document is to implement the directive's disability provisions in October 2004, two years ahead of the requirement in the directive. I am sure that this House welcomes that commitment. It means that the provisions will be implemented at the same time as we will be introducing the final part of the DDA's rights of access to goods, facilities and services.
Noble Lords will be well aware that we are committed to ending the exemption of small employers at that time. However, the directive means that we will also be covering business partners, barristers, advocates and their pupils, the police, prison officers, fire fighters, qualifying bodies and others. All told, these changes mean that we will be covering around 7 million new jobs in which disabled people could work, including around 600,000 in which they currently do.
As your Lordships will see, we have a very important package of changes due to be implemented in October 2004 which will make a meaningful difference to disabled people's lives. If we can add to those, we will do so. But now is not a time when I can outline every detail of the Government's overall strategy.
That brings me to the substance of my noble friend's Bill. It is difficult for me to comment on the proposals in the Bill when I am not in a position to confirm the Government's own strategy in every detail. I cannot, therefore. be drawn into addressing our intentions for each and every proposal that we have made, or which my noble friend has made, or which your Lordships have indicated tonight they may go on to make to my noble friend's Bill. However, I can make some comments which I hope will help the House.
Before I do that, I want to challenge the assertions that have been somewhat unfairly bandied around the House tonight that the Government are failing to 1560 advance comprehensive and enforceable civil rights for disabled people. I repeat, since 1997 we have introduced the Disability Rights Commission, education has been brought into the scope of DDA by the Special Educational Needs and Disability Act 2001, and we propose to implement Article 13 of the directive two years ahead of when we might otherwise need to.
Perhaps I can make some further points. First, I wish to emphasise the extensive changes coming forward in October 2004, not only covering all small employers and bringing them within the framework of the DDA, and extending it to cover important occupations such as the police, but also the bringing forward of the final, full rights of physical access to premises for disabled customers.
Secondly, we will not legislate while we are consulting on the employment directive. Copies of the consultation document have been sent to over 6,000 people and organisations, including many disability organisations. The consultation does not end until March and we shall need to consider the responses thereafter. That takes time.
Thirdly, Ministers in the Department for Transport, Local Government and the Regions will shortly undertake their major consultation exercise on extending the scope of DDA to cover transport. They will consult widely with transport providers and disability organisations. My colleagues there would not intend to legislate until that consultation is over.
Finally, we have made absolutely clear—this was a point made both by the noble Lords, Lord Swinfen and Lord Astor, both of whom I believe have experience in this field—that there are some things we simply will not do. Extending the DDA to the armed services is one such. It is not a question of consultation or discussion but of our concept of good and responsible government.
My noble friend's proposals in the Bill are affected by all four of the qualifications I have just outlined. It cannot therefore be right for us to seek to legislate in this way. Some of my noble friend's proposals flow from the Employment Directive, one involves the transport proposal on which the Government are consulting in a different department and yet another seeks to bring the Armed Forces within the scope of Part II of the DDA, which we have said we shall not do. As I said earlier, I shall not enter into a process of testing all the clauses in the Bill to see whether we agree with them now or may agree with them in the future or with some modified version of them. But I shall say this: if we did. there are difficulties with them which would require significant work to overcome.
It is not a one issue Bill that my noble friend has introduced, despite his seductive style. This is not a one issue Bill with simple provisions. These are complex issues and the Bill seeks to amend rightly a complex Act. It affects the Human Rights Act, the Police Act and employment tribunals. It has implications for Northern Ireland, education and transport provisions and the consultation that may be required with every government body, every government agency, every 1561 local authority and every public and private transport body, to say nothing of the regulation that would necessarily follow. I do not want to add to the complexities but your Lordships will understand that one does not address a problem by a simple piece of legislation. It has to be preceded by elaborate consultation across government and elaborate consultation with all the appropriate affected bodies. It has then to be extended to Northern Ireland, Scotland and the like. It also has to be followed up with workable regulations.
Inevitably, my noble friend's Bill confronts the problems that face all Private Members' Bills. Legislation has to be carefully thought through before it can be advanced. Taking forward my noble friend's Bill would result in piecemeal legislation which would have to be amended again when we took forward other of our proposals. That would be a strategy guaranteed to confuse those affected, I suspect, and certainly might bring down the wrath of some employer organisations which would be in the interests of no one, including disabled people.
In conclusion, it is customary to congratulate a noble Lord on introducing a Private Member's Bill where the Government believe that the Bill reflects their own policies and priorities. Therefore, I congratulate my noble friend on introducing his Bill and on his wily and shrewd attempt to draw out from us plans that we are not yet ready to produce. Therefore, I cannot offer the Government's wholehearted support.
We remain committed to pursuing an agenda that will produce effective change for disabled people. There can be no doubt that the changes we have introduced since 1997 have been widely welcomed and, in this context, the major stepping stones of the establishment of the DRC and the enactment of the Special Educational Needs and Disability Act stand out. What we do next to amend the DDA will represent a further significant step forward and we must therefore ensure that it is a fully correct step. We are building on what we have done. We shall legislate when there is an opportunity to do so, and once we have taken account of all the factors involved in producing an effective legal framework.
We shall introduce significant and coherent improvements for disabled people in October 2004. And we shall continue to respect, and respond to, the desire of disabled people to lead independent lives as equal members of society. However, the Government cannot support my noble friend's Bill today as the appropriate, best and most suitable way forward.
§ 9.4 p.m.
§ Lord Ashley of Stoke
My Lords, some sections of the press are quick to report odd debates in this House such as the discussion yesterday at Question Time on whether House of Lords Christmas cards were the correct size. The press reports that kind of debate in order to mock this House. However, if the press covers this debate, the public will gain a very different impression of what this House does. It really has been 1562 a superb debate and one of which I believe we can he proud indeed. The speakers have been eloquent, well informed, human and thoughtful and, indeed. if I may say so, thought provoking.
I am grateful to all noble Lords who have taken part in the debate which has constituted a wonderful discussion. I hope that it will be widely read by people interested in this subject. The few examples that we have heard of people suffering discrimination could be multiplied a millionfold. Enormous discrimination is taking place now in Britain, and we should be ashamed to allow any of it. Our legislation should be so comprehensive and so enforceable that such discrimination is not possible. This is supposed to be a civilised country but we allow that discrimination to go on and on and on. The fact is that discrimination equals suffering. It is our job to try to stop that suffering as best we can.
Before I address the speech of my noble friend the Minister, I wish to refer to some criticism from Members of the Back Benches. I fully appreciate concerns as regards the Army. However, all I would say is that the Army is a massive industry. It is, indeed, the best Army in the world, as the Minister said. It is a massive industry. Thousands of men do not go to the battlefront and into the trenches as in the 1914–18 war. The tail of the Army is enormous, as with any army. There are few personnel fighting at the front. Many personnel are involved in administration.
§ Lord Swinfen
My Lords, I am grateful to the noble Lord for giving way. We are not in a situation of fighting a 1914–18 war with static trench warfare. Warfare today is incredibly fluid. It does not matter where you are in the battle line; you are in the frontline far back in the tail. Every serviceman must be a soldier first, even if his job is that of a butcher. He must he capable of fighting wherever he is. If people are not capable of fighting, they endanger the lives of those around them.
§ Lord Ashley of Stoke
My Lords, the noble Lord is confusing two things. I am afraid that he is right to say that the Army today is complex, but he is wrong to assume that every person in the Army has to be able to fight. The fact is that with today's Army, battles do not go on at the front in the same way. However, I do not want to belabour the point at this stage.
It has been said that some Members of this House do not like the inclusion of the Army. We should discuss that in Committee, when I should be more than glad to discuss the details. It has also been suggested that those who are mentally ill, blind people and those with learning difficulties may be excluded. There is absolutely no intention on my part to exclude anyone. I assure those noble Lords who spoke so eloquently that we shall of course include such people. The right time for noble Lords to move amendments is in Committee. I am sure that the Minister will welcome, as I will, the many amendments that will be tabled—the Bill will have a good long session. I say to noble Lords, "Please table amendments"; I shall welcome them and he very glad to accommodate them 1563 The Minister gave the clear impression to the House that all is fine and lovely, that the Government are racing ahead making massive advances and that the Bill is so complex and piecemeal that it would be disastrous to pursue it. Did you ever hear such a story in your life? It is unbelievable that any Minister can get things so wrong. In terms of what the Government have done, no one in this House, including my noble friend, has paid more tribute to the Government for what they have done for disabled people than I have. Time and again—this appears in Hansard—I have said how splendid this is or that is.
I am sick of paying tributes, I have made so many. People think that I am trying to ingratiate myself with the Government, but I am not. There is no point in my noble friend coming out with the usual refrain that they have introduced the commission and special educational needs, and so on. We have already accepted that and paid tribute to the Government for doing so. Fine. Let us now discuss the Bill and the shortcomings in existing legislation.
The fact is that for all that the Government have done—which I repeat is admirable and splendid—thousands of people suffer discrimination, and it is our job to stop that. I have not said that no advances have been made, as my noble friend implied; I have said that advances have been made, but that they have not been made quickly enough. They should be realised far more speedily. All noble Lords apart from my noble friend agree on that. There have been some variations, 1564 difficulties and objections, but by and large that is the view of the House. The Government will isolate themselves if they reject the Bill as calculatedly and as dogmatically as the Minister seemed to be doing.
I do not want to go on at length because—I say this again—I have a high regard for what the Government have done. No one has spoken more vehemently than I have about how wonderful what they have done is. However, when it comes to advances, the Bill is a glorious—a golden—opportunity for the Government to move forward in a substantial way. Far from the Bill being piecemeal, the fact is that existing legislation is piecemeal. The Bill provides the Government with a comprehensive and enforceable package. That is what disabled people want.
Finally, it is almost time to get the placards out. I inform the Minister that we have a million tucked away in large buildings throughout Britain. If the Minister insists on saying no to the Bill, it would be time to get them out again. We could discuss that over a glass of beer. I am sure that we can reach some accommodation. I only hope that my noble friend—or another Government Minister—will meet us in Committee to discuss the amendments that will be tabled. We want some kind of reasoned advance from the Government. They have done that so far. Let us hope that they can do so in future. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
§ House adjourned at fourteen minutes past nine o'clock.