HL Deb 06 March 2002 vol 632 cc345-86

8.28 p.m.

Lord Ashley of Stoke

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

Moved, That the House do now resolve itself into Committee.—(Lord Ashley of Stoke.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Dean of Harptree) in the Chair.]

Clause 1 [Persons deemed to be disabled]:

Lord Bragg

moved Amendment No. 1: Page 1, line 5, at end insert "— ( ) in paragraph 1(1) omit "only if the illness is a clinically well-recognised illness", The noble Lord said: This amendment stands also in the names of the noble Lord, Lord Morris of Manchester, and the noble Baronesses, Lady Wilkins and Lady Darcy de Knayth. In moving the amendment, I shall speak also to Amendments Nos. 2 and 3.

The purpose of the amendment is to remove any unnecessary qualification from the definition of disability: that any mental impairment relied on to meet the definition must be "clinically well recognised".

The requirement is discriminatory. It reinforces a widely held, but erroneous, view that mental impairments are of an entirely different category to physical impairments. A disabled person who has been partially paralysed by polio does not have to prove that polio is a "clinically well-recognised" impairment. It imposes an extra legal hurdle on people with mental health problems that is not applied to those with physical impairments, which may be difficult to overcome because of medical disagreements.

Preoccupation with correct labelling distracts the court from the real issue: has this person an impairment which substantially limits normal day-to-day activities? The court may tend to feel that if this cannot be diagnosed, it cannot be serious. However, the NHS recently asserted the 40 to 60 per cent of medical symptoms cannot be explained medically, and of the 10 most commonly presented symptoms in general practice, only 15 per cent will have a clearly attributed physical cause after one year.

Secondly, despite a move towards court-appointed medical advisers, there is the problem of the cost of medical reports—which affects many disabled applicants. For people with mental health difficulties, the burden of producing expensive medical reports— for which applicants may have to pay £2,000 or more—already screens out many meritorious applications and contributes to making the legal process extremely intimidating.

I entirely support the notion that tribunals may need to be assisted in interpreting a "mental impairment", but the better approach is to reserve this for statutory guidance, with reference to expert material where appropriate. Adopting a diagnostic approach would stop the present position whereby, in the absence of medical reports, lawyers may be forced to act as doctors and to argue whether a particular set of symptoms was a "clinically well-recognised illness". Instead, they would have a legal duty to follow the guidance and turn to the World Health Organisation Classification of Diseases where there was any uncertainty.

I turn to Amendment No. 2. Its purpose is to give people with short-term but severe depression the protection of the DDA through broadening the definition of "disability".

To qualify as disabled for the purposes of the DDA, the claimant must have an "impairment" with, long-term adverse effect on normal day to day activities". "Long-term" is defined to be a past period of at least 12 months or the likelihood that the period will be 12 months.

While some people with depression have a recurrent condition and gain the protection of the Act, others find that they fall outside it because the depression has not lasted 12 months; or because, although it has lasted 12 months, its effect on normal day-to-day activities has not been substantial for 12 months; or because the person cannot prove that there is an underlying recurrent condition.

One person in 20 will suffer some level of depression at some time in their life, but it is still not fully understood. The problem of "short-term" depression may often fall into the category known to lay people as a "nervous breakdown". It is characterised by a chemical imbalance in the brain, which in some cases can be accentuated by life events (as in post-natal depression). This type of depression can often react quite quickly to medical treatment, perhaps in two or three months; corrective medication can thus result in a smooth and expeditious return to work. It is estimated that 20 per cent of people who have a first episode of manic depression do not get another; over 30 per cent of those with depression have no further episodes. These people would not, therefore, be covered by the provision in the definition for recurrent conditions.

The reasons for disability discrimination legislation to cover people with short-term depression are: first, discrimination against them is commonplace; and, secondly, proof that will bring them within either the 12 months or the recurrent conditions rules is particularly difficult.

If a person suffers any impairment such as a stroke or a heart attack for a short term, and apparently recovers to full health, he or she is much less likely to suffer discrimination than the person with a period of mental illness on his or her record.

There is a precedent for a pragmatic approach to the definition. The Government have accepted the task force recommendation to amend the definition so as to include cancer and asymptomatic HIV because there is evidence that people with these conditions face stigma and discrimination. They should be similarly concerned for the discrimination faced by people with mental problems.

Reports from the employment tribunals also show this to be a consistent problem. In one recent case the applicant took five months' sick leave for depression and was on medication for over a year, but the tribunal was still not satisfied that, the effect of the applicant's impairment had a long term effect as it had not lasted at least 12 [consecutive] months". If the substantial adverse effect has not lasted for 12 months but is likely to recur, the person will also be covered. The aim of this provision was to cover impairments whose effect on day-to-day activities fluctuate. For instance, with epilepsy or multiple sclerosis the underlying condition remains but the adverse effects are variable. When the Disability Discrimination Bill was before this House in 1995, the noble Baroness, Lady Hollis, welcomed the provision for recurrent conditions because it would cover illnesses such as depression. However, that may have been too sanguine a hope, as recent cases demonstrate.

In singling out a specific aspect of mental health for this amendment, there is no intention to make a special plea for one disability over another; the intention is to highlight and to target a serious and well-documented problem.

I turn finally to Amendment No. 3. The purpose of the amendment is to improve the coverage of mental health conditions within the definition of disability by including activities which are most likely to be severely affected for people with eating disorders, depression, anxiety disorders and schizophrenia.

Discrimination against people with mental health problems, in employment, in access to goods and services and in access to education, sadly, remains endemic in our society. However, several aspects of mental ill-health do not fit well into the DDA category of "day-to-day activities" and people can discover that they are denied the protection of the Act when on a commonsense view they should be covered.

The list of day-to-day activities was framed with physical impairments in mind and contains six physical activities and only two mental ones. The list of activities specifies speech; hearing; eyesight; continence; ability to lift, carry or otherwise move everyday objects; mobility; manual dexterity; physical co-ordination and continence; memory; ability to concentrate, learn or understand; and perception of the risk of danger.

The most relevant activities for people with mental health problems are "memory or ability to concentrate". This is amplified in guidance issued under the Act which states: Account should be taken of the person's ability to remember, organise her thoughts, plan a course of action and carry it out, take in new knowledge or understand spoken or written instructions". During the passage of the DDA through Parliament in 1995, the view that the list of day-to-day activities was too narrow was raised in this House. Lord Mackay of Ardbrecknish, for the government, explained that there should be no problem for this group because no doubt their speech and mobility would be affected by their impairment if not their ability to concentrate. However, the problem is that one of these activities must be substantially affected and this might not be so, as has been amply demonstrated in cases involving schizophrenia.

The essence of that condition lies in the disordered perception of reality rather than inability to concentrate. The case leaves the legal status of schizophrenia as a disability profoundly doubtful. At least 250,000 people have been diagnosed as having schizophrenia—that is a large number of people who potentially face serious levels of discrimination in our society and may find it difficult to prove that they are covered.

Another category of cases involves people who suffer from anorexia nervosa or other eating disorders. It is both their ability to care for themselves and their perception of reality that is disordered, rather than an inability to concentrate or learn.

While "failure to perceive danger" is covered under Schedule 1(4)(1)(h), it is often tragically the case that people with severe mental health disorders are only too aware of the physical dangers to which they expose themselves; they do so to cause themselves harm or in some cases to end their lives. It is not their perceptions that are disordered, but their will to live, to care for themselves and to interact.

Likewise, depression does not necessarily fit into the list of day-to-day activities. People who have a severe depressive condition may exhibit a variety of symptoms. Disruption to normal sleep patterns, withdrawal from social life, loss of appetite, intermittent panic attacks, and a persistent pattern of self-harming may all be characteristic of a diagnosis of severe depression. None of these is satisfactorily encapsulated in normal day-to-day activities.

It might be possible to overcome the problems I have outlined through another form of words. It might also be possible for the Act to be amended by regulations. However, the best solution to end the bias in the definition against people with a mental health impairment would be the amendment proposed. Perhaps I may add that the Disability Rights Commission shares my concern in this area.

Finally, are the Government aware of the strength of concern indicated by these amendments? Will the Minister tell the Committee what they intend to do? I beg to move.

Lord Morris of Manchester

I am a signatory to these important amendments and warmly congratulate my noble friend Lord Bragg on having tabled them.

Regrettably, I was unable to attend the debate on the Bill's Second Reading, a lapse noted with kindliness in speeches from both sides of your Lordships' House. Without knowing why I was not here, the noble Lord, Lord Addington, said that he was sure I would soon be joining the fray. In fact I was on, as it were, sabbatical leave on Capitol Hill, having been co-opted by the US House of Representatives on to a congressional committee of inquiry into the still undiagnosed illnesses of many thousands of now severely disabled veterans of the Gulf War.

My good and noble friend Lord Ashley referred at Second Reading to my having introduced 33 years ago, as a Private Member's Bill, what became the Chronically Sick and Disabled Persons Act 1970. My noble friend himself had a distinguished role in that enactment and will recall the care with which we worked to ensure that the Act's definition of disability embraced people with learning disabilities and mental health problems just as explicitly as it did people with physical and sensory disabilities. Indeed, such was our concern that, in Section 28 of the Act, a duty was imposed on Ministers to act to remove any misunderstanding that might arise on this crucially important aspect of the legislation.

The Act that these three amendments seek to improve—the Disability Discrimination Act 1995—is often described as a lineal descendant of the Chronically Sick and Disabled Persons Act; but, as my noble friend Lord Bragg has made clear, that claim is marred by the DDA's badly flawed definition of disability.

Of course, no fault lies with the Disability Rights Commission. It will see, as clearly as the supporters of these amendments, that for a statutory agency created to end discrimination against disabled people to be made to discriminate between one group of disabled people and another is both palpably wrong and patently absurd. That diminishes and demeans the Disability Rights Commission and the law as it stands needs amending.

How can it credibly be said that people afflicted by schizophrenia are not disabled? And who can say that it would "open the floodgates" to afford them the protection of the DRC? Speaking as a serial floodgate saboteur for over three decades now, I would not include the carrying of these amendments in that class of parliamentary activity.

I conclude with just one further point. In a country where 70 per cent of recorded suicides are among people with serious mental health problems, to lag behind other countries in protecting them from discrimination is a disturbing indictment of the way we live now. Yet a recent comparative survey of the disability discrimination laws of 11 countries shows that our Disability Discrimination Act is the most disadvantageous for people with mental health problems.

I hope very much to see these amendments approved and again I congratulate my noble friend Lord Bragg on his humane initiative in tabling them.

Baroness Wilkins

I speak in strong support of the amendments, which cover the concerns I raised on Second Reading. The current definition of disability in the DDA provides inadequate protection for those with mental health problems—in particular, as my noble friend Lord Bragg pointed out, people with depression, eating disorders and schizophrenia. My noble friend has covered matters so ably and comprehensively that I have little to add. I hope that the amendments will receive the Minister's support and that my noble friend Lord Ashley of Stoke will accept them as part of his Bill.

Baroness Darcy de Knayth

I give very warm support to the amendments, to which I have added my name. The severity of the discrimination was brought home to me most strongly when David Grayson, who was the chairman of the National Disability Council—the predecessor of the DRC—told the All-Party Disability Group that some people left gaps in their CV unexplained, preferring that an employer should assume that they had been in prison rather than revealing that they had been in hospital with a mental illness.

8.45 p.m.

Lord Astor of Hever

As I said on Second Reading, we on these Benches have a great deal of sympathy with the objectives of the amendments for people who suffer genuine mental illness. The noble Lord, Lord Bragg, spoke to the amendments with great ability.

The amendments would extend the coverage of specific listed conditions. Is it the aspiration of the noble Lord, Lord Ashley, should his Private Member's Bill fail, that all conditions deemed to constitute disability should be written directly on the face of any legislation that the Government bring forward? I understand that the Disability Rights Commission is currently considering revisions to the definition of disability to be published in October. Clearly, that will be too late for this Bill.

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham)

I rise only because of the comments of my noble friend Lady Wilkins, who asked whether the amendments would attract the Minister's support. None of the amendments will attract either the Minister's support or the Minister's failure to support. They are not amendments to the Minister's Bill. As I tried to make clear on Second Reading, my position is to keep a watching brief. If I can be helpful in giving information-based responses to particular questions, I am very happy to do so, but the origin of the Bill is my noble friend Lord Ashley and it is for him to decide how he wishes to respond to the views of my noble friend.

I have a couple of points to make to clarify the position, but I am neither endorsing nor failing to endorse any of the amendments. I shall probably not even seek to contribute on many of them. I shall intervene only if I think that I may be able to take the discussion forward.

The reason for the original terminology on clinically recognised illnesses is to prevent diagnoses of conditions that we have never heard of before, such as when two Californian psychiatrists diagnose fame addiction as a reason for a star going in for recurrent shoplifting. The aim was to winnow out the self-described, which has no serious impact.

On the second point, my noble friend may be brigading together two issues that we try to keep separate—the difference between disability, which is a long-term issue, and illness, which is not. In that sense, someone who suffers from mental health problems is not treated in any way differently under existing legislation from someone who has a stroke or a heart attack. I accept that it may be arguable that the long-term consequences of a short-term mental health illness may have discriminatory effects in a way that a short-term physical illness may not. However, the reason for the current provision is that we are trying to distinguish between illness and long-term disability that results in continued impairment.

It is worth emphasising that the DDA already covers 8.5 million people.

Lord Addington

Will the noble Baroness give way?

Baroness Mills of Heigham

Perhaps the noble Lord would like to come in after me. I am not replying for anybody. I am simply adding some comments.

Lord Addington

I have a question for the Minister.

Baroness Hollis of Heigham

The Minister is not answering. It is for the noble Lord, Lord Ashley, to answer questions, if I may say so.

I do not expect any government to seek to bring within the scope of the legislation not just the 8.5 million who are currently covered by the DDA, but anybody who has ever suffered an illness for any sustained period. That would involve a very large swathe of the population.

It may be worth correcting a misunderstanding over how the DDA deals with mental health. On Second Reading, my noble friend Lord Bragg said that mental health does not fit readily into the list of respects into which effects on normal day-to-day activities fall into the DDA and that any substantial effect as required under the definition must be in one of those respects. I am sure that he recalls making that argument. That means that a person with a mental health problem could not rely on there being a cumulative substantial adverse effect across a number of limited respects in Schedule 1 to the DDA, such as mobility or ability to concentrate, learn or understand.

I am not arguing the merits or demerits of the amendments; I am simply seeking to be helpful to the Committee on points of clarification. The Act does not limit the effects of the impairment to only one of those respects. Where an impairment does not have a substantial adverse effect on a person in one of the respects listed, the effects of more than one can be taken together to result in a substantial effect in carrying out normal day-to-day activities.

Lord Addington

I am sorry to put the Minister in this position. I appreciate that she is trying to prevent balls going out of court, as opposed to answering questions. It seems that the Disability Rights Commission believes that it is best-qualified to deal with discrimination against people with mental illness. Would not expansion there make sense?

Baroness Hollis of Heigham

It is already the case that the DRC can review the situation.

Lord Astor of Hever

Can the Minister put us all out of our agony? If the Bill fails, will the Government come forward at an early stage with a disability Bill to tie up all the loose ends that will no doubt be debated later tonight?

Baroness Hollis of Heigham

No. I will do no such thing. This is a Private Member's Bill, not a government Bill. My noble friend has already held discussions with the Minister with responsibilities for disabled people. We agree that certain issues associated with disability need clarifying independently and beyond the effects of the European directive coming into play with British legislation. If and when legislative time permits, the Government may seek to intervene on those issues. It is not the case that the Government have any view on or support my noble friend's Bill—which must take its chances in the other place, as with all private Members' legislation.

Lord Astor of Hever

With respect, that was not my question. If the Bill fails, do the Government have an aspiration to come forward ….

Baroness Hollis of Heigham

No. The Government accept that there are issues—not necessarily those raised by the Bill, debated tonight or covered by amendments. The Government may wish to revisit aspects of the 1995 Act in light of concerns that have emerged since and of European legislation. It is for the Government to decide whether that is an appropriate priority. My noble friend's Bill is a private activity. I am here to keep a watching brief. If it helps the Committee to provide information, I shall seek to do so—but in no sense will I offer a view on whether or not I support a particular amendment.

Lord Ashley of Stoke

The debate has come down to a tango. I will comment briefly on the three amendments, which are some of the most important.

Of course I hope that any future Bill would incorporate a comprehensive listing, to avoid the many misunderstandings of the past. I extend the greatest understanding, as always, to my noble friend Lady Hollis, but she seems anxious to distance herself from the Bill.

Baroness Hollis of Heigham


Lord Ashley of Stoke

While I understand that she must, as a Minister, avoid giving a specific commitment, I am sure that when Members of the Committee raise points with her, she will be as forthcoming and comprehensive as possible.

After the detailed and comprehensive explanation given by my noble friend Lord Bragg, anything that I add may be superfluous. He more or less said it all. Nevertheless, one should bear in mind my noble friend's comment at Second Reading that mental illness is not regarded as equal to physical illness. There is a great deal of public confusion about mental illness—particularly the definition of a clinically well-recognised mental illness, with which Amendment No. 1 is concerned. The problems range from personal idiosyncrasies to severe schizophrenia—and the boundaries at different stages are hazy. The amendment would amend the Act's existing requirement for a mental illness to be clinically well recognised, which is unfortunate and irrelevant and should go. This admirable amendment is the best instrument.

Amendment No. 2 also deserves the support of the Committee, given that the 1995 Act was aimed primarily at physical disability. The Act's requirement that a disability must have a long-term adverse effect rules out anyone with acute depression that does not last 12 months, which is clearly absurd. As my noble friend Lord Bragg said, the definition of long term is some 12 months. Although that may be reasonable for physical disability, it should not debar people with mental illness from enjoying the protection of the Act. No one can deny that many people with severe but short-lived mental illness are likely to suffer discrimination in years ahead. They deserve and need the Act's protection.

Amendment No. 3 deals with another anomaly in the 1995 Act—its preoccupation with physical disability. The Act lists day-to-day activities that have to be affected for the person to qualify. Most are physical. The amendment properly inserts provisions that are relevant to individuals with mental illness and thereby makes the Act a vehicle for helping mentally ill people and a more rounded whole. I accept the three amendments.

Lord Bragg

I am warmed by the welcome given to the amendments and the support that they have received in all parts of the Committee. I know that many people who suffer from mental disability will also be warmed, because they have high hopes for the Bill. I hope that no one feels that I am being too selective by particularly thanking my noble friend Lord Ashley for his Bill and for the opportunity to table and speak to the amendments.

My thanks go also to my noble friend the Minister for taking questions and a wonderful display of shadow boxing, which I greatly enjoyed. I would appreciate a detailed letter covering some of the points that were raised. I was speaking strictly to the notion of mental disability. It would be interesting to study in some detail the challenges brought against my arguments. I reiterate my thanks to the Committee.

On Question, amendment agreed to.

Lord Bragg

moved Amendment No. 2: Page 1, line 5, at end insert "— ( ) at the end of paragraph 2(1) insert"; or (d) if the mental impairment consists of or results from depression, it has lasted or is likely to last at least three months", On Question, amendment agreed to.

Lord Bragg

moved Amendment No. 3: Page 1, line 5, at end insert "— ( ) at the end of paragraph 4(1) insert— (i) ability to care for oneself; (j) ability to communicate and interact with other people; or (k) ability to perceive reality", On Question, amendment agreed to.

9 p.m.

Baroness Wilkins

moved Amendment No. 4: Page 1, line 14, at end insert— 7B (1) A person who has been certified by a consultant ophthalmologist as blind or partially sighted is to be deemed to have a disability and hence to be a disabled person. (2) A copy of a record of examination to certify a person as blind or partially sighted or a record of registration as such with a local authority shall be conclusive evidence, in relation to the person to whom it was issued, of the matters certified. (3) Unless the contrary is shown, any document purporting to be a record of examination or registration shall be taken to be such a record and to have been validly issued." The noble Baroness said: I should like to express my appreciation to Caroline Ellis of the RNIB for her advice on this matter.

The purpose of Amendment No. 4 is to ensure that those who are certified as blind or partially sighted are automatically counted as disabled for the purpose of the DDA. It should be an uncontroversial amendment as it falls in line with the Disability Rights Task Force recommendation and the Government's proposal in Towards Inclusion—their final response to the DRTF recommendations.

As the DRTF and the Government both acknowledged, all visually impaired people, and certainly those certified or certifiable as blind or partially sighted, ought to meet the definition of disability under the DDA. They further acknowledged that, in practice, employers and service providers have sought to challenge this even when someone has been registered. That has been very distressing and stressful and has led to at least one person becoming clinically depressed. Visually impaired people have also been faced with an uphill struggle in establishing before a tribunal that they are disabled people for the purposes of the Act.

Being certified as blind or partially sighted is traumatic enough without further being required to prove one's impairment or being forced to go into endless details about its impact on one's life. The amendment proposes that people should be able to use either registration with a local authority or certification by a consultant ophthalmologist as proof of being blind or partially sighted because documentary evidence of one may sometimes be more easily available than the other. There is often considerable delay between certification and registration.

I feel sure that my noble friend Lord Ashley of Stoke will accept this amendment as it would assist the applicant in discrimination cases, provide certainty to the respondent, and allow the tribunal to move to the substance of the case and address the discrimination that may have occurred. Currently, more time is being spent arguing over whether someone is "disabled" under the tortuous criteria set out in the Act and guidance than addressing discrimination. I beg to move.

Lord Addington

The amendment promotes a very sensible principle: in legislation dealing with certain types of disability, we should not have to provide endless definitions; one definition should be acceptable. There have been cases involving disabilities other than blindness in which it has been questioned whether a condition actually constitutes a disability. Surely we should be able to agree on definitions that are established and agreed by professionals. If we can do so in relation to one disability, we should be able to set the standard by which other disabilities are considered. I support the amendment.

Lord Ashley of Stoke

This amendment would bring much-needed clarification to a confused and confusing situation. Although it is stating the obvious, I remind the Committee that blind and partially sighted people see nothing or very little. They surely have a profound disability. It seems wrong to me that people certified as blind or partially sighted are not regarded as disabled. But that is what happens. This amendment would give them a guarantee that their certification is accepted as proof of disability and that they will accordingly be entitled to the protection of the DDA. I accept the amendment.

Baroness Wilkins

I am grateful to the noble Lord, Lord Addington, for his support.

On Question, amendment agreed to.

Clause 1, as amended, agreed to.

Baroness Wilkins

moved Amendment No. 5: After Clause 1, insert the following new clause— "EFFECT OF COPING AND AVOIDANCE STRATEGIES (2) In Schedule 1 to the 1995 Act, after paragraph 6, insert— 6A (1) An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that the person concerned has unreasonably modified his behaviour to prevent or reduce the effects of the impairment to a minor level, is to be treated as having that effect. (2) The person concerned shall be taken to have unreasonably modified his behaviour if he has developed coping or avoidance strategies which significantly restrict his range of activities or ability to undertake them, even if the person accepts that level of restriction and therefore underplays the effects of his impairment." The noble Baroness said: The purpose of Amendment No. 5 is to ensure that coping or avoidance strategies are taken into account when determining whether someone has a disability for the purposes of the Disability Discrimination Act so that the true effects of an impairment are considered.

Currently, the statutory guidance on the DDA definition suggests that if a person can reasonably be expected to modify his behaviour to prevent or reduce the effects of an impairment to a minor level, then that person may not meet the definition of disability. However, this is irrelevant in terms of any discrimination which he experiences since, whatever he does, he may still face discrimination because he has an impairment.

Many disabled people, like everyone else, will avoid activities or situations that lead to difficulties. They may stop watching television, stop reading the newspaper or stop going out for walks because they do not feel able or confident in doing so and they do not receive adequate support. They may also employ coping strategies that they regard, after many years, as unexceptional, such as appearing to follow a conversation that they cannot hear properly. At tribunal, many people underplay the effects of their impairment and consequently risk being denied their rights under the DDA.

That was the situation in the case of Wright v. Discount Cards and Stationery Limited in which a woman with cataracts was working for a greeting cards company. Her job required photocopying, which generally took her longer to complete as she had to hold the material closer to her eyes than others would. She was consequently dismissed. At the employment tribunal hearing, she significantly underplayed the impact of her visual impairment and the hearing found against her, saying that she was not disabled for the purposes of the DDA.

The Disability Rights Task Force argued that the statutory guidance should make it clear that unreasonable coping strategies should be disregarded by tribunals and courts, including those that significantly restrict the person's range of activities or ability to undertake them, even if the person accepts that level of restriction. However, in their response in Towards Inclusion, the Government argued that subsequent case law has clarified this issue. When deciding whether someone is disabled, tribunals must now focus on the things that an applicant cannot do, or can do only with difficulty, rather than the things that the person can do.

The RNIB and other organisations argue that the 1995 Act itself and not just the guidance should be amended to reflect that understanding. Case law is not as accessible as provisions on the face of legislation, and revisions to statutory guidance can be quickly superseded. This amendment to Schedule 1 would give the greatest level of clarity possible. When the DDA was passed, the effects of medical treatment were seen to warrant inclusion in Schedule 1 of the Act; that being the case, so should the effects of coping and avoidance strategies. I beg to move.

Lord Addington

I wish to say simply that this is a sensible amendment. If people with disabilities are to function, their coping strategies are by definition a part of them. If they do not have such strategies, they will not be in employment in the first place because their disabilities will overpower them. They are an essential part of the person and should be included.

Lord Ashley of Stoke

In any walk of life it would be unacceptable to penalise people for trying to solve or cope with personal problems. It is particularly wrong that blind and partially sighted people should lose out by trying to overcome their disability and cope effectively with it. I accept the amendment.

Baroness Wilkins

I am grateful to the noble Lord, Lord Addington, for his comments and I am grateful to the noble Lord, Lord Ashley, for accepting my amendment.

On Question, amendment agreed to.

Clauses 2 and 3 agreed to.

Clause 4 [Extension of the 1995 Act to police etc]:

Lord Astor of Hever

moved Amendment No. 6: Page 4, line 7, leave out "to (8)" and insert ", (6) and (8) The noble Lord said: I rise to move Amendment No. 6, which is in my name and that of my noble friend Lord Swinfen.

The first duty of any elected government is defence of the realm. That is surely an accepted and unambiguous view of those on all sides of the House.

The Disability Rights Task Force report of December 1999, From Exclusion to Inclusion, stated that the employment provisions of any civil rights legislation should cover the Armed Forces while recognising the need for adequate safeguards to maintain operational effectiveness. The Government in their March 2000 response to the report—Towards Inclusion on civil rights for disabled people—did not accept that the current exemption of the Armed Forces from legislation prohibiting discrimination on the grounds of disability should be dropped.

In a speech to the United Services Institute on 19th December 2000, General Sir Charles Guthrie, the former chief of staff, now the noble and gallant Lord, Lord Guthrie, said that the demands of the disabled to serve in the Armed Forces were "ill-conceived" and would cause untold damage to their combat effectiveness.

The then shadow Secretary of State for Defence, Mr Iain Duncan Smith, responded: We are in agreement with General Sir Charles Guthrie. The issue is not about the disabled, it is about the Armed Forces being able to make decisions from a practical standpoint on the basis of what works". The Bill does not seek to instil any of the inadequate safeguards that the Disability Rights Task Force deemed necessary. The deep concern that we have with this aspect of the Bill is that it creates a situation in which serving members of the Armed Forces could put themselves and others at unnecessary risk. The overriding consideration must be operational effectiveness. Like my noble and gallant friend, as a former Army officer with some experience of active service, I can attest to the very difficult and dangerous situations in which members of the Armed Forces can find themselves.

At Second Reading, the noble Lord, Lord Ashley, said that the Army is a massive industry and that its tail is enormous. The Armed Forces has out-sourced many of the non-combatant jobs to civilians. To give just a few examples: civilians act as driving instructors; they train tank crews; and they man base repair maintenance workshops. Civilians do much of the administrative work of the Armed Forces. Static establishments have civilian catering firms and they carry out military guard force duties. Undoubtedly some of these civilians are disabled.

We oppose this aspect of the Bill for reasons of pragmatism, not discrimination. The Armed Forces are clearly concerned and we on these Benches support the Government's very sensible position.

I know that my remarks will disappoint the noble Lord, Lord Ashley, for whom I have the greatest respect. However, I assure him of my very real desire to fight whenever I call for the interests and aspirations of all disabled people. I beg to move.

Lord Ashley of Stoke

The noble Lord, Lord Swinfen, is waiting for me to speak and then he can fire all his ammunition after I have done so. That is a typical soldier's tactic.

The provision in my Bill merely seeks to extend the protection of the DDA to disabled service personnel. But as the whole question of the role of service personnel has been mentioned by the noble Lord, Lord Astor, perhaps I can respond briefly.

It has been claimed that everyone in the services should be capable of fighting. The noble Lord, Lord Swinfen, said at Second Reading that even butchers in the services should be able to fight. In raising this relic of the past, he may have thought that they could butcher the enemy with knives and choppers, but as modern wars are fought largely with computerised equipment and communications, the British Army would be in a sorry state if it had to call on butchers to operate those computers.

I see nothing ignoble in extending the DDA to protecting disabled service personnel from discrimination. To claim that making that discrimination unlawful will affect the fighting ability of the splendid British Army, and, as the noble Lord, Lord Astor, said, will put disabled people and others at risk, is absolute nonsense. That is tantamount to saying that the British Army is effective only when it discriminates against some of its troops. That is obvious moonshine. No one can really go along with that kind of theory.

I believe the noble Lord, Lord Astor, said that the noble and gallant Lord, Lord Guthrie, said, that demands for disabled people to serve in the Armed Forces were misguided. I am not sure of the exact words that he used. The fact is that disabled personnel are kept on in the Army and other services when they become disabled during service. That is fine and I fully agree with it, but it contradicts the principle put forward by the noble Lord, Lord Astor, and, on Second Reading, by the noble Lord, Lord Swinfen. If it is wrong to have disabled people in the Armed Forces, why are disabled people retained when they become disabled during service? As I say, I warmly welcome the fact that those people are retained, but the noble Lords' arguments are illogical.

The disabled service personnel in the Army today are those who have become disabled in the course of their service. So, denying them the protection of the Disability Discrimination Act means denying reasonable protection to people who are injured while fighting to protect their country, or training to do so. Where is the sense in denying them protection just because they have become disabled in the service of their country? That does not make sense or add up. Despite the kind words that the noble Lord, Lord Astor, said about myself, I regret that I am unable to accept the amendment.

9.15 p.m.

Lord Swinfen

I greatly admire the noble Lord, Lord Ashley. Earlier he sprang to his feet thinking I had indicated that he should speak. However, I thought that the noble Baroness, Lady Darcy de Knayth, wanted to speak and I indicated that she should speak before me.

The noble Lord and the Committee know that I have spent the past 20 years in this House fighting for disabled people. I shall continue to fight for disabled people. However, I shall not continue to fight for them to be put into a position where they risk a greater chance of being killed because of their disability than an able-bodied person, or for them to be put in a position where they stand a strong chance of having their disability made even worse because of enemy action.

The briefing I have received from the Disability Rights Commission refers to a policy in the past of dismissing servicewomen who became pregnant. Pregnant women are now retained in the services as those who were dismissed won substantial damages. However, what the briefing does not state is that the Armed Services, particularly the Army, are now considering carefully the physical ability of women to carry the loads and to take the physical stress involved in combat units. It is well known that female recruits often suffer much in the way of injury during their normal recruitment training due to the physical work that they have to do. That position is changing.

I used a bad example at Second Reading when I said that a soldier could be a butcher. If you have ever seen a carcass being butchered, you will know that it requires a considerable degree of fitness and force. However, as the noble Lord, Lord Ashley, knows, fighting nowadays is often done on a computer in brigade or divisional headquarters. You need mechanics to service and maintain the vehicles. You need clerks to do the paperwork and to make certain that orders go out. You need people to maintain and operate radios. They can often carry out those tasks it' they are disabled. I do not deny that. The noble Lord said, if I understood him correctly, that the Armed Forces retained servicemen who became disabled in the course of their service. We know that; that has been done for years and for generations. However, they have not retained servicemen who have been disabled to the extent that they cannot operate effectively.

It has been said recently that most warfare today is carried on from 30,000 or 35,000 feet. However, the Kosovo campaign would probably have ended a great deal faster if we had put troops on the ground at the same time as the aerial bombing took place. You still need to be able to put troops on the ground who are capable of physically fighting the enemy and holding that ground once they have captured it.

The noble Lord, the promoter of this Bill, will know that the exploits of the Long Range Desert Group and the Special Air Service, now a very fine regiment, in the 1939–1945 war in North Africa operated far behind enemy lines, attacking their supply lines and their headquarters in order to deal them very severe blows. The same could happen to us in action.

Since that time, other nations have developed similar forces and are quite prepared to use them against us. We now have an escalating terrorist situation. There has been one in Northern Ireland for over a generation, but it has now become a world-wide problem. Our headquarters, our tail, which, as the noble Lord, Lord Ashley, said, is very large, can be attacked. The soldiers in that tail, whether butchers, bakers, candlestick-makers, computer operators or wireless maintenance individuals, will have been trained as soldiers before they take on those tasks. They, as any other servicemen, have to be prepared to fight in exactly the same way as those in the front line.

Although I appreciate the noble Lord's desire to improve the lot of people with disabilities, I believe that in this instance he is making a mistake. I hope that he will take that on board and accept this amendment.

Lord Addington

I am in danger of trying to wave a white flag of truce between two embattled sides, and I promise that that will be my last pun. What the noble Lord said about the Army's defensive strategy is accepted. It is true that many troops go through basic training and even through wars without handling guns, but it is accepted that they may have to. That is part of military thinking.

However, what concerns me is not so much the fact that disability may prevent people from fulfilling basic infantry functions—the primary point to which I think the noble Lord was referring—but the suggestion that if one has a disability, one can be removed by means of a blanket ban. I again use the example of dyslexics—we have reached Clause 4 of this Bill without my mentioning them by name, so I have not done too badly—who have undoubtedly formed a part of Her Majesty's forces, and still do. Indeed, I have known several people with dyslexia, albeit perhaps not in its severest form, who have held commissions.

The current provisions of this Bill could result in a perfectly effective soldier, seaman or airman being removed from the job because someone decides that he does not like the idea of dealing with slightly incorrect spelling on a report form. That example should possibly be borne in mind when consideration is given to the issue of a blanket ban.

In an attempt to reach agreement on this matter, I should like to make a suggestion for consideration by both sides involved in this argument. The Bill contains many good provisions. However, there is room for compromise. At present everyone appears to be running frightened and screaming about this matter, but it would not be worth while to allow the argument to wreck the Bill.

Lord Ashley of Stoke

Having read my Bill very carefully—I have read it three times—while the noble Lord, Lord Swinfen, was speaking, I can find no reference in the provisions to pregnant women. I therefore do not intend to detain the House on that subject.

The noble Lord, Lord Swinfen, has conceded that disabled people are able to operate computers. He then spoke about the SAS and the Long Range Desert Group. Having been in the Army, the noble Lord should know that it is extremely difficult, even for some of the fittest men and women, to obtain membership of the SAS or the LRDS.. They are unique regiments. It is therefore clearly preposterous to refer to the activities of the SAS and the Long Range Desert Group in terms of the whole Army, Navy and Air Force being involved. He simply used "scare" phrases, which do not really cut any ice. A butcher could not operate with the Long Range Desert Group because he may not have the relevant skills. The noble Lord chose the wrong example.

The noble Lord overlooked another matter. By objecting to this element of the Bill, he is defending discrimination in the armed services. However, there is no justification for doing so. We all know that he has done splendid work for disabled people and that he always makes distinguished contributions to such debates. His approach is not in question, except in relation to the armed services. It is completely wrong to deny the defence of the DDA to disabled service personnel—Army, Navy or Air Force.

I am sorry that I am unable to agree to the amendment, but at least we hav`e had a good exchange of views.

Lord Astor of Hever

I am particularly grateful to my noble friend Lord Swinfen for his support—he set out the case very clearly. I am sorry to say to the noble Lord, Lord Addington, that I fear that there is no ground for compromise on these Benches. I also hope that the Government will not compromise on this matter.

The noble Lord, Lord Ashley, referred to our not defending discrimination. We are not defending discrimination in the Armed Forces, but we could be discriminating against able-bodied servicemen if the proposal were agreed to. I fear that we must disagree on this matter. I believe that the Government are absolutely right. It would be inappropriate to divide the Committee at this point but if there is a vote on this matter at any other stage, we shall support the Government. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Clause 5 agreed to.

Lord Addington

moved Amendment No. 7: After Clause 5, insert the following new clause— "DISCRIMINATION AGAINST VOLUNTARY WORKERS (1) The 1995 Act is amended as follows. (2) After section 9, insert— "9A DISCRIMINATION AGAINST VOLUNTARY WORKERS (1) The Secretary of State may by order provide that the provisions of this Part apply to work sought or carried out by a disabled person on an unpaid, voluntary basis as if he was an employee or an applicant for the employment concerned with such modifications as are specified in the order. (2) Before making any order under subsection (1), the Secretary of State shall conduct a review. (3) Unless he has already begun or completed a review under subsection (2), the Secretary of State shall begin to conduct a review immediately after the first anniversary and if no order is subsequently made under subsection (1) he shall conduct a further review after the third anniversary. (4) Any review shall be completed within nine months. (5) In conducting any review, the Secretary of State shall consult—

  1. (a) such organisations representing the interests of disabled persons in voluntary work or seeking voluntary work as he considers appropriate; and
  2. (b) such organisations representing the interests of employers as he considers appropriate.
(6) If, on completing a review, the Secretary of State decides not to make an order, he shall no later than one year after the commencement of the review lay before Parliament a report—
  1. (a) summarising the results of the review; and
  2. (b) giving the reasons for his decision.
(7) Any report made by the Secretary of State under subsection (6) shall include a summary of the views expressed to him in his consultations. (8) In this section— anniversary" means the anniversary of the coming into force of this section; and review" means an assessment of the effects of extending the scope of Part 2 to disabled persons who seek or undertake unpaid voluntary work and what modifications to the provisions of Part 2 may be required in respect of voluntary workers." The noble Lord said: The amendment would bring voluntary workers within the scope of the Bill. There is much agreement among those concerned—indeed, the Government, agreed—that a voluntary code should cover voluntary workers. The Disability Rights Task Force issued a recommendation, which stated: In principle, voluntary workers should be covered by civil rights legislation. However, in recognition of the diversity of voluntary workers and organisations that engage them, a good practice approach should be adopted. Organisations engaging volunteers should be consulted on the preparation of guidance and a power taken in civil rights legislation to bring volunteers into coverage through regulations". The Government said that they prefer the voluntary approach, but such approaches take time. One could still be trying to reach an agreement 20 or 30 years down the line. People often decide not to agree because the relevant matter does not bother them. That is 'why we have to legislate in this regard. If everyone was a reasonable man, we should never have to pass any legislation. That is why the amendment is necessary. I beg to move.

Baroness Darcy de Knayth

I support the amendment. It is important for disabled people to be able to give something without discrimination. Volunteering is useful not only because it builds one's confidence and provides some form of employment but also because it is important to be able to contribute something to society when one is so often on the receiving end.

Lord Ashley of Stoke

It is one of the little oddities of life that voluntary workers are not usually taken as seriously as those who are paid, and their efforts are often not sufficiently appreciated. The amendment goes a considerable way towards redressing the balance.

The Government said that they will take the power to bring a range of voluntary workers into the DDA when legislative time allows, and that they will use the power if necessary. I assume that this amendment, which covers the necessary point, will be uncontroversial.

There is a quote from Patricia Hewitt, the Secretary of State for Trade and Industry, in the admirable briefing from the Disability Rights Commission saying, in another context, that leaving matters to a voluntary approach would mean taking 20 years to secure the necessary changes and that setting new legal standards will bring them forward by a generation. I hope that the Government take that message on board. I accept the amendment.

Lord Addington

I thank the noble Lord for that response, and the noble Baroness for her support.

On Question, amendment agreed to.

9.30 p.m.

Lord Addington

moved Amendment No. 8: After Clause 5, insert the following new clause— "EXTENSION OF PROVISIONS TO QUALIFYING BODIES (1) In the 1995 Act, after section 15, insert— "15A DISCRIMINATION BY QUALIFYING BODIES (1) It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or trade (a "qualifying body") to discriminate against a disabled person—

  1. (a) in the terms on which it is prepared to confer on him that authorisation or qualification;
  2. (b) by refusing, or deliberately omitting to grant, his application for it;
  3. (c) by withdrawing it from him or varying the terms on which he holds it;
  4. (d) in the way it affords him access to any relevant services or facilities provided in connection with the conferment of an authorisation or qualification or by refusing or deliberately omitting to afford him access to them; or
  5. (e) by subjecting him to any other detriment.
(2) In this section—
  1. (a) "authorisation or qualification" includes recognition, registration, enrolment, approval and certification;
  2. (b) "confer" includes renew or extend;
  3. (c) "relevant services or facilities" includes the means of course delivery and assessment.
(3) In the case of an act which constitutes discrimination by virtue of section 55, this section also applies to discrimination against a person who is not disabled. (4) Sections 15A to 15C do not apply to the extent that a qualifying body is already subject to any provision in sections 28R to 28T. (2) In the 1995 Act, after section 15, insert— "15B MEANING OF "DISCRIMINATION" IN RELATION TO QUALIFYING BODIES (1) For the purposes of section 15A, a qualifying body discriminates against a disabled person if—
  1. (a) for a reason which relates to his disability, it treats him less favourably than it treats, or would treat, others to whom that reason does not, or would not, apply; and
  2. (b) it cannot show that the treatment in question is justified.
(2) For the purposes of section I 5A, a qualifying body also discriminates against a disabled person if—
  1. (a) it fails, to his detriment, to comply with section 15C; and
  2. (b) it cannot show that its failure to comply is justified.
(3) The taking of a particular step by a qualifying body in relation to a person does not amount to less favourable treatment if it shows that at the time in question it did not know, and could not reasonably have been expected to know, that he was disabled. (4) Subsections (5) to (7) apply in determining whether, for the purposes of this section—
  1. (a) less favourable treatment of a person, or
  2. (b) failure to comply with section 15C, is justified.
(5) Less favourable treatment of a person is justified if it is necessary in order to maintain necessary and appropriate professional or trade standards. (6) Otherwise less favourable treatment, or a failure to comply with section 15C, is justified only if the reason for it is both material to the circumstances of the particular case and substantial. (7) If, in a case falling within subsection (1)—
  1. (a) the responsible body is under a duty imposed by section 15C in relation to the disabled person, but
  2. (b) fails without justification to comply with that duty, its treatment of that person cannot be justified under subsection (6) unless that treatment would have been justified even if it had complied with that duty."
(3) In the 1995 Act, after section 15, insert— "15C DUTY OF QUALIFYING BODY TO MAKE ADJUSTMENTS (1) A qualifying body must take such steps as it is reasonable for it to have to take to ensure that—
  1. (a) in relation to the terms on which it is prepared to confer authorisation or qualification, disabled persons are not placed at a substantial disadvantage in comparison with persons who are not disabled; and
  2. (b) in relation to any relevant services and facilities provided in connection with the conferment of an authorisation or qualification, disabled persons are not placed at a substantial disadvantage in comparison with persons who are not disabled.
(2) In considering whether it is reasonable for it to have to take a particular step in order to comply with its duty under subsection (1), a qualifying or awarding body must have regard to any relevant provisions of a code of practice issued under section 53. (3) This section imposes duties only for the purpose of determining whether a qualifying body has discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such." The noble Lord said: I saw this amendment initially while I was going through the wording with those who helped me with the drafting. At that time I was appalled by its length, but not by its content. "Qualifying bodies" are one of those groups that are on the increase in our society because everyone wants his own professional qualification. Those bodies that are traditionally qualified, or going through the mainstream part of the university structure, are increasingly bringing them in.

By historical accident and also by not being traditionally a part of legislation, those bodies have, thus far, been outside the cover of most mainstream legislation. The Disability Rights Task Force recommended that they should be brought in under such legislation; and, indeed, there is a requirement under an EU directive that such bodies should be brought under the same type of legal framework as applies to other forms of qualification.

If you cannot get the qualification, you cannot get the job. It is that simple. So, if we can remove any possibility of discrimination in this respect, we shall be enabling many people. It is totally in keeping with the original Bill, which dealt with employment, goods and services. I beg to move.

Baroness Darcy de Knayth

I should like to express my support for the noble Lord's amendment, and speak also to Amendment No. 9, which is tabled in my name. The noble Lord's amendment deals with "qualifying bodies" and would implement the requirements of the EU directive. It is quite wrong that disabled students should be denied the choice of studying in order to pursue a profession that they could perfectly well practise if they could get over the hurdle erected by some professional bodies. Discrimination would be justifiable only if it were a question of maintaining professional or trade standards.

Amendment No. 9 is, I fear, of similar length and wording to the noble Lord's amendment. I wish only that my speech could be as short as the noble Lord's introduction. However, not having his ability to paraphrase and to do wonderful things with words, I am afraid that the Committee may have to put up with a little more by way of delivery. My amendment seeks"to ensure that disabled students will be protected against discrimination by employers while on various forms of work placement and work training programmes, and that they enjoy equal opportunities with their non-disabled peers. The EU directive covers access to all types and all levels of vocational guidance training and retraining, including practical work experience.

My amendment would ensure that, in addition to schools and FE and HE institutions having duties not to discriminate against disabled learners in arranging work placements, the employers would also be obliged not to discriminate against the person concerned and to make reasonable adjustments. Comparable provisions exist in the Race Relations and Sex Discrimination Acts. No such obligation with regard to people with disabilities exists at present. Indeed, employers can even refuse them a placement.

I moved a similar amendment with the same aim, though it was much shorter, during the proceedings on the Special Educational Needs and Disability Act but it was resisted by the Government. Work experience is becoming increasingly important not only in further and higher education but also in secondary education. Further, the actual experience of work is particularly important to the student with a disability—indeed, probably more so than with the ordinary able-bodied student—because he can then judge whether he is capable of pursuing the career that he has in mind, and work out how to do things and find ways around his problems.

I am pleased to note that the Disability Rights Commission is in favour of the amendment. Indeed, on 4th February, the noble Baroness, Lady Hollis, wrote to me following Second Reading saying that, as she mentioned in the debate, the Government will be considering the next steps in legislating to amend the DDA in the light of the outcome of the Article 13 Directive which is currently underway. This includes changes that might be needed in relation to practical work experience". I understand the reluctance some people feel about imposing a duty on employers which may be expensive and may be for a short time if the accommodation is specific to the individual. If we are to make it work, work placements and work-based training will have to be backed up by funding to ensure that the employers get a fair deal.

As part of the new 14–19 reforms, additional resources are being made available, including £25 million in 2002–03 for the development of education/business links, including opportunities for work experience, and increased levels of investment are promised in future years. But as yet there is no consistent funding stream of support for disabled pupils and students while they are undertaking work experience and work-based learning. In the case of disabled pupils in schools, they would not be funded by the LSC, nor would any support specified in their statement of SEN necessarily carry over into a work placement.

Will the disabled students' allowance be increased to cover the cost of some kinds of reasonable adjustments to the workplace, or could employers be reimbursed by an extension to the access to work programme? It would have to be ring-fenced to ensure that it followed the student on the work placement. It would he illogical for the funding plans not to include funding for employers to make reasonable adjustments to allow disabled pupils and students to benefit fully from work experience and work-based training.

I wonder whether I can entice the Minister into commenting briefly on the question of funding. That may be unfair as I have not warned her. However, if we are able to give encouragement to employers, that would be useful. I look forward to hearing whether the noble Lord, Lord Ashley, feels that he can accept the amendment.

Lord Swinfen

Amendment No. 9 also appears in my name. I do not propose to say a great deal on it because all that needs to be said has probably been said already. However, there is the question of reasonable adjustment. A number of people will say that for disabled people who are volunteers or on work placements the cost would be far too great and therefore would be unreasonable. However, we must not forget that the length of time that the individual will be in post will be taken into account when deciding whether or not any adjustments are reasonable. Therefore, I am sure that unreasonably expensive adjustments for short use will not be permissible.

Baroness Hollis of Heigham

Perhaps I may be of assistance to the Committee. Clearly, there is a question of who counts as an employee in those circumstances. Where someone is an employee, the employer has a responsibility under the DDA, given reasonable expense, to make physical adjustments. With a placement scheme, factors such as whether a person comes from a school or a voluntary organisation, and the length of the placement, constitute a grey area. I have taken advice on the matter. However, where Members of the Committee seek information on this matter and on other matters which have arisen during tonight's debate as to the current state of the law and its application, perhaps I may write to them. I shall ensure that my noble friend has copies of all the correspondence. That may be helpful. It would not be easy to give a "yes" or "no" answer to the noble Baroness on this question. At what point the employer is required to make reasonable adjustments, and if so who pays, would depend on the circumstances.

Baroness Darcy de Knayth

I thank the Minister for that reply, which is helpful. As she mentioned that she would have to implement the directive, I threw out the thought as to how we would give a sweetener to the employers.

Lord Ashley of Stoke

The response by the Minister was helpful. I welcome the fact that in tabling Amendment No. 8 the noble Lord, Lord Addington, seeks to bring qualifying bodies within the orbit of Part II of the DDA. The amendment would implement a recommendation of the task force and would bring our policy into line with the EU employment directive. I understand that it has largely been accepted by the Government.

The amendment is important because it would substantially enhance the employment opportunities of disabled students. Qualifying bodies are gateways to entry for a large number of professions, occupations or trades. It cannot be right that sex and race legislation covers these bodies yet the DDA does not; and in consequence it would be perfectly lawful for them to discriminate against disabled students. I accept the amendment.

Regarding Amendment No. 9, put forward so clearly by the noble Baroness, Lady Darcy de Knayth, I am sure that the Committee will recognise that when people become disabled at an early age, they face greater difficulties than those disabled later in life when they have had valuable experience and perhaps training.

At one time it was virtually impossible for young disabled people to obtain training. Although it is a little better today, many gaps remain. The amendment closes an important one. As the noble Baroness, Lady Darcy de Knayth, has pointed out, work placements and work-based training is an essential part of the qualification needed for many jobs. If it is missing, it is like a ladder with some steps knocked out. Schools and higher education institutions already have non-discrimination duties, but until employers offering training programmes have similar duties, the whole process resembles a faulty and hence a useless ladder.

It has already been said that the EU Directive on Equal Treatment in Employment requires the UK by 2006 to implement provisions similar to that proposed by this amendment. But why should we wait until then? Why not move now? If the Bill is accepted, that means early movement. I am happy to accept the amendment.

Lord Addington

I thank the noble Baroness for supporting my amendment, if only very briefly. I apologise for not supporting her amendment. The issue has a long history. I know that the noble Baroness has battered away at the problem for a long time. She has spotted a hole in the problem which is as important in practical terms as the one that I have brought forward. There is no point in getting through a course and passing a professional body's exam in order to become whatever it is, if one is then denied the essential practical experience. So they are two branches certainly of the same tree.

On Question, amendment agreed to.

Baroness Darcy de Knayth

moved Amendment No. 9: After Clause 5, insert the following new clause— "EXTENSION OF PROVISIONS TO EMPLOYERS PROVIDING VOCATIONAL TRAINING (1) In the 1995 Act, after section 15, insert— "15D DISCRIMINATION BY EMPLOYERS IN THE PROVISION OF VOCATIONAL TRAINING (1) It is unlawful for an employer who provides vocational training services or facilities to discriminate against a disabled person seeking or undergoing such training—

  1. (a) in the terms on which he affords him access to those services or facilities;
  2. (b) in the manner in which he affords him access to those services or facilities;
  3. (c) by refusing or deliberately omitting to afford him such access; or
  4. (d) by terminating his training or subjecting him to any other detriment.
(2) In this section "vocational training" means any work-related education or training including work-experience placements and work-based learning programmes for disabled persons in secondary, further or higher education by whomsoever arranged. (3) In the case of an act which constitutes discrimination by virtue of section 55, this section also applies to discrimination against a person who is not disabled. (2) In the 1995 Act, after section 15, insert— "15E MEANING OF DISCRIMINATION IN SECTION 15D (1) For the purposes of section 15D, an employer discriminates against a disabled person if—
  1. (a) for a reason which relates to the employee's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and
  2. (b) he cannot show that the treatment in question is justified.
(2) For the purposes of section 15D, an employer also discriminates against a disabled person if—
  1. (a) he fails, to the employee's detriment, to comply with section 15F; and
  2. (b) he cannot show that his failure to comply is justified.
(3) The taking of a particular step by an employer in relation to a person does not amount to less favourable treatment if he shows that at the time in question he did not know, and could not reasonably have been expected to know, that the employee was disabled. (4) Less favourable treatment, or a failure to comply with section 15F, is justified only if the reason for it is both material to the circumstances of the particular case and substantial. (5) If, in a case falling within subsection (1)—
  1. (a) an employer is under a duty imposed by section 15F in relation to the disabled person, but
  2. (b) fails without justification to comply with that duty,
his treatment of that person cannot be justified under subsection (4) unless that treatment would have been justified even if he had complied with that duty.
(3) In the 1995 Act, after section 15, insert— "15F DUTY TO MAKE ADJUSTMENTS (1) Where—
  1. (a) any arrangements made by or on behalf of an employer, or
  2. (b) any physical feature of premises occupied by the employer,
place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect.
(2) Subsection (1)(a) applies to—
  1. (a) arrangements for determining to whom work-related education or training should be offered, and
  2. (b) any term, condition or arrangements on which work-related education or training services are offered or afforded.
(3) In considering whether it is reasonable for him to have to take a particular step in order to comply with his duty under subsection (1), an employer must have regard to any relevant provisions of a code of practice issued under section 53A. (4) In this section "the disabled person concerned" means—
  1. (a) in the case of arrangements for determining to whom work-related education and training should be offered, any disabled person who is, or has notified the employer that he may be, seeking such education and training; and
  2. (b) in any other case, a disabled person who is undergoing such education and training.
(5) This section imposes duties only for the purpose of determining whether an employer has discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such." The noble Baroness said: I have spoken at huge length to Amendment No. 9. I should like to thank the noble Lords, Lord Swinfen and Lord Addington— somewhat late but extremely helpful as always—for supporting the amendment. There was a very helpful intervention from the Minister and a great deal of support from the noble Lord, Lord Ashley. I am delighted that the noble Lord accepts the amendment. I beg to move.

On Question, amendment agreed to.

Clause 6 agreed to.

Baroness Darcy de Knayth

moved Amendment No. 10: After Clause 6, insert the following new clause— "APPLICATION OF ACCESS TO GOODS AND SERVICES PROVISIONS TO EDUCATIONAL INSTITUTIONS (1) The 1995 Act is amended as follows. (2) In section l9(5A) after "provision of a service" insert "to disabled pupils or students". (3) In section 19(5A) at end insert "but this Part does apply in respect of services provided by an educational institution to disabled persons who are not pupils or students". (4) In this section— disabled pupils" has the same meaning as in section 28Q (2) and (3); and disabled students" has the same meaning as in section 31 A (2) and (3). The noble Baroness said: The purpose of Amendment No. 10 is to ensure that vital services provided by schools, FE and HE institutions to disabled people who are not pupils or students, such as careers services, access to school or college facilities, continue to be covered by Part III of the DDA.

This is an important issue. It needs to be sorted very soon as the provision involved comes into force in September of this year. SKILL, which is the national bureau for students with disabilities—of which I should declare that I am the president—has picked up a damaging anomaly introduced by the Special Educational Needs and Disability Act 2001. SENDA amended the Disability Discrimination Act by inserting new rights for disabled pupils and students in education, which is Part IV of the DDA. In introducing the new rights, the Government amended Part III of the DDA so as to remove the exemption of education but also to provide that no services covered by the new Part IV could also come under the goods and services provisions of Part III. A new subsection (5A) was added to Section 19 of the DDA. It states: Nothing in this part applies to the provision of a service in relation to which discrimination is made unlawful by section 28A, 28F or 28R". That would not be a problem if all it meant was that disabled pupils and students enrolled at the institutions concerned could not bring a case about the same service under Part III as well as Part IV.

However, its effect is much wider than that. The subsection effectively excludes any services covered by Part IV from the ambit of Part III. The definition of services to which the new schools and HE and FE provisions apply is wide. For example, in relation to schools it includes not just educational but associated services, which includes access to school facilities. In relation to HE and FE institutions, it includes careers services and catering and leisure services provided wholly or mainly for students. So disabled people who are not pupils or students would no longer be covered by Part III when they use such services. That will have particularly devastating consequences for access to careers services at a time when, following the Harris report, much emphasis is placed on their importance to people after they have graduated.

Obviously, some adjustments put in place for disabled students will also be of benefit to disabled ex-students—for example, the installation of a lift. But other types of support are specific to the individual—such as a sign language interpreter for an interview. That type of provision is likely to be under threat when the law changes. Disabled parents would lose the right to reasonable adjustments to enable them to attend parents evenings, school plays, fetes, and so on, because access to schools facilities is part of the associated services covered by Part IV.

The Education Bill envisages a greater role for schools in providing community services and facilities, but, unless this Bill is amended, disabled people will be denied the same opportunity to enjoy those services as the rest of the community. I am sure that that is a mistake. I cannot believe that the Government intended to create this loophole. I mint ask the Minister to give us her view. It may be that Skill has misread it; it may be that she can set our minds at rest. Does the Bill need amending—and before September—if we are to plug this loophole? I look forward to hearing the Minister's comments and those of the noble Lord, Lord Ashley, who I hope will agree to the amendment. I beg to move.

Baroness Hollis of Heigham

Again, I have been invited to comment on the situation. As I understand it, university and HE careers services are not at present required to continue to make provision for graduates once they have left the institution for study, irrespective of whether the students are disabled. It has been recommended that higher education institutions should do so, and obviously some do. In that sense, no act of discrimination is taking place because it is a matter for the individual institution whether or not it continues to make services available. I speak from experience of my university. As I understand it, a continuing careers service is not currently a requirement of university provision for any students. The issue therefore does not arise.

Obviously, it would be deeply unacceptable if universities made provision for non-disabled students but failed to give the same service to disabled students. My understanding is that at present they are treated in the same way: neither group of students has an automatic entitlement to a continuing service once they have left university.

Baroness Darcy de Knayth

I thank the Minister for that reply. I shall ask for some advice. I shall see what Skill say about that. I find it rather alarming; I should say that disabled graduates probably need advice even more than non-disabled graduates.

Baroness Hollis of Heigham

I am not arguing about whether disabled graduates need advice; I am certainly not arguing that they should not be covered in a way that non-disabled students would take for granted. All that I am saying is that my understanding of the law as it stands—I shall write to the noble Baroness if I am wrong—is that no graduates of a university are automatically entitled to continuing careers advice once they have left the institution.

Baroness Darcy de Knayth

Before the Minister sits down, perhaps I may ask her what she feels about the community use of schools by parents and siblings of schoolchildren who are disabled.

Baroness Hollis of Heigham

That is a different issue. We are talking there about physical access to premises and whether that counts as a service and therefore falls within the 2004 remit. That is a very different point. If I may say so, the noble Baroness is brigading together two important but rather different issues.

Baroness Darcy de Knayth

I thank the Minister, but I would welcome her writing to me if there is anything further. We will have a communication outside the Chamber.

Lord Ashley of Stoke

The Minister has again been very helpful to our debate. I am glad that the noble Baroness, Lady Darcy de Knayth, has raised this important issue. It is rare for legislation to achieve perfection in the eyes of its beneficiaries when it comes to implementing new laws. Anomalies and loopholes are bound to appear.

There is some controversy about the issue. At least, we will get full clarification at a later date. I am happy to accept the amendment.

Baroness Darcy de Knayth

I am most grateful to the noble Lord, Lord Ashley of Stoke. We need to clarify things, and I will continue a dialogue with the Minister outside the Chamber, with the help of SKILL and the DRC.

On Question, amendment agreed to.

Lord Addington

moved Amendment No. 11: After Clause 6, insert the following new clause— "EXAMINATION, TEST AND ASSESSMENT SERVICES (1) The 1995 Act is amended as follows. (2) In section 19 after subsection (3)(h) insert—. (i) the provision of examination, test and assessment services in relation to education and training by an awarding or other body. (3) After subsection (3) insert— ( ) In subsection (3)(i)— awarding body" means any body involved in awarding general, vocational or other qualifications not directly linked to entry to a particular trade or profession and which is not a responsible body for the purposes of Part 4; other body" includes bodies such as the Qualifications and Curriculum Authority for England which provide statutory assessment test papers for disabled learners." The noble Lord said: This amendment would ensure that awarding and examining bodies had a clear duty under the DDA to strengthen the rights of disabled learners in respect of tests and examinations in education and training.

The position of such people in respect of testing has been strengthened by recent legislation. The Special Educational Needs and Disability Act 2001 has done much to help and has brought most people taking examinations under Part III of the DDA. However, there is one area in which there may be a loophole, and the Minister may be required to answer on this issue. Whether an awarding body is caught by Part III will depend on whether it is deemed to be providing a service to the public or a section of the public. SKILL and the RNIB believe that the service provided by awarding bodies is the award itself, which is a service to students.

If that means that certain sections and certain qualifications are not covered, we must examine it again. If the Minister can assure me that I am wrong, I am prepared to withdraw the amendment, as there is no point in using the Bill to insert useless wording. If the Minister is in some doubt, we should have it in to guard ourselves. I beg to move.

Baroness Darcy de Knayth

I support the amendment wholeheartedly.

Baroness Hollis of Heigham

There seems to be an assumption that this is a government Bill and that I am responsible for deciding on the desirability of amendments. I have tried to make it clear that I am happy to provide information, but I am at arm's length from the Bill. It is not reasonable for the noble Lord, Lord Addington, to say that, if I can give a satisfactory answer, he will withdraw the amendment and, if not, he will press it. That is not my responsibility; that is about his relationship to the noble Lord, Lord Ashley of Stoke.

Awarding bodies will be covered by Part III of the DDA where they provide a service to the public. Whether they are doing so in a particular instance is determined case by case.

Lord Ashley of Stoke

It is because the Minister is so popular that we want to hear from her on every subject. That is why we keep asking her questions. I thought that she would be willing to give the clarification asked for by the noble Lord, Lord Addington, but, of course, we recognise her situation.

The amendment would give duties to awarding and examining bodies under the DDA. It would strengthen disabled learners' rights regarding tests and exams. People should not be penalised because of irrelevant disabilities. I am happy to accept the amendment.

Lord Addington

I thank the noble Lord, Lord Ashley of Stoke, for his acceptance. I am sorry that the Minister felt that she was bounced into that question; it was a purely technical point. The answer that she gave was that the matter would be considered case by case. That should not be so. If there is an examination open to all and someone has to take it, those running the examination should make sure that some form of reasonable adjustment is made.

The noble Baroness has been very helpful. According to my logic, she has proved that there is a need for the amendment. In thanking her for the technical information, I hope that the Committee will feel able to accept the amendment.

On Question, amendment agreed to.

Clause 7 agreed to.

Baroness Wilkins

moved Amendment No. 12: After Clause 7, insert the following new clause— "EXTENSION OF THE 1995 ACT TO POLLING STATIONS AND ELECTORAL SERVICES (1) The 1995 Act is amended as follows. (2) In section 19, after subsection (3)(h) insert— (i) access to and use of electoral services and facilities".

(3) After section 21, insert— "21B ELECTIONS ACCESSIBILITY STRATEGY (1) It is the duty of each local authority to prepare and implement an elections accessibility strategy. (2) An elections accessibility strategy is a strategy for, over a prescribed period, ensuring that disabled voters are able to participate fully and equally in all aspects of the registration system and electoral procedures and facilities for parliamentary, local government and European parliamentary elections by—

  1. (a) ensuring the physical accessibility of polling stations for disabled voters;
  2. (b) ensuring the accessibility of electoral registration and electoral procedures for disabled voters;
  3. (c) ensuring the accessibility of postal voting information and procedures for disabled people;
  4. (d) ensuring the delivery to disabled voters—
    1. (i) within a reasonable time, and
    2. (ii) in ways which are determined after taking into account their disabilities and any preferences expressed by them, of information about electoral services, procedures and facilities which is provided to non-disabled voters or which concerns arrangements for securing their access to electoral services, procedures and facilities; and
  5. (e) taking steps to ensure any pilot schemes including arrangements for e-voting are fully accessible to disabled voters.
(3) An elections accessibility strategy must be in writing. (4) Each local authority must keep their elections accessibility strategy under review during the period to which it relates and, if necessary, revise it. (5) In preparing and revising their elections accessibility strategy a local authority must consult—
  1. (a) disabled people in the local authority area, and
  2. (b) organisations representing disabled people in the area.
(6) A local authority must have regard to any guidance issued as to compliance with the requirements of this section. (7) In preparing their elections accessibility strategy, a local authority must have regard to—
  1. (a) the need to allocate adequate resources for implementing the strategy; and
  2. (b) any guidance issued as to—
  1. (i) the content of an accessibility strategy;
  2. (ii) the form in which it is to be produced; and
  3. (iii) persons who must be sent copies of the strategy.
(8) As soon as practicable after any occasion when they prepare a new strategy or alter their strategy, the local authority must—
  1. (a) publish the strategy or the strategy as altered in such manner as they think fit; and
  2. (b) send a copy of it to the Secretary of State (in the case of an authority whose area is in England) or the National Assembly for Wales (in the case of an authority whose area is in Wales) and to such other persons (if any) as may be specified in guidance.
(9) The authority must also—
  1. (a) cause a copy of their elections accessibility plan to be made available for inspection (at all reasonable hours) at such places as they think fit;
  2. (b) give notice, by such means as they think expedient for bringing it to the attention of the public, as to the places at which a copy of it may be inspected; and
  3. (c) supply a copy of it (or any part of it) to any person on request, either free of charge or at a charge representing no more than the cost of providing the copy.
(10) Guidance under this section may be issued—
  1. (a) for England, by the Secretary of State; and
  2. (b) for Wales, by the National Assembly.
(11) In this section— prescribed" in relation to Wales means prescribed in regulations made by the National Assembly; disabled voter" means a disabled person who is entitled to vote as an elector at parliamentary, local government or European parliamentary elections." The noble Baroness said: I beg to move Amendment No. 12, for which I am indebted to Ruth Scott and Jonah Grunsell of Scope, and to Caroline Ellis of the RNIB, for their help.

The purpose of the amendment is to ensure that electoral services are included on the face of the DDA as services to the public, subject to the duties under Part 3 of the Act. It would also require local authorities to prepare and implement a comprehensive elections accessibility strategy so as to ensure equal access to the whole electoral process for disabled voters.

Over the last three general elections, Scope has conducted the Polls Apart campaign, amassing evidence of the discrimination which disabled people face in the election process. It revealed that in the 1997 general election, 94 per cent of polling stations were inaccessible and discrimination against disabled voters was widespread. For instance, many disabled people had to vote in the street, had their ballot paper marked by someone else or had to go home without voting at all.

This was one disabled voter's experience in Chichester: "I had to shout from outside two sets of doors to try and get someone to help. Eventually another voter asked someone to come out and help me. There was no provision at all for disabled people. I had to vote in a car park and pass my vote to a stranger to put in the ballot box. I hope that they did. To top it all, it was raining and I had to wait outside during all this".

The Representation of the People Act 2000 introduced a number of measures to remedy this situation, but as the Polls Apart report of the 2001 general election revealed, while a significant amount of work had been done by the Government and returning officers, 69 per cent of polling stations could still be inaccessible. Some 38 per cent did not have a large print notice of the ballot paper on display, and 49 per cent had no tactile template available for blind and partially sighted people—both legal requirements of the Representation of the People Act. The RNIB concludes that for visually impaired people, the right to vote independently and in secret is for the most part still a right denied.

The current legal position is that no one can say with certainty whether electoral services and polling stations are covered under the DDA, and if so, in what ways. If it was clear that electoral services and facilities were subject to Part III of the DDA, with guidance to local authorities and disabled people explaining how the duties apply, then local authorities would give the matter the priority it needs and disabled people would know their rights and be in a position to challenge unacceptable provision.

Amendments to electoral law as recommended in the Disability Rights Task Force report would not provide the necessary protection against disability discrimination. It would not provide an avenue for redress if a disabled person was treated in a worse manner than non disabled voters or in a discriminatory way by polling staff.

Consequently, this amendment seeks to ensure that polling stations and electoral services are specifically included under Part III of the DDA in order to guarantee disabled voters' rights to vote in secret and with dignity.

The second part of the amendment addresses the clear need revealed by the Polls Apart campaign that local authorities be required to create a comprehensive strategy for improving access in the long term. Such a strategy should be regularly reviewed in consultation with disabled voters and local disability groups. It should specify a detailed time-scale for improvements and ensure that adequate resources are allocated to fund the strategy.

Due to the lateness of the hour I will not argue this in detail, but at a time when there is widespread concern about voter apathy, it seems utterly foolish to allow barriers to remain in place for one group of voters who are desperate to vote. Now more than ever, as we begin to debate different ways of voting—by post, telephone or over the Internet—we need to reassert the primacy of guaranteeing a secret ballot and accessible electoral procedures to all disabled people. If we do not, there is a real danger that new systems will further exclude disabled people from the voting process rather than empower them.

I hope that my noble friend the Minister will accept that much more needs to be done to honour the civil and human rights of disabled people to participate in this democratic life—I do not expect her to reply—and the amendment seeks to ensure this. I beg to move.

10 p.m.

Baroness Darcy de Knayth

I support the amendment because it relates to an issue I have long been pursuing. The new e-mail voting and other measures will be extremely useful because they should be very accessible. It is extremely important that that should be so. It has always been a question of accessible polling booths. My local polling station—the local school—has been accessible for a long time. The importance of that was brought home to me because I am allowed to vote in European elections. I changed my mind three days before polling day and I would have been furious to think that my vote was inexorably winging its way towards the wrong target.

Lord Swinfen

There have been numerous complaints about the difficulties experienced by people with disabilities in voting in both parliamentary and local elections for many years. I hope that the noble Lord, Lord Ashley, will accept the amendment and that when the Bill becomes law the Government will ensure that the proposed new clause is put into action very quickly indeed.

Baroness Hollis of Heigham

My noble friend Lord Bassam and I, having spent many years in local government, have sympathy with the thrust of the amendment. Clearly, under the Representation of the People Act, it is desirable to have full access to polling stations. Obviously, that issue is being pursued. However, sometimes balances need to be taken between the convenience of a location, which may be a local school as opposed to somewhere much further away.

My noble friend Lady Wilkins did not mention postal voting; the noble Baroness, Lady Darcy de Knayth, did. She said that she hated to think that her vote, cast three days before, would have winged on its way. I was appalled at the thought that she was a last-minute floating voter who would seek to change her mind in the last two or three days on major issues affecting the well-being of this country. If that is what being a Cross-Bencher consists of, I am not at all sure that it is a wise use of their powers.

It is clear that the Electoral Commission will probe this issue.

Lord Swinfen

The Minister is doing the noble Baroness, Lady Darcy de Knayth a great disservice. She had obviously taken a long time to think very seriously about the matter and given it a great deal more thought than a lot of voters who automatically vote for one party or another.

Baroness Hollis of Heigham

I am sure that she had. It was the thought that she may have wanted to change her mind in the last 48 hours that dismayed me. It was a tease.

Coming back to the more substantive point, I have been doing some work on postal ballots and the use of e-mail, mobile polling stations and a range of voting hours in which one can express one's vote. The Committee may be interested to know that my own local authority—I do not know whether my noble friend Lord Bassam has had the same experience—was one of the pilot authorities for all postal ballots. In two of the wards in the City of Norwich, the only way one could vote was by postal ballot. Far from this being stigmatised, the result in those two wards was that the voting rate went up by more than 50 per cent.

It is an example, following the question that we debated the other day, that if you provide physical access for disabled people a whole swathe of other people benefit in consequence. Here was a case clearly where many people had regarded themselves as debarred from voting for whatever reason—they might have children, caring responsibilities or whatever—and were able to enjoy the much more appropriately generous provisions of the new postal ballot system, which does not require the "medicalisation" of a form in order to achieve access to a postal vote. As a result, the voting rate in those two wards went up by 50 per cent.

I am sure my noble friend Lady Wilkins will agree that what matters is the access to the service and not necessarily to the building. Of course it is desirable that there should be access to buildings but, ultimately, what really counts is access to the service. I hope that she will join with me in recognising that there are important moves afoot which will benefit a very wide range of the community.

Baroness Darcy de Knayth

I intervene because I cannot resist the bait thrown to me by the Minister. I thank the noble Lord, Lord Swinfen, for his defence of me.

I have always argued with the noble Lord, Lord Campbell of Croy, who has always said that a postal vote is perfectly satisfactory. But the point is that a huge number of able-bodied members of the public do not make a voting decision until the last few days before an election. This Cross-Bencher would like a vote on what the noble Baroness may consider to be an important matter; namely, the euro.

Lord Ashley of Stoke

I, too, congratulate the noble Lord, Lord Swinfen, not because I agree with him—in this particular controversy I tend to support my noble friend—but because he is so perceptive. He used the phrase, "when the Bill becomes law". He did not say "if" it becomes law, but "when" it becomes law. I give the noble Lord full marks for perception. I am glad that the Minister has heard those words.

The exclusion of disabled people from polling stations, and indeed from much of the electoral process, never seemed to bother the general public years ago. But it did bother disabled people. It troubles them even more today, now that, fortunately, they are discarding their former passivity and are very properly calling for full human rights. This amendment will help to resolve the problem and I accept it.

Baroness Wilkins

I am grateful to all noble Lords who have contributed to the debate. I, too, want to defend my noble friend Lady Darcy in regard to her wise decisions. I am grateful to the noble Lord, Lord Ashley, for accepting the amendment. I commend it to the Committee.

On Question, amendment agreed to.

Lord Astor of Hever

moved Amendment No. 13: After Clause 7, insert the following new clause— "CARRYING OF GUIDE DOGS, HEARING DOGS, AND OTHER ASSISTANCE DOGS (1) The 1995 Act is amended as follows. (2) In Part V, after section 37, insert— "37A CARRYING OF GUIDE DOGS, HEARING DOGS AND OTHER ASSISTANCE DOGS (1) This section imposes duties on the driver of a private hire vehicle which has been hired—

  1. (a) by or for a disabled person who is accompanied by his guide dog, hearing dog or other assistance dog, or
  2. (b) by a person who wishes such a disabled person to accompany him in the private hire vehicle.
(2) The disabled person is referred to in this section as "the passenger". (3) The duties are—
  1. (a) to carry the passenger's dog and allow it to remain with the passenger; and
  2. (b) not to make any additional charge for doing so.
(4) A driver of a private hire vehicle who fails to comply with any duty imposed on him by this section is guilty of an offence and liable, on summary conviction, to a fine not, exceeding level 3 on the standard scale. (5) If the licensing authority is satisfied that it is appropriate on medical grounds to exempt a person from the duties imposed by this section it shall issue him with a certificate of exemption. (6) In determining whether to issue a certificate of exemption, the licensing authority shall, in particular, have regard to the physical characteristics of the private hire vehicle which the applicant drives or those of any kind of private hire vehicle in relation to which he requires the certificate. (7) A certificate of exemption shall be issued—
  1. (a) with respect to a specified private hire vehicle or a specified kind of private hire vehicle; and
  2. (b) for such period as may be specified in the certificate.
(8) The driver of a private hire vehicle is exempt from the duties imposed by this section if—
  1. (a) a certificate of exemption issued to him under this section is in force with respect to the private hire vehicle; and
  2. 381
  3. (b) the prescribed notice of his exemption is exhibited on the private hire vehicle in the prescribed manner.
(9) In this section— guide dog" means a dog which has been trained to guide a blind person; hearing dog" means a dog which has been trained to assist a deaf person; assistance dog" means a dog which—
  1. (a) is trained by a specified charity to assist a disabled person with a physical impairment for the purpose of section 1 of the Disability Discrimination Act 1995 which—
    1. (i) consists of epilepsy; or
    2. (ii) otherwise affects his mobility, manual dexterity, physical co-ordination or ability to lift, carry or otherwise move everyday objects; and
  2. (b) at the time that the disabled person whom it is assisting hires a private hire vehicle, is wearing a yellow jacket inscribed with the name of a specified charity.
Specified charity" means any charity specified by the Secretary of State by order made by statutory instrument. (3) In section 38(1) of the 1995 Act, for "section 36 or 37" there is substituted "section 36, 37 or 37A. (4) Section 49 of the 1995 Act is amended as follows—
  1. (a) In subsection (1)(a) at end there is inserted "or 37A".
  2. (b) In subsection (1)(b) at end there is inserted "or 37A (8)(b)".
(5) Section 68 of the 1995 Act (interpretation) is amended as follows—
  1. (a) In the definition of "licensing authority", at end there is inserted, "(c) for the purposes of section 37A, the authority responsible for licensing private hire vehicles in any area of England and Wales."
  2. (b) After the definition of "prescribed" there is inserted—
"private hire vehicle" means a vehicle constructed or adapted to seat fewer than nine passengers which is made available with a driver to the public for hire for the purpose of carrying passengers, other than a licensed taxi or a public service vehicle;". The noble Lord said: The amendment stands also in the name of my noble friend Lord Swinfen. It places new duties on minicabs to carry guide dogs and assistance dogs. This mirrors the duties already in force for licensed taxis, which include exemptions for drivers on valid medical grounds only.

Guide dog owners rely on reliable and accessible taxi and minicab services. However, the Guide Dogs for the Blind Association (GDBA) and the RNIB have heard from countless guide dog owners who have been refused carriage in minicabs because drivers have not wanted dogs in their cars. Objections have ranged from "Dogs will distract the driver" to "Don't want dog hairs on the seats", or "Dogs always have muddy paws and bring dirt in with them".

Over the past 18 months, the GDBA has persuaded 85 per cent of local authorities in England and Wales to require minicabs to carry assistance dogs as part of the licence conditions. However, 66 local authorities have not changed their conditions and it seems unlikely that further authorities will change them without being required to do so.

Although the Bill covers the means of transport, the GDBA and the RNIB feel that this amendment is needed so that guide dog owners are not subject to the vagaries of case law determining whether the carriage of guide dogs is a reasonable adjustment. Without the amendment, private hire operators and drivers could, for example, try to use cost as an argument for not accepting guide dogs. I very much hope that, this time, the noble Lord, Lord Ashley, will accept the amendment. I beg to move.

Lord Swinfen

I support the amendment, to which I have added my name. It is eminently sensible. Guide and assistance dogs are essential for those who need them. Minicab and other drivers are perfectly happy to take into their vehicle someone out of the pouring rain whose clothing is shedding water left, right and centre, with streams of muddy water coming down from their umbrella. However, at the same time, some of them would object to a guide dog being put in the car, even if it had shaken itself thoroughly and would put less moisture into the car than one would get from a very wet umbrella.

Baroness Hollis of Heigham

I am speaking in an entirely personal capacity. I am rather baffled by the need for the amendment. I entirely sympathise with the intention behind it. Licensed private hire vehicles—I think that that is the correct term—should be required to take guide dogs. However, almost the first Bill that I was involved with when I joined your Lordships' House back in 1990–91 was a transport Bill, on which I persuaded the then government to require all minicabs outside London to be regulated and licensed by local authorities. In other words, the power is already there for every local authority in this country to make what we are asking a condition of its licensing law.

If some local authorities are failing to do that, there is nothing to stop local access groups, local MPs, the local press, local disability organisations and the Local Government Association holding those local authorities to account for their failure to put into the local laws by which they license private hire vehicles the provisions that your Lordships require. There is a means to make the provision stick now if local organisations are prepared to go down that path.

Lord Ashley of Stoke

Again, the Minister has thrown a bit of a spanner in the wheels. She mentioned just minicabs, but we are dealing with all forms of—

Baroness Hollis of Heigham

I think that the noble Lord will find that we are talking about minicabs, which are private hire vehicles. To be able to perform, private hire vehicles outside London have to be licensed by the local authority. The standard required is inferior to that for hackney carriages. For example, drivers do not have to pass the knowledge test. However, their vehicles have to be more regularly inspected and they have higher insurance charges. Police tests are run and there are other conditions for acquiring a licence. The main difference between them and what we call black taxis are that they are not allowed to ply for hire and the drivers are not required to pass a knowledge test.

The problem is London, where local authorities do not license black cabs as they do outside London. That is done by the police and the vehicle licensing authority. That is why London is peculiar. Outside London, local authorities regulate both sorts of vehicle and there is nothing under the sun to stop them doing what all of us in the Committee would like.

Lord Addington

Even if the amendment would cover only the population of London, I still think that it is probably worthwhile.

Baroness Darcy de Knayth

Maidenhead has a very powerful access group. I should have checked before I came here, but I do not think that it has succeeded in pushing the local authority to do all that it would have liked.

Lord Ashley of Stoke

I somehow thought that the Minister's response would be along those lines, but that was only my first point. Despite her valiant effort to protect people using minicabs and similar vehicles, which is much appreciated, it is possible that the legislation was not as perfect as we would want. In any case, there is no harm in double locks. If the other legislation is not well known, this new legislation will be brought to the attention of various authorities. This is a valuable double check. There is no doubt that many people with sensory impairments have been surprised to find that it is perfectly legal for private hire vehicle drivers to discriminate against them by refusing assistance dogs. If that is not the case, at least the amendment would go some way towards double checking the existing law.

I am grateful to the Minister for her intervention, but I am even more grateful to the noble Lord, Lord Astor, for tabling the amendment, which I gladly accept.

Lord Astor of Hever

I am grateful to the noble Lord for accepting the amendment. Private hire vehicles—mini cabs—should be treated the same as licensed taxis. I appreciate the Minister's point but her solution would be more complicated than accepting the amendment.

On Question, amendment agreed to.

10.15 p.m.

On Question, Whether Clause 8 shall stand part of the Bill?

Baroness Darcy de Knayth

I take the opportunity to clarify an issue that arose on Second Reading about the status of certain services provided by public authorities—in particular, footpaths, towpaths and bridges. I mentioned those on Second Reading on 23rd January, at col. 1544 of the Official Report. My declaration of interest as being president of the Disabled Ramblers somehow got into Hansard as being president of the Ramblers' Association. I apologise to the president of the Ramblers' Association for that confusion and I have corrected the Official Report for the Bound Volume

At cols. 1555–1556, the Minister said that she would expect towpaths, footpaths and bridges to be covered by the word "facilities". She suggested that I write to her, saying that she would obtain expert advice. The DRC wrote to the Minister on 5th February saying that in its view and that of the Disability Rights Task Force certain service functions carried out by public authorities may not be covered by Part III of the 1995 Act and that it was likely that the functions of the highway authorities—including paving, footpaths and possibly bridges—would fall under that exclusion. That view was reached by the code of practice working group, which had Department for the Environment lawyers among its number.

The DRC ended by saying that naturally it would be delighted were footpaths to be explicitly covered by Part III of the Bill. We would all be delighted. Bridges are my particular interest.

Since then, the Minister with responsibility for disabled people, Maria Eagle, replied to the DRC in a letter to Bert Massie on 28th February: The issue of whether footpaths and towpaths are covered by the DDA is complicated. There are two key issues to consider, firstly is whether footpaths and towpaths arc facilities in terms of the DDA and secondly, if they are, whether the provision of this facility is a service to the public or a function of a public authority. Our legal advice confirms what was said in the debate that since courts tend to give a generous interpretation to the term 'facility' we would expect footpaths to be covered where they are part of a public footpath. However, this still leaves the issue of whether the provision of a footpath in any particular case is a service to the public or a function of a public authority and this would ultimately be for a court to decide. As you rightly say, certain functions carried out by public authorities are not covered by the DDA but we cannot say precisely what these functions are since no DDA case law has yet been established. I understand that this is the reason why the revised Code of Practice on Part III was drafted so as to avoid being categorical on a number of matters (including the issue of footpaths). Though there is uncertainty about whether Highways Authorities are covered by the DDA, I have been told that many act as if they are. As you know, the Government is committed to extending the scope of the DDA to include most functions of public authorities when legislative time allows and this ought 10 make the position clearer". That is a helpful reply.

One cannot have a test case until 2004 because it will not be law, but it would be helpful if the legislation were in place now so that the public authorities would be aware of what they have to do. I consulted Bert Massie this afternoon and he said that that is precisely why there cannot be a test case yet.

I am sorry to plague the Minister again but will she confirm that the Government are committed to extending the DDA's scope to cover most functions of local authorities when legislative time allows? A nod will do if that is all she can face.

Baroness Hollis of Heigham

That is what the Government hope and expect to do.

Baroness Darcy de Knayth

I am most grateful to the Minister.

Clause 8 agreed to.

Remaining clauses agreed to.

House resumed: Bill reported with amendments.

House adjourned at twenty-one minutes past ten o'clock.

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