§ 3.4 p.m.
§ Lord Lester of Herne Hill
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Lord Lester of Herne Hill.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [THE CHAIRMAN OF COMMITTEES in the Chair.]
§ Clauses 1 to 5 agreed to.
§ Clause 6 [Protected areas of activity]:
Lord Borrie moved Amendment No. 1:
Page 5, line 14, leave out paragraph (f).
§ The noble Lord said: I shall speak also to Amendment No. 8, with which Amendment No. 1 is appropriately grouped. Both amendments stand in my name and that of the noble Lord, Lord Henley. When I first studied the provisions of the Bill concerning members' clubs, I noticed the exemption for single-sex clubs. It is welcome. As a matter of principle, I believe it wrong for the law to intervene in how people choose to associate with others in their social lives.
§ I notice that the wording used to define single-sex clubs is similar to that used in the Race Relations Act 1976 to define clubs for single-ethnic or single-national groups. They are allowable as an exemption to the main rules prohibiting race discrimination so long as the exclusivity is not based on colour. The Bill repeats the exemption allowed in 1976 for single-ethnic or single-national clubs exclusively open to people of one such group. It also adds an exemption for clubs catering for single-religious groups in respect of the new provisions in this Bill prohibiting discrimination on religious grounds.
§ My concerns about those provisions and the reasons why my amendments seek to delete them are threefold. First, if it is thought appropriate to exempt single-sex, single-ethnic or single-religious group clubs from anti-discrimination laws, why not clubs confined to particular age groups or people of particular sexual 1632 orientation; for example, pensioners' lunch clubs, youth clubs or gay clubs? Does not the logic of the Bill suggest that those clubs, too, should be exempt from the anti-discrimination provisions, which cover much broader areas than they have done heretofore?
My second concern is that, because the wording used to define single-sex clubs is borrowed from Section 26 of the Race Relations Act on single-ethnic group clubs, we have a complicated set of words that is difficult to interpret. Instead of just referring to, "an organisation which restricts membership to persons of one sex", it refers to,
the principle purpose of which is to enable the benefits of membership to be enjoyed by persons of one sex".
§ It states that to determine the principal purpose, regard is to be paid to the essential character of the association, all relevant circumstances and whether the affairs of the association are so conducted that persons enjoying membership benefits are of one sex.
§ During the Committee stage of the Sex Discrimination Bill introduced by my noble friend Lord Faulkner, I pointed out the problem of the Garrick Club, of which I was a member and still am. Its objects or purposes, which were stated when it was founded in 1831, are concerned with drama and literature, but, as is well known, membership is limited to men only. In that debate, the noble Lord, Lord Lester of Herne Hill, accepted the difficulty that I had pointed out—his words are reported at col. 1252 of Hansard for 8th May last year—and produced a clearer form of words in an amendment that was tabled on Report. Now he has gone back to the more problematic wording that appears in the present Bill.
§ I have a third and final concern about the provisions dealing with private members' clubs. Although single-sex clubs are, as the noble Lord said at Second Reading, intended to be and, subject to what I have just said, are exempt from sex discrimination laws, a male club that allows women into any form of membership—for example, associate membership—must grant them the same rights to facilities or services in the club as men. Paragraph 41(1)(c) of the relevant schedule makes it clear that that general right to facilities or services applies even to non-members—that is, guests.
§ Last year, during the passage of his Bill, my noble friend Lord Faulkner of Worcester gave us the facts about working men's clubs that belonged to the Club and Institute Union. He pointed out that the largest proportion of such clubs—60 per cent or 1,612 clubs—allow women to join but with a different class of membership and a lower subscription. Members of those clubs, as distinct from the national executive of the CIU, appear not to want women to have full and equal rights with the men. That might be because they want to preserve one of the bars in the club for men-only drinking. Is that so terrible that we legislators must introduce a law against it?
§ I apologise to those who were here for the discussions on my noble friend's Bill last year for repeating myself, but I must ask again what moral or other right we have, as legislators, to impose equality 1633 by law, contrary to the wishes of the members of a free society or club. As we all know, clubs of all kinds have, over the years, changed their attitudes, especially to membership for women, although not all have done so, including the college in Oxford that apparently wishes to remain women-only. Over the years, clubs of most kinds throughout the country have changed their attitudes and are multi-sex. That position should be allowed to evolve in accordance with the wishes of the members of the clubs concerned. The freedom for people to associate or not to associate as they choose should not be subverted by an over-eager attempt to involve the law in enforcing so-called correct attitudes to our fellow human beings.
§ I recognise that there may be a case for bringing within the scope of anti-discrimination law clubs that have such a huge membership that they virtually provide a public facility. I think, for example, of a golf club that may be the only such facility in an extensive area. The Bill will apply to all clubs of every kind, including those with a membership as small as 25. I have not, however, tabled an amendment to fix a higher membership number. As I have several objections to the provisions relating to clubs, I prefer to seek to leave out of the Bill all coverage of members' clubs. That is what the amendments do. I beg to move.
§ 3.15 p.m.
§ Lord Henley
I support the noble Lord, Lord Borrie, in moving Amendment No. 1. I am not sure whether I should declare an interest because as the noble Lord, Lord Borrie, explained, the Bill does not affect single-sex clubs. I am a member of a number of single-sex clubs. However, the Bill affects other clubs. As the noble Lord made clear, he was speaking not only for single-sex clubs, but also pensioners' clubs, gay clubs and a whole host of others, all of which might be affected.
I do not believe that there is anything that I can add to the points made by the noble Lord, Lord Borrie. I rise merely because during Second Reading of the Licensing Bill, the noble Lord, Lord Faulkner of Worcester, pursued the line that he pursued with his Sex Discrimination (Amendment) Bill. He tried to imply that there were relatively few noble Lords of the same mind as the noble Lord, Lord Borrie, and that there was general support around the Chamber for his own ideas about enforcing equality in clubs.
As the noble Lord will remember, a number of noble Lords—not only myself and the noble Lord, Lord Borrie—opposed what he was trying to do in the Sex Discrimination (Amendment) Bill and what the noble Lord. Lord Lester of Herne Hill, is doing now. For that reason, I felt it appropriate to add my name to that of the noble Lord, Lord Borrie, and to give the amendment my support. I shall continue to do so as he and the noble Lord, Lord Lester, make this and further attempts to bring what they consider to be equality to 1634 an area in which, as the noble Lord, Lord Borrie, puts it, it is not really appropriate for Parliament to intervene.
§ Lord Faulkner of Worcester
I shall speak briefly. We have been over this ground a number of times. As both noble Lords who have just spoken said, this issue was covered at great length during the passage of my Sex Discrimination (Amendment) Bill in the last Session. The noble Lord, Lord Lester, had a debate on equality in the last Session also. Indeed, there were a number of debates during the passage of the Licensing Bill, in so far as that Bill applies to the governance of private members' clubs.
I shall make three points. The first is in response to the noble Lord, Lord Henley. For him to give the impression that there is somehow a well of support among Members of the Committee for the continuation of discrimination in private members' clubs is extraordinary, given that the official Opposition in the shape of the noble Baroness, Lady Buscombe, the Liberal Democrat Front Bench in the shape of the noble Lord, Lord Redesdale, and my noble friend Lady Scotland speaking for the Government, all indicated that they want to see a change in the law and that it applied—
§ Lord Henley
I thank the noble Lord for giving way. From my experience both on the Front Bench and the Back Benches over 25 years in this House, l have found that when all three Front Benches agree they are normally completely and utterly wrong.
§ Lord Faulkner of Worcester
On this occasion it is hard to say that they were wrong. I think that the number of Members of the Committee who have spoken in the same manner as he and my noble friend Lord Borrie can be counted on the fingers of one hand. All I would say about this amendment and the issue in general is that since I raised the issue in my Private Member's Bill and it has continued to be in front of your Lordships, I have continued to receive letters and e-mails from men and women who regard the continuation of discriminatory practices in private members' clubs as quite unacceptable. I continue to receive examples of outrageous behaviour in which women are discriminated against in the governance of clubs, in the access to facilities and so forth.
I shall not go into those now because it is late and it is Friday afternoon. Those examples are well-known to your Lordships. I can put them on the record again if that is required.
I should like to pose a question to my noble friend Lord Borrie—presumably he will be replying to this debate. What is there that is different about his argument relating to sex discrimination in private members' clubs that does not apply with equal force to race discrimination in private members' clubs? Is he proposing that there should be a repeal of the race relations legislation as far as it affects private members' clubs with 25 or more members, in the same way as he is proposing in the case of sex discrimination? Taking on board the argument that 1635 private members' clubs are, in some way, an extension of one's home and that one should have the right to associate, surely, the logic of that is that you should, if you want to, exclude from membership of clubs people who are perhaps Jewish or black or of Asian origin.
I would be astonished if my noble friend took that view, but the logic of what he says about the way in which people pick and choose who can take part in clubs applies in equal measure. I am sure that the Committee will not want to accept the amendment. However, it is important that we debate it and that the Committee shows itself in favour of the principle contained in the admirable Bill introduced by the noble Lord, Lord Lester.
§ Baroness Buscombe
I rise briefly on behalf of Her Majesty's Opposition to respond to the amendment. I repeat what I have already said in this House with regard to the issue. We believe that where individuals of both sexes are invited to be members of a private club, they should enjoy that membership on equal terms.
I want to ask a question that is perhaps best put to the noble Lord, Lord Lester of Herne Hill. I have no doubt that he will want to speak briefly in relation to the amendment. It relates to associate membership. The noble Lord, Lord Borrie, stated that the Bill would allow women, if they are accepted into membership of a club even as associates, to be entitled to the same facilities as men. It is important that we are clear about that.
There is probably a question over what constitutes an associate. Normally one thinks of associate membership as entitling an individual to a reduced membership fee, with reduced rights or access to facilities. My initial response would be that the right to associate membership should be offered to both men and women on equal terms. I hope that the noble Lord, Lord Lester, will clarify that.
Finally, I entirely concur with everything said by the noble Lord, Lord Faulkner of Worcester, in relation to other types of discrimination. We are focusing on single-sex clubs and single-ethnic or religious-group clubs being exempted from the Bill. The issue is important and I am pleased that we have another opportunity to debate it, but we cannot support the amendments.
§ Lord Addington
I want to register the view that I find most offensive the idea of having a bastardised membership of these groups.
§ Lord Lester of Herne Hill
Perhaps it would be helpful if I dealt with some of the questions that have been raised. I begin by pointing out that the effect of the noble Lord's amendment would be to remove the management of all clubs from the scope of the Bill. That would have a surprising consequence, which I doubt he intends: that colour bars, which have been forbidden since 1976 in all clubs of more than 25 members, would suddenly become lawful. That was a real vice in the early 1970s when working men's clubs, 1636 of which there were more than 1 million members throughout the country, maintained colour bars against members and associate members. For that reason, the Race Relations Act 1976 dealt with the matter. Although that is the effect of the amendment, I am sure that it cannot be the noble Lord's intention to repeal that important remedial provision.
Secondly, in answer to the noble Baroness, Lady Buscombe, who knows that I would much rather refer to her as Senator Buscombe, in Schedule 2, paragraph 41(1)(a), and the definition of "associate" in paragraph 41(4) on page 89, it is the intention to include a prohibited discrimination against associates as well as members.
Thirdly, before dealing with the specific points raised by the noble Lords, Lord Borrie and Lord Henley, I should like to address the issue of principle they have raised—that is, whether it is right for legislation to enter the private sphere.
The noble Lord, Lord Borrie, was a distinguished member of the Equal Opportunities Commission in its early glory days from 1977 onwards. He therefore will know, in particular, that both the Race Relations Act and the Sex Discrimination Act did and do rightly interfere in the private sphere. I remind the noble Lord that those statutes deal with race and gender discrimination in the sale or letting of private houses and flats, with the exception of small dwellings with shared accommodation. They deal with access to private partnerships—for example, to a partnership of a GP's surgery. They deal with trade union branches, which are really private clubs in legal form. They deal with private schools of any size. They deal with barristers' chambers, I am glad to say, of any size. And they deal with members' clubs of more than 25 members in relation to colour bars.
Speaking as one of the midwives of the legislation, I see no objection in principle for legislation to command equal treatment without discrimination on a forbidden ground. That is mainly because—although these bodies are private, some of them are as powerful as any public authority—it is unconscionable and unfair to treat any individual human being less favourably than another human being on arbitrary grounds. That is why this country, the United States and the democracies of the Commonwealth have found it necessary to interfere through legislation in this way, provided that there are exemptions for personal privacy and freedom of choice where necessary.
We have tried in the Bill to balance correctly the command of equal treatment without discrimination with concern for other rights and freedoms. We have sought to do that, first, with the Garrick Club exception. Like other noble Lords I declare an interest—or, in this case, lack of interest— as a former member of the Garrick Club. I resigned when 80 per cent of the members made it quite clear that they would never see a woman member in their lifetime. I felt that it was a fine club but not one that I could any longer feel comfortable staying in. So I have now a former interest and a present lack of interest.
1637 In paragraph 43 of Schedule 2 we seek to exclude single-sex members' clubs. The way in which we have set about doing that would not harm the Garrick Club in any way provided that its members, as the noble Lord, Lord Borrie, indicated, have rules that refer to drama, the law and literature as principal objects of the club. Provided they make clear in their rules—which would require nothing more than a simple rules amendment—that it is a club the principal purpose of which is to give benefits to men, which is clearly the case, the fact that the men are thought to come from the law, literature, the theatre, advertising or commerce. as they tend now to be, will not in any way bring it within the scope of the Bill. If the principal purpose is single sex, then, just as in the case of a single-sex school. it will be entirely outside the scope of the Bill.
Similarly, we have included in paragraph 42 exceptions for racial and religious groups, other than in respect of colour bars. We believe that we have excluded—but we may have got it wrong and I shall think about it—for example, a gay or lesbian club under the positive action provisions in paragraph 46. I shall look at that issue again. We certainly did not intend, of course, to forbid, for example, an old-age pensioners' club from excluding young people. All those are areas of sensible personal choice about which no one could possibly worry—any more than one would about a mothers' union, a parents' union or a group of that kind. That is the intention. I should like to consider the detailed criticisms made by the noble Lord, Lord Borrie, to make quite sure that we have not intruded into those areas in that way.
But, so far as principle is concerned, I cannot for the life of me see—provided we exclude single-sex clubs—any way in which, these days, the provisions on the management of members' clubs ought to be excluded from the Bill in their totality. I very much hope, therefore, that the noble Lord, Lord Borrie, will not press his amendment.
§ 3.30 p.m.
§ The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal)
First, perhaps I may apologise for not having taken part in the debate at Second Reading. I agree with the remark made by my noble friend Lord McIntosh at Second Reading that this is not a run-of-the-mill Private Member's Bill. I agree with him that it will make a continuing, valued and worthwhile contribution to the debate on the issues covered by it.
The Government share the desire of the noble Lord, Lord Lester, and other noble Lords for greater equality of opportunity for all. Our difference lies in the approach, as we do not believe that the time has come for comprehensive reform of the law as proposed by the noble Lord, Lord Lester. Therefore, we cannot support the Bill generally. However, perhaps I may make a few comments on the matters currently under discussion.
We agree with the inclusion of the provision on clubs in the Bill in so far as it relates to protection against discrimination on grounds of race, sex or 1638 disability. It accords in principle with the Government's announced intention to include provisions in the draft disability Bill to be published later this year to cover membership of larger private clubs in the Disability Discrimination Act 1995. Racial discrimination has been prohibited, as the noble Lord, Lord Lester, made clear, in such private clubs since the coming into force of the Race Relations Act 1976. I understand that another Bill dealing with sex discrimination in private clubs has been introduced in another place and is due to receive its Second Reading today. It has the full support of the Government and I wish it well. While I cannot give any assurance about future legislative plans, if that Bill does not make progress we shall he keeping the situation of private clubs and sex discrimination under review.
Perhaps I may say at this point—because I do not intend to interfere further in Committee—that we are taking a different, but measured, approach to achieving our joint aims in this field. In due course, the terms and conditions that we shall explore will come before the House.
§ Lord Borrie
A number of most interesting points have been raised. I gladly welcome all the contributions that have been made. I particularly welcome the willingness of the noble Lord, Lord Lester, to look further at provisions in the Bill to see whether old people's clubs, youth clubs and the like would be exempt from anti-discrimination laws.
In that respect, I noted that my noble friend the Minister said that the Government were in favour of anti-discrimination laws in relation to race, religious affiliation and sex as applied to clubs. However, she did not refer to—
§ Lord Lester of Herne Hill
Will the noble Lord give way? The Minister referred to race, sex and disability.
§ Lord Borrie
I thank the noble Lord for assisting on that point. I note that she did not refer to the other matters of age, sexual orientation and so forth referred to in the Bill. Subject to that, I welcome the noble Lord's remarks about looking again at the comprehensive logic of his Bill, as to where the anti-discrimination laws should apply in relation to clubs, and where there should be exemptions—as he has provided for in relation to single-sex clubs, single ethnic or national group clubs and single religious group clubs. Beyond that, I say to both the noble Lord, Lord Lester, and my noble friend Lord Faulkner of Worcester that it is important to make a distinction between what one considers to be unfair as well as morally and ethically wrong and where the law should intervene. I say, as anybody would in this House—and, one hopes, in most places elsewhere—that one dislikes and is against the application, in private members' clubs or elsewhere, of discrimination on grounds of sex or race and, most obviously, colour, as indicated in the Race Relations Act 1976. Subject to that, it is important to know where to draw the line.
The noble Lord, Lord Lester, referred to several areas of private activity which are already covered by the law, and I do not want to alter that. He gave the 1639 examples of private partnerships, private lettings, trade union branches and educational provision by private schools. These are all facilities available to the public, so far as they can afford private schools. Trade union branches can never be regarded as merely private clubs because they have such an important impact on employment opportunities.
§ Lord Lester of Herne Hill
I am grateful to the noble Lord for giving way again. It is not right to say that a barrister's set of chambers, which might have only 10 barristers, is included in the Bill because they provide facilities for the public. The Sex Discrimination and Race Relations Acts quite rightly forbid my chambers from discriminating against pupils, would-be pupils, tenants or members of staff. We are a tiny organisation; we are private in every sense of the word—we are like an extended family—but we are covered by the law.
§ Lord Borrie
The noble Lord's chambers are not purely a social club. Their function is most important to the public, and they deal with pupils and clients. Such organisations are quite different from social clubs, on which I have concentrated in talking about my desire for them to be excluded from discrimination laws. I said that as a matter of principle, because I believe that in their social lives, people should be free to associate, or not, with other people on whatever grounds they choose. Even there—and I say this especially to my noble friend Lord Faulkner of Worcester—I am not sure where the line should be drawn. If we were to take a political consensus in the country now, it would be clearer than in the 1970s; a colour bar would be regarded as so objectionable that I see no particular reason why the law should not apply even in relation to private clubs, whether they have more or fewer than 25 members. That is my answer to my noble friend. One does not need to put the clock back.
§ Lord Faulkner of Worcester
Is not the point about the application of the Race Relations Act to private members' clubs in the 1970s that it anticipated and assisted a change in mood? As the noble Lord, Lord Lester, said, the practice, particularly in working men's clubs, of applying a colour bar was so outrageous that the law needed changing. With this Bill and this issue, we are saying that it is the duty of legislators to anticipate enlightened changes in approach. In a few years' time people will see sex discrimination as being as outrageous as the application of a colour bar was in the 1970s.
§ Lord Borrie
Quite simply, whereas I see every objection to a colour bar or racial discrimination in a private member's club or in a more public place, I do not see the same objection—and I should be surprised if my noble friend did—to the desire of certain men in working men's clubs to drink with other men and to exclude women from that bar. We should not legislate to change people's behaviour in that regard. As legislators, we must have high regard for legislation. 1640 To introduce it simply because we want people's behaviour to change is not necessarily justified. It might have been justified in 1976 for the reasons that have been mentioned. However, it would not be justified today to extend that further. That is why I have tabled the amendment for discussion.
However, I want to read what has been said in Hansard and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 6 agreed to.
§ Clauses 7 to 37 agreed to.
§ Clause 38 [The Equality Commission]
Lord Ashley of Stoke moved Amendment No. 2:
Page 29, line 36, at end insert—
(10) Any order made by virtue of subsection (8) shall provide for the functions specified in subsection (8)(b) to be exercisable by the Commission through a disability rights committee of the Equality Commission.
§ The noble Lord said: The amendment is coupled with Amendment No. 9. I am proposing these amendments together with the noble Lord, Lord Rix, who regrets that he is unable to be here today, and with the support of the Disability Rights Commission. I intend to speak briefly, because there are many amendments to be dealt with and this is not the occasion for long speeches.
§ The structure that I am proposing is vital to the future of any single body that the Government may create. Although my noble friend the Minister has kindly come along to explain the Government's point of view rather than to participate actively in the debate, I should like her and the rest of the Government to know that our comments on this Bill are markers for the Government. We are confident that they will be taken into account and carefully considered. We would like to see them in legislative form. There has been a great deal of discussion about the possible creation of a single body—not necessarily a single equality body, but something similar. The Government are not yet committed to that, but if it comes about, we are anxious that the structure should be right, so that there is no obfuscation, no confusion and no diminution of the rights of the various organisations that currently represent various people, including disabled people.
§ I appreciate the willingness of the noble Lord, Lord Lester, to do all he can to assist disabled people and to help those of us who take a particular interest in the subject. The Committee may recall that on Second Reading I mentioned the need for a federal structure as the best and most efficient method of organisation for any new equality body. The Disability Rights Commission has consulted 1,000 disability groups and individuals and held seminars. They wanted a federal structure. The commission also said that research on foreign single equality bodies showed that in some cases disability was not taken centrally into account and that the strand-specific structures are best.
§ Such a federal structure would consist of an umbrella body focusing on the cross-cutting issues of shared concern with, crucially, specialist units 1641 linked to appointed committees that would have responsibility for individual strands. My amendments would provide for a disability rights committee with executive powers and a disability commissioner, who would be chair of the committee. Ideally, the chairman would be disabled.
§ The representatives of each group to be covered by the new body would be able to determine the policies that affected them, while contributing to wider cross-strand and general equality policies. These arrangements should help all the strands but have particular importance for disabled people who for many years have fought to ensure that their experience feeds directly into policymaking, resulting in their greater representation in all aspects of public life and the structure of the Disability Rights Commission.
§ I hope that the noble Lord, Lord Lester, will look favourably on these amendments, which I commend to the House. I beg to move.
§ 3.45 p.m.
§ Baroness Wilkins
I strongly support the amendments, which would ensure that the expertise of commissioners with specific knowledge of disabilities would not be jeopardised or lost in a future equality commission. They would ensure that disabled people continued to have the ability to create and take forward policies specific to the needs of disabled people.
§ Lord Addington
I would hope that my noble friend could incorporate this approach into the Bill, for the simple reason that disabled people tend to be better than others at empathising with other types of disability and knowing about the changes that need to he made. Unfortunately, experience tells me that we need people in those positions who know what it is like to be unable to do something regarded as normal. The Bill would be improved, if not by these particular measures, then by something very like them.
§ Lord Lester of Herne Hill
Ever since Gladstone's time, Liberals have been in favour of federalism, as I am myself. I am also sympathetic to the amendments. for special reasons, but I want to begin on a cautionary note.
The Government are wise and sensible in seeking to move towards a single equality commission. The Joint Select Committee on Human Rights of which the noble Baroness, Lady Prashar, and I are both members, will publish a report next week that gives our views on a human rights and an equality commission. That will have some relevance to the issues we are discussing.
The danger of an approach that labels a series of commissioners with particular responsibility and a committee structure of a rigid kind is that one loses the benefits of cohesion in having a single commission. At the same time, one needs a single commission that combines the expertise, special skills and insights of the different strands with which it seeks to deal. The institutional architecture of any equality commission requires the benefits of cohesion combined with the benefits of specialist expertise.
1642 I am indebted to the noble Lord, Lord Ashley of Stoke, who referred to the desirability of the chairman of the DRC being disabled. One must be careful about that notion, for several reasons. First, as Mr Bert Massey, who chairs the DRC, once pointed out to me, the mere fact that one is blind does riot mean that one is any better than someone with normal vision at understanding other forms of disability. In other words, unless all the mental and physical disabilities were embraced in one person. that person would not necessarily comprehend all the problems. A race commissioner, a gay or lesbian commissioner, a commissioner dealing with age discrimination and a commissioner dealing with religious discrimination would all have to be separately designated a rigid committee structure, which would weaken the cohesion.
§ Lord Ashley of Stoke
The noble Lord makes a legitimate point. However, will he bear in mind that a person with a specific disability necessarily moves along with other disabled people because of a common general interest? It is almost as if there were a federal type of communication between disabled people. It is far more likely that a blind person, for example, will know about deafness, paralysis and so on than a person with no disability because that person will tend to congregate with other disabled people in various social or economic circumstances. Consequently, a blind person is not necessarily isolated from other disabilities. In fact, he or she will be very much in touch with those disabilities.
§ Lord Lester of Herne Hill
I fully agree and did not mean to suggest to the contrary. What I was seeking to do was simply to explain that there are limits to giving labels to different parts of an equality commission in a very rigid way. That would tend to lose the whole point of having an equality commission. However. I also recognise that, in the case of disability discrimination, there are compelling reasons for accepting these amendments. The Disability Rights Commission has only recently been established and has not yet been able to use its powers as the other commissions have. There are also special problems associated with disability that require special treatment.
The most important reason of all is that it is very important that all groups which are vulnerable under the different strands of discrimination should unite together and make common cause, if I may say so, to persuade the Government to raise their game by having a single equality commission and a single equality Act. That seems to me a very small price to pay for a federal link of the type proposed by the noble Lord, Lord Ashley of Stoke, and others who have spoken. That seems to me a perfectly sensible way forward. If it can unite everyone, then it seems highly desirable.
We made special provision in the Bill by providing that the Disability Rights Commission could not in any event become part of an equality commission within less than three years after the Bill comes into force, which would effectively mean five years from now. That is a different approach, and I see no reason why one could not have those arrangements.
1643 The Bill deliberately does not give a lot of detail about the internal structure of the commission. That is because it is very important, as I have tried to explain, that there should be a unified principle of a single commission rather than complex arguments about the detail. I am anxious that the Bill, if it were accepted by the Government, should not unnecessarily fetter any future commission in its freedom to establish itself in an appropriate way and at an appropriate time. In other words, I would not wish it to be supposed that I was favouring a strand-specific approach that could—to mix my metaphor—balkanise the entire commission into a series of disjointed, separate and compartmentalised commissioners, committees and so on. That would lose the entire thrust of what we are seeking to do. I am comforted to see that the noble Baroness, Lady Prashar, is nodding affirmatively. She has much more experience than I do, as does the noble Baroness, Lady Greengross. Having said all of that, I certainly accept these amendments.
§ Baroness Scotland of Asthal
I assure my noble friend Lord Ashley that the Government are represented in the Bill's passage purely so that we can listen very carefully to everything that is said. We will take it into consideration.
§ On Question, amendment agreed to.
§ Clause 38, as amended, agreed to.
§ Clauses 39 to 47 agreed to.
§ Clause 48 [Matters referred to a tribunal]:
Lord Lester of Herne Hill moved Amendment No. 3:
Page 36, line 7, leave out "if" and insert "except where
The noble Lord said: This is a purely technical amendment to correct a mistake. As currently drafted, Clause 48(1) states:
Where a provision of this Act provides for any matter to be referred to a tribunal, the matter is to be referred to an employment tribunal if the matter falls within sections 49, 50 or 51".
The very opposite should be the case. It should state,
except where the matter falls within sections 49, 50 or 51",
in which case it is not dealt with by an employment tribunal at all. As I say, this is a technical amendment to rectify that mistake. I beg to move.
§ On Question, amendment agreed to.
§ Clause 48, as amended, agreed to.
§ Clauses 49 to 92 agreed to.
§ Clause 93 [Regulations and orders]:
Lord Lester of Herne Hill moved Amendment No. 4:
Page 67, line 4, leave out "25 or 28" and insert "4(5)(a), 25, 28 or 93(2)(a)
§ The noble Lord said: This amendment seeks to implement the recommendations of the Select Committee on Delegated Powers and Regulatory Reform in its ninth report of 2002–03. The change means that the delegated powers of the Secretary of State to make further provisions concerning the definition of disability would be subject to the affirmative procedure. The Secretary of State already has similar delegated powers under the Disability 1644 Discrimination Act. Further, where the Secretary of State makes any other adaptations, amendments or repeals in consequence of the Equality Act, that would also be subject to the affirmative procedure. The amendment seeks to meet the concerns of the Delegated Powers Committee as expressed in its recent report on Henry VIII powers. I beg to move.
§ On Question, amendment agreed to.
§ Clause 93, as amended, agreed to.
§ Clause 94 agreed to.
§ Schedule 1 [Definitions relating to meaning of disability]:
Baroness Wilkins moved Amendment No. 5:
Page 68, line 5, leave out from first "illness" to end of line.
§ The noble Baroness said: In moving Amendment No. 5, I wish to speak also to Amendments Nos. 6 and 7 with which it is grouped and which stand in my name.
§ These amendments seek to widen the definition of disability in the Bill to give greater protection to people with mental illness. The Bill of the noble Lord, Lord Lester, replicates the definition of disability laid down in the Disability Discrimination Act 1995 which has been found to face people with mental health problems with extra hurdles in meeting the definition of disability. MIND has found that in particular the conditions of depression, eating disorders and schizophrenia are inadequately or inappropriately covered by the Disability Discrimination Act definition.
§ Amendments addressing MIND's concerns were passed with the full support of your Lordships' House during the debate on the Private Member's Bill of the noble Lord, Lord Ashley, last year (Hansard, 6th March, 2002, cols. 346–354). Since then these changes to the definition have been officially accepted by the Disability Rights Commission in its first review of the Disability Discrimination Act 1995.
§ Amendment No. 5 seeks to remove an unnecessary qualification from the definition of disability that any mental impairment must be clinically well recognised in order to meet the definition. Problems of mental health run on a spectrum of behaviour from mere "character traits" to a range of disorders from depression, manic depression, personality disorders through to schizophrenia. In practice, the boundaries may be blurred. There is also controversy about what constitutes clinical illness. In tribunal cases, medical reports can disagree, with different psychiatrists making different diagnoses of the same person or making a diagnosis that blurs the distinction between different disorders. The extra requirement that the illness be clinically well recognised imposes an extra legal hurdle for people with mental health problems which is not applied to people with physical impairments, thereby giving less protection from discrimination on grounds of disability.
The purpose of Amendment No. 6 is to give people with short-term but severe depression protection from discrimination. To qualify as disabled for the purposes of the DDA, the claimant must have an "impairment" which has a,
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 he 12 months. Recurrent conditions are also covered by the DDA.
§ Those provisions cause real problems for people with depression. First, for many people, depression may be severe but relatively short lived. Secondly, it can be very difficult to diagnose whether it is likely to be an underlying recurrent condition. Thirdly, discrimination against people who have had a period of short-term depression is commonplace.
§ Reports from the employment tribunals show that to be a consistent problem. In one case, the applicant took five months' sick leave for depression and was on medication for more than a year. The tribunal recognised the depression as an impairment but was still not satisfied that the effect of the applicant's impairment had a long-term effect as it had not lasted for at least 12 months, and the case was dismissed.
The purpose of Amendment No. 7, the last amendment in this group, is to improve the coverage of mental health conditions within the definition of disability by including activities that are most likely to be severely affected for people with eating disorders, depression, anxiety disorders and schizophrenia. In order to come within the definition of "disability" under the DDA and consequently under the Bill of the noble Lord, Lord Lester, a person must be adversely affected in carrying out one of a list of,
normal day to day activities".
§ That list was framed with physical impairments in mind and contains six physical activities but only two mental ones. The effects of mental health problems do not fit readily into those categories and some do not fit at all.
§ A person's perceptions may be distorted such that they misinterpret colleagues' behaviour, for example by understanding what is said but perceiving hostility, criticism or mistrust where there is none. A person who is severely depressed and/or suicidal may be able to carry out any of the specified activities but still not be able to function in a workplace at that time. A person may be experiencing withdrawal, paranoia, anxiety or depression to the extent that they cannot communicate effectively. If the definition of disability is better to protect people with mental health problems from discrimination, the list of day-to-day activities needs to include the ability to care for oneself, the ability to communicate and interact with other people and the ability to perceive reality.
§ Discrimination on mental health grounds is a serious problem in the UK and discrimination in employment is one of the biggest problems facing people with a history of mental ill-health. They have the highest rate of unemployment among people with long-term health problems, with only around 19 per cent in employment, compared with 47 per cent of people with all long-term health problems. In a survey by MIND. more than one-third of respondents reported that they had lost their jobs as a result of their psychiatric history, while 38 per cent had been harassed, intimidated or teased at work, 69 per cent 1646 had been put off from applying for jobs because of their psychiatric history and around half concealed their psychiatric history for fear of losing their jobs.
§ There is strong evidence that the current definition of disability in the DDA, which has been replicated in the Bill of the noble Lord, Lord Lester, provides inadequate protection for people with mental health problems. In a survey of 210 cases in which employment tribunals decided that the applicant did not meet the definition of disability the DRC legal team found that people with mental illness formed the largest category to be excluded by the definition.
§ I do hope that the noble Lord, Lord Lester, will be able to accept the amendments and provide people with mental health problems with the same protection from discrimination as presently exist for people who are physically impaired. I beg to move.
§ 4 p.m.
§ Lord Ashley of Stoke
I support the amendments for the reasons put forward by the noble Baroness, Lady Wilkins. I do so also because in all kinds of legislation the problem of definition bedevils people with mental illness. There is no clear definition, and those people are neglected and ignored time and time again. The issue of definition is crucial.
I believe that if any one group of people requires legislation, it is those with mental illness. They are the most misunderstood people in the world. It is a most complex issue. Therefore, I briefly and warmly endorse the amendments proposed by the noble Baroness, Lady Wilkins, and I hope that the noble Lord, Lord Lester, will accept them.
§ Lord Lester of Herne Hill
I am grateful to both the noble Baroness, Lady Wilkins, and the noble Lord, Lord Ashley of Stoke. I am particularly grateful to the noble Baroness, Lady Wilkins, for the very clear and comprehensive way that she explained the object and purpose of the amendments.
One further point was raised in the very helpful briefing provided by MIND, to which I am also grateful. A comparative survey of 11 countries with disability discrimination laws showed that the United Kingdom Disability Discrimination Act is the most disadvantageous for people with mental health problems. It appears that the Irish and Australian federal laws, for example, specify a condition, illness or disease which affects a person's thought process, perception or reality, emotions or judgment, or which results in disturbed behaviour. The Americans with Disabilities Act 1990, upon which the UK Act was based, has apparently been amplified in regulations and guidance to ensure that mental health problems are fully covered.
On careful reflection and on listening to the speeches that have been made today, I have no doubt that the definitions in the Bill are too narrow. Therefore, from our perspective, the amendments are most welcome.
§ On Question, amendment agreed to.1647
Baroness Wilkins moved Amendments Nos. 6 and 7:
Page 68, line 17, at end insert "; or
(d) it is a mental impairment consisting of, or resulting from, depression and it has lasted, or is likely to last, at least 3 months.
Page 69, line 8, at end insert—
(i) ability to care for oneself;
(j) ability to communicate and interact with other people;
(k) ability to perceive reality.
§ On Question, amendments agreed to.
§ Schedule 1, as amended, agreed to.
§ Schedule 2 [Protected areas of activity]:
§ [Amendment No. 8 not moved.]
§ Schedule 2 agreed to.
§ Schedule 3 agreed to.
§ Schedule 4 [The Equality Commission]:
Lord Ashley of Stoke moved Amendment No. 9:
Page 103, line 27, at end insert—
(4) One of the commissioners is to be appointed as disability rights commissioner, and that person is to be chairman of the Commission's disability rights committee.
§ On Question, amendment agreed to.
Lord Borrie moved Amendment No. 10:
Page 104, line 10, leave out paragraph (d) and insert—
(d) that he suffers from incapacity or has engaged in misbehaviour.
§ The noble Lord said: Last year the chairman of the Commission for Racial Equality, having pleaded guilty to a charge of threatening behaviour, resigned his post and was given a £120,000 pay-off. That caused some controversy, but he could not have been dismissed from his post because, unusually for legislation providing for public appointments, there was no provision in the Race Relations Act 1976 for dismissal for misbehaviour.
Paragraph 2(7) in Schedule 4 to the Bill promoted by the noble Lord, Lord Lester, provides for any member of the equality commission to be removed from office if he has been convicted of a criminal offence or is,
unable or unfit to carry out his functions".
§ My amendment is a probing amendment to ask the noble Lord, Lord Lester, why he has chosen that form of words, instead of the words "incapacity or misbehaviour" which for years have been used, as he will know, for circuit judges in the Courts Act 1971, and appears again and again in more recent legislation; for example, the Utilities Act 2000 and the Enterprise Act 2002.
§ In July 1994 the then Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern, said that in this context misbehaviour could include a conviction for drink/driving, any offence involving violence, dishonesty or moral turpitude, behaviour likely to cause offence on religious or racial grounds or that amounts to sexual 1648 harassment. "Incapacity or misbehaviour" is a well tried, well used legislative basis for dismissal. Is the choice of words of the noble Lord better? I beg to move.
§ Lord Lester of Herne Hill
I am grateful to the noble Lord, Lord Borrie, for raising this issue. Perhaps I may explain the position. There is nothing between us in terms of what we seek to achieve. It is purely a choice of language. As the noble Lord has said, as it stands the Schedule 4 power to remove commissioners includes a number of justifications for removing a commissioner that one hopes will not arise in reality. One is that,the commissioner has without reasonable excuse failed to discharge his functions for a continuous period of three months",secondly, that,he has been convicted of a criminal offence",thirdly, that he has been made bankrupt and, fourthly, that,he is unable or unfit to carry out his functions".The relevant provisions of the Sex Discrimination Act 1975 and the Race Relations Act 1976 allow the Secretary of State to terminate the appointment of a commissioner if he is satisfied that the commissioner,is by reason of physical or mental illness, or for any other reason, incapable of carrying out his duties".The provision in the Disability Rights Commission Act 1999 is wider than that. It allows the Secretary of State to terminate the appointment of a commissioner if satisfied that,he is otherwise unable or unfit to carry out his functions as a commissioner".We have decided to mirror the wider power of removal from the disability rights legislation rather than the narrower powers in the race and sex discrimination legislation. The amendment of the noble Lord would substitute the words,suffers from incapacity or has engaged in misbehaviour".We say that the amendment is unnecessary because the word "unfit" would plainly encompass misbehaviour. Incapacity has a specific legal meaning that is narrower than "unable or unfit". We therefore believe that the matters with which the amendment is intended to deal are already covered and that there is a precedent for that in the Disability Discrimination Act 1995, which we have followed.
There is no difference of policy or principle between us, it is purely a matter of semantics and how we go about it, so I hope that the noble Lord will not feel it necessary to press his amendment.
§ 4.15 p.m.
§ Amendment, by leave, withdrawn.
§ Schedule 4 agreed to.
§ Schedules 5 to 8 agreed to.
§ House resumed: Bill reported with amendments.
§ House adjourned at seventeen minutes past four o'clock.