Disability Discrimination Bill [H.L.]

HL Deb 03 February 2005 vol 669 cc363-96

11.32 a.m.

Report received.

Lord Skelmersdale

moved Amendment No. 1: Before Clause 1, insert the following new clause—

"PUBLIC REPRESENTATION

1. (1) In the 1995 Act, Part 2 shall have effect with the following amendments.
2. (2) In section 4C(3)(a) the words "and in respect of which they are entitled to remuneration" are omitted.
3. (3) In section 4C(3)(b) at the end the words "or regional or local authority" are inserted."

The noble Lord said: My Lords, this Bill brings public authorities within the scope of the Disability Discrimination Act for the first time, covering local authorities, hospital authorities, schools to a great extent and various others.

However, I find it anomalous that office holders must be paid if they are to be covered by the Act as regards it being illegal to discriminate against or harass disabled people, or make reasonable adjustments for them. There is an amendment in the Marshalled List in the name of the noble Baroness. Lady Masham, and others about that.

One can think of many occasions when someone is unpaid, but still directs things and other people within the province of local authorities. This amendment would extend the protection of disability legislation to the holders of public appointments made by Ministers, government departments, the Scottish Administration and the Welsh Assembly who do not receive remuneration. It would also cover appointments made by regional and local authorities such as some school governors.

The record of many public bodies in promoting the inclusion of disabled people is poor. Government figures show that only 3.1 per cent of public appointments are held by disabled people. Among the reasons why disabled people are excluded from public life is the failure of many public bodies to make reasonable adjustments to allow disabled people to participate in their work. Factors acting against the involvement of disabled people include public bodies choosing to meet in inaccessible locations, not providing loop induction facilities and/or failing to provide relevant material in alternative formats. In some instances, public bodies can practise outright discrimination against disabled members.

The Disability Discrimination Act 1995 (Amendment) Regulations 2003 extended the protection of the Act's employment provision to public office holders where, they are entitled to remuneration", and where the,

"post is one to which appointments is made by a Minister of the Crown, a government department, the National Assembly for Wales or any part of the Scottish Administration".

This has created the anomalous situation that a disabled person seeking or holding a public appointment which is subject to some remuneration, no matter how small, is protected under the Act, while an unremunerated post holder is not so protected. The reason why some public appointments are remunerated while others are not are often very strange, historical and arbitrary. For example, members of the Industrial Development Advisory Board, which has wide powers to provide selective financial assistance to industry", are unpaid while non-executive board members of local primary care trusts receive, I am told, £5,673 a year. Similarly, lay magistrates, who have the power to impose custodial sentences, are not paid, while members of area courts boards, whose functions are purely advisory, receive £1,300 a year.

lthough we covered to an extent this subject in Grand Committee, I cannot see why the Government believe that there is a sustainable argument that unremunerated public posts and appointments by regional and local authorities should not enjoy the same statutory protection. I beg to move.

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

My Lords, this clause is intended to protect disabled people from discrimination if they are involved in public representation. I believe that the noble Lord, Lord Skelmersdale, expressed his concerns very clearly. This is precisely what we would expect to achieve once the DDA has been amended by this Bill. Current DDA protection, together with the changes in the Bill, will ensure that the DDA's protection will be at least as comprehensive as that provided by the Race Relations Act. As I explained during Grand Committee, the Disability Discrimination Act 1995 (Amendment) Regulations 2003 transposed the disability aspects of the European Framework Directive on equal treatment in employment. So in brief the DDA now protects those who are appointed to an office to discharge functions personally, are remunerated, as the noble Lord, Lord Skelmersdale, identified, and who perform their duties under the direction of another, and those who are appointed by government or on advice of Ministers.

Clause 1 will extend DDA cover to local councillors, fulfilling a promise made in Towards Inclusion. In addition, Clause 2 will ensure that in broad terms all activities in the public sector are covered by the DDA including functions relating to public office holders.

There were some concerns on the first day of Committee about the cover which Clause 2 will afford office holders, once our package of provisions is in place. In particular school governors were mentioned. The debate was led by the noble Lord, Lord Skelmersdale, and it prompted me to consider carefully whether the Bill met our intentions. It does appear that public office holders would not be covered as comprehensively as we had intended.

At the moment, Clause 2 covers the appointment of a person to a post, but not the relationship once a person is in post. In our attempt to prevent an overlap of provisions within the DDA, we inadvertently failed to protect public office holders when in post. So it is very useful that we were able to explore the matter as we did in Grand Committee.

Clearly, we shall be putting this right to ensure comprehensive protection for holders of public office. We will bring forward an amendment as regards Clause 2 to ensure that Section 21B(1)will also apply to public functions exercisable in relation to office holders once they are in post unless they are covered elsewhere in the DDA.

The appointment of a school governor is a good example of something already falling within Clause 2. With our amendment all school governors, as we always intended but did not achieve, will be protected when in post. To give a further example, members of the management boards of the new NHS foundation trusts will also now be protected. I am grateful for the scrutiny offered. I hope that the noble Lord, Lord Skelmersdale, will withdraw his amendment knowing, as I say, that we have responded to his concerns and that we shall be coming forward with an amendment of our own.

Lord Skelmersdale

My Lords, I am not gob smacked—that is a very inelegant expression—but I am overcome. Of course I shall withdraw the amendment and will look forward to the government amendment when it appears at Third Reading.

The matter that I did not mention about this particular amendment is that Part 2 offers better protection in situations of direct discrimination and harassment. There is a lower threshold under Part 2 in respect of the duty to make reasonable adjustments—and these provisions relate to the Act not the Bill. Unlike Part 3, failure of the duty to make reasonable adjustments cannot be justified under Part 2. Therefore, I hope that when we see the government amendment at Third Reading these discrepancies will also be covered within it.

However, as I said, I am very pleased. I hope that this reassurance will enable us to make better progress on the Bill than might otherwise have been the case. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Lord Ashley of Stoke

moved Amendment No. 3: Before Clause 1, insert the following new clause—

"DISABLED PERSONS' RIGHTS TO INDEPENDENT LIVING

Persons with disabilities are to be entitled to the same choice, control and freedom as any other citizen, at home, at work, in education and as a member of the community."

The noble Lord said: My Lords, I move Amendment No. 3 as a declaratory clause at the suggestion of my noble friend Lord Carter. He rightly felt that as it was originally placed after Clause 3 it might be taken to refer only to public authorities: whereas a declaratory clause at the front of the Bill would, as I wish, apply to all disabled people in all contexts. But, as my noble friend Lady Hollis wisely said, the rights for disabled people must be not only declaratory but also deliverable. That is the essential point for us today.

I do not intend to speak in detail about the campaign for Independent Living's "seven pillars", which cover accessible housing, education and employment opportunities, advocacy services, community care, information and welfare benefits, including direct payments, because my noble friend Lady Hollis made it clear in Grand Committee that the Government are well aware of these aspects. Indeed, they are happily working on them.

The noble Baroness was right to point to all the actions taken by the Government to address these concerns. I am heartened that the Disability Rights Commission is working intensively on the Independent Living project, and that the Prime Minister's Strategy Unit is also dealing with it. In its report, the Prime Minister's Strategy Unit emphasised that past responses to needs have often created dependency instead of promoting independence, and that disabled people have been expected to fit into services rather than services being personalised to respond to individual need.

So, where does that leave us? When well meaning efforts are made to help disabled people. they could be undermining rather than improving the concept of independent living. Therefore, what is needed is a fundamental reappraisal of all our policies, with the achievement of independent living for disabled people as the clear and unambiguous goal. I believe that that is the major challenge to us as legislators. I hope that the House and the Government will support this new clause. I beg to move.

Lord Addington

My Lords, I totally support the aims of the noble Lord, Lord Ashley. I look forward to the Government's response and how they are going to try to work this provision in, because it must be included. It is totally in keeping with the logic put forward that this provision should be worked into the Bill and government policy.

Lord Carter

My Lords, my noble friend Lord Ashley named me as the person who suggested that the amendment, if accepted, should be treated as a declaratory clause rather than remaining in its previous place in the Bill, which we discussed in Grand Committee. We have received some briefing from the Disability Rights Commission on the issue. Obviously it agrees with the principle, but states that: We are currently compiling the evidence base for new enforceable rights in these areas and will shortly be conducting a full assessment of the costs and benefits. We will also be developing the necessary legislative provisions to give effect to this vision". Does that mean that this could be done by regulation in some way and that it would be more defined, rather than the general and declaratory clause that my noble friend suggests? Perhaps the Minister could tell us of the Government's intention. Of course the amendment, in a sense, has been slightly overtaken by the recent publication of the Strategy Unit's report, which sets out a very exciting programme for the Government on how they intend to deal with the issues of disability up to, I think, 2025. If we link that in to yesterday's Statement on the DWP's five-year plan—and there is a lot in both those documents—and couple it with the work that the DRC is doing, would that be enough to satisfy my noble friend?

Lord Skelmersdale

My Lords, the Government have been very energetic, although they have come somewhat late to the area of disability discrimination. They have had three orders under the original Act—certainly two—and now have produced this Bill, which went through a pre-legislative scrutiny process. We have the report to which the noble Lord, Lord Carter has just alluded. It is clear that their intention is to pursue through legislation many of the elements contained in that report. Certainly, one of those would be the total inclusion of the rights of disabled people that are the subject of this amendment.

I agreed with the philosophy and principle in Grand Committee and I do not dissent from that now.

Baroness Hollis of Heigham

My Lords, the amendment moved by my noble friend aims to insert a new clause at the front of the Bill which would set out a declaratory statement on disabled people's entitlement to equal treatment in a range of areas.

As my noble friend anticipated, the Government have already made clear their commitment to extend rights and opportunities for disabled people so that they can participate fully in society. We have demonstrated this commitment through a wide range of measures. We were not late to the area—I think it was 1998 when, for example, the Government introduced their Bill on the DRC giving it teeth to intervene in promoting the rights of disabled people. So, ever since we have been in office, with the help of my noble friends Lord Ashley, Lord Morris and Lord Carter—to name but three; and I am sure that others will not mind my not listing them—we have been energetic in seeking to extend properly to disabled people the civil rights that of course they are fully entitled to exhibit and to hold. We have demonstrated this commitment through a wide range of measures. The Bill enables us to deliver further on our pledge.

The DDA, established by the previous Administration with all-party support, already provides significant protection from discrimination for disabled people and, once enacted, the provisions in the Bill—particularly those placing additional duties on public bodies—will ensure that disabled people will enjoy comprehensive rights. I know from comments in Grand Committee that this view is shared around the House, including by noble Lords opposite.

However, the Government recognise that promoting equality and independent living for disabled people goes far wider than simply legislating to outlaw disability discrimination. As my noble friend will recall, in debate in Grand Committee, I made reference—as my noble friend Lord Carter has today—to the then forthcoming publication of the Prime Minister's Strategy Unit report, Improving the Life Chances of Disabled People. That report was published on 19 January and sets out a 20-year vision and a radical strategy for achieving that vision. Independent living—increasing disabled people's ability to live independently at home, at work and in the community, by giving them more choice, empowerment and freedom—is one of the key areas addressed by the report.

Your Lordships will no doubt be familiar with the wide-ranging recommendations in the report, but I shall outline briefly those which are particularly pertinent to the issues raised by my noble friend's amendment.

The main recommendation is for a new system of individualised budgets—recommendation 4.5. That will bring together a range of different funding streams that help with personal care, support, equipment and adaptations. Disabled people will be able to use their individual budget in the form of cash—direct payments—directly provided services, or a mixture of cash and services.

There are also recommendations relating to the expansion of user-led organisations, such as recommendation 4.3, which will give disabled people access to advocacy services and support in using individual budgets, and to the availability of information and advice. Those of us who were involved in establishing direct payments many years ago will know that one of the biggest problems we faced in doing so was producing the support mechanisms for people to be able to manage budgets. For the first time in their lives they were employing people as opposed to being the recipients of other people's attention. It was a change in mindset which needed backing by very practical measure. I should like to think that we have some way towards achieving that.

This provision will build on other provisions that we have in place or are planned, such as the provision of £1.3 million funding in each of the last three years to support the development and expansion of self and citizen advocacy services in learning disability. I hope that your Lordships will welcome these measures which will bring about real improvements for disabled people.

The Strategy Unit acknowledged that many issues are still to be addressed in delivering this new system, which is why early pilots will be developed. I am assured, in response to the question from my noble friend Lord Carter, that we do not need regulations to do that. My department will be working closely with the Department of Health and the ODPM to take these matters forward.

In addition, and importantly, we will be setting up a task force for independent living. This will enable all those with an interest—Ministers, officials in central and local government, disabled people and other organisations—to develop further the thinking on independent living and individualised budgets. Disabled people will thereby be at the centre of a support system and not dependent on it. It should provide a forum for identifying options and opportunities that bridge the social care, health, employment and housing interfaces.

It is through the improved civil rights provided by the Bill, and practical measures such as those that I have outlined, that we will achieve greater rights to independent living for disabled people. As my noble friend knows, this amendment in itself would add nothing to those measures. However, as an opportunity to state our philosophy early on in today's Report stage, I hope he will acknowledge that he shares our vision and will therefore feel able to withdraw what is essentially a declaratory amendment.

Lord Carter

My Lords, before the Minister sits down, I do not think that she mentioned the proposal on disability issues in the five-year plan report which was discussed yesterday. It was proposed that an interdepartmental office be set up under the leadership of the DWP which would ensure that all departments involved in disability issues were brought together into one office and one committee. Presumably it will work within the DWP but have other departments working with it. I thought that we should have done this when I was in government, but I am delighted that we doing are it now.

Baroness Hollis of Heigham

My Lords, my noble friend is absolutely right, and I apologise for overlooking the point. When we come on to subsequent amendments, he will see that the DWP is seeking to take the lead on other initiatives which conventionally have lain with other government departments, precisely because my honourable friend Maria Eagle is the Minister for Disabled People. It is important that the energy provided by having that located within the Department for Work and Pensions helps to coordinate all our initiatives and keeps the energy flowing across government. I hope that, with those assurances, my noble friend Lord Ashley will be able to withdraw his amendment.

Lord Ashley of Stoke

My Lords, I thank my noble friend for that important statement. I would far sooner that the amendment was accepted by the Government. but I accept that the Government have made enormous strides for disabled people. Of course I accept my noble friend and the Government's good faith and promises. I am conscious of the need for brief speeches and short debates. However, this debate really has enormously helped independent living. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 [Discrimination by public authorities]:

Baroness Masham of Ilton

moved Amendment No. 4: Page 3, line 32, at end insert— ( ) In the 1995 Act, after section 21(2) there is inserted— (2A) In determining their duty under subsection (2), NHS hospital trusts shall ensure that adequate equipment is available to enable disabled persons to be diagnosed and treated to the same standards as other persons. (2B) When assessing the reasonableness of providing equipment under subsection (2A), NHS hospital trusts must not refuse to provide equipment on the grounds of cost alone, unless those costs are grossly disproportionate." The noble Baroness said: My Lords. I have always been a supporter of the National Health Service. Amendment No. 4 ensures that adequate equipment is available to enable disabled persons to be diagnosed and treated to the same standards as other persons. Subsection (2B) states that the equipment should be supplied unless these "costs are grossly disproportionate".

Disabled people often find themselves in a very difficult situation if they go for an investigation or treatment and no suitable equipment is available. There has been a European regulation about moving and handling, the result of which is that hospital staff no longer lift patients. Staff are now protected. However, unless adequate equipment and training are available, both disabled patients and their helpers, if they have one, are being put at risk. If equipment such as examination plinths and X-ray tables do not raise and lower to the correct height, hoists and ramps can be used; otherwise a helper, who might be an elderly woman, might have to heave a disabled son or husband up, doing herself damage.

The noble Baroness, Lady Pitkeathley, who knows so much about carers, would have liked to be here to support the amendment, but she is interviewing today and cannot attend. She has, however, given me permission to say that she is concerned about this matter. She knows how important it is to have a correct diagnosis of a serious condition, and that carers are putting themselves at risk by being the only ones helping disabled people in these circumstances. Not having the correct facilities puts the disabled person in a very stressful position. If patients are denied access to diagnosis and treatment because they are not given adequate facilities, surely they are being discriminated against. So far, there is not a level playing Field.

I am sure that the whole House would want to protect hospital staff from injury. But I hope that the House will also feel that disabled people should not be denied treatment because the correct aids are not provided.

Disability covers so many conditions, including—to mention just a few—multiple sclerosis, rheumatoid arthritis, arthritis, motor neurone disease, learning difficulties and physical disabilities, amputation, some heart conditions, stroke, osteoporosis, chronic back pain, spinal injuries and cerebral palsy. There is a multitude of neurological conditions such as Parkinson's disease, polio, muscular dystrophy and brittle bones. The list goes on. One in five of the population has a disability.

Disabled people, like anyone else, can get cancer, gall stones, appendicitis and gynaecological problems, to mention only a few. They need assistance—not to have a blind eye turned to their needs as often happens at present. I attended a meeting on Tuesday where the speaker was the chairman of the Healthcare Commission, Sir Ian Kennedy, who works for improvement in the National Health Service. He admitted that there needs to be more knowledge about disability needs, but he is only one of many people.

I hope that this amendment will help to highlight an issue that is a health and safety matter for disabled people and their personal helpers. There are so many needs in the National Health Service and foundation hospitals that the needs of disabled people are often forgotten. Sometimes their only means of getting needs met is through litigation. That should be avoided at all costs; therefore, I beg to move this amendment.

Noon

Baroness Neuberger

My Lords, I support the noble Baroness, Lady Masham, in her amendment. Although I understand that financial considerations might make some additional equipment seem prohibitively expensive, it is commonplace for people with disabilities to find that they cannot access quite ordinary services within the NHS. Those of us who have worked in the National Health Service—many noble Lords are in that position—know from observation and experience that that is true.

However, there is also much research evidence from a variety of sources. I was particularly struck by the research commissioned by the Rowntree Foundation, from Jenny Morris, on the plight of people with physical impairments and mental health needs. Entitled One town for my body, another for my mind, it was published last year and makes the case extremely powerfully.

It seems as though services cannot comprehend that more than one thing or condition might need attention or special provision. In Jenny Morris's research, people describe being unable to get into a mental health unit because there was no ramp and they were in a wheelchair—hardly a major requirement for the NHS to think about and then provide. Similarly, inpatients found that services were so poorly organised that getting to meals or ordinary daytime activities was physically impossible. Steps up and down, and lack of ramps, lifts and hoists made it more and more dispiriting and impossible. That is clearly absurd; it is not equal treatment, or equal provision of services, or non-discriminatory, but it is commonplace.

In another example, a woman inpatient, Jane, described her room having, an incredibly heavy door. The shower was lethal: there was no alarm, no handrails or anything, and it was very slippery". The research showed time and again that staff were not exactly unkind, they were just busy and not very helpful. This evidence, which has been accumulating now over many years, has convinced me that we must take the matter seriously. We must add to that our ageing population, with the number of people with physical disabilities therefore likely to grow, and their carers, particularly their partners, often growing old and frail alongside them.

If the Disability Discrimination Bill is to mean anything, it must mean those who fund, provide and work in public services taking such situations seriously. Exhortation and encouragement have not worked thus far. For that reason, I believe it right and appropriate to include this provision in the Bill, and I strongly support the amendment.

Lord Ashley of Stoke

My Lords, I, too, support the amendment. I am far from satisfied with the Government's response. Here we face a very familiar situation: a powerful case made by my noble friend, on the one hand, and the Government, on the other, saying that it adds nothing to existing legislation. We have heard that excuse so often that it is becoming threadbare. It does not wash because, as the noble Baroness, Lady Masham, said, disabled people are not getting the facilities that they need. That could be through prejudice or neglect or for any one of a hundred reasons.

If existing legislation is failing, as it is—the evidence from my noble friend Lady Masham in Committee and in this House was stunning—the Government should do something about it: they should accept this amendment. I hope that my noble friend Lady Hollis will see fit to change her view and talk not about the past and existing legislation but about this amendment and what it can do for disabled people.

Lord Carter

My Lords, I was tempted to support this amendment until I did some research on the matter. Before referring to that, perhaps I may say how struck I was by the noble Baroness's remark on the problems of lifting. I was reminded that for nine years, before I entered government, I was the executive producer of the weekly "Link" programme, which was broadcast every Sunday for people with a disability. My noble friend Lady Wilkins was also involved. We produced a video called "Link on Lifting", which is still in circulation. I have no financial interest in it whatever, but it is an extremely good example of how to lift and how not to lift.

It occurred to me when we discussed the issue in Grand Committee that it would be covered by Clauses 2 and 3, dealing with discrimination by public authorities. I was supported in that by the briefing from the Disability Rights Commission. I am not sure whether the noble Baroness has seen it. It says: The DRC believes that the public sector duty will provide us with the necessary instrument with which to tackle this issue. We are currently consulting on a draft Code of Practice explaining the requirements of the duty, and think this is an excellent example which we would certainly want to include". It concludes: we are satisfied that the new public sector duty provides the firmest foundation for making progress on this serious problem". There has been a gap in the legislation, which has led to the situation described by the noble Baroness and others. I hope that the Minister will be able to confirm that, once the Bill becomes law, Sections 2 and 3 will cover that satisfactorily, so that if a hospital were to discriminate through the non-provision of equipment, it would be caught by the new Act.

Lord Rix

My Lords, perhaps I may add a personal note. I have a daughter with Down's syndrome, aged 53, who now is totally incapacitated and has to be hoisted literally out of bed into an armchair to feed and so on. She has always to be lifted or hoisted. Therefore, I fully support the amendments. Unfortunately, my daughter is a frequent visitor to hospital. The one that she attends is very good in this respect but I know many others that fall short of those standards.

Baroness Howe of Idlicote

My Lords, I support the amendment and the intentions behind it, although there may be another way of dealing with it. The Government have come a long way—so far, that the proposed provisions should be an obvious part of the amended Bill. Apart from the very able way in which situations were described, two very important points—that one in five people have some form of disability, and the point about ageing made by the noble Baroness, Lady Neuberger—surely make the case so satisfactorily that the Government can accept the amendment.

Lord Walton of Detchant

My Lords, I, too, support the principle underlying the amendment. I spent 50 years in the clinical practice of neurology and carried out a great deal of research on muscular dystrophy and other neuromuscular diseases. In the early days, when I began that work, there was, I am afraid I have to say, an attitude of neglect, often relating to people who were seriously disabled by such diseases, who were never given the opportunity to receive the rehabilitation and support that their condition deserved.

There is no question that there has been a vast improvement over the past 50 or more years. Nevertheless, much more remains to be done. My only concern about the wording of the amendment is the use of the words "grossly disproportionate". I am concerned about how that wording in a legal document could be construed by hospital and other authorities. There have been so many new developments of sophisticated and highly expensive communication aids and much more that to provide everything that could conceivably help disabled people might just impose a financial burden upon the health service that it would be incapable of sustaining.

However, I hope that the Government will consider these matters sympathetically and carefully to see if they can come up with wording that would satisfy the very noble motives expressed by my noble friend Lady Masham and others.

Lord Turnberg

My Lords, I support the idea behind the amendments. I know that in theory at least any patient in hospital cannot be discriminated against but that is theoretical. As a practising physician for many years, now retired some years ago, I know that that practice was not always followed through. Although the wording may not be exactly what is required, I hope that the principle and the idea can be incorporated into the Bill.

Lord Skelmersdale

My Lords, in Committee, the noble Baroness, Lady Masham, moved a similar amendment on the problems from which disabled people suffer when on hospital visits, especially in radiography departments, where some people find that they are not given proper help to get on to beds so that they can be X-rayed, and so on. Various noble Lords have illustrated that this morning. The noble Baroness pointed out that patients with a disability should have the facilities to be diagnosed and treated; otherwise as the noble Baroness, Lady Neuberger, said, they are discriminated against.

The Minister gave the impression that there were other current duties, responsibilities and functions of hospitals elsewhere in legislation, and that the amendment proposed by the noble Baroness, Lady Masham, would add nothing to help. Clearly, if the Department of Health measures exist, they are not working. The question arises: "How can they be made to work?". The noble Baroness, Lady Masham, said that she would try to talk to the noble Lord, Lord Warner, on this. I do not know whether she has; but the situation is bad.

This Bill provides for a duty on public authorities. The Minister did not react when I said on the first amendment that hospitals were covered by the Bill. Was I right? If I am, I accept what the Minister said on that in Committee. The noble Lord, Lord Walton, is right that this new amendment differs only by the addition of the second paragraph. I have no doubt that the Minister will be picking holes in it, especially in the last two words, "grossly disproportionate", which refer to costs. Costs in the health service, and anywhere else where the Government have a role, are always extremely difficult. None the less, in recent years the Government have been literally pouring money into the health service, not always to the greatest effect. I am sure that many hospitals and hospital trusts could make much better use of the money that they are given, but that does not alter the fact that the situation is bleak. I do not know whether it is getting worse; some have suggested that it is getting better. None the less, something must be done, and done fast.

Baroness Hollis of Heigham

My Lords, this has been an interesting and important debate. The noble Lord, Lord Skelmersdale, and my noble friend Lord Carter were both exactly right that behind it is a misunderstanding of what this current Bill does. If the Bill works as we expect it to, I am confident that the bleak situation asserted by the noble Lord. Lord Skelmersdale, should no longer apply.

By amending Section 21 of the DDA, this amendment would require NHS hospital trusts to provide adequate equipment for the diagnosis and treatment of disabled people when considering their duty to make reasonable adjustments. Furthermore, as noted by the noble Lord, Lord Walton of Detchant, it would preclude the trust, when considering this aspect of reasonable adjustment, from refusing to provide the equipment on the grounds of cost except where the cost was "grossly disproportionate".

12.15 p.m.

We have considered the amendment. I sympathise with the situation of disabled people. All of us with family members who suffer from disabilities have been in somewhat analogous situations. However, this is a matter of the practical provision of health services, which needs to be considered and addressed by the NHS and its trusts. An amendment to disability discrimination legislation is the wrong approach, but also this amendment is superfluous in the light of existing and planned DDA provision. Coming back to the comments of the noble Baroness, Lady Neuberger, we are ensuring that adequate safeguards are in place to prevent discrimination against disabled people in the provision of hospital services, through the existing provision in Part 3 of the DDA, and the new duties that we are placing on public authorities in Clause 3. The noble Lord, Lord Skelmersdale, identified that exactly. We are doing in Part 3—because hospitals are public authorities in the most general sense—what the noble Baroness is calling for. It is in the Bill; it has not been in legislation in the past, but it will be in the Bill, subject to the agreement of your Lordships and the other House.

Hospital trusts, as service providers, are already required even now under the old DDA to make reasonable adjustments to enable disabled people to access their services if it would otherwise be impossible or unreasonably difficult for them to do so. The Bill extends to adjustments to physical features, including certain equipment. That means that the example given by the noble Baroness, Lady Neuberger, of someone in a wheelchair seeking to enter a mental health unit should be overcome by the provisions in the Bill for portable ramps, and so on. Some of the service provisions have come into force only since the regulations of October 2004, and others will come through as a result of the Bill. I honestly and sincerely believe that together they render redundant the noble Baroness's amendment.

This goes back to the comment of the noble Lord, Lord Walton of Detchant. The amendment seeks to restrict trusts below that level in terms of practical provision in their consideration of what is reasonable, which is the test throughout the legislation, by preventing them making decisions based on cost alone except where that cost was "grossly disproportionate". But trusts would not make those decisions on cost alone. They have to consider the circumstances of a case, and balance a range of factors including issues such as practicability, staff training, the proximity of another hospital with similar highly specialised equipment, as well as costs. The long list of disabilities rightly quoted by the noble Baroness, Lady Masham, might suggest to many of us that that may require different responses according to the needs that disabled people bring to the health service. Those sorts of decisions may well wisely be left to the local health trust to respond to within the unavoidable framework pressing down on health authorities to ensure that their services under Part 3 as a public authority in no sense discriminate against disabled people.

The Department of Health is committed to ensuring that the NHS fulfils its duties under the DDA. It is already working with the Disability Rights Commission on measures to support the NHS in improving access to services. Together, they have produced good practice guidance with practical suggestions about how managers and healthcare staff can make a real difference to the way in which services are delivered for disabled people. Indeed, in examples quoted by the noble Baroness on Second Reading and in Grand Committee, the hospitals had made adjustments by providing appropriate equipment, but problems arose because in one instance the equipment was temporarily out of order and in the other it was temporarily in the wrong place.

That is highly regrettable, but that sort of human error may not be different to the situation when I was having a baby and the oxygen tank ran out halfway through; my husband had to drive around town looking for another oxygen tank. For the intermediate three hours I was without any pain relief. That was an error. I am not suggesting that my experience was more serious—it was probably far less serious—than the situation facing the noble Baroness. However, the point is that the oxygen tank should have been there, it should have been working, and there should not have been a problem. I suggest that this amendment would do nothing to address such occurrences. The hospitals were already fulfilling their broad duty, but there was human error. I hope that the noble Baroness will accept that the new duty that we are placing on public authorities—

Lord Walton of Detchant

My Lords, before the noble Baroness sits down, perhaps I may ask an additional question. Does she agree that the National Institute for Clinical Excellence has among its responsibilities a concern with the evaluation not only of drugs and other procedures in the NHS but the evaluation of aids to the disabled and that it is likely that it will continue to evaluate those and to give instructions to health trusts to use the appropriate aids for disabled people?

Baroness Hollis of Heigham

Yes, my Lords. That is my understanding. I am grateful to the noble Lord. I shall talk to my noble friend Lord Warner to make sure that any recommendations and good practice are disseminated as widely as possible.

I gently suggest that the amendment in the name of the noble Baroness, Lady Masham, would have been highly pertinent two or three years ago. Since then we have had the service regulations in October, only a few months ago, and the Bill's proposals. Together they achieve exactly what the noble Baroness has been calling for at the broader level. Within that, questions about costs and reasonableness have to be left to the local trusts in their wisdom, which most know what the call on their services will be.

If a disabled person suffers a substandard service from a hospital trust there is already a variety of means of redress through the NHS complaints processes and the local trust complaints procedures through to the health service ombudsman. In cases where there has been a breach of duties under the DDA, patients and their supporters and families may pursue the normal enforcement procedures, including seeking advice and assistance from the DRC and the conciliation service and by taking legal action through the courts.

I suggest to your Lordships that the amendment would add nothing to the Bill. The Disability Rights Commission—which I am sure all your Lordships would agree speaks for the disability movement overall and has been working closely with the Government on the Bill—agrees with the Government's reading of their responsibilities under the Bill. It concurs with the Government's view, not that of the noble Baroness, Lady Masham.

We have had a useful debate. I have promised that I will continue with my honourable friend Maria Eagle to take up issues and to press the Department of Health on issues such as standards for clinical excellence—we will do our best. This discussion has been useful and helpful in illuminating these issues in the health service. Given those assurances, I hope that the noble Baroness, Lady Masham, will be able to withdraw her amendment.

Baroness Masham of Ilton

My Lords, I thank all noble Lords who have spoken and especially those who have supported the spirit of the amendment. Yesterday I read in the Times that there is a huge backlog of many thousands of complaints in the National Health Service and it has had to take on extra staff unexpectedly.

After the Committee stage I wrote to the noble Lord, Lord Warner. That was at least 10 days ago. It shows how slow the Department of Health is to respond, because I have not yet received a reply. I am worried about such an important issue as equipment in the National Health Service being submerged with other public authorities. I am concerned about severely ill people who have an extra problem of an added disability, whatever it may be. The lists of disabilities that I gave concern those who have a problem with mobility; there are so many more.

I do not want the issue to be merged in; it is too important. Eminent doctors who have worked in the National Health Service for years have seen the problems as have I and many of your Lordships. Therefore I should like to test the opinion of the House.

12.25 p.m.

On Question, Whether the said amendment (No. 4) shall be agreed to?

Their Lordships divided: Contents, 80; Not-Contents, 103.

Division No. 1
CONTENTS
Addington, L.	Livsey of Talgarth, L.
Allenby of Megiddo, V.	Lyell, L.
Ampthill, L.	Maclennan of Rogart, L.
Avebury, L.	McNally, L.
Beaumont of Whitley, L.	Maddock, B.
Bowness, L.	Maginnis of Drumglass, L.
Brougham and Vaux, L.	Mar and Kellie, E.
Carlisle of Bucklow, L.	Marlesford, L.
Chester, Bp.	Masham of Ilton, B.[Teller]
Chorley, L.	Methuen, L.
Colwyn, L.	Neuberger, B.
Craig of Radley, L.	Newby, L.
Crickhowell, L.	Norton of Louth, L.
Dholakia, L.	Oakeshott of Seagrove Bay, L.
Dundee, E.	Park of Monmouth, B.
Dykes, L.	Peel, E.
Eden of Winton, L.	Redesdale, L.
Ezra, L.	Renton, L.
Falkner of Margravine, B.	Roberts of Llandudno, L.
Ferrers, E.	Rodgers of Quarry Bank, L.
Garden, L.	Roper, L.
Geddes, L.	Russell-Johnston, L.
Glenarthur, L.	Ryder of Wensum, L.
Goodhart, L.	Saltoun of Abernethy, Ly.
Greaves, L.	Sandwich, E.
Harris of Richmond, B. [Teller]	Scott of Needham Market, B.
Hooson, L.	Selsdon, L.
Howe of Aberavon, L.	Sharp of Guildford, B.
Hurd of Westwell, L.	Shaw of Northstead, L.
Hylton, L.	Shutt of Greetland, L.
Jopling, L.	Soulsby of Swaffham Prior, L.
Kimball, L.	Taverne, L.
Knight of Collingtree, B.	Tebbit, L.
Lester of Herne Hill, L.	Thomas of Gresford, L.
Liverpool, E.	Thomas of Walliswood, B.

Tordoff, L.	Walmsley, B.
Trumpington, B.	Walpole, L.
Ullswater, V.	Williamson of Horton, L.
Vallance of Tummel, L.	Willoughby de Broke, L.
Wallace of Saltaire, L.	Windlesham, L.

NOT-CONTENTS
Acton, L.	Irvine of Lairg, L.
Ahmed, L.	King of West Bromwich, L.
Andrews, B.	Kirkhill, L.
Ashton of Upholland, B.	Lea of Crondall, L.
Bach, L.	Lipsey, L.
Bassam of Brighton, L.	Macdonald of Tradeston, L.
Billingham, B.	McIntosh of Hudnall, B.
Blood, B.	MacKenzie of Culkein, L.
Boothroyd, B.	Mackenzie of Framwellgate, L.
Borrie, L.	McKenzie of Luton, L.
Brookman, L.	Maxton, L.
Burlison, L.	Merlyn-Rees, L.
Carter, L.	Mitchell, L.
Christopher, L.	Morgan of Drefelin, B.
Clarke of Hampstead, L.	Morris of Aberavon, L.
Clinton-Davis, L.	Ouseley, L.
Condon, L.	Patel of Blackburn, L.
Corbett of Castle Vale, L.	Pendry, L.
Craigavon, V.	Plant of Highfield, L.
Crawley, B.	Puttnam, L.
David, B.	Ramsay of Cartvale, B.
Davies of Oldham, L. [Teller]	Randall of St. Budeaux, L.
Dean of Thornton-le-Fylde, B.	Rendell of Babergh, B.
Desai, L.	Richard, L.
Dixon, L.	Rooker, L.
Drayson, L.	Rosser, L.
Dubs, L.	Rowlands, L.
Elder, L.	Royall of Blaisdon, B.
Evans of Parkside, L.	Sainsbury of Turville, L.
Evans of Temple Guiting, L.	Sawyer, L.
Farrington of Ribbleton, B.	Scotland of Asthal, B.
Faulkner of Worcester, L.	Sewel, L.
Filkin, L.	Sheldon, L.
Gale, B.	Symons of Vernham Dean, B.
Gavron, L.	Temple-Morris, L.
Gibson of Market Rasen, B.	Tomlinson, L.
Goldsmith, L.	Triesman, L.
Graham of Edmonton, L.	Truscott, L.
Grocott, L. [Teller]	Tunnicliffe, L.
Harris of Haringey, L.	Turnberg, L.
Harrison, L.	Turner of Camden, B.
Hart of Chilton, L.	Wall of New Barnet, B.
Haworth, L.	Walton of Detchant, L.
Henig, B.	Warnock, B.
Hilton of Eggardon, B.	Warwick of Undercliffe, B.
Hollis of Heigham, B.	Wedderburn of Charlton, L.
Howarth of Breckland, B.	Whitaker, B.
Howells of St. Davids, B.	Whitty, L.
Howie of Troon, L.	Wilkins, B.
Hoyle, L.	Williams of Elvel, L.
Hughes of Woodside, L.	Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

12.36 p.m.

Lord Skelmersdale

moved Amendment No. 5: Page 4, line 5, leave out from "Crown" to end of line 7. The noble Lord said: My Lords, it is entirely reasonable that the Security Service, the Secret Intelligence Service and the government communications service, that we usually call GCHQ, should be excluded from the definition of "public authorities" for the purpose of the Act. It is also right that members of the Armed Forces should be excluded. As the Minister pointed out at Second Reading, the objective of the Armed Forces is to be trained and ready to serve in theatres overseas, whether to fight or peace keep, as we have and are seeing in Iraq at the present time, or to aid civil power in emergency, as is happening in the countries around the Indian Ocean affected by the tsunami.

I put down an identical amendment in Grand Committee to investigate why the Armed Forces should be excluded only when they are temporarily assigned to the Government Communications Headquarters. Although the noble Baroness told us that it was intended that the exemptions referring to national security are designed to ensure that information of a sensitive nature is not disclosed in proceedings under the DDA, this does not answer the point I was trying to make. Members of the Armed Forces should always be excluded from the Act, whatever activity they are engaged in, whether temporarily or not. I hope that they are and that the Minister will point me to an obscure section that says that they are. Assuming that she can, I see no need to have them in new Section 21B(3)(f). I beg to move.

Baroness Hollis of Heigham

My Lords, there may be confusion—although I suspect that there is not really—between the responsibilities under the Bill as regards employment—I confirm that the Armed Services are excluded from the disability discrimination responsibilities and duties regarding employment—as opposed to services where we do not think it is necessarily reasonable to exclude the Armed Forces simply because they are armed forces. As the noble Lord, Lord Skelmersdale, will be aware, the Armed Forces are already exempt, as I say, from Part 2 of the Act and we have no plans to remove that exemption, so I can give the noble Lord the assurances that he sought.

However, no such exemption exists in relation to Sections 19 to 21 in Part 3 of the Act, which deal with access to goods and services. Here we are not talking about Armed Forces training, fighting, in deployment or following their duties. For example, if an Army base were to open up its rifle range and invite members of the public to try their hand at target practice—that may seem a silly example but I am trying to make a distinction between employment and services here—or if it provided hospitals that civilians may use—that is relevant given our previous discussion—it would be offering a service. As such, it would be covered by the duties of reasonable adjustment in Section 21.

We intend to adopt a very similar approach for Armed Forces functions covered by Clause 2. If the Armed Forces were to engage in a public consultation exercise, they would need to ensure that disabled people were able to take part. Such consultations might be on whether to extend a firing range or allowing access to open spaces for the first time. Of course, in such circumstances, the features of Clause 2 that permit an authority to justify a failure to make an adjustment or less favourable treatment, or to argue that a particular adjustment is unreasonable, will also apply.

But we believe that it is appropriate for national security reasons to grant a limited exemption in respect of any functions that are carried out to assist GCHQ. This will ensure that sensitive information is not disclosed in court proceedings under the DDA.

With those assurances and an explanation of the limited exemption—we have no intention of changing the way the existing parts of the Act apply to the Armed Forces; the exemption simply replicates the equivalent provisions of the Race Relations (Amendment) Act 2000—I hope that the noble Lord will feel able to withdraw his amendment.

Lord Skelmersdale

My Lords, I understand the argument put forward to explain why the employment elements of the newly amended Act are excluded. I also take the point that the provision of goods and services needs to be excluded. As a child, I made a monthly visit to a military hospital for blood tests. It was the most convenient place that was equipped with rapid analytical services. So I am conscious of the example given by the noble Baroness. The other one I found, as I believe she did, a little strange. None the less, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Skelmersdale

moved Amendment No. 6: Page 4, leave out lines 10 to 12. The noble Lord said: My Lords, I apologise for having had to table this amendment. I have done so because in Grand Committee I was not quick enough to push the Minister to answer the question I had posed. At the time we were discussing whether the definition of "public" authority in Clause 2 should include Members of Parliament. I was concerned that no publicly elected authority should be excluded from the workings of the Act. I accepted that MPs, noble Lords, and Members of the Scottish Parliament and the Welsh Assembly should be excluded, as recommended in the report of the Disability Task Force, From Exclusion to Inclusion. That was on the basis that internal proceedings, Standing Orders and the like, should be used to secure reasonable adjustments for their Members. Furthermore, and perhaps more seriously, I accepted the Minister's comment that the imposition of non-discrimination issues in relation to Members of these directly elected bodies would put their activities in the realm of tribunals and, ultimately, the courts, so undermining the constitutional principle of "exclusive cognisance".

That is fine as far as it goes, and like the Minister I hope that these bodies will act as though they are covered by the Act. Certainly, as regards your Lordships' House, adaptations have been made that have made access for disabled people considerably better since I first arrived here. We have, to name but a few, lower pavements, ramps, drinking fountains and the provision of wheelchairs available to any who need them. All that is good.

On that basis, after taking evidence from the House authorities, the Joint Committee agreed with the task force. None the less, the Government's watchdog in this area, the Disability Rights Commission, believes that this subject needs further consideration. I am sure that it will give it that consideration in due course and decide whether to make representations to the Government.

Grouped with this in Grand Committee was an amendment to which I believe the Minister did not respond properly. In my original perusal of the Bill I was struck by subsection (5) of new Section 21 B, which is the subject of this amendment. Not content with exempting nationally elected bodies and the other groups listed in subsection (3) from the workings of the Act, the Government are taking a power to exclude other persons of a prescribed description. This is potentially a very wide power indeed. We are entitled to investigate exactly why the Government feel it necessary to take it, and what sort of other persons might be covered by it. I beg to move.

12.45 p.m.

Baroness Hollis of Heigham

My Lords, although we discussed this amendment in Grand Committee, obviously I did not respond in a way that the noble Lord, Lord Skelmersdale, thought satisfactory. The amendment would remove the regulation-making power in Section 21 B(5) which is necessary in order to allow for some degree of flexibility in stipulating the bodies to be subject to the new provisions.

In our previous discussions I stressed that the Government's general principle is that bodies should not be excluded from these important new provisions unless there are very strong arguments that exclusion is necessary for such reasons as national security, the maintenance of judicial independence or the sovereignty of Parliament. But it is only prudent to allow for circumstances when it might be necessary to specify whether it is appropriate for a particular activity of a public authority to be covered by these provisions.

It is true that we could seek to amend the relevant new sections through primary legislation every time it was necessary to do so. However, that takes time and the Government do not think it an appropriate use of this House's time when the kind of exemptions we might need to make are most probably minor and technical in nature. An exemption might be needed for something as simple as a change in the name of a body. I noted also in Grand Committee that the Select Committee on Delegated Powers and Regulatory Reform is content with this approach.

Once again, there is no hidden agenda or anything suspicious here. All the bodies the Government intend to exempt from the duties are set out in Clause 2. We do not intend to use this power at present, but the flexibility it gives is comparable to other regulation-making powers that are already included in the Act passed by the previous administration. For example. Section 19(5) would allow the Government to disapply the duties imposed by Sections 19 to 21 to the provision of prescribed circumstances, while Section 28A(2) allows the Government to apply or disapply the duties imposed by Section 28A to prescribed circumstances. Section 35 would allow the Government to disapply Section 34 from prescribed taxi licensing authorities. I suspect that the noble Lord will again accuse me of speaking in Sanskrit, but I am trying to demonstrate that this is a conventional power taken over to some degree from the existing DDA.

With that assurance, I hope that the noble Lord will withdraw the amendment.

Lord Skelmersdale

My Lords, sometimes the noble Baroness speaks so fast that it is difficult to follow her. However, in her original example she mentioned Clause 19(5), which is set out in heavy type in the Keeling version she so helpfully provided earlier. It is therefore included in the Bill.

Having said that, I was not fast enough to pick up the other sections of the Act to which the noble Baroness referred. I understand that flexibility might be needed, but it is still a very vague form of flexibility. For example, the change of name of an organisation is often enshrined in legislation. We have considered numerous health Bills over the years in which bodies were either created or changed their name. Such changes are usually in the Act of Parliament, so I do not see why it should not be possible, in the Act of Parliament which changes their name, to amend this Act if that is appropriate.

I shall not pursue the argument today. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 7 not moved.]

Lord Higgins

moved Amendment No. 8: Page 4, leave out lines 22 and 23. The noble Lord said: My Lords, this amendment, tabled in my name and that of my noble friend, reflects a probing amendment moved in Grand Committee. However, as sometimes happens with probing amendments, one gets a surprising answer. We had not only a surprising answer, but a puzzling answer.

From the reply of the noble Lord, Lord Davies of Oldham, the provision is, a technical provision which is designed to ensure that the prohibition of discrimination in the exercise of public functions does not overlap with provisions elsewhere in the Act". In the subsequent discussion he seemed to say that, if the amendment were accepted, it would mean that we were adopting a piecemeal approach—"piecemeal" was the crucial word—to making changes in the anti-discrimination provisions, of which we were in favour anyway.

The noble Lord said, for example, that the amendment, would indeed potentially enforce upon public authorities a narrow and very limited advance which itself would militate against meeting the standards to which we are already committed".—[Official Report, 13/1/05; cols. GC 75–76.] We were puzzled then why it would not be a good idea to adopt a piecemeal approach if that sped up the protection that the Government had in mind, rather than waiting until they go forward on any whole aspect of the matter. It is not in the least clear why going some way along a road makes it more difficult for you to reach its end. For that reason, we remain puzzled. Perhaps the Minister will clarify the situation. I beg to move.

Lord Davies of Oldham

My Lords, I am sorry that the noble Lord remains puzzled, and I hope to be able to resolve the issue in a way in which I was obviously not successful in Grand Committee. However, we have taken careful note of the discussion on that occasion, which helped to clarify our minds on how we tackle the issue.

Amendment No. 8 would remove one of the anti-overlap provisions from new Section 21B. Generally, anti-overlap provisions are necessary to ensure that different parts of the 1995 Act do not apply to the same situation at the same time. That avoids confusion for all parties and possibly the issue of double jeopardy. The debate in Grand Committee prompted us to look further at the points raised by the noble Lord. We seek to be clear that we achieve our policy intention. One very clear lesson that we draw from the debate is that the provision itself is somewhat less than clear, although I would not go so far as to say it was confusing.

The provision would be necessary if, and only if, three conditions were fulfilled. The first is that a public authority uses a transport vehicle in discharging public functions regulated by new Section 21B. The second is that the vehicle could be regulated under Part V of the Act. The third is that the Government must have decided not to use a relevant regulation-making power for public policy reasons. We looked at the matter further, and we cannot identify any situations in which all three conditions apply.

In their usual sympathetic way, noble Lords will be aware that there are times when public authorities use vehicles regulated by Part V—they may run local bus services, or specialised door-to-door services. But if authorities offer services to the public, or to a section of the public, they already fall within the scope of Sections 19 to 21ZA of the existing Act, and not the new provisions that Clause 2 would introduce. There is no overlap between new Section 21B and Part V in such situations, so new Section 21B(7)(c) appears unnecessary.

Authorities may also use buses to move their employees about. For example, a hospital might offer its employees a shuttle bus between two different sites. Such a situation would be regulated by Part II of the Act, because it is part of the relationship between the hospital and its employees. Again, there is no overlap between new Section 21B and Part V there, so new Section 21B(7)(c) appears unnecessary.

The only circumstances of which I can think where public authorities use vehicles in discharging functions that fall within the scope of new Section 21 B of the Act and are not covered by the existing provisions are police transporting persons under arrest in secure vehicles. But in such circumstances, the vehicles are not covered by the regulation-making powers in Part V of the Act, so there again does not appear to be an overlap.

We have consulted parliamentary counsel further on the matter and, in conclusion, the Government agree that this part of the Bill should be altered as suggested by the noble Lords, Lord Higgins and Lord Skelmersdale. I thank them for raising the question in Committee and persisting with it today, and for scrutinising this legislation so effectively. That is why we are here. I congratulate them. We are pleased to accept the amendment.

Lord Higgins

My Lords, I have repeated on previous occasions the remark by Iain Macleod that one does not shoot Santa Claus. I am delighted by the Minister's very clear exposition of the situation. I doubt whether those in another place would have come to the same technical point and reached such a desirable outcome. I hope that he realises that this will be a major plank in our general election campaign and will be declared a great victory of the Conservative Party over the present Government.

Lord Davies of Oldham

My Lords, I assure the noble Lord that they are fairly relaxed about the issue at the other end.

Lord Higgins

My Lords, be that as it may, I am grateful to the Minister. We have certainly made a major improvement to the Bill.

On Question, amendment agreed to.

Baroness Darcy de Knayth

moved Amendment No. 9: Page 6, line 10, at end insert "and is therefore justified only in relation to acts that are in the public interest The noble Baroness said: My Lords, the amendment returns to the quest to ensure that the less well intentioned public authorities cannot use subsection (5) to justify discrimination against people with disabilities. That concern was raised by Sir Peter Large, who your Lordships will be aware died on 23 January. His vision, clear mind and meticulous attention to detail will be hugely missed. He sent me his thoughts for this amendment 36 hours before he died.

Sir Peter was delighted that the Minister had confirmed, in Grand Committee at col. GC 83 of the Official Report for 13 January, that both planning and planning permissions were covered by Clause 2 as functions, and that the DRC's guidance would distinguish between functions and services and explain how any areas of uncertainty were to be handled. Again, the Minister's response at cols. GC 83–84 fully clarified the meaning of the justification of a proportionate means of meeting a public authority's legitimate aim. That is very welcome. Sir Peter was still concerned that there needed to be very clear and firm guidance from the DRC in that respect. I hope that the Minister will confirm that that will be the case.

Sir Peter's other concern was that the matters of public interest limitation should be in the Bill, coupled with "proportionate" and "legitimate aim"—hence the amendment. However, I am advised by a special adviser to the DRC that the question of whether something is in the public interest is incorporated within a consideration of whether the authority is pursuing a legitimate aim. That is already there. The specialist adviser continued: We would be concerned that adding the above words could actually make it easier for public authorities—for something to be in the public interest could be interpreted as purely a question on the relative numbers affected—rather than the degree of harm to the minority group—and crucially not including (as proportionality does) a consideration of whether there is an alternative policy which is less harmful of the minority group". Heaven forfend. I would therefore be grateful if the Minister could confirm that her legal advice was the same.

My first amendment was too tight and my second too loose. I do not know whether Sir Peter would have hit on a third way but—subject to the Minister's assurance on DRC guidance and her legal interpretation of the effect of my amendment—subsection (5) has the balance right. I beg to move.

1 p.m.

Lord Oakeshott of Seagrove Bay

My Lords, we on these Benches share the concern of the noble Baroness on this issue and look forward to hearing the Minister's reply.

Lord Morris of Manchester

My Lords, again I congratulate the noble Baroness on her presentation of the case for the amendment. Like her and, I am sure, like very many others on both sides of both Houses of Parliament, I mourn the passing of Sir Peter Large. It was my great good fortune to have his friendship—ever closer as the years went by—from very soon after I entered Parliament over 40 years ago. I paid tribute to him in Committee, on 13 January, when noting that the source of the amendment moved there was Sir Peter. He was a man of dauntless courage, absolute integrity and excelling humanity, whose passing is an immense loss to the whole disability movement.

In his notes on the amendment, written the day before he died, Peter expressed his appreciation of a number of responses made by my noble friend Lady Hollis in Committee and to which the noble Baroness, Lady Darcy de Knayth, has referred today. However, he remained convinced that the way in which Section 21D(5) is now drafted could lead to some public bodies discriminating unfairly against some disabled people. He said that, to avoid that happening, there needs to be additional explanation of the legislative significance of the subsection in the notes to clauses and very clear explanations of its significance in the guidance that the Disability Rights Commission will produce on Clause 2.

While we cannot predict what issues will fall foul of the "legitimate aim and proportionate" ruling, examples could, in Sir Peter's view, include the closure of streets to traffic; car-free housing developments; establishing home zones; park-and-ride schemes; setting out nature trails; and introducing congestion charging and road charging schemes. All of these are extremely important and his fear was that without further guidance the interests of disabled people could be harmed.

Again, it appears that regulations made under Section 21D(7) will have effect only as a long-stop after some treatment or failure to comply has caused harm. Unfortunately, it may then not always be possible to effect redress retrospectively. I trust that my noble friend will, as before, respond as positively as she can to these concerns and indeed to all aspects of the persuasive case for the amendment so admirably moved by the noble Baroness.

Lord Carter

My Lords, like other noble Lords, I pay tribute to Sir Peter Large. When I was the Opposition spokesman on disability for some 10 years, I worked extremely closely with him and much more recently, as chairman of the Joint Committee, I had intended to visit Sir Peter Large, accompanied by my honourable friend Tom Clarke, who is a member of the committee, to receive his evidence because he was too unwell to come to London. In fact, on the day on which we had intended to visit him, he was again unwell and we never did make the visit. Much of what has happened in the disability area since the 1990s is down to the spade work carried out by Sir Peter Large over many years.

The amendment deals with a complicated, technical point, which I did not fully understand until it was explained to me by one of the specialist advisers to the Joint Committee, who assured me that it was correct, that the measure in the Bill is right and that there is a good statutory reason why the wording is as it is.

Baroness Hollis of Heigham

My Lords, like the noble Baroness, Lady Darcy de Knayth, and my noble friends Lord Morris and Lord Carter, I would also like to be associated with the tributes to Sir Peter Large. I came across him when under the tutelage of my noble friend Lord Carter. In the early 1990s I was deputy assistant second speaker on disability issues in your Lordships' House and I worked closely with DIG (the Disability Income Group) and with Pauline Thompson, who went on to become a good friend of many of your Lordships. First, the work of Sir Peter Large and then that undertaken by Jane Campbell on independent living turned the mindset of people like myself who came fresh to disability issues from a very different area. He will be hugely missed. His family will know that his achievements live on after him. He has made a most remarkable contribution to changing the mindsets of governments to a whole range of issues associated with disabled people.

Amendment No. 9 provides us with a further opportunity to consider the justification defences set out at Section 21D(5). The noble Baroness has rightly been determined that this should not be a get-out-of-gaol-free card for public authorities tempted not to meet their responsibilities to disabled people or even to trip easily into a sort of Benthamite head count—500 against 100, therefore 500 wins.

We discussed some of these issues in Committee and since then the discussions have moved on. The noble Baroness asked me to clarify two issues: first, whether the DRC will issue guidance on the correct interpretation of the justification defence at New Section 21D(5); and, secondly, whether the Government share the DRC's view that this amendment could weaken the protection that the subsection would afford to disabled people. I am glad to be able to reassure the noble Baroness on both points.

The Bill will give the DRC the power to issue guidance on all the provisions in Parts 2 to 5A of the Act, including the subsection we are discussing. In the briefing for today's debates, the DRC stresses that our debate on this clause in Grand Committee was very useful and that it would reflect those discussions in their revision of the statutory code of practice on Part 3 of the Act. So, yes, the DRC will issue guidance on this point and the Government will work with it to ensure that it conveys the full weight of this test.

On the second point, we share the DRC's view that the second prong of the test—the requirement that the action should be proportionate—carries the real weight of the test and ensures that the test is robust. We agree that the additional words inserted by the amendment could weaken the test, as mentioned by the noble Baroness; in other words, she feared that it could become looser. In addition, we are concerned that it could have undesirable and unforeseen consequences.

It is an important principle that concepts that apply across different strands of discrimination legislation should be expressed consistently. The form of words that the amendment would alter already appears in Section 14A of the DDA, in the definitions of indirect discrimination in the Race Relations Act and in the new regulations prohibiting discrimination in the area of employment on the grounds of sexual orientation or religion.

If we were to make the proposed amendment to Section 21 D(5) of the DDA it might imply that public authorities could have legitimate aims for the purposes of these other enactments that were not in the public interest. The Government would not wish to give that confused and erroneous impression.

I am grateful for the opportunity to revisit the issue. I hope that I have addressed the two concerns raised by the noble Baroness and given her the assurances that she sought. Therefore, I hope she will feel able to withdraw her amendment.

Baroness Darcy de Knayth

My Lords, I thank the Minister and all noble Lords for their remarks about Sir Peter Large. I am sure that Sheenah, his wife, will be very grateful for them. I also thank the Minister for her clear explanation of the legal interpretation and her further remarks about it already being a recognised point. It takes ages for case law to be built up so to start all over again would be a severe disadvantage. I am also grateful for the Minister's explanation of her assurance that the DRC guidance will be firm. With that very clear response, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 [Duties of public authorities]:

[Amendment No. 10 not moved.]

Baroness Hollis of Heigham

moved Amendment No. 11: Page 8, line 3, leave out "that is unlawful under this Act" and insert "of disabled persons that is related to their disabilities The noble Baroness said: My Lords, my late husband used to say that one thing you had to know about people was whether they like their compliments backhand or forehand. I think that the withdrawal of Amendment No. 10 counts as a backhand compliment to the Government.

Both on Second Reading and in Grand Committee we debated whether the drafting of the public sector disability duty set out in new Section 49A was sufficient to cover the full range of areas where public authorities might take action to improve the lives of disabled people.

I should like to pay tribute to the very moving speeches made by my noble friend Lord Carter and by the noble Lords, Lord Rix and Lord Adebowale—who sends his apologies for his absence today. I pay tribute also to the other speakers, including both the Front-Benchers and my noble friend Lord Ashley of Stoke. All of them put forward strong arguments and gave real-life examples which provided a strenuous test of how the duty was drafted. I pay tribute also to the work of the Disability Charities Consortium, which has worked in a very positive and constructive way both to highlight the issues of concern and to propose potential ways forward.

At the end of our last debate, I undertook to examine the arguments made by your Lordships—led by my noble friends Lord Carter and Lord Rix—and to consider whether the Bill as drafted, was sufficiently strong in encouraging public bodies to act in these areas. I am pleased to say that as a result of those deliberations, we are able to bring forward the amendments to this clause that stand in my name.

Amendment No. 11 is intended to ensure that public bodies consider how to eliminate harassment of disabled people as they exercise their functions. It is worded to make it absolutely clear that the focus of this duty is on the problems that disabled people face as a result of their disability. We would not wish to introduce a duty that was so unspecific that it might require public authorities to consider tackling, say, over-enthusiastic banter between rival football fans, if this were unrelated to disability, just because some of the fans in question were disabled.

Amendment No. 13 is intended to ensure that the duty requires public bodies to consider properly, when exercising their functions, what they can reasonably do to eliminate ignorance and prejudice in the wider community and what they can do to encourage disabled people to participate actively in public life.

The Government believe that these two amendments will address the concerns expressed about the drafting of the duty and also the absolutely appalling instances—by which I was taken aback—that were raised in Committee. Public bodies will have a clear duty to have regard not only to the need to combat discrimination and promote equality of opportunity, but also to the need to influence attitudes and to educate people about disability. They will have a duty to create a climate where disabled people are fully able to participate in public life as school governors, directors of NHS trusts and as other players in the community.

The DRC recently started consultation on its draft code of practice on the duty to promote equality. The final version of the code will need to take account of any revisions your Lordships and Members of another place may make to the Bill. We will be engaging with the DRC to ensure that this code and all other planned guidance fully support the effective implementation of every part of this duty. So the DRC will use its promotional and enforcement powers to ensure that this duty is thoroughly embedded across the public sector.

With those remarks, I have absolutely no doubt that these government amendments will be supported by your Lordships' House today. I beg to move.

1.15 p.m.

Lord Carter

My Lords, Amendments Nos. 11 and 13 meet exactly the arguments that were produced in Grand Committee. I am delighted not to move Amendment No. 10 and I shall certainly not move Amendment No. 12. Amendment No. 13 improves on the drafting of Amendment No. 12, in the second paragraph of which we seek to establish, the need to promote civic participation of disabled people". The government amendment speaks of the need to "encourage participation", which is stronger. I am extremely grateful to the Minister. She listened to the argument and accepted it.

Lord Rix

My Lords, like the noble Lord, Lord Carter, I warmly welcome the government amendments. They supersede our amendments which were debated in Grand Committee. As president of Mencap, I am particularly pleased to see our more than four years of campaigning on the issue of bullying and harassment, particularly of people with a learning disability, brought to a successful conclusion. Once again I take pleasure in thanking the Minister for her sympathetic understanding of the problems that face disabled people. Perhaps I may ask just one favour. Would she be kind enough to write to me giving me some idea about the implementation, the codes of practice and the role of the DRC in these matters? But for the moment, I shall shut up, sit down and once more say thank you.

Lord Addington

My Lords, "thank you" is the most appropriate thing to say here. Thank you to the Minister for bringing it forward and thank you to all those in government who won the fight to ensure that this provision was put in the Bill now. I know that these matters can sometimes be rather painful affairs, having been called in to watch one or two. This amendment means that there is a chance that the Bill will not be one in a succession of such Bills. It may be allowed to grow and progress in this field, rather than require us to go back and draft another Bill in order to rectify any problems that emerge. The amendment allows the Bill to be progressive. For that reason it should be doubly welcomed.

Lord Ashley of Stoke

My Lords, perhaps I may very briefly congratulate the noble Lord, Lord Carter, on this achievement and, even more rarely, congratulate my noble friend Lady Hollis on the Government's acceptance of it.

Lord Tebbit

My Lords, I wonder whether the Minister can give us some examples of what she would expect local authorities and other public bodies to do to promote the interests of disabled people. It would be helpful if we knew what she had in mind. I am always worried about legislation that is vague and sounds wonderfully good when we are perhaps not quite certain what it would require people to do.

Baroness Hollis of Heigham

My Lords, I should like first to say how much I appreciate the warm response for the amendments. The noble Lord, Lord Addington, made a very apt remark by describing this amendment as progressive. One of the phrases that I have been using in discussing the Bill is, "We want to bank this but continue to build". This is a bank-and-build Bill in which in all cases I am trying to see how we can ensure continued momentum and not simply write the legislation off after it is passed.

The noble Lord, Lord Tebbit, asked for examples. The sort of thing that I would expect—I am inventing an example off the top of my head—is that disabled people should have a full role to play on school governing bodies. Why? Not only because, as individual citizens, they have a right to participate in aspects of public life in that way, but also because they have a particular experience to bring to bear which might be of real value in a school's response to the needs of certain disabled children. They can perhaps bring an added value.

What might a local education authority or chairman of governors do in that situation? I would expect that when they are canvassing or setting out terms for parent elections, they will encourage disabled people to put themselves forward and make themselves known to the local authority. As a leader of a local authority, I worked off a list of those who wished to be school governors. We hope that they will put their names forward and indicate in their qualifications that this is a positive value that they could bring to the board. Some of these governors will be elected, if they are parent-governors, and that will still be a matter for the parents.

In that way we can positively encourage disabled people to come forward and positively encourage others to recognise not only their rights but the additional and valuable contribution that they could make, say, in schools. As I say, I am inventing an example. That is something that is not done now in my experience but could be done.

Lord Tebbit

My Lords, I am grateful to the Minister for giving way. She has given a very good example, but I hope she will understand that it makes me slightly uneasy when she says that it came off the top of her head. I would have thought that it had been carefully considered in the department earlier, together with a lot of other good reasons.

Lord Skelmersdale

My Lords, before the Minister answers that, will she accept that these two amendments, which have rightly been welcomed on all sides of the House, are about social inclusion and that is why they are necessary?

Baroness Hollis of Heigham

My Lords, yes, I could go on to develop some of the points raised by the noble Lord, Lord Rix, about seeking to change attitudes towards people with learning disabilities. Often there are quite unacceptable responses and stigma—ill-informed, ignorant and so on—whether it be in cafes, restaurants, hotels or wherever. We want local authorities and those bodies to have a positive attitude and to recognise the rights of disabled people and how they can fully partake in public life. We also want to encourage the rest of society—not only employers but service providers and the like—to recognise the valuable contribution that disabled people, whatever their disability, can make to that society. I am expecting the DRC to be up there, actively helping us do precisely that.

I hope that, with those remarks, your Lordships will feel able to support the Government's amendment.

On Question, amendment agreed to.

[Amendment No. 12 not moved.]

Baroness Hollis of Heigham

moved Amendment No. 13: Page 8, line 9, at end insert— (e) the need to promote positive attitudes towards disabled persons; and (f) the need to encourage participation by disabled persons in public life. On Question, amendment agreed to.

Lord Skelmersdale

moved Amendment No. 14: Page 8, line 14, leave out from "includes" to "; but" in line 15 and insert "every body or other person specified in Schedule 1A or of a description falling within that Schedule The noble Lord said: My Lords, the Bill as currently drafted defines a public authority as, any person certain of whose functions are functions of a public nature". That definition is the same as that used in the Human Rights Act 1998.

There appears to be a problem here. The Joint Committee on Human Rights, in its recent document, The Meaning of "Public Authority" under the Human Rights Act—that is the seventh report of the Session 2003–04—highlighted that this definition has been applied by the courts in an inconsistent and restrictive manner. This has left those providing important public services from the state and private sectors uncertain of their responsibilities. While pure public authorities may be clear about their obligations, hybrid organisations, such as voluntary sector service providers about which we will speak a little later, funded by statutory services and registered social landlords may not.

It has therefore been suggested to me that public authorities be defined in the Bill by the provision of a list. We consider that there is an imperative need for certainty as to who is and who is not subject to the new positive duties. This would enable public authorities and the public, in particular disabled people, to know with absolute certainty which authorities are subject to the statutory duty. The provision of a list would also make the Bill's duty on public authorities consistent with other discrimination legislation such as the Race Relations Act, which also provides a list of public authorities.

The point made by the Minister in Committee that lists get out of date is well made, so Amendment No. 15 enables the Government to legislate to amend the list should it be necessary. It is clear that any such list should be kept under review. With the backing of the Joint Committee, I beg to move.

Lord Carter

My Lords, the noble Lord, Lord Skelmersdale, is correct in saying that in the Joint Committee we debated extensively whether there should be a list of public authorities or the general authority as set out in the Bill. On balance, we came down in favour of the list, but the argument was a fine one.

I see that the noble Lord has 60 authorities and I assume that it is the list from the Race Relations Act. He indicates that I am right. It is of course in the Race Relations Act and the Northern Ireland legislation, but it is not in the Human Rights Act. The Government have argued that a list quickly becomes out of date.

If we were to have a list, I should have thought that it would be appropriate to use the negative procedure rather than the affirmative procedure. Merely to change the name of an organisation, or something of that nature, it would seem odd to use the affirmative procedure in Parliament. We argued the matter in the Joint Committee and on balance we just came down on the side of the list. However, I equally understand the Government's argument that a list is quickly out of date and that even with the negative procedure parliamentary time would be needed if anyone cared to pray against the order. I shall be interested to hear what the Minister said.

Baroness Hollis of Heigham

My Lords, the noble Lord, Lord Skelmersdale, raised an issue we touched on in Committee; that is, how to ensure that the public sector duty is properly applied across the whole range of public authorities. How do you make sure that it applies where we want it to and does not apply inappropriately?

These amendments seek to replace the generic definition of "public authority" with an approach based around a prescriptive list of bodies. It has been argued that only by having a list can bodies be sure who is covered and only by having a list can people outside have confidence that they are covered.

I disagree. The Government have thought about this very carefully and have tried to sort out whether we should go down one path or the other. We believe that the best approach is to set out a clear statement of principle that bodies which carry out functions of a public nature are subject to the duty in the new Section 49A unless the law expressly excludes a body from the coverage of the duty. This approach is similar to that adopted in the Human Rights Act. The Joint Committee on Human Rights—and this is important—did not believe that generic definitions should be replaced by a list, but instead be backed up by guidance. Therefore, there is a discrepancy between the Joint Committee on Human Rights and my noble friend's committee.

However, the DRC can issue guidance, so we are consistent with the approach. That approach is similar to that adopted in the Human Rights Act and others in which a generic definition of "public authority" is used; for example, the Companies (Audit, Investigations and Community Enterprise) Act 2004.

Let me explain why we believe it to be the case. First, last year the Joint Committee on Human Rights considered in some detail the meaning of "public authority" in the Human Rights Act. It considered whether it was appropriate to recommend a list-based approach as an alternative, but dismissed the idea as it did not feel that it would be advantageous to do so. It felt that a generic definition avoided the risk of a list becoming restrictive in its application, and that even with a list there was still room for judicial interpretation. It was talking about the term "public authority" in relation to the Human Rights Act, but we think it has relevance here.

Secondly, I think it is clear to those people working in public bodies that they are carrying out functions of a public nature. The police know that; the NHS knows that; teachers working in schools know that; as do people working in government departments and local councils. I do not believe that anyone would argue that these key bodies are not public authorities, so there is no advantage in listing them.

That leads me to my third point, which I think is well illustrated by the list of bodies created by the amendment. The amendment proposes a list of bodies and a mechanism for amending it by regulation. That list, in the view of the Government, does not go far enough. While impressive in coverage, it fails, for example, to take account of the full range of bodies disabled people would expect to be covered. For example, important parts of the NHS, such as strategic health authorities, would not find themselves subject to the duty with the list as it currently stands in the amendment. I suspect that if we were to scratch away we would find others which had not been included.

For the list to cover the public sector properly, the list would need amending regularly as the public sector changes in a way that is unnecessary if a generic description or a definition of "public authority" based on what bodies are, and what they do, is applied.

Therefore, we believe that a generic definition is stronger and more helpful. We believe that the presumption that the duty applies across the public sector is a strength. It is a principle that the public sector understands and it is a principle which ensures that the duty continues to apply and cannot be allowed to become out of date, for example, by a government failing to amend a list promptly.

These amendments would undo all of that and, therefore, the Government are opposed to them. Perhaps I may say that the Disability Rights Commission prefers the Government's approach—the generic approach—and is right. Given those arguments, together with the fact that the DRC favours the Government's approach, I ask the noble Lord, Lord Skelmersdale, to withdraw the amendment.

Lord Ashley of Stoke

My Lords, my noble friend puts her case very well. I, too, was torn between the two paths and was, at first, inclined to support the views of the noble Lord, Lord Skelmersdale, but I have changed my mind because, when one thinks of the problems and difficulties associated with a list, one realises that the matter will become embedded in a fog of confusion. The fact that the list will quickly become dated is crucial. We would have amendment after amendment to the list and people would not know where they were.

I cannot believe that any list, however comprehensive, would cover all the organisations, so, by definition, those organisations that are not on the list would be deemed not to come under the Act. That would be unfortunate. That problem, as my noble friend said, can be met by a statement of principle. I am strongly opposed to the amendments, formerly having been a supporter of them.

Lord Skelmersdale

My Lords, I accept, of course, that the arguments are extremely finely balanced, as the noble Lord, Lord Carter, said. They are so finely balanced that the noble Lord, Lord Ashley, has changed his mind since we last considered these matters. I also recognise that the DRC and the Royal National Institute for the Deaf are opposed to the amendment, whereas the Law Society has promoted it. I shall consider what has been said. I certainly take seriously the criticisms of the amendment, especially the new schedule that it proposes. This matter really boils down to the fact that the Government do not wish to keep such a list up to date. That is probably the truth of the matter.

Finally, I was surprised not to be teased on my natural aversion to lists, about which I spoke in Committee and, I believe, at Second Reading as well. I would have faced that criticism, had it arrived. It has not and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 15 not moved.]