Disability Discrimination Bill [H.L.]

HL Deb 08 February 2005 vol 669 cc665-92

3.8 p.m.

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

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(Baroness Hollis of Heigham.)

On Question, Motion agreed to.

Clause 14 [Power to modify or end small dwellings exemptions]:

[Amendment No. 35 not moved.]

Clause 15 [General qualifications bodies]:

[Amendment No. 36 not moved.]

[Amendment No. 37 not moved.]

Clause 17 [Meaning of "disability"]:

Lord Skelmersdale

moved Amendment No. 38: Page 42, line 32, at end insert— ( ) In paragraph 2, after sub-paragraph (2) there is inserted— ( ) Without prejudice to the operation of sub-paragraph (2), the mental impairment consisting of or resulting from depression that has ceased to have a substantial adverse effect on a person's ability to carry out normal day to day activities shall always be treated as if that effect is likely to recur if the person has had within the last 5 years a previous episode of such impairment which had a substantial adverse effect on the person's ability to carry out normal day to day activities for a period of 6 months or more." The noble Lord said: My Lords, in Committee the noble Lord. Lord Carter, put down an amendment on depression that the Joint Committee had suggested, but the Government rejected it on the basis that the effect of any impairment has to be continuous and long term. That is perfectly acceptable for all disabilities save one—depression, which in more than 50 per cent of cases recently studied was shown to have recurred.

I am no medic, but I am given to understand that the problem of long but erratic bouts of depression is not uncommon. Depression is characterised by separate episodes after which there can be a complete recovery. But that is not always so. I had dinner just last week with a 21 year-old who has only recently been diagnosed with depression, even though it is thought to date from her transfer to secondary school. Most acute episodes last no longer than six months and therefore do not meet the 12 months' rule in Schedule 1 to the Disability Discrimination Act 1995. Paragraph 2 of that schedule states: (1) The effect of an impairment is a long-term effect if—

1. (a) it has lasted at least 12 months;
2. (b) the period for which it lasts is likely to be at least 12 months; or
666
3. (c)it is likely to last for the rest of the life of the person affected".

This might be covered under sub-paragraph (2), which states: Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur". Alas, it is not. Although there is an underlying condition called dysthemia, it is, I am told, seldom true that this is the cause of longer-term depression. So the net result is that people with depression regularly face discrimination, particularly in the workplace.

I am advised that people who have recovered from an episode of depression can discover that they are never able to find paid work because of discrimination. Their ability to work is not reduced in any way except by stigma. This discrimination is so severe that the issue of whether or not to disclose on an application form a previous episode of depression is the single most vexed issue people can face when they are seeking employment. It also prevents people applying for jobs.

When including asymptomatic HIV and cancer, the Government made clear that the DDA should cover conditions that are known from case law to give rise to discrimination because of the stigma attached to that condition, even though in the case of cancer it might be short term. In my view, this reasoning should be applied to the case of depression. However, the Government have made it clear that they do not agree with an amendment that changes the definition of "long term" for the benefit of people with depression, so this amendment makes a much more modest proposal to cover those who have more than one episode.

Clearly, one would not want to include stress, about which I spoke in Committee, so the amendment has a period of six months' depression for the first episode as it is clinically most unlikely that stress will last as long or be so serious as to have a substantial adverse effect on someone's ability to carry out normal day-to-day activities. I beg to move.

Baroness Murphy

My Lords, I support the amendment tabled by the noble Lords, Lord Skelmersdale and Lord Higgins. I do so in order to clarify further the Government's approach to and understanding of the profound impact of certain kinds of major depressive disorder. Once again I refer to a clinical disorder which is recognised in the Diagnostic and Statistical Manual of Mental Disorders—in other words, what one might call the real McCoy, if I, as a clinician, can use that phrase to help other noble Lords. We are talking about real depression which is profoundly disabling.

In her response in Committee on 20 January, the Minister indicated that someone with a background of dysthymia—that is, a chronic lowering of mood—would be covered when a second episode of disorder occurred. But this is so rarely used by GPs and psychiatrists as a diagnostic phrase that it is not really useful. We know that a person with a major depression has a 70 per cent chance of having another within five years. Between these dates the stigma can be seriously profound and its impact upon a person's employment possibilities can be seriously disabling.

This is a modest amendment which tries to address the problems of those people with profound depressions that last a fair length of time and who suffer from them recurrently. I support the amendment.

3.15 p.m.

Lord Carter

My Lords, as I pointed out when we discussed this issue previously, the Joint Committee, which I chaired, recommended that people experiencing separate periods of depression which total six months over a two-year period should be considered to meet the long-term requirement. When the Minister replied, she said that that was inappropriate because this could be taken on board, as it were, only if the depression occurred as a result of a continuing impairment.

This is a point that we can make on a number of amendments. It arises from the way in which the 1995 Act is phrased and based on the medical model of the disability and not the social model. Indeed, in the Joint Committee we considered long and hard whether we should attempt to amend the 1995 Act to bring in the social model, but it was impossible because we would have had to start again and rewrite the whole Act. However, it makes the point that if we were working to the social model this kind of problem would not arise. The Joint Committee recommended that the DRC should explore the use of the social model. It will be interesting to hear from the Minister whether it is doing so and whether she feels that there is a way forward.

It is interesting also to note in passing that the recent report produced by the Cabinet Office Strategy Unit on disability steers well towards a social model of disability. I am sure that over the years this is the way in which we should go.

It seems to me that the Government have taken the point—with which we agreed in the Joint Committee— that if we are to build on the 1995 definition, the underlying impairment will be the deciding factor. But there is a real problem with intermittent impairment. So, if that is the case, perhaps there is a way through this. Are the Government ensuring—perhaps through the Department of Health and other appropriate bodies such as the DRC—that GPs are fully aware of the implications of the DDA as it is now?

In her answer in Committee, my noble friend was clear that episodes of short-term depression would be covered if they arose from an underlying impairment which had long-term effects. The problem is how we get from one to the other. Whether this should be done through guidance to GPs, the code of practice or whatever, there is a real problem of definition. This arises, as I say, from the decision we are faced with in basing this legislation on impairment and not on the effects of impairment on the person. Perhaps this could be met by linking the periods of depression to some kind of long-term recurring situation or an underlying impairment. That may be a way of solving the problem.

Lord Tebbit

My Lords, we gave this issue a great deal of thought in the Joint Committee, under the chairmanship of the noble Lord, Lord Carter, and we all agreed that the stigma which is attached to mental illness is still there. I am not against stigma in all circumstances—it can be a very valuable part of the way we live—but it is extremely unfair in the way that it affects people who have suffered mental illness.

As the noble Lord, Lord Carter, said, we considered going to the social model, on which a number of Members of the Committee were very keen. I was less so. I always have echoing in my head on these occasions the words of the late Enoch Powell: Beware the adjective 'social' for wherever it is used it will surely reverse or negate the meaning of the word to which it is applied". I will leave your Lordships to brood upon that on your way home this evening.

So I was not attracted to that particular way of dealing with matters. I was attracted very much to the concept on which we settled, which virtually amounted to totting up. At the Committee stage, the Minister indicated that perhaps there could be, or should be, the concept of a continuous illness which had episodes with periods of calm in between, and one would then take the whole of the length of episode. I think that that is a very constructive approach—it may well be better than totting up—but we are still uneasy about how it will operate in practice. If the Minister could reassure us about that, it would make it easier for me not to support my noble friend's amendment. Otherwise, I might do so.

Lord Ashley of Stoke

My Lords, I do not agree with the noble Lord, Lord Tebbit, in his assessment of the value of stigma. I think it is wholly had. However, I support him in the change of concept, which is a possible way forward. A simpler way forward is to accept the amendment because the noble Lord, Lord Skelmersdale, has compromised and is asking for only a small part of what we asked for in Committee. This is a wholly reasonable amendment because depression is the one disability that is made worse by discrimination. That in itself should encourage the Government to be sympathetic. I do not understand their stand because it is illogical. The Bill would be anomalous if they refuse this amendment. I hope that my noble friend will be able to accept it.

Lord Addington

My Lords, I shall be brief. Noble Lords who have been dealing with the Bill have been trying to square the circle on depression. There is clearly discrimination based on preconceptions about what depression means. It is thought that people will not be able to do things. The model that we are using does not fit depression, the most common of mental conditions. I hope that the Government will he able to move some way towards our position in Committee on the amendment of the noble Lord, Lord Skelmersdale. Something must be done. If this is not it, will the Government give us some assurance about how it will be done? There is a problem and we need to deal with it. This would seem to be the best time to do so.

Baroness Hollis of Heigham

My Lords, this has been a short but moving debate. I welcome the contribution of the noble Baroness, Lady Murphy, who has experience in this area. I wonder whether the division between the Government's approach and that of the noble Lords who have spoken this afternoon is more apparent than real. I welcome the opportunity to clarify the Government's thinking on this matter.

I do not think that this amendment does what it should do. However, there is a problem to be met by a social model or whatever. One only has to look at employment figures to see that people with what we might call quite mild depression have a harder time getting into employment—or back into employment—than people with severe physical disabilities. There is no dispute between us about the degree of continuing stigma associated with depression and the difficulty of addressing it in ways that work within the framework of the DDA.

I shall try to explain our thinking rather more fully than I did in Committee. Clause 17 deals with the definition of a disability. As it stands, this amendment would modify the definition of "long-term" in Paragraph 2 of Schedule 1 to the DDA by extending coverage to people with two or more episodes of short-term depression where the substantial effects of the first episode lasted at least six months and occurred within the previous five-year period. Behind this discussion lies whether those two episodes are the tips of an iceberg—an underlying condition—that have broken water or whether they are unconnected and discrete. For the most part, only a clinician can judge that. That is the discussion between us.

From where I stand, a person might have two instances of depression three years apart—I shall explain circumstances in which that might occur—that would not be evidence of an underlying condition and would not appropriately invoke the protection of the DDA. But a person could have two episodes of depression not three but five years apart that should invoke the protection of the DDA because both episodes are related to the same underlying condition. That is the distinction that I am trying to draw.

The DDA is intended to cover people who are disabled in the generally accepted sense of the term. That is reflected in the current definitions. In Committee, my noble friend described people who suffer short but profound episodes of severe depression. I am not trying to suggest that there is any direct physical analogy, but people can have a severe infection in a broken limb that has substantial adverse effects that do not last for more than a few months. As all of us will know from personal experience, such people may have problems with their employers because of absence records or the need for time off for hospital appointments or physiotherapy. But none of us would suggest that such a situation should come within the framework of the DDA.

The DDA is intended to provide protection where an impairment has recurrent effects. Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is treated as continuing to have that effect if the effect is likely to occur. That is the example given by the noble Baroness; I think that she said that there is a 75 per cent chance of a recurrence within five years. That is exactly the condition that is appropriately picked up by the Bill as drafted. I hope that the noble Baroness agrees with my reading of that. Therefore, conditions with effects that recur sporadically or for short periods qualify for protection under the Act provided that they are part of the same underlying impairment.

As the noble Lord, Lord Tebbit, said, we are not trying to tot up how often the symptoms of the impairment occur. If they occur more than once—or even just once, but it is regarded as belonging to an underlying condition—they are covered. That is the wise way forward. The mechanistic way—for example, doing arithmetic and keeping records of how long episodes lasted; when a patient visited the doctor; what the records say; whether the doctor less than frank about how severe a case was; and so on—is not sensible. Instead, we are taking advice from clinicians. If the episode is indicative of an underlying impairment, the person is covered whether another episode happens in a year, or in five, eight or 10 years, because that person will continue to have a propensity—I am not sure that I am using the appropriate language—and therefore needs to be protected in the situation as described. I think that that is the right approach.

If we take any other approach, we get a different dilemma. At any point in time, about 10 per cent of adults suffer depression. One in 10 new mothers suffers postnatal depression. One in two of those who marry is likely to divorce, which is likely to generate a period of grief or depression. Almost all of us are likely to lose our parents. That produces grief and depression for many of us. Very many of us—indeed, most women—will lose a spouse, often after a period of draining medical care. We should also bear in mind redundancy, bankruptcy and homelessness. All of these events can give rise to periods of quite severe depression. It would be unnatural for a woman who lost both parents within three weeks and a husband a few years thereafter not to grieve and to suffer from depression. But such events would be discrete episodes that could be dealt with by a rest, a good diet, supportive friends or medical support. In no sense would they be indicative of an underlying condition. They would be discrete episodes.

That is why I think that our approach is better. Let us say that someone—perfectly legitimately—suffers from depression as a result of losing a parent, for whatever reason, and then, five years later, loses his job in difficult circumstances and suffers from another period of depression, in the sense that he goes to the doctor saying that he is depressed and so on. Those are discrete, unconnected life events which have hit that individual hard, but they do not suggest that, in terms of the DDA, he has a "long-term impairment" for which he needs its protection.

We are trying to make a distinction between those separate life events, which we do not think should come within the protection of the DDA, and other episodes that belong to an underlying condition, where we believe the general practitioner is best qualified to guide and steer that person through. It does not matter whether those episodes are one, five or 10 years apart. They belong to the underlying condition and the sufferer will continue to receive protection—and rightly so.

What I am happy to do—and I will seek the noble Baroness's advice on this—is to see whether we need to do anything further to ensure that general practitioners in particular are well aware of the need to draw this distinction as appropriate so that they can give the necessary help. I will talk to the DRC. I am very happy to ask my honourable friend the Minister for Disabled People to talk to the Department of Health to see whether we can do anything further to promote understanding on the issue. But I would hope that your Lordships would agree that the Government's approach is appropriate.

3.30 p.m.

Lord Tebbit

My Lords, I am grateful to the Minister for giving way. She is describing the difference between what we might describe as externally caused depressions and those that are internal—those which, undoubtedly in my view, spring from some form of disorder within one, not from the circumstances in which one finds oneself. I can agree very largely with her on that distinction. I am not quite sure that I would go all the way with her from there, but she certainly makes a valid distinction.

Baroness Hollis of Heigham

My Lords, I am grateful to the noble Lord, Lord Tebbit. That is precisely what I was trying to say. Because I do not have the clinician's vocabulary, I was trying not to use the terms "external" and "internal". The degree to which one responds to a life event may also depend on one's own makeup and mental health and the degree of one's fatigue perhaps from a nursing background and so on. That is why it is not so clear-cut.

The noble Lord is, however, absolutely right. I was trying to make that distinction. Somebody may be unfortunate enough to have two or three battering life events but none the less manage to pick himself up over time in such a way that those events cannot suggest a period of discrimination with an employer. The person might, for example, say, "My mother has died. It has set me back, but I have had some counselling and I am now fine". That seems very different from a situation where one has episodes due to an underlying illness, propensity or impairment, such that the person needs the protection of the DDA.

We are drawing that line. But, as I say, I am happy to take this forward by seeking further medical advice and the like to ensure that GPs identify the condition and situation of people whose depression is an underlying impairment. I hope that with those assurances the noble Lord will feel able to withdraw his amendment.

Lord Skelmersdale

My Lords, I am in a slight quandary. The basis of the amendment has been supported all around the House with the exception of the Minister. I am particularly grateful to the noble Baroness, Lady Murphy, who called this a "modest amendment seeking to correct a wrong". And it is a wrong.

I do not know how many of your Lordships know about the case of Taylor v Sunterra Europe Ltd. Taylor first suffered a depression in 1993, and then again in 1996. He was treated with medication and counselling until 1998. He was then employed from April to July 1999, at which time he was told his employment would be terminated. On dismissal he experienced an episode of depression. Yet he was not covered by the Disability Discrimination Act because, in intervening periods, he did not suffer any substantial adverse effect on day-to-day activities. Furthermore, at the time of the applicant's employment and at the date of the hearing, the applicant was free of any substantial adverse effects.

This amendment would have stopped that stone-dead, because clearly—almost to quote the Minister—this is an episode which was indicative of a repetitive problem and the Act did not come into play. On that basis, I wish to test the opinion of the House.

3.36 P.m.

On Question, Whether the said amendment (No.38) shall be agreed to?

Their Lordships divided: Contents, 138; Not-Contents, 131.

Division No. 1
CONTENTS
Addington, L.	Dundee, E.
Allenby of Megiddo, V.	Dykes, L.
Ampthill, L.	Elliott of Morpeth, L.
Avebury, L.	Elton, L.
Beaumont of Whitley, L.	Ezra, L.
Biffen, L.	Falkner of Margravine, B.
Blatch, B.	Finlay of Llandaff, B.
Bonham-Carter of Yarnbury, B.	Fitt, L.
Bridges, L.	Flather, B.
Brooke of Sutton Mandeville, L.	Fookes, B.
Brougham and Vaux, L.	Fowler, L.
Buscombe, B.	Freeman, L.
Byford, B.	Garden, L.
Caithness, E.	Gardner of Parkes, B.
Campbell of Alloway, L.	Geddes, L.
Carnegy of Lour, B.	Goodhart, L.
Chalker of Wallasey, B.	Greengross, B.
Clement-Jones, L.	Hannigfield, L.
Colwyn, L.	Harris of Richmond, B.
Cope of Berkeley, L. [Teller]	Hayhoe, L.
Courtown, E.	Higgins, L.
Craigavon, V.	Hodgson of Astley Abbotts, L.
Cumberlege, B.	Holme of Cheltenham, L.
Dean of Harptree. L.	Hooper, B.
Denham, L.	Hooson, L.
Dholakia, L.	Howard of Rising, L.
Dixon-Smith, L.	Howe, E.

Howe of Aberavon, L.	Pilkington of Oxenford, L.
Howell of Guildford, L.	Plumb, L.
Hunt of Wirral, L.	Redesdale, L.
Jenkin of Roding, L.	Renfrew of Kaimsthorn, L.
Kimball, L.	Roberts of Conwy, L.
Kingsland, L.	Roberts of Llandudno, L.
Knight of Collingtree, B.	Rodgers of Quarry Bank, L.
Lang of Monkton, L.	Roper, L.
Lawson of Blaby, L.	Russell-Johnston, L.
Lester of Herne Hill, L.	Ryder of Wensum, L.
Linklater of Butterstone, B.	Saltoun of Abernethy, Ly.
Liverpool, E.	Sandberg, L.
Livsey of Talgarth, L.	Sandwich, E.
Luke, L.	Scott of Needham Market, B.
Lyell, L.	Seccombe, B. [Teller]
McAlpine of West Green, L.	Selsdon, L.
Macfarlane of Bearsden, L.	Sharp of Guildford, B.
MacGregor of Pulham Market, L.	Shaw of Northstead, L.
Mackay of Clashfern, L.	Sheppard of Didgemere, L.
Maddock, B.	Shutt of Greetland, L.
Mancroft, L.	Skelmersdale, L.
Mar and Kellie, E.	Smith of Clifton, L.
Marlesford, L.	Soulsby of Swaffham Prior, L.
May of Oxford, L.	Steinberg, L.
Mayhew of Twysden, L.	Stoddart of Swindon, L.
Methuen, L.	Strathclyde, L.
Michie of Gallanach, B.	Swinfen, L.
Miller of Hendon, B.	Taverne, L.
Molyneaux of Killead, L.	Thomas of Gresford, L.
Montrose, D.	Thomas of Walliswood, B.
Morris of Bolton, B.	Tordoff, L.
Mowbray and Stourton, L.	Trenchard, V.
Moynihan. L.	Ullswater, V.
Murphy, B.	Vallance of Tummel. L.
Murton of Lindisfarne, L.	Wade of Chorlton, L.
Neuberger, B.	Wakeham, L.
Noakes, B.	Wallace of Saltaire, L.
Northesk, E.	Walmsley, B.
Oakeshott of Seagrove Bay, L.	Warnock, B.
Onslow, E.	Weatherill, L.
Park of Monmouth, B.	Wilcox, B.
	Windlesham, L.

NOT-CONTENTS
Acton, L.	Desai, L.
Ahmed, L.	Dixon, L.
Amos, B. (Lord President of the	Drayson, L.
Council)	D'Souza, B.
Ashton of Upholland, B.	Dubs, L.
Barnett, L.	Elder, L.
Bassam of Brighton, L.	Evans of Parkside, L.
Berkeley, L.	Evans of Temple Guiting, L.
Bhatia, L.	Falconer of Thoroton, L. (Lord
Bhattacharyya, L.	Chancellor)
Billingham, B.	Farrington of Ribbleton, B.
Blackstone, B.	Faulkner of Worcester, L.
Boothroyd, B.	Filkin, L.
Borrie, L.	Fyfe of Fairfield, L.
Bragg, L.	Gale, B.
Brett, L.	Gibson of Market Rasen, B.
Brooke of Alverthorpe, L.	Giddens, L.
Brookman, L.	Gilbert, L.
Burlison, L.	Golding, B.
Campbell-Savours, L.	Gordon of Strathblane, L.
Chan, L.	Goudie, B.
Chorley, L.	Graham of Edmonton, L.
Christopher, L.	Gregson, L.
Clark of Windermere, L.	Grocott, L. [Teller]
Clarke of Hampstead, L.	Harris of Haringey, L.
Clinton-Davis, L.	Harrison, L.
Condon, L.	Hart of Chilton, L.
David, B.	Haskins, L.
Davies of Coity, L.	Haworth, L.
Davies of Oldham, L. [Teller]	Hayman, B.

Henig, B.	Puttnam, L.
Hilton of Eggardon, B.	Quirk, L.
Hogg of Cumbernauld, L.	Radice. L.
Hollis of Heigham, B.	Ramsay of Cartvale, B.
Howells of St. Davids, B.	Randall of St. Budeaux, L.
Howie of Troon, L.	Rendell of Babergh, B.
Hughes of Woodside, L.	Richard, L.
Hunt of Kings Heath, L.	Roll of Ipsden, L.
Irvine of Lairg, L.	Royall of Blaisdon, B.
Jones, L.	Scotland of Asthal, B.
Jordan, L.	Sewel, L.
King of West Bromwich, L.	Sheldon, L.
Kinnock, L.	Simon, V.
Kirkhill, L.	Smith of Leigh, L.
Lea of Crondall, L.	Stone of Blackheath, L.
Leitch, L.	Symons of Vernham Dean, B.
Lipsey, L.	Taylor of Blackburn, L.
Lofthouse of Pontefract, L.	Temple-Morris, L.
Macdonald of Tradeston, L.	Thornton, B.
McIntosh of Hudnall, B.	Tomlinson, L.
MacKenzie of Culkein, L.	Triesman, L.
Mackenzie of Framwellgate, L.	Truscott, L.
McKenzie of Luton, L.	Tunnicliffe, L.
Mallalieu, B.	Turnberg, L.
Marsh, L.	Turner of Camden, B.
Mason of Barnsley, L.	Uddin, B.
Maxton, L.	Wall of New Barnet, B.
Merlyn-Rees, L.	Warner, L.
Mitchell, L.	Warwick of Undercliffe, B.
Morgan of Drefelin, B.	Wedderburn of Charlton, L.
Nicol, B.	Whitaker, B.
Parekh, L.	Whitty, L.
Patel of Blackburn, L.	Wilkins, B.
Pendry, L.	Williams of Elvel, L.
Plant of Highfield, L.	Williamson of Horton, L.
Prys-Davies, L.	Woolmer of Leeds, L.
	Young of Norwood Green, L.

Resolved in the affirmative, and amendment agreed to accordingly.

3.45 p.m.

Lord Skelmersdale

moved Amendment No. 39: Page 42, line 32, at end insert— ( ) In paragraph 4(1) before sub-paragraph (a), leave out the words from "to" to the end and insert "have a substantial adverse effect on the ability of the person concerned to carry out day to day activities only if it also affects one or more of the following capacities—". The noble Lord said: My Lords, I tabled the amendment because I am advised that as a result of court cases, there is a certain lack of clarity in the Act about the day-to-day activities which determine whether a person is disabled. Currently, employment tribunals and courts are reading the list of activities in Schedule 1 as being finite. This list of mobility, manual dexterity, physical co-ordination, continence, ability to lift or carry every-day objects, speech, hearing or eyesight, memory and ability to concentrate, learn or understand and the perception of risk of physical danger, is, as your Lordships can see, almost exclusively a list of physical capacities, with the result that the current definition of disability fails properly to cover the day-to-day activities, or rather difficulties, experienced by people who are mentally impaired.

In Committee, the Minister agreed that there was a problem and I was interested in her response—rather like her response to the previous amendment—that it could be cured by a toughened-up code of guidance for courts and tribunals to cover the point, rather than, as the noble Lord, Lord Carter, requested to add the ability to care for oneself, the ability to communicate and interact with others and the ability to perceive reality.

So, with the permission of the noble Lord, Lord Carter, I am trying again. This amendment, which replaces the introduction to paragraph 4(1) in Schedule 1 to the 1995 Act, is intended to toughen up the Act rather than the guidance. I believe that central to the Government's approach to the definition of impairment is that the list of capabilities I have mentioned as already being in Schedule 1 needs to be shown as present in a disabled person and in addition that there is a substantial adverse effect on day-to-day living. Examples would include sleeping, eating, going out, working, cooking and so forth. Both those effects need to be considered by the courts.

The trouble is that the Act does not say that: it does not distinguish between "capabilities" and "activities". Indeed, the results of the court cases I have discovered clearly show that the items listed in Schedule 1 are treated as an exhaustive list of day-to-day activities and not capabilities. It is a point recognised both by the task force and the Disabled Rights Commission. It is not a subtle or exoteric difference but impacts directly on the way evidence is gathered, cases are argued and judgments delivered by courts and tribunals.

For example, the Employment Appeals Tribunal dealt last year with two cases. In the first case, the Environment Agency v Mr Sevens, the tribunal considered only loss of concentration and incontinence and not his other symptoms—suffering nightmares and grinding teeth in his sleep. The Employment Appeal Tribunal called those "irrelevant factors" and therefore not a reason to overturn the original tribunal's decision. In other words, tribunals treat the existing list as being exhaustive, as I said.

In the second case—Manchester City Council v Sharon Romano—the tribunal stated: Even if the tenant has an impairment, that is only material in determining whether he or she is disabled, so far as it has an adverse effect on his or her ability to carry out 'normal day to day activities'". When the case went to appeal, the court found that that was a correct statement of the law. In other words, a mental impairment on its own is not enough to comply with the DDA.

While in Committee, I was excited by the idea of spiced up guidance to the court. On reflection, such guidance will not be enough to cure the problem, as it can cover only what is in the Act, however tough it is. The guidance is not statutory: it needs a peg in legislation upon which to hang. My suggestion for that peg is the addition of the word "also" to make it clear that impairment exists in its own right and that the list helps to define it. I beg to move.

Baroness Hollis of Heigham

My Lords, I think that there is a way of meeting the concerns of the noble Lords, Lord Skelmersdale and Lord Higgins, without further amending the meaning of "disability" in the Act. A person cannot be disabled for the purposes of the DDA unless he or she has a physical or mental impairment.

After impairment comes "effect". The impairment must have a substantial and long-term adverse effect on the ability of the person to carry out normal day-to-day activities, all of which is set out in Section 1 of the DDA 1995. Normal day-to-day activities are not defined in the DDA, but they are things that are generally regarded as normal for most people, such as going shopping, making a hot drink, getting in and out of bed, getting up from a chair, personal grooming and dressing, talking to people, writing a letter, reading, watching television or listening to the radio, and so forth. However, it does not include specific types of work or specialist activities such as playing a musical instrument because those are not normal day-to-day activities for most people.

Schedule 1 to the Act supplements the definition of "disability" in Section 1. Paragraph 4 of Schedule 1 has rules about when an impairment is to be taken to affect the ability of a person to carry out normal day-to-day activities. For the impairment to qualify, it must affect at least one of an exhaustive list of matters set out in paragraph 4. For example, a person with cerebral palsy whose impairment affects their physical co-ordination might show that the item in the list affected would be "mobility" or "manual dexterity".

We have heard today from the noble Lord that the problem is that courts and tribunals are confused about the purpose of this list. The noble Lord, Lord Skelmersdale, complained that they are taking it to provide an exhaustive list of day-to-day activities rather than "capacities" which an impairment might affect. Mind has kindly provided us with an analysis of case law. Although we might disagree with its claims of the extent of any misunderstanding it is clear that there is a problem in some individual cases.

The Government view is that the problem lies with a misreading and not with the law. We believe that any concerns around this part of the definition of "disability" can be addressed by clarifying the statutory guidance. We will consult all those who have expressed an interest in this issue when we draw up revised guidance. The guidance will also be presented in draft to Parliament for it to consider before it is issued. The Disability Rights Commission agrees that this is the right approach. On this, as on other amendments, it does not wish to see the Bill delayed. In the light of these explanations and assurances I ask the noble Lords, Lord Skelmersdale and Lord Higgins, to withdraw their amendment.

Lord Skelmersdale

My Lords, I was interested in that answer. The Minister feels that guidance will continue to be good enough and I well understand that nobody wants to delay the Bill. Indeed, I do not want to delay it myself—and I am not alone. If the Government feel that any amendments passed in your Lordships' House should be taken out of the Bill or amended in another place, they can do so. To a very great extent, the timing is in their hands. As far as normal day-to-day activities are concerned, I still suspect that guidance will not be enough. However, I do not feel that this is an amendment that I need to press. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Tebbit

moved Amendment No. 40: Page 42, line 33, leave out subsection (3). The noble Lord said: My Lords, I hope that I will not detain the House too long on this matter either, but I believe that the paragraph to be inserted in Schedule 1 to the 1995 Act under Clause 17(3) is objectionable both in principle and, even if this principle were to be accepted, it is objectionable in its scope.

To my mind, we should not enact legislation which purports to make true what is manifestly not true. I found myself agreeing overwhelming with the opening remarks made by the Minister just now in her reply to the previous amendment that a person cannot be disabled unless he has a mental or physical impairment. That is a very sound principle. Unfortunately, this paragraph undermines it. I hope that we shall not disagree over this matter as we have disagreed over my view expressed on other legislation, that we should not seek to legislate that what is untrue is true.

4 p.m.

As drafted, the clause would deem to be disabled certain categories of persons who have no disability; that is to say, it would say that black is white and white is black. It provides that a person who has cancer, an HIV infection or multiple sclerosis—and those three conditions only—is deemed to have a disability and hence to be a disabled person. Curiously, it goes on then to state that regulations may provide that that provision does not apply to persons with a cancer "of a prescribed description", and that such a regulation may be, framed by reference to consequences for a person of his having it"— that is, having cancer. Here we really do enter into a world previously inhabited only by Lewis Carroll, where words mean what Ministers say that they mean.

Let us take a particular case—a well known one. Mr Chris Smith, the former Culture Secretary, told us last week that he was diagnosed as HIV positive 17 years ago. Happily, Mr Smith is well. He says that he suffers no symptoms, and he is clearly not disabled, and I hope that he will not be disabled by the infection which he has but which these days can frequently be maintained under control. But in law Mr Smith would be disabled if the Bill was enacted as drafted. I do not believe that he wants to be disabled; in the judgment of most of us, he is not disabled.

I understand that the reasoning—if that is not too strong a word—behind the paragraph is that a person with one of the three conditions that I mentioned will at some time in future become disabled. But I am more disabled than Mr Chris Smith, although I do not come within the scope of these provision. My disabilities—impaired hearing and vision, failing memory, weakening muscles, which are familiar to most of us in this House—are all attributable to advancing age.

Old age causes more disabilities than any other condition and is avoidable only in one way, by dying young, which is not an option that is attractive to most of us. As somebody said recently, no one wants to be 80 until they are 79. Yet we, the elderly, are not provided for in this schedule, nor should we he. When our disabilities become such as to disable us, then rightly we will not be deemed to be disabled but actually disabled. God willing, Mr Chris Smith will not be disabled until old age nobbles him as it has so many of us.

Curiously, the logic of my argument seems to be accepted in respect of those diagnosed with cancer but not HIV or multiple sclerosis. I should like the whole of the paragraph to be excised from the Bill. But if it is not, surely other progressive diseases such as motor neurone disease or Parkinson's disease should be added to the exclusive category in this paragraph. After all, they are progressive diseases, just as much as the three which are mentioned.

I have no doubt of the good intentions of those who sought these provisions in the Bill. But in legislation good intentions do not always create good law. That has been part of the burden of the case that the Minister has made this afternoon on a couple of occasions already, on one of which, I accepted her arguments. For that reason. I cannot accept that this paragraph should be in the Bill, and I commend the amendment to the House. I beg to move.

The Deputy Speaker (Baroness Turner of Camden)

My Lords, I remind the House that if Amendment No. 40 is agreed to, I cannot call Amendments Nos. 41 and 42 because of pre-emption.

Lord Addington

My Lords, getting to know the noble Lord, Lord Tebbit, in the process of considering the draft legislation, I found that he had a very subtle hand with which he wielded a stiletto or scalpel. Here he has very successfully done that by not concentrating on the disability discrimination part of the Bill. He may well have a case in saying that the list of conditions should be more exhaustive, but it includes conditions which lead to discrimination before symptoms show.

We deal with other forms of discrimination in other legislation, and ageing is a good example of that—or we are considering dealing with that issue. The discriminatory effect of the conditions mentioned in the paragraph, once they are known—certainly when they are feared and when the old wives' tales dig in—has had an effect on people's lives. If we concentrate on that aspect, the wording as it stands is justified.

There is not much more to say on the matter. The conditions may not be disabilities in themselves, but discrimination certainly does occur.

Lord Skelmersdale

My Lords, my noble friend Lord Tebbit, has produced a very interesting argument as to why the three conditions—and hence the paragraph—should not be included in Schedule 1. I believed that during the discussions in the Joint Committee my noble friend had come to a conclusion, when he said on 24 March in the Joint Committee report that, surely the most significant cause of disability is old age". Apparently not.

The fact of the matter is that this Bill is about the effects of the disabilities themselves, not the reasons why the disabilities have occurred. The three conditions fit into two groups, with HIV and cancer in one group, where there is stigma attached even in the early stages, and multiple sclerosis in another. I suppose one could say in retrospect that that last was an accident waiting to happen. We all believed that multiple sclerosis was included in the definition of the Act until the case against the University of Surrey. Eventually, the Employment Appeal Tribunal found that it was not included and said that it fell outside the definition of progressive conditions in Schedule 1. So that is a discrete category.

I believe—and the Minister will correct me if I am wrong—that the other two conditions are included because of the stigma attached to them. People are frightened of what they do not understand and treat people with HIV and cancer differently from how they would those with other, perhaps unnamed, disabilities. It is for those reasons that I have always been content that multiple sclerosis, HIV and all cancers—and we shall get on to cancers in a minute—should be mentioned specifically in the provisions. So I am afraid that I cannot follow my noble friend's reasoning.

Lord Carter

My Lords, I should just point out that the Joint Committee considered this matter, and the evidence that we received was overwhelmingly in support of the Government's intention to introduce these three conditions into the Bill. We welcome the extension of the definition to include HIV, cancer and multiple sclerosis. As the noble Lord, Lord Skelmersdale, said, everyone believed that multiple sclerosis was covered until there was a court case which showed, surprisingly, that it was not. Therefore, it was included. The point that the Government are dealing with here relates to the discrimination and the stigma and not the actual disability.

On the other point that the noble Lord, Lord Tebbit, made about extending the provision to other conditions, we recommended that all progressive conditions covered under the DDA when they begin to have an effect should be included from the point of diagnosis.

The Government accepted the principle of the recommendation but said they would ensure that there were sufficient powers in the Act to enable the definition of "disability" to be amended should that prove necessary in the light of future evidence. That would meet two of the committee's concerns. It would allow further progressive conditions to be covered more effectively when the need arose and would provide flexibility in the event that case law emerged which showed that the definition was not working in the way intended.

It would be helpful if my noble friend the Minister could confirm that these powers are in the Bill.

Baroness Hollis of Heigham

My Lords, this amendment would mean that the Bill would no longer include provisions which would treat people with HIV infection, cancer and multiple sclerosis as disabled people for the purposes of the DDA from the point at which they are diagnosed with the condition and before any adverse effects of the condition may have emerged.

For HIV and some cancers we have evidence to show that disability discrimination starts early, at the presymptomatic stage. This discrimination is often reinforced by other prejudicial attitudes deriving from fear and ignorance but that does not make it any the less disability discrimination which the Act ought to deal with.

In particular, evidence in the form of research reports, newspaper articles, and so on, suggests that there is still widespread fear and prejudice against people with a diagnosis of' HIV infection. The noble Lord, Lord Tebbit, mentioned the example of my right honourable friend Chris Smith. One can see from his history just how finely balanced a judgment some people must make when disclosing their HIV status. From his experience one can draw exactly the opposite conclusion from the one drawn by the noble Lord, Lord Tebbit; namely, that Chris Smith did not feel able to declare his HIV status even though, so far as he was concerned, he was well, able to climb the Munros with John Smith, and so on. However, he did not feel able to declare his HIV status because of the prejudice he considered he would then face. He and the Government considered that that prejudice should be protected against in the form of this Bill. As I say, I think you can read the Chris Smith experience in exactly the opposite direction from that suggested by the noble Lord, Lord Tebbit.

Chris Smith told the Highbury and Islington Express: I want to demystify some of the mythology … There's still a lot of fear and ignorance about HIV and the more we can demonstrate to people that it's a liveable, treatable condition like many others and not something to ostracise people for the better … The world was very different when I came out as gay. There was a lot more homophobia around and I thought it was important to say 'Yes, I'm gay, so what? Let's get on with being an MP' … Mr Mandela spoke out after his son died from AIDS … It made me think if he could try and lift the taboo surrounding HIV in those exceptionally difficult circumstances then this was something I could do". I deduce from that story of someone I am proud to call a friend that he felt that the fact that he suffered from HIV, even though it did not in practical terms disable him, would none the less have led to some of the same consequences in terms of the world's responses to any statement he had made on that. That is what I draw from his experience.

Recently, Marie Stopes International and Interact Worldwide published their findings from a World AIDS Day survey highlighting that significant numbers of British citizens still have prejudicial attitudes to people living with HIV. The report by the National AIDS Trust and the Sigma Research report, Outsider Status, brought to light the fact that a fear of dismissal prevents many people from disclosing their HIV status to their employers.

In October 2004 BBC News Online carried a report about an employee who initially received support from his employer, having told the latter of his HIV status. I believe that he was ostracised by those with whom he worked. Having DDA protection from diagnosis would have supported that person in that difficult situation and it would do the same for all those who are diagnosed as having been infected with this virus when they are at the vulnerable stage of coming to terms with it.

This evidence supports the recommendations of the Disability Rights Task Force which recognised that people with HIV infection were experiencing disability discrimination at a point before symptoms or effects emerged and said that the protection of the Act was required much earlier on. This is what the subsection does; we must not lose it.

We shall discuss cancer. The task force identified the need for additional protection for people with some cancers. These are cancers which are likely to require substantial treatment. We have responded to that in this Bill. We had understood that people with multiple sclerosis would be protected but we needed to clarify the law as a result of the court case. That is what we are doing.

There is an argument that if we treat some people with progressive conditions as disabled people from the point at which they are diagnosed, we should do the same for all of them. We agreed with this in principle but we are not persuaded that there are any additional conditions which are inadequately covered. Other serious illnesses such as motor neurone disease—I pressed my officials on this—or muscular dystrophy are identified when the symptoms show. At that point the DDA comes into effect in any case. That is why they are not included in the list of identified illnesses in which there can he asymptomatic possession of a disability before it results in an impairment of a substantial kind in people's daily lives.

We have widespread support for the clause from the DRC, the Disability Charities Consortium, the Terrence Higgins Trust, the National AIDS Trust and the Multiple Sclerosis Society. We are dealing with those few conditions where there may be an impairment in the perception of the employer and others in advance of the obvious visibility of symptoms which would automatically bring someone within the protection of the DDA. We consider that in those exceptional cases we need this additional power. I hope that having heard the views expressed all round the House the noble Lord, Lord Tebbit, will accept that this is a decent, humane and proper way forward. I hope that he will withdraw the amendment.

4.15 p.m.

Lord Tebbit

My Lords, I thank the noble Baroness for her reply. I sometimes wonder how she manages to maintain her place as a Minister in this Government. She is so reasonable and so competent that she shines like a candle in a dark world among the incompetents and ne'er-do-wells who, I should add, we find principally at the other end of the Corridor.

I still draw the opposite conclusion about Mr Smith's case to that which the noble Baroness draws. The fact that he has said in public that he has been HIV positive for the past 17 years indicates to me that attitudes—I almost said social attitudes but I felt a tap on my shoulder from the shades of Enoch Powell—have changed over that time.

I doubt very much whether there is a stigma attached to cancer. There is a fear attached to cancer in many people's minds, but I do not know anyone who does not want to go out to dinner with someone because the former has heard that that person might have cancer. Indeed, the noble Baroness was on slightly thin ground when she referred to the distinction in her mind between conditions which are not diagnosed until symptoms appear and those which are diagnosed before symptoms appear. I do not know too many people who regularly go to their doctor and say, "Doctor, I might have cancer. I do not have any symptoms. There is nothing which causes me to conclude that I might have cancer, but would you test to see whether I do"? That is an unlikely proposition.

I think I know when I am beaten. I have the feeling that to press this amendment this afternoon would perhaps be something rather worse than the Charge of the Light Brigade. I would not have as many people as that following me.

Of course, I shall withdraw this amendment, but the noble Baroness should not be surprised if, perhaps in another place, her colleague who will be answering there will have to make the case not for excluding this paragraph, because it is unlikely that one would achieve that, but for adding a number of other conditions, most notably but not exclusively motor neurone disease. I will leave that thought with her, but fortunately she will not have to answer that argument. It would be harder than answering the arguments that I have put today on this issue. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Skelmersdale

moved Amendment No. 41: Page 42, leave out lines 37 to 39. The noble Lord said: My Lords, it is my personal regret that not all your Lordships join with the disability charities in welcoming the Government's decision to add multiple sclerosis, HIV and cancer to the list of disabilities covered by the Bill from the point of diagnosis. These are all potentially progressive diseases. It has been put to me that all progressive diseases—the point made by my noble friend Lord Tebbit—should be covered in the Bill. While there is logic to this, it is not the subject of this group of amendments. Our concern is the decision of the Government that they should take an order-making power to have some cancers, the so-called "non-serious" cancers, excluded from the Bill.

The term "cancer" covers a wide range of conditions, and it is the most likely cause of death if, as I do, you count heart disease separately from stroke. I declare an interest as vice-president and former chairman of the Stroke Association. The Office for National Statistics has said that cancer accounted for 26 per cent of all deaths in 2003, so we owe it to everyone to look carefully at those cancers which may or may not be excluded from the Bill. We know that the Government are consulting on basal cell skin cancer, commonly known as rodent ulcers, most squamous cell carcinomas of the skin, and in situ cancerous growths of the cervix and uterus, which we are told are likely to be treatable successfully by cone biopsy, and non-melanoma skin cancer.

I am told by Macmillan Cancer Relief, although the Minister has not confirmed it, that Bowen's disease and in situ cancers that do not affect the full skin thickness and can normally be treated initially, easily, and simply, are also under consideration. It was also revealed in Committee that melanomas and cancerous cells of the uterus may be included.

I do not pretend to be a doctor, but I know that once cancer of any kind gets a grip on the body it will spread, and if it spreads to a major organ it will, sooner or later, cause fatal damage and ultimately death. The fact is that having been diagnosed with cancer, no matter how minor the cancer may be for the individual, it can have a serious impact—this is another answer to my noble friend Lord Tebbit who has escaped us—when it comes to employment, travel insurance and life insurance, which is necessary to secure mortgages. It is clear that the stigma and ignorance that surrounds cancer is at the root of the discrimination against people affected by cancer. Indeed, the Government have admitted as much. The stigma and ignorance apply to all cancers at the point of diagnosis, not just the major ones, such as breast cancer or cancer of the oesophagus.

There is always going to be an effect on someone's life. The Minister made the point in Committee that a one-off intervention may be less onerous and have less daily impact than dealing with a broken shoulder. That may be, but the fact is that after removal of a cancerous lump, follow-up investigations are invariably required to ascertain whether the surgeon has cut it all out. As the Minister and I agreed on Second Reading, the severity, or spreadability, of a cancer depends essentially on the speed of the patient presenting it to a doctor, the doctor recognising it, and prompt treatment being given. I am reliably informed that a melanoma more than one sixteenth of a millimetre deep is most likely to lead to more serious and spreading cancer. I am afraid that I found the Minister's answer to that dismissive: "Well, if it does, the patient comes back under the ambit of the Act".

A quick reading of the debate in Committee shows that the Minister was on a losing wicket. No Member agreed with her that it was sensible for the Government to have a list of cancers to be excluded. The Minister said: I am trying to isolate the cancers—perhaps it is unfortunate that we call them 'cancers' rather than anything else".—[Official Report, 20/5/05; col. GC 358.] I take the point, but surely what matters is what other people think; one's neighbours, family, friends, and what extra premium an insurance company will charge for a one-off but possibly continuing intervention. As to whether they should all be called cancers, the fact of the matter is that they are, at least in common parlance. The Bill makes no provision for separating out and defining what should and should not be called a cancer. People who have a diagnosis of one of the excluded cancers have a cancer. The noble Lord, Lord Ashley, said in Committee: The Government's provision in the Bill is a prescription for confusion … I cannot believe that the great British public will be able to identify clearly which is which".—[Official Report, 20/5/05; col. GC 355.] I could not have put it better myself. I beg to move.

Lord Ashley of Stoke

My Lords, I hope that my noble friend Lady Hollis will look favourably on this, since she was unfortunately unable to do so in Committee. I have a few points to make. First, again I do not agree with the noble Lord, Lord Tebbit, about stigma not being attached to cancer, at least not as much as it used to be in the olden days. This is a purely subjective point of view, and either of us can be right. In my experience, people still are as terrified of cancer, and it is still as much of a bombshell of a word that stops all thought, all arguments, and raises fear and apprehension among anyone who is told. This is very unfortunate.

Secondly, my noble friend Lady Hollis said a few moments ago on a different amendment that she was against keeping records. Presumably. that comment was intended solely for that amendment. If this amendment is resisted, we will have the keeping of records. People who want to know where they stand on cancer, and whether their cancer is included will have to look at the records. Imagine the dialogue. "You have cancer. Let us see the British National Formulary to see what kind of drugs you are treated with. What sort of cancer is it? Unimportant? Very important? Rather important?". It could go on and on, and be even more confusing than looking at mere records. Any doctor or any surgeon who is able to say definitively, "That cancer is not serious", is sticking his neck out. Maybe doctors can do that, but my feeling is that they would be very apprehensive and very chary of categorising any cancer as not serious. We know that there are greater and lesser cancers, but to say so categorically may leave them vulnerable. It would be a very big step, and we will reach that stage if this amendment is not accepted.

I simply do not see anyone who is not concerned by the word "cancer". With all the education in the world, all the experience, and all the medical knowledge, cancer is still cancer. Although medicine has moved forward, public perceptions have remained static. Until you can change these public perceptions, we need this amendment.

Lord Carter

My Lords, I listened carefully to the arguments produced on this by my noble friend the Minister in Committee. All of us can agree from our experience that we have known people who have had what I would describe as a minor incident, usually skin cancer, which has been dealt with by one visit to hospital and that is the end of it. As I am sure your Lordships know, Members of this House have had that experience, and they would not regard themselves as disabled.

I tried to produce an amendment to deal with this, saying that if the Government intend to introduce such regulation to prescribe certain sorts of cancers, they should be absolutely certain that this would not lead to discrimination. From the explanation that I received from my noble friend, and in a letter that I think was circulated, it was clear that I had drawn the amendment much too tightly, so it would have led to all sorts of judicial review and so on. I might have used a phrase about the Government prescribing, having had a reasonable expectation on the basis of the evidence before them after consultation.

4.30 p.m.

As I understand it, the intention is not to deal with discrimination against people with cancers that do not require substantial treatment. However, the Government have not seen evidence that such discrimination is occurring. We have all received evidence, although I cannot remember it coming from anyone except Macmillan Cancer Relief. There is clearly some difference between the evidence that the Government have seen and the experiences suggested in the House.

Because of the February break, we have three weeks between Report and Third Reading, which is very unusual. Before Third Reading, would it be sensible for the Government to get together with the relevant bodies—the DRC, the Marie Curie Research Foundation, Macmillan and so on—to review the evidence that those organisations have? Then we could consider at Third Reading the process of consultation, the way the regulations—if they are used—would be drafted, and whether there is any way to approach the matter from the angle that I adopted previously, which was whether the Government were reasonably satisfied on the evidence before them that the prescription would not produce discrimination.

I am not clear that the regulations will be affirmative or negative. If they were affirmative—if we had the chance to discuss them—that would be helpful. I shall be interested to hear what my noble friend says.

Lord Walton of Detchant

My Lords, at first sight, new sub-paragraph (2) looks entirely reasonable, because it is perfectly clear that certain people with minor forms of skin cancer cannot be regarded as being disabled, in the normal course of events and in everyday parlance. Where exactly would the Government draw the line? What kind of prescription would they introduce? There are cancers, such as the basal cell carcinoma of the skin often referred to as a rodent ulcer, which are not life-threatening and do not metastasise. However, in my professional career, I have seen such rodent ulcers—neglected because the patients did not seek advice—eroding the skull and tissues to such an extent as to constitute a very significant disability.

If one is to talk about skin cancer, what about melanomas? As noble Lords know, malignant melanoma is often a progressive and fatal disease. My concern about the clause is how on earth the exclusions could be properly prescribed so as not to be discriminatory.

Lord Oakeshott of Seagrove Bay

My Lords, moved by the previous two speeches, I want briefly to declare an interest—I hope that it is not a stigma. I have had rodent ulcers. I have been over to St Thomas' a couple of times and am assured that there is no further problem; indeed, my father had them for some time. That does not feel like a disability. I certainly do not feel in any way discriminated against or likely to be so.

In the spirit of what was said by the noble Lord, Lord Carter, I wonder whether it is possible for the Government to consult and think further to see whether a line can be drawn. I feel uncomfortable about pressing any particularly strong point of view, to be honest; I am merely speaking from my personal experience.

Baroness Darcy de Knayth

My Lords, I put my name to the amendment and would like to support it strongly. I very much back up what was said by the noble Lord, Lord Carter. I hope that the Minister will have time to consult. If not—at the very least—I hope that she will give a very firm assurance in Hansard that the Government will not bring in the measure until they have consulted the DRC, Macmillan Cancer Relief and others.

Baroness Howe of Idlicote

My Lords, I shall be very brief. Having listened to the debates in Grand Committee and today, I am convinced that there must be some changes. To have certain cancers excluded cannot be right, given that we are very much talking about perceptions. They are either all in or all out. I hope that the noble Baroness will be able to take note of what has been said, by an arrangement to bring forward something acceptable at Third Reading or by agreeing to the amendment.

Baroness Hollis of Heigham

My Lords, most of us speaking today acknowledge that this is an uncomfortable area, to use the words of the noble Lord, Lord Oakeshott, because most of us have experience within our family and friends of a range of cancers, and know that we can no more group them together than a range of orthopaedic illnesses or problems. They are very different in terms of the effect—and the disabling effect—on the individual. That is why we are dealing with what is rightly a highly sensitive issue.

I want noble Lords to consider for a moment the policy and the implications of changing it. The policy was developed in response to the recommendation of the Disability Rights Task Force in 1999, which found little evidence of discrimination against those people with a cancer likely to require minor treatment. At paragraph 11 of its report, it stated: We saw little evidence, however, that there was discrimination against those with, say, benign tumours requiring no treatment or some skin cancers which might require minor treatment. We therefore felt that deeming everyone with cancer, irrespective of whether significant treatment was required or not, as disabled would not be publicly acceptable". That was the Disability Rights Task Force's advice to the Government, partly on the basis of which we framed the policy that we have. We should take its remarks extremely seriously. In all honesty, since that report, I have not seen evidence to suggest any change in its view—not the Government's view—on cancers requiring minor treatment attracting discrimination in the same way as cancers that require substantial treatment, either in employment or among service providers such as the insurance industry. If we had evidence of systematic discrimination, we would be concerned.

There are 20 or so cancer charities, all of which—including Macmillan Cancer Relief—were sent on 19 December a copy of the Government's consultation document, asking for their views. The consultation period does not end until some time in March, so there is still plenty of time to respond, but 19 of the charities have not sought to respond on the issue at all. Macmillan—it says that it did not receive the document, which I do not understand, as it was sent out with the others—is the only one that has.

I shall pick up the point made by the noble Lord, Lord Walton of Detchant. There is no hidden agenda. Paragraph 4.10 of the consultation document on the Bill lists the most common cancers that are considered not normally to require substantial treatment. Some were mentioned by the noble Lord, Lord Skelmersdale. They are basal cell carcinomas—rodent ulcers, as they are often called—most squamous cell carcinomas of the skin. Bowen's disease, in situ skin cancers that do not affect the full skin thickness and can he treated easily and simply, and in situ cancer of the cervix uteri that it is likely can be treated successfully and fully by cone biopsy.

Paragraph 4.12 states: The Government recognises, however, that it could be unfair to exclude a person with one of these cancers which does not normally require substantial treatment from protection under clause 17, if he or she was, exceptionally, considered to require substantial treatment". In other words, the point made by the noble Lord—which I hope was well taken by me—that a person may come late to diagnosis and the condition continues, or that exceptionally the condition may develop into something more serious, is explicitly covered by the consultation document to the Disability Discrimination Bill, and the list of those cancers that we propose should be excluded is based on the steer of the Disability Rights Task Force report.

The implications have changed. The task force considered whether people with any type of cancer should be covered from the diagnosis, and concluded that they should not because it wanted to protect the integrity of the definition of "disability" in the Act. This is not about trying to catch as many people as possible, but about ensuring that disabled people properly enjoy civil rights that have been improperly denied them for too long.

I defer absolutely to the medical expertise of the noble Lord, who I am sure will intervene if I am incorrect. I understand that a person who is diagnosed with a basal cell carcinoma faces the inconvenience of a visit to the outpatients department, but it is a simple procedure to remove the cancer and that would normally be the end of it. Are we seriously contemplating that such a person is disabled and should continue to be treated by the DDA as such for life? I do not think that that is right. I acknowledge that some people will be frightened and may assume the worst when they are diagnosed with cancer. It may be generational: older people still talk about the big C in ways that younger people do not. Sometimes that fear is justified, but at other limes it is not.

We do not accept that a person who has a cancer requiring minor treatment would consider themselves to have a long-term disability. We have had no evidence that employers, service providers or the general public would accept it as disability. That goes for cancer that can be quickly treated and eliminated as much as for other short-term physical or mental conditions.

How can we promote a wider understanding of disability and of the discrimination that it attracts, and address it in civil rights language if we deem all people who have ever had treatment for a cancer. such as squamous cell carcinomas, or a rodent ulcer that has been easily and completely eliminated, to be disabled?

We all have experience of cancer, whether personally or among members of our family or friends. Someone in my family died of cancer. Another close friend had a minor skin complaint—a cell carcinoma—for which she effectively had lunch-time treatment. The first would have been amused and the second would have been rather shocked, but both would have been astonished if they were treated in the same way as coming within the framework of the DDA. I continue to believe that our approach is the right one.

I turn to the questions raised by my noble friend Lord Carter, and rightly pressed by the noble Baroness, Lady Darcy de Knayth. We are currently consulting on whether we have got the list of excluded cancers right and what should be covered by the term "substantial treatment".

At this stage it might be helpful if I were to clarify—I am sorry for any misunderstanding—that malignant melanomas are distinct, dangerous, difficult to remove, and require precautionary monitoring lest they recur and further treatment is required. That means that they are always likely to require substantial treatment, and will always come within the framework of the DDA.

We shall consider carefully the evidence that we receive in response to this consultation which closes on 18 March this year. Your Lordships have concerns, and, as you know, I do my best to try to meet those concerns. Following the remarks of my noble friend and the noble Baroness, Lady Darcy de Knayth. I want to give the House an undertaking that we will not exercise the regulation-making power to exclude any cancer from the extended definition of disability provided for by Clause 17(3) of the Bill until we have reviewed what evidence may be available about discriminatory behaviour towards people with those cancers. Of course, all relevant bodies, including the Disability Rights Commission, Macmillan, and so on, will be embraced in that consultation exercise.

4.45 p.m.

Lord Ashley of Stoke

My Lords, will that review include discussions with the DRC, Macmillan and other such organisations?

Baroness Hollis of Heigham

My Lords, yes; absolutely. It will include the DRC and all the relevant organisations that wish to partake in the discussions. If they have evidence we should and will respond. If there is evidence, why would we not move? If there is no evidence, why should we move?

My noble friend pressed me on this, but, of course, we shall have a further chance to be held to account should we be moved to exercise those powers. They would have to be done by regulation, and I am perfectly willing to consider further whether such regulations should be affirmative, thus allowing further consultation based on evidence. I shall consider the matter in good faith and come back to your Lordships' House with something that I hope will be helpful so that it can be perfectly properly scrutinised.

I hope that your Lordships will accept that the Government are pursuing the matter appropriately and that it is a wise and proper approach. If the evidence exists the exemptions will not be applied. But if the evidence does not exist, there can be no reason not to apply the exemptions. If evidence that we do not now have because of the current state of medical knowledge subsequently becomes available five or eight years down the road, we can revisit the regulations, remove the exemptions and bring them within the framework.

I ask your Lordships to accept that our approach must be based on evidence and information to maintain the integrity of the Bill. I hope that your Lordships will agree that I have done my best to respond to the concerns expressed. I accept that people—especially older people—fear the word "cancer", but I have no evidence that there is discrimination on the minor skin conditions requiring one-off treatment, as listed in the report. We are following the path laid out for us by the disability task force, but beyond that we shall go to further consultation and discussion with the organisations. Given that a change in the regulations to establish an exemption would have to come by resolution, I am perfectly willing to consider whether such resolution should be affirmative.

Lord Walton of Detchant

My Lords, before the noble Baroness sits down, perhaps I may raise a point on the definition she quoted from the disability task force. Benign tumours are by definition not cancer.

Baroness Hollis of Heigham

My Lords, I am grateful to the noble Lord. I am happy for him to intervene and correct any misunderstanding or misleading information that I may inadvertently have given to the House.

With those assurances, I hope that I have addressed the concerns of my noble friend and the noble Baroness, Lady Darcy de Knayth. As I said, if the evidence is there following consultation, the Government would not wish to exempt. In any case, even if the Government were to argue that there was no evidence, exemption would have to come by regulation to your Lordships' House. I am perfectly willing to consider whether such regulations should be affirmative. If even at that stage evidence comes up, the issue can be revisited. I am concerned to maintain the integrity of the Bill.

Despite the numerous cancer charities that exist in this country, I have had no evidence that there is an issue. The charity Macmillan is concerned. I was grateful to receive the help and support of Macmillan in my family when we had serious cancer. There is no doubt that such organisations speak from experience of cancer patients. But so far we have had no support from any other organisation, including cancer organisations. We can revisit the matter as we need to. We are seeking to address the situations suggested by the noble Lord, Lord Walton of Detchant.

I hope that your Lordships feel that the Government have moved some way from their original position at Second Reading. We are seeking to address your Lordships' concerns, but those concerns, if we are to respond, must be evidence based. If they are we would move; if they are not we should not move. Therefore, I ask the noble Lord, Lord Skelmersdale, to withdraw his amendment today.

Lord Skelmersdale

My Lords, before the Minister sits down, I am sure her commitment to consultation the first time round is widely accepted. Will she put such a provision in the Bill, so that we can be sure that in future consultation takes place when, as is inevitable, there is a need to alter the list from time to time?

Baroness Hollis of Heigham

My Lords, I have taken advice on this. Whether it is over the next weeks before Third Reading, the consultation will take place fairly shortly. Apart from that, I have taken advice and my remarks in today's discussion will carry the weight the noble Lord wishes.

Lord Skelmersdale

My Lords, I am extremely grateful to all noble Lords who have supported me on this amendment. It has been a long-running saga and, yes, I do accept that the Government have moved a long way in my direction. I am very pleased that consultation is going on and will continue to go on until the Government produce the list and lay the orders.

Given the interest around the House, that is a very good extra reason why such orders should be affirmative rather than, as they are at the moment, negative. I was very pleased to hear the Minister's remarks on that. The most telling point came in the intervention at the end of the Minister's speech by the noble Lord, Lord Walton of Detchant, when he said that, by definition, rodent ulcers and so on are not cancer. That is the problem with the Bill.

Lord Walton of Detchant

My Lords, forgive me, rodent ulcers are cancer; benign tumours are not cancer.

Lord Skelmersdale

My Lords, I stand corrected. Benign tumours are not cancer. That is exactly the problem because the clause talks about cancer. One does not know what is covered and what is not. But all this will be explored during the consultation.

On future consultations, I am not convinced by the noble Baroness's answer. As we all know, no government—unless by an intervention in an Act of Parliament—can bind their successor. I was told originally that such a commitment as the Minister has just given on consultation would be covered by Pepper v Hurt. So I naturally took legal advice and was told that Pepper v Hart comes into play only when there is a lack of clarity in the Act of Parliament. It is quite clear that there is no lack of clarity in this particular Act of Parliament and therefore it will not. Perhaps the Minister can think about that in the next two or three weeks between now and Third Reading.

Baroness Hollis of Heigham

My Lords, before the noble Lords sits down and decides what to do about his amendment perhaps I may make two points. First, he says he does not know what is in and what is out. I do him the courtesy of assuming that he has a copy of the Disability Discrimination Bill consultation document, which lists these things in paragraph 4.10. So there should not be any discussion or dispute about that. Secondly, I have said that before any regulations can be introduced we would have consultation. We expect that consultation to be fairly soon. I have also said that those regulations are available. It is a question for the House whether they should be affirmative. So I cannot see what more the noble Lord could reasonably want in terms of checks on the good faith of government on this: it is built in.

Lord Skelmersdale

My Lords, I hope I was in the process of explaining that I do not doubt the good faith of the Government in this area, but I have quite natural suspicions of some future government. That is not unusual, especially when one is speaking from the Official Opposition Front Bench. I have no doubt that the noble Baroness in her turn did so some years ago.

The noble Baroness in her last intervention almost caused me to change my mind. But I am not going to change my mind; I shall await the outcome of the deliberations between now and Third Reading and if it is necessary to change my mind, I believe that that will he the time to change it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 42 not moved.]

[Amendments Nos. 43 to 46 had been withdrawn from the Marshalled List.]

Schedule 1 [Minor and consequential amendments]:

Baroness Hollis of Heigham

moved Amendment No. 47: Page 53, line 23, at end insert— (ca) regulations under section 31AE(1) that make provision as to remedies; The noble Baroness said: My Lords, I can be very brief. The amendment implements the recommendation of the Delegated Powers and Regulatory Reform Committee that the affirmative resolution procedure should apply to all regulation-making provisions for remedies in relation to discrimination by general qualification bodies and not just those made the first time the power is used. We accept that. We are able to accept the recommendation. I beg to move.

Lord Skelmersdale

My Lords, the noble Baroness has a very good record in accepting the recommendations of the committee. I am delighted that she has done so on this occasion.

On Question, amendment agreed to.

[Amendment No. 48 not moved.]