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Column 892fall under the category of amendments that are called formally, which means that it will already have been put with others.
Amendment made: No. 123, in page 5, line 36, leave out `in the case of damages'
`to the calculation of damages in claims in tort or (in Scotland) in reparation'.-- [Mr. Paice.]
Amendment made: No. 74, in page 8, line 7, leave out from `employer' to `and' in line 8 and insert
`has advertised the employment (whether before or after the disabled person applied for it)'.-- [Mr. Paice.]
Amendment made: No. 75, in page 8, line 40, leave out `Part' and insert
`section and sections 13, 14 and 15'.-- [Mr. Hague.]
Mr. Wigley: On a point of order, Madam Deputy Speaker. May I register my dissatisfaction at the fact that an important group of amendments on the needs of carers has been dropped at this stage? Many hon. Members who did not serve on the Committee have been extensively lobbied on the subject and would have liked an opportunity to debate the subject.
Mr. Tom Clarke: Further to that point of order, Madam Deputy Speaker. I share my hon. Friend's frustration, but it is fair to point out that these amendments were tabled before the Carers (Recognition and Services) Bill, which was introduced by my hon. Friend the Member for Croydon, North-West (Mr. Wicks), was given a Second Reading.
Amendments made: No. 76 in page 9, line 2, leave out `Part applies' and insert
`section and sections 13, 14 and 15 apply'.
No. 77, in page 9, line 4, at end insert--
`( ) access to and use of means of communication;
( ) access to and use of information services;'.
No. 78, in line 18, leave out `Part does' and insert
`section and sections 13, 14 and 15 do'.-- [Mr. Hague.]
Amendments made: No. 79, in page 9, line 42, leave out `this Part' and insert `section 12'.
No. 80, in page 10, line 6, leave out from `services' to `under' and insert
`has failed to comply with any duty imposed on him by or'.-- [Mr. Hague.]
Amendment proposed: No. 81, in page 10, leave out lines 35 to 37 and insert--
`(ii) the disabled person is incapable of entering into an enforceable agreement, or of giving an informed consent, and for that reason the treatment is reasonable in that case;'.-- [Mr. Hague.]
Mr. Hague: I agreed in Committee to consider paragraph (ii) in the light of the Law Commission's recent report on incapacity and to reconsider the situation. The amendment will mean that a service provider will still be allowed to discriminate justifiably against someone if it is not able to contract, but only if it is reasonable to do so within the circumstances of the case.
Let me illustrate that further.
There are some circumstances in which a service provider is very unlikely reasonably to think that a person does not have the ability to contract and does not understand the principles behind a particular transaction--for example, when someone is buying a newspaper or a Mars bar from a corner shop. The circumstances are different when someone enters a car showroom and attempts to buy an expensive luxury car. In such a case, when there is a major purchase or credit sale involved, if the service provider has justifiable reasons to think that the disabled customer is incapable of entering into an enforceable agreement or giving an informed consent, he will be entitled not to provide the goods or services. We debated this matter in Committee and I made the case for it in general terms. The situation, therefore, turns on the individual facts of each case. The amendment deals with that point and would remove the possibility of unscrupulous service providers exploiting this paragraph of the clause as a loophole. A provider will not be able to say that because someone could not enter into an enforceable agreement to buy an expensive car he will not sell that person a newspaper either. It will depend on the particular circumstances. I hope that the amendment will be warmly welcomed.
Amendment agreed to.
Amendment made: No. 82, in page 11, line 2, leave out `this Part' and insert `section 13'.-- [Mr. Hague.]
Column 894Amendment made: No. 83, in page 12, line 2, at end insert-- `( ) as to what is to be included within the meaning of "practice, policy or procedure";
( ) as to what is not to be included within the meaning of that expression;'.-- [Mr. Hague.]
Amendment made: No. 84, in page 13, leave out lines 41 to 44 and insert--
`(c) the shared accommodation is not storage accommodation or a means of access; and'.-- [Mr. Hague.]
Amendment made: No. 85, in page 15, leave out lines 1 to 3 and insert--
`(ii) the disabled person is incapable of entering into an enforceable agreement, or of giving an informed consent, and for that reason the treatment is reasonable in that case;'.-- [Mr. Hague.]
Amendment made: No. 86, in page 15, line 34, after `of' insert `goods, facilities or'.-- [Mr. Hague.]
Amendment made: No. 87, in page 18, line 8, after `section' insert `and section 25'.-- [Mr. Hague.]
Amendments made: No. 88, in page 18, leave out lines 12 and 13. No. 89, in page 18, leave out from line 42 to line 2 on page 19.-- [Mr. Hague.]
Amendment made: No. 90, in page 19, line 42, after `section' insert `and section 27'.-- [Mr. Hague.]
Amendment made: No. 91, in page 20, leave out lines 22 and 23.-- [Mr. Hague.]
Amendments made: No. 92, in page 21, line 28, leave out `the proceedings' and insert
`any proceedings under Part II'.
No. 93, in page 21, line 29, after `tribunal' insert `in any such proceedings'.-- [Mr. Hague.]
Amendments made: No. 94, in page 22, line 37, leave out `under' and insert `in pursuance of'.
No. 95, in page 22, line 38, leave out first `under' and insert `in pursuance of'.-- [Mr. Hague.]
Mr. Paice: Hon. Members will recall that in the White Paper published in January, which was entitled "Ending Discrimination Against Disabled People", we said that we would consider narrowly defined exceptions for positions with unusually demanding all-round requirements for fitness and stamina. Hon. Members will see from the amendments that they cover the armed forces, firefighters, prison officers and Ministry of Defence police, but they may wonder why there is no mention of ordinary police officers. The answer is that they clearly fall outside the Bill's provisions in any case, and mentioning them would simply cause confusion. They are not covered by part II of the Bill because they do not have contracts of service and, as they are not Crown servants, nor are they caught by the special provisions of clause 35.
In common with civilian police forces, members of the MOD police are sworn and attested police officers. All applicants must be able to meet prescribed medical standards relative to police duties including, of course, the carriage of arms. In addition to normal police duties within MOD establishments, MOD police officers undertake specialist duties such as personnel protection, escorting nuclear convoys and acting as marine escorts to Royal Navy submarines in naval ports. Of course, I accept that some disabled people--for example, those with severe disfigurement whom we have included within the definition--may be perfectly capable of doing these jobs. Such candidates will still be able to enter these occupations.
The point, however, is that mental and physical capacity is a critical aspect of the recruitment process, and many people are rejected on the grounds of lack of fitness. Indeed, a senior Army officer is recently reported to have criticised the low level of fitness of many applicants. To be unfit is not the same thing as being disabled under our definition, but it must be clear that all judgments about the physical and mental capacity of recruits are for the recruiting authorities to make.
Column 896such as Securicor? Will he allow Securicor to have the same derogation from the Bill, or will the provision apply only to people working in the public sector?
Mr. Paice: If the hon. Gentleman will bear with me, I shall deal with that point but, basically, the answer is that he need have no real fears--assuming that he is taking the stance that I believe him to be taking.
It would not be right for tribunals to be involved in assessing such matters where public protection is involved because that would mean that they would effectively be second-guessing and, indeed, in some cases, perhaps overruling the recruitment officers in respect of the determination whether or not someone was fit. Of course, I recognise that it is a hard decision but I believe that the groups listed should be exempted, and I feel confident that employers in other spheres will not feel that they are unreasonable exemptions. I also have to point out to the House that, although we publicised our intention to make exemptions in our White Paper, I am not aware of any representations from disability organisations questioning that intention.
Hon. Members may ask why we do not simply use the power in the Bill as drafted which allows regulations to be made to prescribe the meaning of employment. First--I hope this answers the hon. Member for Caernarfon (Mr. Wigley)--it is right that we should make our intentions absolutely clear and place these specific occupations in the Bill. Secondly, I am advised by our legal advisers that the power afforded in clause 38 would not allow us to exempt further whole categories of occupations so the House need have no fear of this being the thin edge of the wedge. It would, however, allow us to be more specific about certain forms of employment, which may well be useful for the purpose of clarity.
During yesterday's debate on small firms, the hon. Member for Caernarfon, among others, raised the question of seasonal workers. It may well be that the power in clause 38 will allow us to deal with that issue. Since the publication of the White Paper, we have clearly considered carefully the matter of exemptions, and the group of amendments is the outcome. I hope that it is clear to the House that it is a carefully thought out and justifiable but restricted list of narrowly drawn categories which, I hope, will meet with the House's approval. I commend the amendments to the House.
Mr. Tom Clarke: The hon. Member for Caernarfon (Mr. Wigley) spoke for many Opposition Members and others when he expressed his worries. This is a serious matter and it is a considerable departure from the spirit of the debate so far. Some people might say that I am introducing contention for the sake of it, but I do so because there is a need for it.
The Government had not tabled these amendments until the end of our sittings last week. They claim that their approach to every aspect of this topic is based on consultation and on the response of the individuals involved, but there can be very little ground for suggesting that these amendments come into that category. The House has been rushed without explanation. The Minister, even in the few words that he has spoken on the amendments, has inadequately approached serious matters affecting firefighters, people in the Prison Service, and those in the armed services. The July consultation document contained nothing about the fire, prison or armed services. The Government are inviting hon.
Column 897Members to agree to the blanket exclusion of those categories, and we are clearly entitled to much more explanation than we have received.
Having heard the Minister, I still do not know why those issues were not mentioned in the consultation document, the White Paper or the Bill, and why they were not mentioned in Committee. Out of the blue, as we rush through the final hours of this important measure, the House is simply asked without explanation to agree to the amendments. That runs counter to the approach of hon. Members on both sides of the House. I share the frustration of the hon. Member for Caernarfon that many of the issues have not been fully debated. That applies in relation to amendment No. 124.
We know that 37 operational firefighters were ruled as being unfit because they were insulin-dependent diabetics. We must ask whether the amendment means that those firefighters would not be covered. They rightly and successfully challenged their employers, saying that they were unreasonable, and the courts ruled in their favour. Are we being told that new legislation would mean that such people would be excluded, despite all the information that we have, all the examination of their cases, and all the experience of those men? Their cases have been shown to be acceptable to the courts, but apparently they are not acceptable to the Government. The Minister is asking us to accept his view in the absence of views from people who represent the firefighters, and indeed the firefighters themselves. That is not acceptable to the Opposition.
We believe that serving prison officers, firefighters and service men and women will not have the right to equal treatment, which we have embraced elsewhere, and which they seek in terms of re-employment after sustaining injuries in the course of their duties. For example, a building worker who damages his spine by falling off a ladder will rightly be entitled to equal treatment in seeking transfer to another post, but a firefighter with similar experience will not be entitled to that.
In prisons, a distinction exists--the Minister dealt with this by sleight of hand--between the private and public sectors. He is seeking to introduce a charter for Group 4. That is not the way to do it. I worry about what will happen if that principle is extended and introduced in another place. The Government have had to face the embarrassment over Crown immunity and awards to pregnant women officers. The matter should be dealt with more formally than has happened tonight.
The Bill's employment provisions are weak enough without the Government demanding even more rights for themselves. There is no say in what might happen in another place. No consultation has taken place. We do not know the views of the people concerned. For those reasons, among others, I am not in favour of the Government amendments and I invite the House to reject them.
Stratford-on-Avon (Mr. Howarth) brought it up last evening, I did not realise that I was disabled, or that I would be if I were a firefighter. Were I to contract insulin-dependent diabetes, I would be instantly removed from active service as a firefighter. At best, I would be found work in an office; at worst, I would become unemployed.
Column 898I have no idea whether being an insulin- dependent diabetic affects prison officers or members of the Ministry of Defence police. I doubt it. I recognise the Minister's difficulty in trying not to extend the Bill's provisions to cover every health problem in the universe, but the key point is that he did not refer specifically to diabetes in defining the areas to be included in the disability provision. Diabetes is a curious condition. It does not disable, but it is counted by the fire service and by licensing authorities as though it does. It can lead to disability, but, for the most part, diabetics who are well balanced in their diabetes have a better diet. They drink and eat better things. They eat and drink less. They are generally fitter and their blood, heart and eyes are regularly checked. They are more likely to be capable of serving the public as firefighters--or whatever the service might be--than someone who does not undergo such checks and who is careless of his health patterns. It disturbs me intensely that we have not cleared up that matter in the Bill. I hope that it will be reconsidered. The hon. Member for Stratford-on-Avon did us a service yesterday by opening up the issue, which we never even considered in Committee.
Mr. Paice: With the leave of the House, Madam Deputy Speaker, I should like to say that the hon. Member for Monklands, West (Mr. Clarke) suggested that the Government had somehow been unjust in tabling the amendments late. I apologise to him that we tabled them late, but I felt it was right that the House should have a chance to debate them. I shall be open with the hon. Gentleman. We were planning to introduce the amendments in the other place, but we decided that it would be wrong to do so. Our decision was made after careful deliberation, as I said in my opening remarks. That is why we felt that it was right and proper, even at this late stage, to table the amendments. If changes occur in the House of Lords --I am not prejudging the issue, but the hon. Gentleman said that he did not know what would happen there--the amendments will come back to this House for further debate. However, we believed that it was right to deal with the matter tonight.
The hon. Gentleman suggested that we had not consulted on the subject. The statement in the White Paper is clear. It specifically said in paragraph 3.9 that the new right
"will cover the public and private sectors, although the Government is considering certain narrowly-defined exceptions for positions with unusually demanding all-round requirements for fitness and stamina."
As I said in my opening remarks, I am not aware of any representations or questions in relation to who might be included--not that it would take a great deal of forethought to work out who might be included.
The hon. Member for Monklands, West referred to rushing through the final hours. The hon. Member for Caernarfon (Mr. Wigley) also questioned the haste with which matters were proceeding. If he is concerned about the rush through the final stages of the Bill, the hon. Member for Monklands, West should discuss that with his hon. Friend the Member for Leeds, East (Mr. Mudie). We were trying to accommodate the wishes of the hon. Gentleman and his party. I apologise to the House for the late tabling of the amendments, but it was right that they
Column 899should be proposed at this stage, and that the House should have a chance to consider them. I hope that the House will approve them.
With the leave of the House, I shall respond to the Minister. His first speech was marginally better than his second--and his first speech was awful. He quoted some extremely vague comments from the White Paper and, intelligent though firefighters are, well informed though prison officers are, and well educated as the people in the other services are--Group 4 is especially well informed--I cannot help believing that it will have escaped their notice that he was talking about them.
Mr. Paice rose --
Mr. Paice: I certainly shall not. If the hon. Gentleman is so concerned perhaps he will tell the House why since the White Paper was published he has not taken the opportunity to find out precisely which groups the Government were thinking of excluding.
Mr. Clarke: We spent weeks and weeks in Committee seeking precisely that information. If the Minister re-examines his speech he will find that he was distinctly unhelpful and did not encourage us to get down to the details.
I shall briefly give my reasons for asking the House to divide on the issue. First, the Government have been vague. Secondly, they have been sneaky. Thirdly, and most importantly, I do not believe that we should send to another place something that the Lords will think that the House of Commons has endorsed after full consideration. I do not believe that that would be the will of the House. It is right to make it clear to the other place that the Government rushed the matter through and we have not considered it in detail.
Those details have an overwhelming potential importance for those concerned, so for that reason and for the sake of the reputation of the House as well as in the interests of the firefighters and the people in the Prison Service and other services, I ask the House to support us in opposing the amendment.
Question put, That the amendment be made:--
The House divided: Ayes 299, Noes 270.
Division No. 118] [8.01 pm
Column 899Ainsworth, Peter (East Surrey)
Aitken, Rt Hon Jonathan
Alison, Rt Hon Michael (Selby)
Allason, Rupert (Torbay)
Column 899Arbuthnot, James
Arnold, Jacques (Gravesham)
Arnold, Sir Thomas (Hazel Grv)
Atkinson, David (Bour'mouth E)
Atkinson, Peter (Hexham)