Draft Disability Discrimination Act 1995 (Amendment) Regulations 2003

[back to previous text]

Mr. Tim Boswell (Daventry): I echo the Minister's welcome to you in the Chair, Mr. Hurst. I, too, have not served before under your tutelage. I suppose I should be quivering at this point, and hope only to pray in mitigation that I was both by birth and nature an Essex boy. My hon. Friend the Member for Upminster (Angela Watkinson) still represents that county in Parliament so we will do our best, having ingratiated ourselves. I hope that that will not be necessary, so that we can stick seriously to the point of what are constructive regulations and have a constructive discussion about them.

I make clear to the Committee that I am prepared to welcome the regulations. Anything that is done to support the interests of disabled people, whether primarily in their employment—as in this case—or anywhere else, is to be welcomed. We need always to have regard to the cost and any potential downside, but our collective approach to the matter is positive and sensible. I am grateful to the Minister for her explanation, which has been clear and helpful, and to her Department, which by contrast with others is comprehensive in its provision of explanatory material, and has gone to the trouble of producing a transposed Bill, which is helpful to the Committee.

I want to be of assistance to the Committee, and it would be painfully obvious if I were to trespass into other territory. The Minister is a lawyer with a particular expertise in employment law and I am not, although I have done a little as a lay person. That is useful, because the devil is in the detail. I have already obliquely hinted at the dangers for Governments who do not consult or who make decisions on the hoof, or who do not take their lawyers sufficiently seriously.

It is extremely important to get the matter right. I would like to cite one example, because I noted the Minister's remark about occupational pensions. That is a matter for her Department; she or one of her colleagues will have to introduce that chunk of legislation. It is extremely important that the Department gets that right. I remember having correspondence on behalf of a resident in my current county, Northamptonshire, about loading in insurance premiums—not in relation to pensions—on account of the fact that the spouse was a multiple sclerosis

Column Number: 009

sufferer. There was an argument—the Disability Rights Commission had to change its tune—about whether there was a hereditary tendency towards the condition. I thought that there was none. The person who wrote to me thought that there was none, and eventually some objective evidence was produced, which could have suggested under certain circumstances that there was a slight difference. I am not arguing that case today, but I am saying that that is the sort of legal pitfall that must be got absolutely right.

I turn to the wider principle. In general, Her Majesty's Opposition, members of the Committee and, indeed, all hon. Members who are interested in disability matters, would have no problem with the concept of the regulations. However, that does not absolve any of us from making, in the right spirit, general or specific points of concern. Given the extent of the regulations—I am not complaining about that—it is likely that one or two points will arise, and I hope that they will be treated in the right spirit.

The first point that I want to make is in support of the Minister. I know that there has been some criticism, even from the Disability Rights Commission, which has made for a lively and constructive relationship. I have no problem with that. The criticism has been in respect of the implementation of the various bits of the European directive and the disability rights legislation, which is on the stocks. For the reasons that I gave earlier, I think that there is, and always has been, a case, through development of policy in the area, for making haste slowly, securing advantage and moving on to the next case, rather than rushing in saying that we have now solved the problem and then repenting at leisure, because some of the details are imperfect. That is just the attitude of mind that I have to such matters, and I hope that the Committee will understand it.

I am not making any great political point, but the origin of the business was the path-breaking Disability Discrimination Act 1995, which outlawed discrimination and allowed the concept of reasonable adjustment, but excluded some areas that, at that time, were put in the ''too difficult'' or, arguably, the ''too expensive'' category. I have no complaint about the way that the Government have approached this issue since then, although sometimes their rhetoric has run ahead of what has happened, but the approach has been to secure those benefits, set up customer practice and then fill in the gaps. We are discussing an important gap. This document is predicated on further measures, which will be required at a later stage. The Minister nods. There is no difficulty about that.

The Disability Rights Commission has gone about its task of supporting the interests of disabled people—under the 1999 Act, rather than the 1995 Act—in a sensible, pragmatic and responsible way that has enabled advances to be secured. Obviously, it has had a close input into the work of the disability rights taskforce. One area in which there were further advances to be made was in respect of widening the scope. To some extent, that has happened and will go a little further later, and that is welcome.

Column Number: 010

The other area—in which less has so far been done, but which Ministers will need to stand back from and look at in the future—is enforcement. I am thinking of a Royal National Institute of the Blind study that I saw some time ago, which had evidence of what we might call differential enforcement. I am not referring to anyone seeking to discriminate in a formal sense, but functionally, between the part 2 duties, which are delivered through an employment tribunal and have some defects, some of which have been repaired, and the part 3 duties about access to goods and services, which have to go to a county court. Not many disabled people want to argue the toss in a county court on their own, so there may be differences in how the matter is approached.

The Minister will know that the Disability Rights Commission, in its first reappraisal of the operation of the Act, pointed out several defects that will need attention in due course. Seeing that something is not perfect is not an excuse for holding back and not moving forward. While I understand the point made by the hon. Member for Northavon (Mr. Webb) about the timing in relation to ageism, the real answer is that we might as well get on with doing something about it now. Some other matters will be more complicated and we must get them right. I do not think that we can argue about that.

My second point is about procedure. I referred favourably to the fact that the Department has produced the transposed or consolidated legislation to assist us. However, as the Minister said, if we take article 13 of the employment directive as a whole, there is more to come from the Department for Education and Skills and the Department for Work and Pensions. There are also Department for Trade and Industry responsibilities. Therefore, at least two other Departments and the Minister's Department will join the party at a later stage.

A further body of law will not be included in the text. Will the Minister consider, in conjunction with her colleague, how they could work together to produce a common text that could be made available to employers, employees, unions and legal advisers, so that the problem could be remedied?

I have one other point to make about the European directive. The Committee will know that I am not one of those hon. Members who foams at the mouth and rolls on the floor at the mention ''Europe''. Occasionally, I criticise certain difficulties, but I consider such matters objectively. I realise from the briefing that I read for the debate that article 13 obligations are not themselves legally binding, nevertheless there is a clear political commitment to them.

It is important to satisfy people, such as employers in this country and readers of tabloid newspapers, that there is not a completely different structure of enforcement between the various countries, and that we are not doing things that no one else is taking seriously. Incidentally, the answer to that is not for us to do nothing. Will the Minister cast a little light and shade on what is happening in other countries. Given that we are almost on the brink of enlargement, for example, we can pat ourselves collectively on the back

Column Number: 011

because there is a pretty strong public culture in favour of dealing with disability discrimination in this country. That is not always the case elsewhere.

The Minister has heard me use the analogy of going up the fine marble steps of a Greek museum and saying to my wife how glad I was that neither of us were wheelchair users. I accept that access to a museum is not the same as access to employment, but such an analogy makes the point. Most countries want to take such matters seriously, if only to safeguard their tourist trade. It would be helpful to know the hon. Lady's perspective, and I hope that the Government will continue to take an interest in the enforcement of article 13 requirements throughout the European Union.

I suppose that the crunch point in the regulation is the elimination of the small employer's exemption. There is a genuine point to make about the way in which the Government have set about the matter. We can either jump in feet first and say, ''We shall legislate it away'' or we can consult, try to anticipate potential difficulties and argue the case rationally. Perhaps with the passage of time, matters may be reversed if there are difficulties in the future, which we may not want to anticipate in Committee. Generally speaking, however, in the absence of adverse comment, it seems that employers are beginning to settle into such provisions. The Committee needs always to have it at the back of its mind that one of the biggest dangers is when the House of Commons reaches a consensus, but matters do not work out at the grass roots. I am old enough to remember the history of the Agricultural Training Board and its statutory levy. Everyone thought that it was a good idea until it was implemented, after which there was what I loosely call a peasants' revolt.

I hope that such a problem will not occur as a result of the regulations. I am sure that the Disability Rights Commission, as advisers on implementation, will not wish that to happen. We need to be sensitive and we must be aware that, when small employers are involved, adjustments must be reasonable. They must not be asked to make unreasonable or hugely expensive adjustments. As the Minister will know, most of the adjustments that can be supported—for example, under access to work—are quite small in cost. Nevertheless, there is still a residual worry on the part of employers that they will fall foul of the bureaucracy, which is a real fear, or that they will incur substantial expense. That has not come true, partly because of the consultation that has taken place. Consultation has developed from the disability rights taskforce report and has been taken at a reasonably measured pace. However, the Minister may want to say something about her view of that, and about what would be the overall cost and implications for employment in the sector. As she said, 1 million extra employers are involved, and several million extra employees will be swept in. That is the main concern, although it is fair to say that it has not become overt and nobody has expressed last ditch objections to this measure at this stage.

Column Number: 012

Having said that, there are some positive points. When one considers disability legislation, one must always consider the gains secured. A gain secured for a person, as I heard the Secretary of State say when we attended a reception for Leonard Cheshire at lunch time, is a real benefit for that person. There are people involved—not just statistical content.

Work experience is important and it has always interested me, although it has been underplayed and to some extent under-considered. We must ensure that the same standards apply in work experience. I have a job share with me at this very moment. I do not mention that because of her, although she is not sitting too far away in the Gallery. We have obligations. Indeed, I realised while putting the file together just how many legal obligations there are in relation to health and safety, for example. It is important that we apply the same standards, especially when—the Minister will no doubt remind me if I do not say it—we are talking about trainees and disabled people potentially going into work.

There is the question of Government office holders. The Minister said that those would now be included in the scope of the legislation. I am aware that the Government are doing some work to encourage disabled people to come forward for public appointments. I hope that the Minister will give some consideration to ensuring that the services available to employ people through her Department, such as access to work and disability advice, may be made available to people seeking public appointments. It is important that a disabled person who wants to serve on an NHS trust, or whatever, should be empowered to do so, just as if they were actually taking employment. Of course, there are issues of priority, but the Minister may like to reflect on that.

Common to all these things—I have deliberately pitched my remarks to get the Minister to elucidate in her response—is the need to secure advances for disabled people within the principle of consent. We must avoid any deterrent effects on employment. Simply standing pat on the law, saying, ''Thou shalt not discriminate, thou shalt not harass, thou shalt employ fairly both disabled and fully able people,'' is not sufficient to secure the result that we all want, without the necessary acceptance of the culture in which that becomes a norm rather than an exception.

There is a delicate path, which the Disability Rights Commission steered, in operating between pressure and encouragement, balancing those two things. There is the threat of legal process if people go offside, but at the same time they should be actively encouraged to find a way through the problems and to deliver what we all want. There is always a danger—I hope that Ministers will bear it in mind—that if disabled people are seen to be raising the hurdles to employment too high, if I may put it that way, some employers will opt out of the process by one means or another, either overtly, but more often covertly. That may not serve the interests of disabled people. I am suggesting not a covert excuse for having no legislation, but a case for handling the matter with a degree of sensitivity. I am not claiming that such sensitivity is absent.

Column Number: 013

Ministers should not claim—and they have not done so today—to have licked discrimination with these regulations alone. We look forward to the draft disability Bill, and to its eventual implementation, including some of the extra bits that the Disability Rights Commission suggested should be inserted. If there has been a delay, but it has enabled us to a better job, I am not complaining. However, I press the Minister to give us a little more information about the timing of the Bill and its implementation. She will know that the DRC is getting a little agitated about the Government's legislative timetable, and wants to see important business delivered.

There might be downsides. I have some reservations about the issue of specific reinstatement. I understand why people say on behalf of disabled people that it will not be easy for them to find another job, so they should be reinstated rather than compensated for the job that they have lost. If that is pushed too literally, however, there will be difficulties in employing disabled people. Such a policy may need further consideration before it is adopted.

Issues such as those should be approached by all parties together. We would not argue about the need to be determined about widening employment opportunities. In relation to people with disabilities, and with a certain generosity of spirit, we want to make real advances towards inclusion. The regulations help. They are not, and the Minister does not claim that they are, the end of the process. They are a useful further step, appear to have no major downsides and have given rise to no major objections. That is partly because of the circumstances of their implementation. We must be vigilant that the process does not break down at any point, and be prepared to move on to the next stage when it has been prepared and we are ready.

3.22 pm

Previous Contents Continue

House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index

©Parliamentary copyright 2003
Prepared 24 June 2003