Q
61The
Solicitor-General: I want to probe the issue of positive
action and positive discrimination that Ruth and Caroline have both
mentioned and Tim has already explored a bit. One plank of what you are
concerned about is that positive action, being new, might look like a
weaker version of positive discrimination to the casual observer who
has not yet had the benefit of the commission’s guidance. But as
I understand it, that is not your main point and I would not think it a
good idea to remove disabled people from the positive action provisions
because I can imagine that they could be
useful.
Is your real
point that that adds an extra complexity to the lack of clarity that
you perceive in the Bill about the availability of positive
discrimination, as we know it, in the old Act? If that is your
point—that it is less to do with the problem of the new positive
action provisions, and more to do with that might just complicate what
you think is not clear enough already—how do you think that it
could be clarified so that everybody is satisfied that positive
discrimination is just as available as it always was? As you rightly
perceive, that is the intention.
Ruth
Scott: Our concern is in relation to the wording of
clause 13. That is where we feel that the clarity around the asymmetric
provision for disabled people is not expressed clearly enough. As
Caroline said, that clause is quite confusing and we would like to see
it reshaped to make it much more explicit, so that there is a
difference of approach in relation to disabled people and that that is
backed up in clause 14, which is specific to disability.
Our concern
with clause 152 is almost that positive action is unnecessary in
relation to disability—if there is clarification and positive
discrimination is permitted in relation to disability in any context
where that is appropriate. Further, given the lack of clarity in
clauses 13 and 14 at the moment, clause 152 may lead to
people interpreting the restrictive way in which positive action is
allowed to apply to disability. That will therefore lead to people
making judgments as to what it is that they can and cannot do in
relation to positive action, whereas the asymmetric nature of
protection for disabled people ought to allow them to do anything that
is justified in terms of achieving the appropriate outcome for that
individual.
Caroline
Gooding: Just to back you up, the danger is that
authorities, employers and service providers may look at clause 152 and
think that that same positive action regime and restrictions, which
will remain in relation to the other strands, applies across all of the
strands
equally—
Q
62The
Solicitor-General: As it does, it is just that there has
got to be an additional, or separate, provision for positive
discrimination. Are you saying that we are not declaring that second
limb, or are you saying that your preference would be to withdraw the
disability strand from the positive action provisions, which looks like
not a good thing to do? Would you not still want some additional
clarity in the
definitions? Caroline
Gooding: We are broadly in favour of withdrawing from
clause 152 because we think that it suggests that the same restrictions
on positive action apply across the strands. The clarity that you would
need in relation to positive action on disability is purely
in relation to allowing certain groups of disabled people to be
advantaged over other groups of disabled people, where that is
appropriate. There is no requirement to have an explicit clause that
allows disabled people to be more favourably treated than non-disabled
people, because that is the way in which the whole Act is
crafted—it is asymmetrical. It is misleading to have a separate
clause alongside the other strands that says that it is okay to treat
disabled people more favourably, and it will send the wrong message to
people.
Q
63The
Solicitor-General: The positive action provisions will
apply in very specific situations, will they not? Then you have the
wider position that we are all used to under the DDA.
Caroline
Gooding: Exactly. If you have the position where
there is wide scope for positive discrimination, why do you need the
narrow clause that says that it is okay positively to discriminate in
specific situations? That is confusing.
Ruth
Scott: The most important point is that we need
clarity in clauses 13 and 14 so that the asymmetric nature of the
disability protection is unchanged from the DDA—that is the main
point. Caroline made a good point about positive action, but it might
be important to clarify where it is appropriate to take positive action
in relation to one group of disabled people rather than another. For
example, if one group is particularly under-represented, you might
choose to appoint somebody with a mental health condition over somebody
with a physical impairment. But Caroline’s point about general
positive action is that this is so restrictive that it sends the
message, “Is this restricted or isn’t it?” in
relation to disabled people. That is what we are concerned
about—that there will be confusion in
interpretation.
The
Chairman: Before I call the next Member to ask a question,
I should point out that we conclude our proceedings at 1
o’clock, so there should be time for just one more
question.
Q
64John
Penrose: So reminded, I want to go back briefly to carers.
I was taken by the comment about something that was not necessarily
discriminatory, but which was jolly bad treatment of carers—I
think that the example was health inequalities and problems with
respite care. Obviously, this is not a discrimination Bill—it is
an equalities Bill—but is there anything else that you would
like to see? Are we missing a
trick? Imelda
Redmond: The Bill as it stands does not cover
indirect discrimination against carers, and we would like it to. Carers
can find it difficult to look after their own health where public
services do not provide them with equal access because of their caring
responsibilities. Health is the primary issue, but services may also
not be provided appropriately for people with disabilities so that the
carer can get on with their own life. An example that came to us quite
recently was of a young person with severe disabilities who had been
refused the surgery that they needed—there is a whole disability
discrimination issue there. As her health deteriorated, her mother
ended up giving up work, and no consideration was given to the impact
that that would have on her and her family. We see a lot of carers,
particularly in the health
service, who are unable to protect their own health, and that has a
knock-on effect on the person they are looking
after.
Q
65John
Penrose: So broadening discrimination by association
through a wider definition of indirect discrimination is the way you
want to go?
Imelda
Redmond: Yes, we think that would
help. Mike
Lindsay: May I make a quick point in relation to that
question, and that is to recognise that a significant number of carers
in this country are actually children themselves? It is not clear
whether enough recognition is given to whether their needs are being
met. We know of a number of cases where that has been brought to the
attention of local authority services. They have assessed
the needs of the adult parent, but not necessarily the needs of the
child specifically as a child in need. There are examples where
children’s needs should be incorporated and taken fully into
account in these provisions.
The
Chairman: On behalf of the Committee, I thank all the
witnesses for their evidence this morning. Our session has been very
informative. Thank you once again for your
attendance.
1
pm The
Chairman adjourned the Committee without Question put (Standing Order
No.
88). Adjourned
till this day at Four
o’clock.
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