 House of Commons |
Session 2008 - 09 Publications on the internet General Committee Debates Equality Bill |
Equality Bill |
The Committee consisted of the following Members:Alan Sandall, Eliot Wilson,
Committee Clerks † attended
the Committee Public Bill CommitteeTuesday 16 June 2009(Morning)[Mr. Joe Benton in the Chair]Equality BillWritten evidence to be reported to the HouseE45
Equality Commission for Northern
Ireland E46
Public Interest Research
Unit 10.30
am
Clause 6Disability Dr.
Evan Harris (Oxford, West and Abingdon) (LD): I beg to
move amendment 114, in clause 6, page 5,
line 4, leave out ‘and
long-term’. An
amendment to remove the requirement for a disability to be long-term
before a person with that disability is afforded protection from
discrimination.
The
Chairman: With this it will be convenient to discuss the
following: amendment 179, in schedule 1, page 144, line 10, at
end insert ‘the
effect’. To clarify
the meaning of the
sub-paragraph. Amendment
186, in
schedule 1, page 144, line 11, leave
out
‘it’. Amendment
187, in
schedule 1, page 144, line 12, leave
out
‘it’. Amendment
188, in
schedule 1, page 144, line 13, leave
out
‘it’. Amendment
180, in
schedule 1, page 144, line 16, leave
out ‘effect is likely to recur’ and insert
‘impairment is of a nature where it, or its effects, is
liable to
recur’.
I
want to speak briefly to the amendments tabled in my name and that of
my hon. Friend the Member for Hornsey and Wood Green. The group has
three separate components, the lead amendment being
amendment 114, which would take out reference to
“long-term” when defining an impairment. I shall explain
the
reasoning. The
other amendments in the group, specifically amendments 179 and 186 to
188, would clarify whether there is an ambiguity in the Bill—a
minor point, on which I do not intend to spend long. Amendment 180 is a
more detailed attempt to get at the same issue as amendment 114,
questioning whether there is a way to define an impairment so that we
capture those that, while not being long term in themselves, are likely
to recur. I do not claim great faith in the wording of amendment 180 as
appropriate to that aim, but that is the
intention. A
long-standing concern of the disabled community, and among those of us
who support equality, has been the need to ensure that all the people
who need to
benefit from the protection provided by existing anti-discrimination law
and what is proposed can benefit without matters of definition
preventing them from doing so. The concern about the use of
“long-term” and how it is described in schedule 1 is that
that might prevent those people—I am quoting the Equality and
Human Rights Commission briefing on the
amendment— “with
short-term conditions, particularly mental health conditions such as
depression” from
benefiting from the
protection. “Long-term”
is defined in schedule
1: “The
effect of an impairment is long-term if... it has lasted for at
least 12 months... is likely to last for at least 12 months,
or... is likely to last for the rest of the life of the person
affected.” The
concern, therefore, is with chronic but fluctuating conditions in which
the effect cannot be seen to last continuously for 12 months, but is
liable to
recur. The
Equality and Human Rights Commission welcomes the removal of the list
of normal, day-to-day activities from the definition of disability in
the Bill, but it is concerned that the clause repeats the requirement
for the effects of the impairment to be long
term.
The
Solicitor-General (Vera Baird): I want to ask the hon.
Gentleman about something he said a minute ago—that the
definition is inadequate for conditions that will not last 12 months
but are likely to recur. Of course he knows that paragraph 2(1) of
schedule 1 specifically provides that if an impairment stops having a
substantial adverse effect on someone’s ability to carry out
day-to-day activities, it is to be treated as none the less continuing
to have that effect if it is likely to recur. That covers precisely
what he was talking
about.
Dr.
Harris: I am grateful to the Minister, because that is the
meat of the issue. I tabled amendment 114, which would take out
“long-term” and consequently render that part of schedule
1 ineffective, but amendment 180 probes the question of “likely
to recur”. That is perhaps where we can have most of the
substantive debate on the
group. Amendment
180 uses the
words “leave
out ‘effect is likely to recur’ and insert
‘impairment is of a nature where it, or its effects, is liable
to
recur’.” The
problem with “likely to recur” is that one is not certain
whether one’s particular condition, which is liable to recur, is
likely to
recur.
The
Solicitor-General: I looked at how the hon. Gentleman
changed “likely” to “liable” and checked in
the dictionary, but they are synonymous. I was surprised, because I
thought “liable” was less than “likely”,
but they are synonymous, so I do not think he has a
point.
Dr.
Harris: Two dictionaries, three definitions. However, I
accept the key point behind what the Minister says. If it is her
intention to say that “likely” is not a balance of
probabilities but a liability to recur—I can go into examples,
although I am not keen to get bogged down in them—that would be
helpful and enable us to go away and consider whether what she said by
means of clarification would be useful not only for the courts, but for
people to know their rights. There is a difference,
however, and I am seeking to identify a lower threshold than
“likely”, which at least implies a balance of
probabilities. Many
conditions can and are liable to recur, but they may not recur on the
balance of probabilities. The fact that they are liable to recur, but
there is uncertainty, is part of the effect that they have on someone.
People often have to make life-changing decisions and adjustments to
their lifestyle and day-to-day activities because of the fear of
something
returning. I
look forward to hearing a precise definition of “likely”
from the Minister. A common understanding is that
“liable” to recur is not as strong as
“likely”. However, if her view is that
“liable” is as strong as “likely”, we might
need to find new wording, such as “has the potential” to
recur. For example, depression is a condition that can recur and
doctors might not be able to say “likely to recur” when
an employer or potential complainant asks the question. Part of the
point of treatment, even for conditions that can recur, is the hope
that they are
treated. Finally,
there is ambiguity about what the “it” refers to in
schedule 1(2)(1) because it
says: “The
effect of an impairment is long-term
if— (a)
it has lasted for at least 12
months”. We
ought to have clarity on whether the “it” is the
impairment or the effect. I have argued that it is the effect and my
amendment addresses that. I do not claim to have absolutely certainty
that it would be useful to clarify that, but it seemed to me that it
would. I
do not think there is much more to say except that there is widespread
support for doing something about the threshold that is felt to be
there by the disability community on the question of
“long-term” and the definition provided. It is noteworthy
that the EHRC is even supportive of what might be considered the
strongest amendment in the group, which would remove
“long-term” entirely. It is important that there is
clarity and confidence that people can access the protection. All
members of the Committee will recognise that disabled people need and
deserve that.
Mr.
Mark Harper (Forest of Dean) (Con): I am pleased to
welcome you back to the Chair, Mr. Benton. I want to speak
to the amendments briefly. The hon. Gentleman raises an important issue
about fluctuating conditions. I have tabled an amendment to schedule 1,
looking at one issue in particular, where we can have a more useful
discussion. We had good evidence in the evidence sessions and Ruth
Scott of the Disability Charities Consortium raised the issue about
fluctuating conditions, particularly depression, which we will discuss
in relation to schedule 1. She also pointed out that removing
“long-term” probably was not the way to go because, for
example, “long-term” features in the UN
convention. The
issue of fluctuating conditions really needs to be addressed. The
Minister has already raised that and said that schedule 1 deals with it
adequately. We will come to that. Although the hon. Member for Oxford,
West and Abingdon has raised an important and valid issue, I do not
think his amendments are the way to go about solving the problem. I
look forward with great interest to what the Minister has to
say.
Mr.
Tim Boswell (Daventry) (Con): Briefly, it is right to flag
up the concerns of the hon. Member for Oxford, West and Abingdon, which
will exercise many across the
Committee. Two
aspects of the matter also occur to me, and are relevant to the
provision of services by a public authority generally. One is that
while the hon. Gentleman is entirely right to say that long-term and
fluctuating conditions are, by themselves, the main remit of the
measure, people may have short-term disabilities that may be finite and
discrete—they might arise, for example, from an accident at
work—but are, nevertheless,
real. I
messed my shoulder up some years ago—hardly a matter of interest
to the Committee, but one of record. It is quite difficult to be a
Member of Parliament and to find that one cannot drive, or do anything
else, for a period. It gives one, perhaps providentially, some insight
into the problems of people who have a long-term disability that is
then forgotten about. We should consider that, because I hope that
local authorities and others will.
Secondly,
there are issues, for example, about how people are handled in relation
to parking, where they need help and where, once again, although their
condition may not be long-term, their need is nevertheless real. I hope
that as we build up policy on this and some related issues on human
rights, which I may wish to deploy before the Committee later, we give
this matter sympathetic consideration and try to find a better way to
deal with it than has sometimes been the case in the
past.
The
Solicitor-General: Welcome back to the Committee,
Mr. Benton. I agree with the hon. Member for Forest of Dean
that we have a better amendment than this to deal with the question of
“likely to recur” and, in particular, the question of
depression, which is the meat of where any perceived difficulty arises.
The hon. Member for Oxford, West and Abingdon says that there is
long-term concern about this, which would be likely, assuming that he
represented the disability sector, but we have talked and consulted
extensively with it about this and he is overstating the issue. He has
missed it, anyway, with the amendments.
I looked up
“likely” and “liable” in the
“Shorter Oxford”. I can do no better than that, and if he
wants to include redefinitions in the “Evan Harris English
Dictionary”, that is absolutely fine. However, we will go with
the normal meaning of those words. There has to be a line drawn
somewhere and we think that 12 months is not unreasonable. Of course,
the hon. Member for Daventry is right: people have to be considerate of
those who have hurt themselves—they have their human rights in
any event, if I can put it like that, although that is an odd phrase to
use about human rights—but he clearly would not have expected
reasonable adjustments to be made by his employer because he had a sore
shoulder for a short time. That is the scale of what we are trying to
balance—interests of that kind.
The 12-month
requirement has applied since the introduction of the Disability
Discrimination Act 1995 and we do not think that there is any real need
to change it. Some of the amendments are consequential on the first, so
let me consider amendment 180 as quickly as I may, which is a quest to
clarify paragraph 2(1) of schedule 1. To make sense of that
paragraph, the
question is whether it is the effect or the impairment that has to be
“long-term” or “likely to recur”. It is
perfectly plain that the paragraph
says: “The
effect of an impairment is long-term
if” and
goes on to say how it becomes long term. The amendment is therefore not
needed because the sense of the schedule is entirely
clear.
|
| |
| ©Parliamentary copyright 2009 | Prepared 17 June 2009 |