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Equality Bill

Equality Bill

The Committee consisted of the following Members:

Chairmen: Mr. Joe Benton, John Bercow, David Taylor, Ann Winterton
Abbott, Ms Diane (Hackney, North and Stoke Newington) (Lab)
Baird, Vera (Solicitor-General)
Baron, Mr. John (Billericay) (Con)
Boswell, Mr. Tim (Daventry) (Con)
Brown, Lyn (West Ham) (Lab)
Drew, Mr. David (Stroud) (Lab/Co-op)
Featherstone, Lynne (Hornsey and Wood Green) (LD)
Foster, Michael Jabez (Parliamentary Secretary, Government Equalities Office)
Griffith, Nia (Llanelli) (Lab)
Harper, Mr. Mark (Forest of Dean) (Con)
Harris, Dr. Evan (Oxford, West and Abingdon) (LD)
Hesford, Stephen (Wirral, West) (Lab)
Howell, John (Henley) (Con)
Mason, John (Glasgow, East) (SNP)
Osborne, Sandra (Ayr, Carrick and Cumnock) (Lab)
Penrose, John (Weston-super-Mare) (Con)
Sheridan, Jim (Paisley and Renfrewshire, North) (Lab)
Thornberry, Emily (Islington, South and Finsbury) (Lab)
Alan Sandall, Eliot Wilson, Committee Clerks
† attended the Committee

Public Bill Committee

Tuesday 16 June 2009


[Mr. Joe Benton in the Chair]

Equality Bill

Written evidence to be reported to the House
E45 Equality Commission for Northern Ireland
E46 Public Interest Research Unit
10.30 am

Clause 6

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’.
Dr. Harris: It is a pleasure to welcome you back to the Chair, Mr. Benton.
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.
“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.
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