Equality Bill

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Dr. Harris: I note the Minister’s view that the meaning of the schedule is clear. That will no doubt be considered here and in another place. On the question of the views of the disability community, it depends who one speaks to. The Disability Rights Commission was charged with monitoring and reviewing the definition and when it conducted its research for its review of the DDA in 2002, it concluded that the “long-term” requirement, if I can call it that, was
“a persistent problem for people with depression and anxiety disorders.”
I do not claim to speak on behalf of disabled people or the non-governmental organisation community, but I hope that the Minister accepts that there is concern out there. That is why even the organisation that has taken on the work of the Disability Rights Commission, the EHRC, has concerns about the use of “long term” and supports the lead amendment.
I am not convinced that the Minister’s reference to the “Shorter Oxford English Dictionary”, fine tome as it is, is sufficient fully to deal with the issue behind amendment 180. The amendment speaks of the impairment being
“of a nature where it, or its effects, are liable to recur”,
and is not a direct substitution of
“the effect is likely to recur”
with “the effect is liable to recur.”
However, it is clear that the Minister has set her mind against accepting any of the amendments and against recognising that there is even a problem. As the hon. Member for Forest of Dean said, we may go on to probe that issue further in the next group of amendments. With that in mind, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.45 am
Mr. Harper: I beg to move amendment 166, in clause 6, page 5, line 19, at end insert—
‘(4A) Where reference is made in this Act to a person (B) who is perceived to have a disability, the reference is taken to apply to this person whether or not the perceived impairment has a substantial and long-term adverse effect on B’s ability to carry out normal day-to-day activities.’.
The Chairman: With this it will be convenient to discuss the following: amendment 168, in clause 13, page 9, line 15, at end insert—
‘(3A) If the protected characteristic is disability, this section applies to a person who is perceived to have a disability.’.
Amendment 169, in clause 18, page 13, line 14, at end insert—
‘(2A) If the protected characteristic is disability, this section applies to a person who is perceived to have a disability.’.
Amendment 175, in clause 24, page 18, line 3, at end add—
‘(6) If the protected characteristic is disability, this section applies to a person who is perceived to have a disability.’.
Mr. Harper: The amendments have been discussed with the Disability Charities Consortium and are supported by that organisation and the EHRC. They would provide an explicit definition of persons who are perceived to be disabled so that people experiencing discrimination on the grounds of a perceived disability would enjoy effective protection under the law. I want to probe the Minister on the four clauses that would be amended to find out whether the Government believe that the difference between direct discrimination of those who actually have a disability and those who are perceived to have one are covered by the existing wording of the Bill.
The Bill’s wording is wide enough to cover direct discrimination and harassment based on perception. However, in the view of the DCC and the EHRC, the approach is not sufficient in the case of disability. That is partly linked to the issue that we have just considered in the previous group of amendments. Unlike other protected characteristics, for a person to be considered disabled for the purposes of claiming disability discrimination, they must meet the stringent definition of disability, including its long-term nature. The person who is discriminating against them, based on the perception of whether they are disabled, clearly will not have in their mind a specific legal definition of disability. The reason behind the amendments is to make clear that for cases that involve discrimination based on perception of disability, it is the defendant’s motivation for discrimination that matters, not whether the claimant meets the legal definition of disability. In the United States, the Americans with Disabilities Act of 1990 specifically provides that a person is regarded as being perceived to be disabled if they are discriminated against based on that belief, whether or not the effects of the perceived disability meet the definition of disability under that Act.
Given the stigma surrounding a large number of disabilities, especially hidden ones such as mental health problems and HIV, discrimination based on perception may well be widespread. We tabled the amendments to probe whether the Minister feels that the Bill already covers the matter and, if so, so that she can give the Committee an explanation. The view of the DCC and the EHRC is that it does not. The EHRC has specifically said that it does not think, on a normal reading of the clauses to which I have referred, that discrimination against people with a perceived disability is sufficiently covered. Will the Minister set out what she feels the wording in the Bill does, and whether it already covers those issues?
Dr. Harris: I share the hon. Gentleman’s concern. I have tabled several amendments to clause 13, which we will come on to later, so I will not speak long on this group. I am asking, in respect of all protected characteristics, whether the definition of direct discrimination in the explanatory notes in paragraph 71 on page E9—
“broad enough to cover cases where the less favourable treatment is because...the victim is wrongly thought to have it”—
already covers perception. That is not explicit in clause 13, but it is clearly important that the provision not only covers disability and other strands, but is seen to do so. Simply working on the basis of case law or intention behind legislation without making things clear, when we can, represents a missed opportunity.
I know that the Government are keen to ensure that such legislation is accessible to individuals and organisations. Even if the amendment’s wording is not exactly right, it would serve that purpose well if, as I suspect, the Government’s view is that the statute should cover perceptions of disability and, I hope, other strands.
The Solicitor-General: Perhaps I should make it clear that, in our view, “related to”—this is probably what amendment 175, which was tabled by the hon. Member for Forest of Dean, is directed towards—is wide enough to cover association and perception. That is our intention, and it is an important point. I want to make that clear at the outset, even though the hon. Gentleman did not lay great emphasis on that amendment. I understand why he set out that query, as he is probing a particular aspect of the Government’s thinking.
Amendment 166 would provide that a person perceived as having a disability would not have to meet the requirement that their perceived impairment must have
“a substantial and long-term adverse effect”
on their ability to carry out day-to-day activities in order to be protected by the Bill. However, somebody who had a disability would continue to have to prove that. It would be most inequitable for somebody who did not have a disability to have a lighter test to gain protection than somebody who did, and that is the logical fault in the proposal. However, I agree with the hon. Gentleman that the perception aspect of discrimination is targeted on the intention of the person who is “discriminating”—I will put that in inverted commas for the moment. The mischief occurs when a person intends to discriminate against somebody who is in the protected strand, even though they have misperceived that person’s identity, and they are not in fact in that protected strand. This is another way of protecting those who are in that strand, not of protecting those who are outside it.
To pursue the point further, there is nothing to be gained from requiring people to make reasonable adjustments for somebody who is perceived to be disabled but is not disabled and does not need those adjustments, which would follow on from what the hon. Gentleman is saying and one of his later amendments. In one sense, he is right. A person who is not within the strand, even though they are perceived to be in it, is not covered for all purposes as if they were disabled, running through the gamut of protection that we give to disabled people. However, such people are protected against discrimination and, importantly—this is a point that the hon. Gentleman honed in on—the person whose motivation is discrimination is dealt with under the legislation. We think that that is the right way forward, and with respect, having proved the point, I invite him to withdraw the amendment.
Mr. Harper: I am grateful to the Solicitor-General for that reply. Her point about amendment 166 is sound, and I will withdraw it in a moment.
The Solicitor-General: Yes, we are confident of that—I am sorry if I said it too briefly. Let me set out the position more extensively so that it is clear.
Amendment 175 relates to clause 24, which uses the formulation “related to” in the definition of harassment. It means that protection is not limited to a person who has a protected characteristic. It also covers a person who is harassed because of their association with someone who has a protected characteristic or—this is the thrust of the hon. Gentleman’s point—someone who is harassed because they are perceived, whether incorrectly or not, to have a protected characteristic. To set out an explicit provision, as under amendment 175, would cast doubt on the issue that the formulation of being “related to” a protected characteristic would be broad enough to cover harassment based on perception. That would be an unwelcome outcome of such a provision, which I am sure would be unintended. I hope that I have made our intentions absolutely clear. We are satisfied with clause 24, and I hope that the hon. Gentleman will not press that amendment.
Mr. Harper: I am grateful to the Solicitor-General for her response.
Dr. Harris: The hon. and learned Lady’s response was helpful in respect of harassment, but what does the hon. Gentleman feel about amendment 168, to which I spoke, which covers direct discrimination under clause 13. Is he satisfied that the same thing that applies to harassment, as opposed to the definitional amendment that leads the group, should apply? Is there more virtue in amendment 168 than in the intention behind amendment 175? Does he intend to refer to that when we discuss clause 13?
Mr. Harper: I am grateful to the hon. Gentleman for his intervention. When studying the group of amendments, I focused specifically on the issues relating to disability. The Solicitor-General was right when she said that people who do not actually have the disability will clearly not require a reasonable adjustment and that, if someone does not make appropriate provision, they will not suffer a detriment. That is not the case with harassment, and she has adequately satisfied me that that is covered by the Bill.
The hon. Member for Oxford, West and Abingdon made a point about issues other than disability, which we shall indeed cover in due course when we reach clause 13. Given the Solicitor-General’s comprehensive reply, particularly on harassment, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 ordered to stand part of the Bill.

Schedule 1

Disability: supplementary provision
Mr. Harper: I beg to move amendment 167, in schedule 1, page 144, line 16, at end insert—
‘(2A) Without prejudice to the operation of sub-paragraph (2), the mental impairment consisting of or resulting from depression that has ceased to have a substantial adverse effect on a person’s ability to carry out normal day to day activities shall always be treated as if that effect is likely to recur if the person has had within the last 5 years a previous episode of such impairment which had a substantial adverse effect on the person’s ability to carry out normal day to day activities for a period of 6 months or more.’.
We have already referred to this amendment. It deals specifically with the long-term issue of depression. We tabled the amendment to probe whether the definitions in the Bill would adequately cover all those types of disability that fluctuate, but might recur. The amendment is supported by the Disability Charities Consortium, which says that the Bill covers only recurring or fluctuating conditions if they are based on an underlying long-term impairment—in other words, the impairment is long term while its symptoms or effects fluctuate.
The issue of depression goes to point of what the hon. Member for Oxford, West and Abingdon set out when he cited information from the Disability Right Commission. According to my information, people are rarely diagnosed with the related underlying condition, so separate episodes of depression are effectively the effects of the condition and are not covered under the current definition if they do not last for at least 12 months. There are differences of opinion within the medical profession about when episodes of depression are manifestations of an underlying long-term condition, or whether they are discrete episodes. There are often disagreements in court among expert witnesses about the matter.
11 am
Acute episodes of depression can be disabling and there is a 70 per cent. chance of having another episode within five years. Depression can carry considerable stigma, in particular with regard to employment. My amendment would rectify that gap in equality legislation, and protect people who experience short-term, recurrent episodes of depression from discrimination arising from their impairment and the surrounding stigma. It focuses specifically on depression alone for the good reasons outlined by the Minister for holding to a definition of “long-term” in the generality. That specific condition is felt not to be well captured by the existing definition.
Having set that out, I am looking to the Minister to say whether she feels that the existing definition of fluctuating conditions, which she touched on in the previous debate, will adequately cover mental illnesses such as depression, which may not be accurately diagnosed. There is already evidence of cases in which people suffer recurrent episodes but are not adequately protected under the existing law.
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