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withdrawn. 10.45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.
I would like
to take the Solicitor-General back to her first point. Following on
from our earlier discussion, I would like verification on clause 24
regarding harassment. She is right to say that someone who does not
have a
protected characteristic does not need a reasonable adjustment because
they are not disabled. However, there could be people who have a
disability, or who are perceived to have a disability, and that leads
to harassment. That is the mischief, as opposed to them needing a
reasonable adjustment—which clearly they do not. Such people
might suffer a detriment based on the fact that they have no
disability, but are perceived to have one. For example, a person might
be ill treated because someone wrongly thinks that they have HIV or
a mental health problem. Is she confident that
without amendment 175, the harassment provisions in clause 24
would adequately protect a person who does not have a protected
characteristic but is suffering harassment none the
less? 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
1Disability:
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. | 
