Dr.
Harris: The Minister is being helpful and I recognise the
historic basis. She will recall that, in the draft employment
discrimination regulations, nothing was said, and then in another
proposed measure there was a provision that was the opposite to clause
13(5). I think that it was changed to ensure that clause 13(5) exists
as
it is. I merely note in passing that earlier she quite rightly warned us
that, if something is explicit on one ground, there is the
danger—albeit without the helpful explanation she gave of her
view—that it would be deemed not to apply to the other grounds,
simply on the basis of its inclusion here and their absence from the
measure. I do not think I am going to get any further with my argument
but I may well ask her at a later stage or in another place to reflect
on whether, just for safety, it might be wise to accept a version of
one of these amendments. I do not think now is the time, so I beg to
ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Clause
13 ordered to stand part of the
Bill.
Clause
14Discrimination
arising from
disability
Dr.
Harris: I beg to move amendment 191, in
clause 14, page 10, leave out lines 3 to 6
and insert— ‘(a) A treats B
in a particular way for a reason arising from B’s
disability, (b) the treatment
amounts to a detriment, and (c)
A cannot show that the treatment is a proportionate means of achieving
a legitimate aim. (1A) For the
purposes of this section, A treats B in a particular way for a reason
arising from B’s disability
if— (a) A treats B in
that way for a reason arising from B’s disability (but not by
reason of B’s disability itself);
or (b) A treats B in that way
for a reason arising from a manifestation of or behaviour connected
with B’s disability (but not by reason of B’s disability
itself). (1B) For the purposes
of subsection (1), A treats B in a particular way for a reason arising
from B’s disability even if A treats or would treat another
person without a disability in the same way as B where that other
person’s circumstances are otherwise the same as those of
A. (1C) For the purposes of
this section, the circumstances in which A shall be taken to be
reasonably expected to know about B’s disability include where A
has failed to ask B if he has a
disability.’. An
amendment to restore the level of protection afforded to disabled
people to that before the House of Lords judgement in LB Lewisham v.
Malcolm. It also prevents ignorance being a defence of detrimental
treatment.
The
Chairman: With this it will be convenient to discuss the
following: amendment 8, in clause 14, page 10, line 5, leave out
paragraph
(c). Clause
stand
part.
Dr.
Harris: This covers the Malcolm case and there is much
that could be said but, in view of the time, I am going to restrict my
remarks to a description of what my amendment does, rather than
consider the analyses and critiques that have been made of the clause.
I want it recognised that there is concern about the wording of the
clause, particularly in relation to clause 14(1)(b) and its meaning.
Even if I am brief, I hope that the Minister is as full as she can be
in her response, in order that people are satisfied that the Government
understand the concerns raised around this matter. It is clear that
most organisations that support the amendment, or the thinking behind
it, recognise that it is the Government’s
intention to reverse that part of the Malcolm case that had the effect
in our law of depriving some disabled people of protection that they
thought they had. It is not a question of motive; it is one of
drafting. After
some consideration and discussion with interested bodies and outside
experts—because I am not an expert in the history of
discrimination law—we have put together one long amendment and
withdrawn others that were smaller in order to assist the Committee in
looking at the provision. If we compare the amendment to the clause as
written, the first thing the amendment does is change 14(1)(b). It gets
rid of this difficult-to-interpret
provision: “A
person (A) discriminates against a disabled person (B) if....(b)
because of B’s disability, the treatment amounts to a
detriment” and
changes it
to “(b)
the treatment amounts to a
detriment,” and
then goes on to qualify that stem subsection. I will be asking the
Minister to explain in her response what is meant by clause 14(1)(b). I
am not going into the various interpretations that have been put on
that. Suffice it to say that my inbox is full of people confused about
the intention behind
it. The
part of the amendment that introduces new subsection (1A) is intended
to capture what I think the Minister is seeking to do in subsection
(1)(b) but in clearer terms by saying that the detriment may arise from
A treating B
“in a particular
way for a reason arising from B’s disability,”
or a
“reason arising
from a manifestation of or behaviour connected with B’s
disability (but not by reason of B’s disability
itself)”.
To save time
I will not read out the view of the Equality and Human Rights
Commission but it thinks that there is merit in the construction I have
made. I do not claim ownership; I have had considerable help and advice
on
it. Proposed
new subsection (1B) specifies that A should be considered as treating
B “in
a particular way for a reason arising from B’s disability even
if A treats or would treat another person without a disability in the
same way as B where that other person’s circumstances are
otherwise the same as those of
A.” The
Minister will understand that that includes within it an important
concept for disability discrimination, which goes to the heart of the
issues raised by the Malcolm case.
Proposed new
subsection (1C)
specifies: “For
the purposes of this section, the circumstances in which A shall be
taken to be reasonably expected to know about B’s disability
include where A has failed to ask B if he has a
disability.” I
am conscious of the fact that new subsection (1C) is a little premature
in its drafting, because it comes before subsection (2). It probably
belongs after and I recognise that flaw in the drafting.
Nevertheless,
it is important to recognise that the combination of measures in the
amendment delivers what the Government are seeking to do. I think that
there is no difference between most of the disability organisations and
the Government, the Liberal Democrats and, I believe, the other
Opposition parties with regard to what is being aimed at
here.
I do not think
that one should go as far as amendment 8. There has to be
some ability for
people—
Mr.
Harper: I took the approach of tabling a probing amendment
simply to prompt discussion rather than because I wanted to remove
paragraph (c), so the hon. Gentleman need not have a long complicated
reason as to why amendment 8 is not very
good.
Dr.
Harris: It is even better to have a short and
uncomplicated discussion, therefore, on amendment 8.
The Committee
will understand that, for reasons of brevity, I have not gone into all
the background, because I know that the Minister will seek to do that.
I very much look forward to hearing the Minister’s response to
the
amendment.
Mr.
Harper: I will also seek to be brief. The hon. Gentleman
raises a good point. We agree with the concerns that he has expressed.
We have just chosen a different approach, on the basis that we too are
not experts in this area. We have tabled an amendment to remove
paragraph (c). It is a probing amendment, to prompt this discussion. It
also reflects the fact that, at the evidence session, the Minister made
it clear that the Government intend to put the law back to how it was
before the Malcolm judgment, to have that appropriate balance, and they
do not want the law to regress. Given those assurances, therefore, our
amendment was intended to probe the extent to which the clause achieves
the Government’s
aim. I
wanted to touch on a couple of issues. First, I want to ask the
Minister whether the provisions in the clause adequately return the
concept of disability discrimination to the concept that existed prior
to the Malcolm judgment, or is the clause similar but different,
striking that appropriate balance that is talked about in explanatory
note 77? Secondly, I want to get the Government’s view about
whether the safeguards in the clause are sufficient to prevent a
Malcolm-type judgment occurring, which would put us back in the
position that we are in now, requiring a legislative solution all over
again.
The hon.
Gentleman touched on one area that has raised some concern, which is
the knowledge requirement referred to in subsection (2). A concern that
has been raised by, among others, the EHRC relates to whether that
requirement correctly puts the onus on employers and others to take
steps to satisfy themselves about the nature of somebody’s
disability. The amendment that the hon. Gentleman tabled, which the
EHRC supported, was intended to ensure that employers had to take a
proactive approach and could not just express disinterest in these
matters or even remain deliberately ignorant of them, in order to
provide themselves with a defence.
Clearly,
there is a balance to be struck. Employers and other organisations
cannot be expected to know every facet of someone’s life; it
would not be reasonable for them to take steps to do so. Indeed, taking
steps to do so might be thought to be discriminatory. Does the Minister
think that that balance has been correctly struck, given that some
disability organisations—the Disability Charities Consortium for
example—believe that the provisions are a regression? They
specifically say that the provisions are a regression from the rights
that disabled people currently have under the Disability
Discrimination Act 1995, under which, they say, there are no knowledge
requirements. It is important for the Minister to cover that point in
her
response. Does
the Minister feel that the provisions in the Bill place too great a
faith in the ability of those who hold the duty not to discriminate to
understand that certain behaviour is related to a disability? In other
words, is the level of understanding that someone is required to have
about a disability and consequent behaviour too high for someone to
reasonably have? If the Minister covered those points, I would be
satisfied, which is the purpose of my amendment, as would the hon.
Member for Oxford, West and Abingdon, given what he has
said.
6.30
pm
The
Solicitor-General: I am charmed by the admission from the
hon. Member for Oxford, West and Abingdon that he tabled the amendment
just for the sake of having a discussion. I therefore do not know
whether he wants me to deal with amendment 8. It is fine if he is
content not to press the amendment to a Division; we have had a
discussion, and he has had his share of
it. Amendment
191 would make significant changes to clause 14. The clause is intended
to address the consequences of Lewisham v. Malcolm, which
frankly made it difficult for a disabled person to show that they had
been subjected to disability-related less favourable treatment. We
introduced clause 14 after consultation. We intended to address the
impact of the case by introducing indirect discrimination for
disability, but key stakeholders convinced us that adequate protection
for disabled people would be achieved only if we had a provision that
emulated disability-related discrimination. We accept that, and we are
convinced that going with provisions outlawing indirect discrimination
regarding disabilities—our intended direction plus what we took
from stakeholders—will achieve the outcome that we want for
disabled people.
Like the
provision in the 1995 Act, clause 14 is intended to provide that the
disabled person demonstrates that they have been subjected to
detrimental treatment because of something connected with their
disability and, secondly, that the duty holder should be able to
justify that treatment. However, we have revised the wording from the
1995 Act because we cannot simply carry it forward as the finding in
the courts said that we did not achieve the protection that we
intended. We therefore dropped the requirement for a
comparator. Amendment
191 proposes additional and substantial revisions to the drafting and
moves away from the “because of” formulation, which is
also in clause 13 on direct discrimination. I guess that it therefore
seeks a greater distinction between clauses 13 and 14. It would also
link the detrimental treatment to
“a reason
arising from B’s
disability”. I
do not know whether my next couple of sentences will be entirely
satisfactory for either of the two hon. Gentlemen who have spoken in
this debate, but I am optimistic. We recognise that there could well be
a case for amending clause 14 to make it more distinct from clause 13
and, again—this is very contingent on the evidence that we have
heard—to provide greater clarity that the provision is intended
to cover discrimination that arises from matters connected with a
disabled person’s disability.
We all agree on the aim and intended outcome, but the Government
acknowledge that we need to look at whether we could express them more
clearly in legislation. If that is
sufficient for the hon. Member for Oxford, West and Abingdon, I ask him
to withdraw the amendment so that we can consider whether that
provision, or something else, is the best way to achieve our intention.
If he is not content, I could go on to say why we cannot accept some
parts of his amendment and why it will not fill the
gap.
Mr.
Harper: In the same way as when we were speaking to
amendment 133 to clause 13, can the Minister say that she intends to
bring forward either a rewritten clause or an amendment on
Report?
The
Solicitor-General: Yes, we intend to do so on
Report.
Dr.
Harris: I thank the Minister for what she has said so far.
I would like her to briefly set out some of the issues relating to
amendment 191—I promise not to intervene for clarification,
which might reassure her. I will then consider what she has said,
because I think that she makes a very reasonable case. However, given
the amount of effort that has been invested in amendment
191, it would be useful to hear her response to
it.
The
Solicitor-General: Proposed new subsection (1B) relates to
a situation in which a person subjects a disabled person to
discrimination arising from disability, even if that person has
subjected a non-disabled person to the same detriment, where the
non-disabled person’s circumstances are otherwise the same as
those of the disabled person. The provision in clause 14, however, does
not require a comparator for establishing the detriment because of
somebody’s disability. Instead, it applies where the treatment
to which the disabled person is subjected is detrimental because of the
disability. It is immaterial that somebody else, disabled or not, has
been subjected to the same treatment. Proposed new subsection (1B) is
therefore unnecessary and, indeed, on one view, it goes back to older
law. Proposed
new subsection (1C), which would amend the knowledge requirement of
clause 14, would prevent someone from using lack of knowledge as a
defence against discrimination arising from disability unless they
asked the person they intended to subject to a detriment whether they
had a disability. Clause 14 provides for someone to use lack of
knowledge to demonstrate that they did not commit discrimination
arising from disability, but other provisions in the Bill put the
burden of proof on that person to show that they have not discriminated
against a disabled person. Taken together, we think that those
provisions provide appropriate protection for a disabled
person. As
a matter of principle, the Bill does not place an onus on a disabled
person to make a declaration about their impairment, and neither does
it place an onus on those with duties under the Bill to make inquiries
of a disabled person, because we think that it is for the disabled
person to decide whether or not to declare the impairment. Similarly,
we think it inappropriate to require a person to make inquiries to
determine whether somebody is disabled, because it would place undue
burdens on those with duties under the Bill. For example, a pub
landlord would be put in an invidious position if they had to ask
everybody they intended to throw out of their premises for drunkenness
whether they had a disability or not. That example writes the issue
quite large, but it makes the
point. We
think that the current provisions achieve an appropriate balance
between the rights of the disabled and those of people with duties
under the Bill. Proposed new subsection (1C) would be superfluous and
probably swings too far in a different
direction. Those
are our main reservations about the amendment. As I have made clear, we
are open to the disabled lobby’s arguments that we should alter
clause 14 to make it clearer and different from clause 13 in order to
re-register the difference between disability as a protected strand and
all the others. If the hon. Gentleman withdraws the amendment, we will
do our best to return with something by Report. We will obviously
discuss that with the Committee, but we will take our lead from the
disability
lobby.
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