Equality Bill

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Amendment, by leave, withdrawn.
Clause 13 ordered to stand part of the Bill.

Clause 14

Discrimination 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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