The
Solicitor-General (Vera Baird): I am grateful for the
opportunity to set out our response on these matters. The following is
a good point for me to make at the outset. Various parties on the
Committee may say that a particular provision is supported by x body
and another by y body. I am not suggesting for one moment that that is
not the case, but on many such occasions that body, rather than
asserting that there is something wrong with what we are doing, wants
to probe why we are doing something differently. We all need to put
assertions that the EHRC supports this or that provision in that
context. Of course, I am glad to seize the opportunity to discuss such
issues, because they are probably cases in point. The important thing
is to understand why we want to proceed, rather than necessarily to
find that there is something wrong with how we want to
proceed. 9.15
am The
measures deal with the duty to make reasonable adjustments for disabled
people, which is obviously unique to the provisions of disability
discrimination legislation and a cornerstone of the protection that the
Bill provides. We need to ensure that the new provisions work, so it is
good to look at whether there are better ways to proceed, although we
are pretty satisfied that we have things right.
Amendments
170, 171 and 173 would remove the comparator entirely from clause 19.
The reasonable adjustment duty is triggered when the disabled person
is “at
a substantial disadvantage... in comparison with persons who are
not
disabled”. A
substantial disadvantage is a disadvantage that is more than minor or
trivial.
It might be
worth saying at this stage that the test of substantial disadvantage is
a significant clarification. It introduces better consistency to our
approach and is a
lighter test for a disabled person to discharge than what preceded it.
The hon. Member for Forest of Dean mentioned the trigger for services
provision in the DDA, and there are two thresholds—that the use
of services is impossible or unreasonably difficult without the
reasonable adjustment. Clearly, “impossible” and
“unreasonably difficult” are much higher tests for a
disabled person to pass than “substantial disadvantage”.
The test is now also one single test, so that is definite
progress. The
employment provisions in the DDA contain a comparator like that in the
Bill. We have no evidence that the use of a comparator in that context
has led to any difficulty, and nobody has cited such evidence here. To
put things pretty straightforwardly, having a substantial disadvantage
test, which is good, raises the question, “Substantial
disadvantage in comparison to whom?” We therefore need a
comparator to make sense of that steadier, more consistent provision.
That comparator has worked well in employment, and we think it will
work well in this case. Removing the comparison with people who are not
disabled would make it far more difficult to pinpoint when somebody had
been disadvantaged.
Amendment 172
would really alter the dynamics of how the reasonable adjustment duty
is designed to work. It would increase the circumstances in which the
service provider was required to make a reasonable adjustment by
providing an auxiliary aid or service—that is in subsection
(5)—because it would replace the substantial disadvantage
threshold with a reference to enabling or facilitating the use of a
service. Obviously,
we have to balance the rights of the disabled person and the other
party, but the amendment would have the significant disadvantage of
removing the consistent test of substantial disadvantage. It would also
unfavourably move the balance towards the service provider. We think
that substantial disadvantage is the right approach.
All the
evidence that we have is that the reasonable adjustment duty has
greatly increased disabled people’s access to services over the
years, and we are widening its application in the way that I have
suggested. With respect, I therefore invite the hon. Member for Forest
of Dean not to press the
amendment. Amendment
174 is about the anticipatory duty against the three reasonable
adjustment requirements in relation to education and services. This is
not straightforward, but it is none the less clear that if one casts an
eye over paragraph 2(2) of schedule 2 on services, and over the
education provisions in paragraph 4(1) of schedule 13, one sees that
the content of the amendment is already present in the Bill, so there
is no need for
it. In
an earlier debate, amendment 154, tabled by the Liberal Democrats, was
called the optimising amendment. It would achieve the outcome that we
seek by means of a service provider making a reasonable adjustment. The
disabled person would have similar or equal access to a service, but
there are drawbacks in doing it that way. It would introduce another
comparator—one level of service against another—which is
over-complicated. The example of the bell, which prompted the
intervention from the hon. Member for Glasgow, East, is a case in which
it was found that that was not
sufficient.
Mr.
Boswell: A point that has troubled me a little in the
past, which might be behind the intervention on the bell, although I
cannot speak for my hon. Friend the Member for Forest of Dean in this
matter, is whether
there is a frequency test. If that happens once a year, it is clearly
very different from something that happens with one bank customer per
day. Is that something on which the legislation will be
sensitive?
The
Solicitor-General: That is almost the point that I was
going to come on to. The adjustments have to be reasonable. I suppose
if there was only one occasion a year when something happened or it was
foreseeable that it would happen, it might not be reasonable to require
those adjustments and they might not be reasonable
adjustments. I
was coming on to talk about reasonableness, though briefly. The hon.
Member for Hornsey and Wood Green expressed the concern that we might
be in danger of requiring merely cosmetic changes, which would not be
reasonable adjustments. They cannot be cosmetic; they have to be
reasonable. That is the point of the definition, so that danger is not
really present. The outcomes of the duty that she seeks are best
ensured by the provisions that we have drafted, and there will of
course be a code of practice and guidance
afterwards. Amendment
155 seeks to remove the need to make a comparison with a non-disabled
person, but it would not achieve that. Where provision or practice puts
someone at a substantial disadvantage compared with a non-disabled
person, clause 19(3) requires that reasonable steps must be taken to
avoid it. We have the comparator and that is the right approach.
Otherwise, how would an employer or service provider judge whether they
were putting disabled people at a substantial disadvantage? Again, we
need to ask the question,
“Who?” To
make the comparison work, we must compare like with like. As clause 22
sets out, that means comparing a disabled person with someone whose
circumstances are not materially different. Clause 22 makes it clear
that the comparator has to be like for like. It works well in clause 22
and the amendment is not
necessary. Amendment
176 would bring the language of the DDA into the Bill where a physical
feature puts a disabled person at a substantial disadvantage. We heard
evidence in Committee that the absence of a reference to removing the
feature as an option is being interpreted as weakening the provision,
but that is not the intention and we do not think it is the case. The
emphasis is on taking reasonable steps to avoid the disadvantage, which
might require removal. If that is at the root of the thinking here, it
is not a danger that needs further
consideration. Exemplifying
how the duty might be delivered in different circumstances, which is
partly what the amendment proposes to capture, is best done in
practice. Clause 19 is essential to protect the disabled. Having
outlined how we see it working, I respectfully say that we have it
balanced, we have it right, and we have improved and simplified the
law, particularly the
tests. Amendment
234 relates to the regulation-making power in clause 21, which carries
forward DDA section 21 powers, which have been exercised a
number of times—for instance, when we extended to service
providers the duty to make reasonable adjustments. Most recently, they
have been used to make the Disability Discrimination (Transport
Vehicles) Regulations 2005, which relate to the duties of transport
service providers to make reasonable adjustments. There are all sorts
of examples of the powers having been used beneficially.
The
regulations tend to be a bit esoteric and technical, because they
involve meeting new developments to ensure rights, so I do not think
for one moment that Parliament ought to spend its time on them. It is
best that the changes are in regulatory power. It is correct that the
regulations use the negative procedure, but if we introduce regulations
that might change schedules in the Bill—under clause 21(3), for
example, not this one—they will use the affirmative
procedure. All
such regulations will be affirmative where they can change legislation
and negative where they deal with technical, esoteric powers that, due
to their nature, we do not feel merit more parliamentary time. There is
absolutely no intention to usurp power; we just think that that is a
convenient location at the right level for subsidiary
legislation. I
hope that that is comprehensive and that I have persuaded hon. Members
that the clauses work well as they are and the amendments are not
necessary.
Mr.
Harper: I thank the Minister for that and I should say at
the outset that I agree with her. When I expressed the concerns
supported by the DCC, it was very much because the DCC wants to
establish them. I was not intending to set up any kind of contest or to
pray in aid lots of people on my side.
The Minister
made a good point about the comparator test being in the employment
provisions and the fact that that has not led to any issues. I know
that the Government are keen to avoid nervousness, but the DCC is
concerned simply by the change of goods and services from the DDA to
the Equality Bill. I know that Ministers want to make absolutely
certain that there is no regression, to use a phrase that we have been
using throughout Committee proceedings, and no weakening. She made that
point
clear. Given
that concerns about the comparator have been particularly highlighted
by the Malcolm case, that clause 14 contains provisions to deal with it
and that the Minister said during a previous sitting that she is
working with the DCC and hopes to introduce changes to the wording of
clause 14 to deal with some of the concerns on Report, I think that we
can avoid the comparator’s creating a rerun of the Malcolm
case.
On amendment
176, the Minister spoke about the Government’s intentions in
making it clear to service providers what they should be doing to
remove physical difficulties. As long as guidance from Ministers and
the EHRC makes it clear that the first thought should be removing the
problem, not just looking for a quick work-around, that can be dealt
with in guidance. She addressed that concern. Given all those
reassurances, I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Clause
19 ordered to stand part of the
Bill. Clauses
20 and 21 ordered to stand part of the
Bill.
Clause
22Comparison
by reference to
circumstances Question
proposed, That the clause stand part of the
Bill.
Dr.
Evan Harris (Oxford, West and Abingdon) (LD): I rise to
question the Minister as to the explanation behind subsection (3),
which states:
“If the
protected characteristic is sexual orientation, the fact that one
person (whether or not the person referred to as B) is a civil partner
while another is married is not a material difference between the
circumstances relating to each
case.” It
would be helpful if that was clarified.
I have had a
note from the Lesbian and Gay Christian Movement also seeking to
clarify the background and pointing out that there may be a problem. I
am not sure that that is right, but I am not sure it is wrong. The
letter explains that the movement favours
“the legal
equalisation of civil partnership and marriage, and where there is good
reason to apply a restriction across the board (eg if there were no
accommodation at an hotel suitable for couples)”
considers that would be
all right. It goes
on: “Where
people are discriminated against purely because they are in a civil
partnership, however, when no such restriction is applied to the
married, this is not
acceptable.” I
am sure that that is the motivation behind existing legislation and the
Bill. 9.30
am The
Lesbian and Gay Christian Movement interprets clause 22(3) as dealing
with the type of case in question by
“treating the
denial of services, work etc. or other discrimination as one relating
to sexual
orientation.” The
concern is that that might not meet the case. The letter says something
that I am not sure is right in spirit, although it may be in law, which
is
that “the
status of civil partnership implies no intrinsic sexual relationship,
that its contribution to the stability of society as a whole was
strongly stressed by the Government and accepted by others throughout
the discussion and passage of the civil partnership legislation, and
that”— I
think the implication is that this was a result of that
fact— “many
Christian leaders supported the passage of that Act, including in
particular eight out of the ten Bishops voting in the crucial final
decision on the then Bill in the Lords, and indeed a former
Archbishop.” That
was because we have clerics in our Parliament as of right.
Concern is
expressed in the letter and this is the nub of
it: “It
would be bizarre if the Bill led to those contracting civil
partnerships (or indeed marriage) being themselves treated adversely by
comparison with those who had chosen not to contract these
relationships. Indeed, this would negate the whole—and
welcome—purpose of including them in the protected categories at
all.” I
wonder whether the letter is making the point, although I find it
difficult to sustain this argument, that sexual orientation may be a
distraction from the main reason for discrimination. I hope I have
given the Minister a chance at least to understand the concerns that
have been put to me, even if I do not necessarily recognise them as
justified.
The
Solicitor-General: I have partially grasped the concerns.
Explanatory note 96 puts pretty simply the point of subsection (3),
which is that a civil partner who is treated less favourably than a
married person in similar circumstances is being discriminated against
because of sexual orientation. As to the issue about the
definition of civil partnership and its not necessarily having to be
sexual, I suppose that that is just a nod—perhaps an important
nod, to some people—in the direction of the fact that, in law,
for a marriage not to be void it must have been consummated. There is
no such requirement in a civil partnership. That may be where the
leeway arose, and it might not be unhelpful leeway to have available,
for several
reasons. I
suppose that I should say that, for the purpose of discrimination law,
marriage and civil partnership are treated the same, so any
discrimination between the partner in one of those as opposed to the
other will be discrimination on the basis of sexual orientation. I hope
that that is comprehensive
enough. Question
put and agreed
to. Clause
22 accordingly ordered to stand part of the
Bill. Clause
23 ordered to stand part of the Bill.
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