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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.
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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.
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 22

Comparison 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.
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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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