Examination of Witnesses (Questions 20
- 39)
WEDNESDAY 11 FEBRUARY 2004
MR BERT
MASSIE AND
MS CAROLINE
GOODING
Q20 Lord Tebbit: Chairman, first
of all, my apologies for being late. I was held back in the chamber
of the House. I do not want to go back to earlier discussions
since we are on to transport now, but if one took Bert Massie's
point too far I think he would conclude that we were all disabled
right now, since, hopefully, we are all going to become old and
one of the principal causes of disability is old age, so I think
if he goes down the road of designating certain illness which
as yet are symptom-free, then he will inevitably find the logic
of his argument driving him to designate age, however young one
is, since sooner or later old age is going to cause one disability,
and if he notices me cupping my ear or blinking blearily at him
he will conclude that I am already on the way. I will not tempt
him back; he will think about that.
Mr Massie: I am happy to respond
to that. I would say that if you live to 85 you have got an over
90 per cent chance of being severely disabled, so we are a very
inclusive club. You have a choice: join us or die young. I think
the fact that somebody is not disabled does not necessarily mean
that they will be disabled because they might die young.
Q21 Lord Tebbit: Or have cancer.
Mr Massie: I think that, given
the ageing population and the very pertinent point you make, it
makes it all the more relevant to get the legislation right now,
because this is not about a minority sub-group of the population.
It is potentially about all of us because we can all join this
club.
Q22 Lord Tebbit: To turn back to
transport, Chairman, apart from access to the vehicles is there
not more that could be done very much earlier with access to those
vehicles which some disabled people at least can use, even if
not everybody, which is impaired at the moment by lack of station
staff, this requirement for 24 hours' notice which is often imposed,
and in many cases the lack of a safe means of crossing tracks
to the appropriate platform? None of those is particularly capital
intensive. Could they not be dealt with rather earlier than the
trains, important though they are, and I do not disagree with
anything that Bert has said about that?
Mr Massie: I think you are absolutely
right. When you are changing the infrastructure there is a very
real and substantial cost in new trains, etc, but in getting what
we do not have in the Act at the moment but which this bill gives
us the potential to achieve, of applying the provisions of access
to goods and services to transport, that could come in very quickly.
We do not have a timetable for all this but I would hope all this
could be enforced by 2006. It is certainly achievable if there
is the political will so to do. You would have to look at each
incidence and the DRC would be charged with writing the codes
of practice on this. To do that we have to consult, so I do not
want to tie myself to a position where I can be accused of having
closed off any options, but some of the things one might consider
are, years ago, in the days of British Rail, railway staff frequently
took people across the barrow crossings. There were staff on the
stations and people did cross. If, for safety or other reasons,
we cannot do that, then we do need to look at other ways of crossing
the track. If people cannot cross the track, for whatever reason,
and there are some stations where the usage is so low that even
if the law was applied as is proposed you would lose a case arguing
that the railway company should make a certain station accessible,
quarter of a million pounds either side for one person a year,
it would not wash in a court, then the railway company could be
saying, "Well, okay, we will get you a taxi to the nearest
station to a train you can get on", so there are things you
could do to achieve things like that. On the 24 hours' issue,
I know that having to give 24 hours' notice does cause some anxieties.
I think what is interesting is that at some point you might be
interviewing the Department for Transport or the Disabled Persons'
Transport Advisory Committee. I know they have done some research
and for many disabled people this was not a really big issue because
most people these days book their trains in advance anyway. I
do about 25,000 miles a year by rail, so I have this inconvenience
myself regularly. The difficulty is this. If I want to get on
a train, and on many trains there is only one space for a wheelchair
user, if another wheelchair user has—totally unreasonably—booked
that space before I got there, then I cannot get on the train.
I have to wait for the next one as the number of spaces that I
can physically use on a train are so limited, even on the new
trains where there will be more spaces, but even then you lose
a lot of seats for four spaces for wheelchair users, so no-one
will want to increase that unless the demand is proven. There
is a value in reserving your space. Putting that argument aside,
it might be possible, certainly in the major London stations and
in the major urban conurbations, to have a more demand-led service
because there are staff at the station anyway. I have found, and
I know many of my disabled friends have found, that when they
need to get a train last minute, for whatever reason, they have
usually phoned the station that day or a few hours before to say,
"Look: I have got a problem. Can you help?", and the
stations have normally helped. I know when I have been helped
at Euston, which happens all too often, that quite often they
come and help me late because somebody has turned up who has not
booked but who has wanted assistance, so, whilst that is irritating
for me because I am impatient, it is rather good for somebody
else who has not booked, who needs the service and is getting
it, so I do not feel too strongly about the 24-hour business because
if the railway companies did away with it they might be able to
say, "We cannot provide certain other services". It
is not a big issue to me. I would like to go to more demand-led
and that might happen but it is not something I would go to the
barricades for at the moment.
Q23 Lord Tebbit: It would be rather
nice if we could be sure that we would get through on the telephone
to our local station within 24 hours.
Mr Massie: That is an issue, and
the other issue which does frustrate people is when you go through
this system and you eventually do book and then the help is not
available for you. That is the annoying thing and, as I understand
it, with the proposals being made to amend the legislation, we
would be able to attack that because you would not be giving disabled
people a good service, so we might be able to attack that with
the proposals this committee is considering.
Q24 Lord Addington: My question is
really about the timescale that you were talking about. It seems
to me, alluding to 2.17, that, with sufficient will, either instilled
in them by sticks or carrots by government, it would be achievable.
There is no physical reason why it could not be done, because
most of the carriages would be due for servicing within that time
frame anyway. The rest of them would just have to be rotated slightly
more quickly. Surely, if we are going to be serious about this,
very long running times tend to lead to panic at the ends of things
anyway when things are being put off, so would it not simply be
a case there that with a little bit of pushing it could be achieved?
Mr Massie: Yes, I think it could
be achieved. I think what would happen would be that the panic
would be three years earlier. Of course, the new rolling stock
coming on now should be accessible. It is not all because of the
exemption procedures. There are some things about even the new
trains which are not right, but I think it is achievable by 2017.
I think there will be some resistance. I think that at 2020 the
resistance would lack credibility.
Q25 Lord Addington: So you think
that there is an argument to be had at 2017? The argument is effectively
totally exhausted by 2020, but even at 2017 it is certainly still
edgy.
Mr Massie: I will just point out
that the Second World War was fought and won in six years. We
should be able to get trains accessible.
Q26 Mr Berry: Briefly, on aviation
and shipping—and curiously here, of course, we have a non-statutory
code of practice situation—a) is it working, and b) would
you change things?
Mr Massie: There was an interesting
debate in the House of Lords yesterday Ryanair, was there not?
Q27 Mr Berry: Indeed.
Mr Massie: I think the codes are
good. I would say that because I was on the working party which
drafted one of them, but despite that they are good. I know the
Department for Transport have already agreed to look at that and
this bill gives the power to make them mandatory. I think sooner
or later they are going to need to be made mandatory. The interesting
thing about the Ryanair case was that Ryanair argued that the
airports should pick up the bill. There is a valid debate on that,
but at a lot of the airports the airlines are picking up the bill.
If Ryanair, as they were doing, was not accepting any of this
concept of serving disabled people, and then, say, we do go to
other airlines who do pick up the cost, you get the good airlines
subsidising people like Ryanair, so Ryanair not only wanted subsidies
from the airports but they also wanted subsidies from other airlines.
That just seems to me an interesting way of trading. What legislation
does is give a level playing field and it means the poor players
have to meet the standards of the good players. That is actually
why quite often legislation is not resisted by quite major companies,
because they know other people are getting round it. I think even
with the code of practice which has been drawn up there will still
be problems. For example, aircraft with fewer than 30 seats are
excluded and in some cases one can understand that, because of
the sheer difficulty of lifting people on. In other cases it might
be possible, so even with the proposals before us there will still
be work to do; it needs to be worked out very carefully. Our view
is that the current procedures and the current proposals are acceptable
but we do not want any slippage. One of the reviews is due to
be finished by 2005 and I think it would be a pity if the review
became like the blue badge scheme: one review leads to another
review leads to another review, and nothing ever happens. There
is an urgency here and air travel is growing and disabled people
increasingly expect to be able to travel in the same way as other
people. It goes also with the ferry companies. Brittany Ferries
have had a policy, which I gather they are now reviewing, of just
banning people with guide dogs (or banning the guide dogs) and
giving no real justification for it but because they can. There
will always be people like that who say, "Look: it is my
company. I can do what I like", and those people are mostly
influenced by the fact that if they continue well, okay, if you
carry on with that view you will be sued, so I welcome the enabling
power to make these codes of practice mandatory, and I think that
very soon there will be pressure to use that power.
Chairman: I think we should now move
on to public authority duty, because it is an extremely important
part of the bill, as you know.
Q28 Lord Swinfen: In clauses 4 and
8 of the draft bill public authorities are defined as "any
person certain of whose functions are functions of a public nature".
Do you think that is an adequate definition, and, if not, why
not?
Ms Gooding: Yes, we do with one
caveat. There are two different models that you could adopt for
defining public authority in this context. One is the one that
the bill adopts, which is looking towards the Human Rights Act
model, which is just to give a broad definition and that is it.
The other is the model that the Race Relations Amendment Act takes,
which is to list public authorities. We think this draft Bill's
is a good approach. It is quite important, I think. It sends the
message that disability equality is the business of all public
authorities, not just ones on the particular list, and I think
that is quite an important message to send across. Of course,
on the other hand, you do not have the same level of certainty
as you get with the Race Relations Amendment Act; but with the
Race Relation Amendment Act the list has to be continually updated
because public authorities, by their nature, are constantly morphing
and changing and their names are changing and their functions
are changing. This is quite clumsy, and so I think that the principle
of having that broad definition is good. There are powers at the
moment in the bill to exclude certain bodies that would otherwise
come within that definition. What we think would be helpful is
if, in addition, there would be power to have regulations specifying
when public authorities are covered. In general, we think the
approach is the right one, but we would like to have that extra
regulation making power to clarify that certain bodies are covered.
Q29 Lord Swinfen: Thank you. A number
of people have already said that a number of the organisations
and functions are excluded. What is going to be the impact of
those exclusions on people with disabilities?
Ms Gooding: Well, broadly speaking,
we do not take issue with the exclusions, and we do not think
that they will have a detrimental impact. If we a look at the
duty to promote, there are three broad exemptions there. One is
in relation to judicial acts, one in the making of Acts of Parliament
and a third in relation to armed services, acts relating to armed
services. We are concerned about the continuing exemption of the
armed services from the Disability Discrimination Act, but really
it is the underlying issue about whether or not discrimination
in the employment by armed services should be covered or not.
That is not addressed in this clause. In relation to judicial
acts and acts of Parliament, these are both tremendously important
issues, but we do not think that having a legally enforceable
duty to promote equality in relation to those is the appropriate
means. You are not going to be able to enforce that duty through
the courts: you are not going to be able to take Parliament to
court for failing to comply with its duties. On the other hand,
what is important is that government departments and authorities,
when they are preparing legislation, are subject to the duty so
the duty kicks in at an early stage, where it is very important,
when you are actually scoping and considering the options for
legislation in the beginning. That would be covered We think that
that is sufficient to cover the issue. Of course, while it is
not suitable for Parliament to be taken to court for failing to
carry out a duty, Parliament is able to regulate its own affairs.
At the moment there is not an Equality Committee, for example.
There is a Human Rights Committee but not an Equality Committee.
That might be another mechanism for achieving what might otherwise
be achieved by having a duty. We think that the exemptions are
right. In relation to public functions, there are a few additional
exemptions, maybe relating to GCHQ, spies and such like, but also
the decision not institute criminal proceedings and also functions
relating to the allocation of prisoners. Again, those are two
potentially very important issues, especially in prosecutions.
There is quite a lot of concern about whether or not acts of harassment
and violence against vulnerable people, people with learning disabilities
or people with visual impairments, are actually being prosecuted
for fear that the evidence of the victim is not going to be believed
in court. So there are issues in relation to prosecutions, but
again we do not think it is appropriate to have that sort of decision
being made subject to a non-discrimination provision. That prosecution
issue is subject to the general duty to promote, and in that respect
we would expect to have useful discussions with the Crown Prosecution
Service, who have, in fact, had some very important discussions
with us on that point. So we are content with these exemptions,
and we do not think they are going to have a detrimental impact
on disabled people.
Q30 Mr Berry: You said that the DRC
is concerned about the exclusion of the armed forces from the
provisions of legislation. For the record, could you tell us why,
please?
Mr Massie: Well, we believe all
people should be covered. There have been cases of service people
who have become disabled during their service who could have stayed
in the services but have been edged out. The armed forces, for
reasons one can fully understand, have a difficulty with having
disabled service people. I think their image is that I am going
to go along and ask to drive a tank. Whilst that might be huge
fun, I could never get into a tank, let alone drive it. So that
is not what we are proposing. Facial disfigurement is a disability
under the DDA, but there is no reason why somebody with a facial
disfigurement should not be a member of the armed forces. Also,
under the current Act, no employer is required to employ anybody
who cannot do the job. So if I apply for a job as a steeple jack
and an employer turns me down, saying "Look, you are actually
in a wheelchair. You would not be a very good steeple jack",
I would not have a very strong case against him.
Chairman: I am afraid we have a division
in the Commons. We will have to break for about ten minutes or
so.
The Committee suspended for a division
Q31 Chairman: Although we are not
all back, there are sufficient of us present to continue.
Mr Massie: It was an army question,
was it not?
Chairman: No, we are not going back to
that one until—
Q32 Mr Berry: Well, can I check that
we have had the full answer to the question on the armed forces.
Chairman: I beg your pardon.
Q33 Mr Berry: It was very important.
Mr Massie: If I can just finish
on the armed forces question. I think the anxieties are misplaced.
I think to get it in this bill at the moment would be impossible,
so it is not worth trying, quite honestly, but when this bill
is implemented and the police and the fire service are included,
when that has been in place for a number of years, I think then
that the armed forces might be persuaded to take look at it again,
because they will see that other people in uniform are coping
with the bill. So I think eventually the armed forces will come
in, but now is not the right time and there are still anxieties
which we need to overcome.
Q34 Miss Begg: Can I explore what
it is you actually mean in paragraph 7.6 of the memorandum that
you provided the Committee with. The previous paragraphs are about
bringing a duty to promote good community relations similar to
that already covered by the Race Relations Act 2000. You say in
7.6, "We believe that a duty to promote good community relations,
applied to disability, would be useful in respect of the activities
covered by the Race Relations Act. It would certainly be helpful
in ensuring proactive strategies at local level to tackle hate
crime against disabled people." You go on to say that is
the subject of the new provisions in the criminal justice system.
Can I be clear, are you looking for something like disabled motivated
crime in the same way as racially motivated crime, a distinct
crime that because someone is disabled that crime has happened
to them, therefore it is obviously because they are disabled,
therefore it is a distinct category in the same way as any crime
which is racially motivated?
Ms Gooding: In this submission
we are not looking for any changes to the criminal justice system,
we are not looking for new criminal offences to be created. We
were just reflecting the fact that a new criminal offence has
recently been created which is very similar to the racially motivated
assault that you referred to. So there is a new crime that has
just been recognised, if you like, of disability aggravated assault.
So that has happened. What we are saying is if you have the duty
to promote good community relations, one of the ways in which
that has been addressed under the race duty is to precisely look
at this issue around street harassment, and look at it in a broad
way. So it is not about individuals experiencing assault. That
is covered by the criminal justice system. It is about what the
police can do proactively to address the level of aggravations
out there.
Q35 Miss Begg: Is that not much more
difficult when it comes to disability compared to race? You know,
much of disability is invisible, all sorts of other reasons; and,
as you say in your memorandum, there are distinct communities
within the disabled community, the deaf community, the blind community,
and so on?
Ms Gooding: Yes. It is not to
say that the situation with regard to race is the same as with
regard to disability, but if we take the issue of violence against
disabled people, the biggest issue that people with learning disabilities
raised in relation to our legislative review was assaults on people
with learning disabilities because of their learning disabilities.
They are getting bullied and harassed in the streets, outside
schools, etcetera. It is a really big problem, and it is one that,
to be fair, the police are beginning to address and to recognise.
So there is a sort of community victim, if you like, and it is
in that way that the police need to be looking systematically.
Q36 Miss Begg: But is that the role
of legislation, because there are now questions to be asked about
the Single Equality Act. Basically, we cannot legislate for people
being horrid. Is not what you are actually asking this: that it
is built into legislation that people cannot be horrid to somebody
just because they have a disability. They might be horrid to them
because they are obnoxious. There is a danger of being too prescriptive
in these things?
Ms Gooding: Yes. The sort of situations
that were being referred to by people with learning disabilities
are not just about being horrid, they are about violence and very
vile abuse and assault. I think in the criminal justice system
that has been recognised. What we are trying to do through the
duty to promote equality and good relations is to try and get
the police to be proactive in their policing, and they have developed
very effective strategies in certain areas for dealing with this
sort of level of harassment of people with learning disabilities.
What we need is a mechanism for ensuring that that is rolled out
across other police forces. So it is something that can be effectively
tackled by good policing. It is not just an issue of people being
horrid to each other, it is about systematic abuse of particular
groups, people with learning disabilities being one that is very
clearly marked out.
Q37 Lord Tebbit: Can I just briefly
say on the subject of the armed forces, how wise I think Bert
Massie is, although we should never forget Nelson, Carton De Vere
or Douglas Bader. I think that we have to be very careful in creating
new offences, particularly where they apply to one segment of
the population and particularly when the crime that we talk of
against those people is already a crime against them, as it is
against the generality of the population. Would you agree that
there is a danger in this because, after all, the police should
be protecting all of us, regardless of whether disabled or not,
and the courts should take note—as I believe they do—of
whether the crime is committed against somebody who is helpless
or something of that kind.
Ms Gooding: Yes; just to be clear,
in the memorandum that we submitted, we are not talking about
creating a new crime. We are not talking about that all. What
we are talking about is something that you referred to, which
is policing for all of us, effective policing for all of us, and
that is what these people with learning disabilities are asking
for. They are experiencing a level of abuse and assault that has
not been experienced by non-disabled people. Were the police tackling
this issue proactively, that level of assault and harassment would
be reduced. We have seen that in some police districts it has
been tackled effectively. So it is not about creating new crimes,
it is about placing a duty on the police, as other aspects of
the public sector, to promote equality of opportunity, to address
these community issues and effective policing for all, including
people with learning disabilities.
Q38 Lord Tebbit: At a time when we
are led to believe that local authorities may be rate-capped or
tax-capped, or whatever it is these days, I have a misgiving about
presenting local authorities with a duty to promote good community
relations applied to disability for fear that we shall have a
lot of people in the town hall as coordinating officers applying
this, that and the other and that the money for those will come
out of what might otherwise have been the police budget.
Ms Gooding: Yes. There are people
who have that view about the duty to promote equality of opportunity,
that this is an expensive add on, but the way in which it is being
implemented in terms of race, it is not about being an expensive
add on, it is about delivering your core services more effectively
for all the community. So it should not be about adding another
layer of complexity or bureaucracy on to the existing service.
Q39 Lord Tebbit: More boxes to tick?
Ms Gooding: That is very much
what we would not want to happen, either in relation to equal
promotion for equal opportunities, or good community relations,
and we in our work with the Commission will be charged with promoting
this concept.
Chairman: Can I just say, before we move
on to the letting of premises, if when you read the transcript
there are other points that you wish to raise in writing, you
can do so, because we have got a lot to get through still. Can
we move on to the letting of premises.
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