Examination of Witnesses (Questions 700
- 719)
WEDNESDAY 31 MARCH 2004
MS MARIA
EAGLE MP AND
MR TONY
MCNULTY
MP
Q700 Chairman: On the example you
gave of the airline pilot and the deaf person, I flew to New Zealand
in 1989 and over half the passengers on a large aircraft were
deaf. they were athletes who were going to the deaf Olympics and
the pilot had no problem at all.
Maria Eagle: I think that pilot
in the example I referred to earlier was wrong. It is easy for
me to say that, I have had disability awareness training, he probably
had not. If he had a deaf person in his family he probably would
not have thrown those people off the plane. He was doing his best
to carry out his health and safety obligations and the legislation
provides a defence for that that has an objective test.
Q701 Lord Tebbit: Surely what the
court will have to decide is whether he did it because he believed
that they would be a danger to the aircraft and the other passengers
and whether that was an unreasonable or a reasonable thing for
him to believe. There is a double test there in the case of a
court. If they concluded that he was just irritated by deaf people
and he did not like deaf people and that is why he kicked them
off, then quite clearly he was in breach.
Maria Eagle: He would not be able
to take advantage of the defence.
Q702 Lord Tebbit: On the other hand,
if he had a genuine belief that there was a problem, even if in
fact there was not, then he was within his rights. I think that
would be how it would be, would it not?
Maria Eagle: Yes.
Q703 Baroness Wilkins: I would like
to move on to prisons. Section 21C(5) provides that the duty of
public authorities not to discriminate does not apply to the allocation
of prisoners to a prison or to accommodation within a prison,
but we have had evidence that the Prison Service already behaves
as if Part 3 of the DDA applies to them. In that case, why does
the Government consider it necessary to exempt prisoners' accommodation
from the requirement of public authorities not to discriminate?
Maria Eagle: My understanding
of the reasoning for this is that the exemption is intended to
relate to the allocation of prisoners between prisons and accommodation
rather than the nature of the accommodation itself so that other
functions and services carried out by the Prison Service in respect
of prisoners would be covered. I expect that they are behaving
as though Part 3 applies to them because that is the best practice
thing to do, but the Home Office were certainly quite keen not
to have this obligation apply in respect of the allocation of
prisoners to particular prisons because they have other constraints,
they have got things like security classification or medical rehabilitative
things to bear in mind when they are thinking about the allocation
of prisoners to particular prisons, they have got other balls
to juggle.
Q704 Chairman: It is the allocation
of prisoners to accommodation within a prison, not between prisons.
Maria Eagle: Yes indeed.
Q705 Chairman: I think we have had
evidence which suggested that there are only 40 wheelchair users
in prison, so it would not be a major problem either way if the
Bill applied to them or it did not apply to them.
Maria Eagle: I do not know if
those figures are correct. I assume they are if you have been
given them by those who would know. I do know that the Prison
Service was concerned not to have to comply in respect of allocation
because of the other constraints that are upon them in that regard.
Q706 Chairman: But it is inside the
prison, not between prisons.
Maria Eagle: It is not between
prisons, yes.
Q707 Mr Berry: In relation to exemptions
from disability discrimination legislation, could I raise a question
about the employment provisions. It is a question I have raised
before, Minister, so it will come as no surprise. You will be
aware that those who drafted the employment provisions to the
DDA have an obsession with people wearing uniforms, so police
officers, fire fighters and armed service personnel were for some
mysterious reason excluded from any employment protection whatsoever.
The Government has said this is almost all total nonsense except
that I understand the Government still wish to exempt members
of the armed services from protection under the disability discrimination
legislation. Given that no employer is required to employ anybody
who cannot do the job, what is the reason for excluding the armed
services from protection?
Maria Eagle: There are two things
to be said in this regard. One is that the Article 13 Directive
which deals across Europe with the ending of discrimination in
employment against disabled people does make provision for an
exemption for armed services and some countries take advantage
of that exemption for armed services, including our own. The Ministry
of Defence are concerned that their service personnel, no matter
what their job description or rank etcetera, have to be combat
capable and able to move from one role to another, sometimes with
great flexibility, at short notice and that is why the Government
has taken the view that the exemption that the Article 13 Directive
allows should be called upon.
Q708 Mr Berry: If it is the case
that all employees in the armed services have to be able to do
a particular job that requires a certain level of physical fitness,
I can understand that, but facial disfigurement is a disability
under the DDA. Why on earth should somebody who has a facial disfigurement
not be a member of the armed forces?
Maria Eagle: I am sure there are
some people with facial disfigurements who are members of the
armed forces. I would be very surprised to hear if the Army or
any other of our armed forces were dismissing people on the grounds
of their disability or because they have a facial disfigurement.
Q709 Mr Berry: Why should they not
be protected under the legislation from the remote disability
of discrimination?
Maria Eagle: I have explained
to the extent that I can the thinking of the MoD in this respect
and there is not an awful lot more to add.
Mr Berry: The MoD, being perfectly frank
about it, has not been at the forefront of change in relation
to equal opportunities matters over the years and I will not bore
you with examples. This is a Government policy and if the Government
felt that there was a serious case for exempting the armed services—and
Article 13 does not require governments to do it—I would
be delighted to hear it because I have not yet heard it from anyone.
I think it is unfortunate that the basic principle is not applied
across the board. This will not in any way weaken the effectiveness
of our armed forces.
Q710 Lord Swinfen: Minister, would
you agree that any organisation that is exempt from the DDA has
a perfect right, if they feel that someone with a disability is
capable of doing the whole job as well as any other member of
their organisation could do, to employ them, which would cover
anyone with a facial disfigurement?
Maria Eagle: Absolutely. Our law
does not require organisations that are exempt not to employ disabled
people.
Mr Berry: It does not require them to
treat them fairly.
Q711 Lord Tebbit: I think the Minister
will recollect a chap called Douglas Bader who, as I understand
it, suffered pretty severe disability and he was not discriminated
against. I flew in the 1950s on a squadron with another legless
pilot and it did not seem to constitute any difficulties then,
I suspect it does not now.
Maria Eagle: We could talk about
this all day.
Q712 Mr Berry: I want to move on
to public authorities and clause 8. You have chosen to define
public authorities subject to the duty to promote equality by
way of a general definition instead of the list approach taken
in the Race Relations Act. Could you say a little about what reasons
led to that decision and how you would respond to the view that
we have heard from some witnesses that a general duty creates
uncertainty whereas a list creates greater clarity?
Maria Eagle: Yes, things can be
inadvertently left off lists and lists can get out-of-date and
when they are in primary legislation it can be more of a problem
than if they are not. I do not accept that there is going to be
uncertainty because I think public authorities would be best to
assume that they are covered, that is you are in unless you are
on a small list of exemptions and in many ways I think that is
a better approach. That is really the thinking behind this slightly
different approach to the one that you see in the Race Relations
(Amendment) Act.
Q713 Mr Berry: The Human Rights Committee
expressed concern regarding the definition of public authority
in the Human Rights Act. Do you think the definition in the draft
Bill will face similar concerns?
Maria Eagle: I hope not. I do
not think that it will, although obviously we would be prepared
to consider suggestions that it might. This is simply an attempt
to do better what the Race Relations Act tried to do, it is not
an attempt to do it differently for the sake of it. We took the
view that rather than try and include everything on a list and
inevitably perhaps forget some things it would be best to have
an approach that essentially said you are in unless we exempt
you and the list of exemptions is far smaller than the list of
who is in would be. It is just a slightly different approach.
Q714 Lord Tebbit: Do you think there
would be difficulties with organisations which are public authorities
in part of their function and not in other parts, the hybrid organisations?
Maria Eagle: I hope not. There
may always be grey areas in coverage terms in respect of laws
such as this, but I hope it will be clear that, in respect of
their public functions or the functions that they are carrying
out that are seen as public functions, they would be covered.
Chairman: We have had an extremely helpful
letter from the Joint Committee on Human Rights on the meaning
of a public authority in the Human Rights Act and this Bill. The
letter will be in the evidence. We can send it to you and, I think
you will find extremely helpful, it certainly helped us.
Q715 Lord Swinfen: What is the position
of an organisation that undertakes a duty on behalf of the public
authority, such as some of the charities that look after disabled
people and provides home for them which is a duty of the local
authority? Do they then become public authorities while undertaking
those functions?
Maria Eagle: My intention would
be that they should indeed. To the extent that we can define what
they are doing as a public function undertaken or contracted by
a public authority, that should be covered, otherwise we are going
to have gaps.
Lord Rix: In terms of MENCAP and housing,
it is obvious that we are providing housing for learning disabled
people, is it not? We are not suddenly going to turn them away
and discriminate against them because that would be an absolute
nonsense. I would have thought the voluntary side of a hybrid
association with a public authority really works itself out.
Q716 Lord Tebbit: Minister, you are
putting a duty on public authorities to promote equality of opportunity,
but the manner in which that is being done is different to the
similar function in the Race Relations Act and in the Northern
Ireland Acts. Can you say how you came to the conclusion that
this Bill needed a different approach to those two Acts?
Maria Eagle: I think there are
distinctions. The distinction really is that the DDA applies only
to disabled people, it does not apply to non-disabled people.
It works to improve the position of disabled people, unlike the
race duties where everyone of every race is covered by the duty
to promote equality of opportunity. This provision is attempting
to make it clear that opportunities for disabled people need to
be levelled up to the level enjoyed by those people who are not
disabled. We do not want to give the impression that some kind
of levelling down is an appropriate remedy. Barriers that need
to be overcome in order to give equal opportunities for disabled
people actually require different treatment. The DDA does not
deal with equality in the same way as other equality legislation
which requires equal treatment, this actually requires different
treatment in order to get equality and in that respect it is different.
This is simply an attempt to try and make sure that we level up
rather than level down because this legislation is a one-way street.
Q717 Lord Tebbit: The question which
arises inevitably is that people would say that the public authority
has to be satisfied that opportunities for disabled persons are
certainly not as good as those for other persons before it is
required to promote equality of opportunity. Should it not have
a duty to promote equality of opportunity in any case, or is what
you were saying that since self-evidently all people of whatever
race are incorporated, quite clearly in the case of disabled people
they are not equal to others in their capacity, that is why you
are taking that view? I would be grateful to hear your explanation.
Maria Eagle: Disabled people
face barriers that prevent them having equality in a way that
does not happen with other equality issues. For example, if we
have somebody who is a wheelchair user and they want to get into
a building to go to work, we can treat them equally to somebody
who is not a wheelchair user but they still cannot get into the
building. What this legislation is about is trying to overcome
the barriers that get in the way of the opportunities of disabled
people to participate and to be treated like anyone else, but
that requires a different treatment rather than equal treatment.
Let us just think about the blue badge scheme as an example. This
is a scheme that gives special treatment to disabled people, a
right to park in places where other people cannot park. There
are two ways of having equality between people with blue badges
and people without, you could take the blue badge off the people
who have got it. That is not what we want and that is really what
this is trying to get at. I am perfectly happy to have a look
at the wording, but that is our intention. Parliamentary Counsel
does not always get the wording exactly right first go, but that
is the point that we are trying to make, that we want a levelling
up, we want disabled people who face barriers that stop them having
equal opportunities being able to overcome those barriers. We
want the measures that help them do that taken away so that everything
is levelled down.
Q718 Lord Tebbit: You need to have
it established that there is a barrier first of all in order that
the Act can click in to have the barrier removed.
Maria Eagle: Yes.
Q719 Chairman: So it is this requirement
to be satisfied first that the opportunities for disabled persons
are not as good instead of a straight promotion of equality of
opportunity?
Maria Eagle: I see the point that
the Committee is making. I am perfectly happy to have another
look at it. Certainly our thinking is based on what I have put
forward.
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