Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Mackay of Ardbrecknish: He did not!

Lord Ashley of Stoke: Oh yes he did!—because the Government have produced a Bill which is tarnished by serious omissions, inviting loopholes, and a lack of enforcement procedures. I hope that noble Lords on all sides of the House will co-operate in strengthening the Bill. The noble Earl, Lord Snowdon, who has long been involved with disabled people, has asked me to express his regret that he is unable to be present today.

Just who is the Bill supposed to protect from discrimination? Certainly not all disabled people. The definition is far too restrictive for that. The Bill omits, for example, any reference to perceived disability which affects elderly people, those with HIV, and many others. The trouble is that discrimination damages, regardless of whether the disability is real or perceived. That question of perception is very important.

I welcome the Government's undertaking to extend the provisions to those with a history of disability, but we also need to ensure that all of those with a history of mental illness are included because, regrettably, it is a stigmatising illness which leads to prejudice and discrimination in employment. The restrictive provisions which are still in the Bill will exclude many who have had a brief mental illness even though that illness can lead to a lifetime of difficulty in securing a job. Mental illness, whether for long periods or short, is very common and sufferers deserve protection just as much as those with a physical disability.

The Government should heed the clear message that unjustified discrimination is immoral. It is wrong in principle and unfair in practice. By definition, unjustifiable discrimination is unjustifiable, whatever the

22 May 1995 : Column 853

circumstances. There can be no exceptions. Yet the Government seem intent on making exceptions—not only by limiting definitions, but by specific exclusions.

The exclusion from the employment provisions of employees in firms of fewer than 20 workers is wrong on every single count. It is deplorable to allow legal discrimination against disabled employees under any circumstances. It is anomalous when the employees of other firms are protected. It is unjust to allow discrimination according to the size of the firm, and it is false to assume that small firms are to be unreasonably burdened because the thrust of the Bill is that there should be "reasonable accommodation". So, again by definition, there cannot be unreasonable burdens. I do not see how the Minister can get round his own definitions on that—nor do I see how people can claim that there are going to be unreasonable burdens if the Bill states that there must be "reasonable accommodation".

Another significant exclusion is further and higher education. I should declare an interest, albeit an honorary one, as Chancellor of Staffordshire University. The pioneering work that has been done there shows how effectively disabled students can be accommodated to the benefit of themselves and the university.

The Government's promise of amendments to previous legislation to encourage institutions and funding councils to provide for disabled people is welcome, but still allows legal discrimination against disabled students. The exclusion of higher and further education is extraordinary. It makes sense for people to choose careers which focus on their strengths and minimise their weaknesses. We all do that, but for many disabled people, with a weakened body, that means training their intellectual capabilities. Yet we are not prepared to offer non-discriminatory education. I do not see the sense of that.

The fact that so few disabled people get higher education is itself an indication of discrimination. A shameful example is that there are only 300 deaf higher education students. Where are all the other deaf people? Ability is not the barrier; the lack of provision, the inadequate non-medical helper allowance and the fact that there is nothing for part-timers are the hurdles at which many deaf people fall. That is inexcusable and should be rectified in the Bill.

Communication is the great challenge for deaf people. If it can be achieved, their disability melts away. Technology has been of great benefit, as I know from personal experience. However, improvements to telephones may leave hard of hearing people stranded. Digital mobile telephones are now incompatible with hearing aids. Even more threatening is the development of new office systems from which hearing aid users could be excluded. If that trend is allowed to develop, it could be damaging to many millions of hard of hearing people and difficult to change. Manufacturers of new technology telephones and producers of hearing aids should realise that Parliament would never permit the long-term exclusion of hearing aid users from telephone use, in particular when it is related to employment. I hope that the Minister can give some assurances on that point at the end of the debate.

22 May 1995 : Column 854

We need to look also at what may be lost as a result of the Bill, not what may be gained. The access-to-work provision has been extremely valuable to deaf people, providing them with communication support for interviews and in the workplace. Deaf organisations know that employers will not pay for it. Without government support, deaf people have little chance of obtaining jobs. That support must continue. I hope that the Government can also give an assurance on that matter. I hope that the Minister will be able to oblige.

Denying protection from discrimination to employees of small firms is an act of negligence; abolishing the 3 per cent. quota is an act of vandalism. The weaknesses of the quota system are familiar to us all. We are also familiar with the Government's excuses. Ministers claim that the quota system does not work because not enough disabled people register. That nonsense belongs to topsy-turvy land. Disabled people do not register because the quota system does not work, and the quota system does not work because the Government do not enforce the law. That is the reason for the failure. The fault lies not with the 3 per cent. quota system, but with Ministers. There is no point in noble Lords opposite condemning the system. They should condemn Ministers. That is about the only party political point that I shall allow myself in this short speech.

The Bill attempts a different approach. We all hope that it will work. But just suppose that it does not, how will we know that it does not? The Government, and the Minister who is so careful with his words, will surely not rely on individual evidence. That will not get us very far. I cannot believe that it is the Government's intention. Monitoring is essential, and until the Government provide a better system, we need to keep the quota system.

Another reason for retaining registration is that it provides the means of ensuring that severely disabled people obtain subsidised employment. I hope that the Minister will be able to give the House an assurance that the Government still support the policy of subsidised employment for this group of disabled people. The Minister should tell the House why the Government are proposing to allow profit-making organisations to enter the subsidised employment arena. They will inevitably choose to employ the less severely disabled, creating enormous difficulties for the non-profit making organisations such as Remploy which genuinely tries to help all severely disabled people. It is under great pressure at the moment.

If the Government are planning to privatise Remploy, that will lead to even more selective and damaging practices. The best facilities, provided by public funds, will be used to generate dividends, while the rest will be scrapped. No doubt many disabled people will go with them. That is totally unacceptable to disabled people, to the disability organisations, and to many Members of both Houses of Parliament. I hope that the Government will not allow that because it will damage disabled workers.

Of course the Government's greatest single failure in the Bill is the lack of enforcement procedures such as those for race and gender, as has been mentioned. The national disability council is purely advisory. I believe that most people are law-abiding and will accept the Bill's provisions which make it unlawful to discriminate against

22 May 1995 : Column 855

disabled people. The problem lies with those people who wish to disregard the law. They are the people with whom we are concerned. No amount of "advice" will change them. So we must have the enforcement body, which was spelt out by my noble friends and noble Lords opposite. We require a strong, well-resourced commission, and we shall be fighting for that in Committee.

I wish to conclude by saying that, as it stands, the Bill is inadequate, and we shall be suggesting sweeping, radical and detailed improvements at later stages. The splendid briefs we have received from so many organisations indicate widespread concern. This is a great opportunity to legislate for comprehensive civil rights for disabled people. Britain is no longer in the vanguard of progress, but if the Government accept the suggestions that Members of all sides will offer in Committee and on Report, I hope that we will be able to catch up with the rest of the world.

6.46 p.m.

Baroness Gardner of Parkes: My Lords, discrimination on grounds of disability does exist; sometimes that is a deliberate conscious process, but I believe that is rare. In my view, the main reason is the preconception that people have of a disabled person's ability.

A young woman I know well, now in her 30s, was diagnosed as having multiple sclerosis when she was 21. She is registered disabled, but is not visibly so. In employment, she has proved most capable. By experience she has learnt not to disclose her disability until offered a job. She has no problems then, as she has been chosen because she is the best person for the post. The disability is of secondary importance. Applying for almost identical posts, when she has included the medical history on her cv, she has never even been offered an interview. She needs a cooler position in the room and good light for work and those are simply provided and make normal work possible.

This Bill now enshrines the minimum standards that are already accepted as good practice by many companies and individuals. One of the strengths of the Bill is that it asks no employer or supplier of goods and services to act against his interests. No one need employ a disabled person because he is disabled. What is asked is that there should not be a blanket objection to someone because they have a disability. Many people choose not to register or identify themselves as having a disability because it can be such a disadvantage in employment terms. Many people have disabilities that are always apparent and they have no choice in the way they present themselves for interview.

Employers can be distracted or diverted by disability. They do not stop to think: is this the best person for the job? Their first impression is of the deafness, the wheelchair, or the other noticeable evidence of the disability. It may even be that due to an ill-informed or misguided sympathy they feel for the disabled person, they imagine the work to be beyond him or her.

This Bill is intended to make clear the Government's support for those with disabilities. It cannot and will not change long-standing attitudes overnight, but by having

22 May 1995 : Column 856

a law against discrimination on grounds of disability, the Government are making a statement which will cause people gradually to think again and revise old ideas.

The process of change is never easy. That has been clear in the years since it became illegal to discriminate on grounds of sex. Women regularly point out that they have all the necessary laws against discrimination but there remains a gap between de jure and de facto, between the law and the reality.

The Bill contains substantial order-making powers. Your Lordships are increasingly wary of such powers and no doubt the Delegated Powers Scrutiny Committee will be looking at the powers contained in this Bill. But for myself, I believe that they are appropriate here. This is an indication of my optimism about this Bill. I believe that these powers will be used to the advantage, not disadvantage, of disabled people. This is a complex field and I hope and believe that the Secretary of State will take the trouble to use his powers to adjust arrangements under the Bill to make the protection it offers more comprehensive as time goes by.

I intend to raise a number of matters in Committee and to seek assurances from my noble friend that regulations will cover the necessary details and that problems will be kept under review and action taken under the Act as necessary.

One of my particular concerns in the Bill centres around the problem associated with disability arising from HIV infection. The approach taken by the Bill is to define the disabled as those with a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. I have heard this characterised as a commonsense approach to disability—the disabled are those who actually have a physical or mental impairment. As I read the Bill, there is little doubt that those with AIDS and those with symptomatic HIV will be covered by the law, and I welcome that. However, I would appreciate the Minister's confirmation on that point. The trouble with HIV is that it is such an emotive and well-publicised issue that those infected have become easy targets for discrimination. Employers, and indeed the public in general, tend to have an irrational fear of contracting the disease, even though the circumstances may present no risk at all.

It is relatively easy to test for the virus, but in most cases there is a long time gap between a positive HIV test and progress to a symptomatic HIV infection and another time gap before the development of full AIDS. For an employer or provider of services to demand a test for the HIV virus or demand answers to indicate whether or not this or, indeed, any other screening test has been taken can discriminate against the person concerned. The definition of disability would not cover a person who is asymptomatic. I see that as a real problem and hope that a solution may be found to enable the scope of this Bill to cover this very unfair treatment of people. I know that the Government encourage testing and screening for all sorts of conditions and rightly discourage any discrimination against individuals because they have wisely had diagnostic tests of any sort.

22 May 1995 : Column 857

Under employment legislation, ill health actually making an employee incapable of work has always been grounds for "fair dismissal". But HIV is a condition that, in progressing towards AIDS, has symptoms which materially affect a person's ability to carry on his day-to-day life. At present, the best we can do for those infected with the virus is to enable them to continue a normal life, even if they have some of these symptoms. Discrimination does not help. Quite the contrary, it weakens people, makes them feel useless and a drain on society.

People with symptomatic HIV, needing help, can still make an important contribution and this Bill will benefit them by outlawing discrimination and enabling them to continue as full members of society. I suggest to your Lordships that HIV and AIDS are in that way much like other physical disabilities. If we can ensure that the Bill covers people who have those conditions, when they need protection and yet remain relatively able to make their contribution, we shall have achieved something.

Some concern was expressed in the other place that the insurance industry might be forced to insure someone beyond the actuarial realities of the insurance market. I shall seek to clarify this point at Committee stage. Actuarial reasons for refusing insurance are common enough, but it should be actuarially possible for the insurance industry to devise a satisfactory solution and it should be impossible for the insurance industry to exclude any class of the disabled simply because they are disabled.

The number of speakers in this debate today makes clear that this House considers this Bill to be an important step forward. It deals with the rights of those who need support and encouragement to play a full part in society. One person's rights are another person's responsibility towards that other person. I think we can agree that we all have responsibilities for disabled people. I welcome the Bill.

6.55 p.m.

The Earl of Winchilsea and Nottingham: My Lords, I wish to focus my remarks on one narrow, specific but important issue. I rise to express grave concern on behalf of the licensed hackney carriage trade of the UK in relation to the serious implications and threats to that trade contained in Part III—Clauses 12 and 15—of the Bill.

Clause 12(1) provides:

    "It is unlawful for a provider of services to discriminate against a disabled person—(a) in refusing to provide, or deliberately not providing, to the disabled person any service which he provides, or is prepared to provide, to members of the public; (b) in failing to comply with any duty imposed on him by section 15 in circumstances in which the effect of that failure is to make it impossible or unreasonably difficult for the disabled person to make use of any such service".

Clause 15 (1) states:

    "Where a provider of services has a practice, policy or procedure which makes it impossible or unreasonably difficult for disabled persons to make use of a service which he provides, or is prepared to provide, to other members of the public it is his duty to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to change that practice, policy or procedure so that it no longer has that effect".

22 May 1995 : Column 858

Many noble Lords will know that I have a long-standing interest and association with the licensed taxi trade of this country and no doubt many noble Lords present today for this Second Reading will have been on the receiving end of a number of eloquent pleas from various licensed taxi associations up and down the UK warning of the severe consequences for their trade if the measures contained in the Bill are carried out without exception and with no exemptions. They are right to be concerned for their future, and their warnings should be listened to carefully. Their comments are not the mad ravings of a small group of selfish, greedy, narrow-minded, shortsighted, money-grubbing wide-boys but the careful, logical, sensible, reasoned responses of intelligent and knowledgeable people who know what they are talking about. They bear no grudge against disabled people. They have simply not been consulted when they should have been.

Since wheelchair-accessible taxis were introduced by the two manufacturers of purpose-built cabs, the drivers, owners and operators have accumulated a wealth of knowledge which has been recorded concerning a number of occasions when the wheelchair carrying facility was asked for either through a telephone booking or a hiring in the street. In all taxi hirings during an average year, the wheelchair facility is used by only 0.01 per cent. of customers. In his excellent speech, the noble Lord, Lord Campbell of Croy, said that one in every 112 disabled people was in a wheelchair. By any standards, that represents a very small number of the total population.

Among my many friends I am pleased and honoured to include quite a large number of taxi drivers, not just in London but all over the country. All those who drive a purpose-built taxi with a wheelchair carrying facility will tell you the same story. The facility is hardly used—perhaps once a year; sometimes not even that. They are glad to provide the service when asked to do so. But to force every single licensed taxi to be wheelchair accessible is a nonsense. It is unfair, unnecessary and extremely expensive. If implemented, even over a 10-year period as proposed, it would undoubtedly force large numbers of taxi owner drivers who drive saloon cars licensed as hackney carriages to hand in their badges.

I understand that there are several disabilities which cannot be accommodated even in purpose-built taxis. I have in mind one sufferer who wrote to a national newspaper saying that because he was unable to bend or move his neck and was confined to a wheelchair he was unable to use purpose-built taxis. However, he had found that an ordinary saloon car used as a taxi and fitted with a swivelling front seat did allow him access. What a pity to deny that man and others like him the continued use of taxi transportation by eliminating all licensed hackney carriages which do not have a wheelchair carrying facility.

As several noble Lords know, I drive a purpose-built taxi. I drive it for several reasons which are not particularly relevant to today's debate. But here I must declare an interest. It is provided for my use by its manufacturers. I do not own it. I use it to demonstrate my commitment to the licensed taxi trade in this country. I enjoy using it. However, my wife, sitting in the back, does not enjoy journeys longer than 30 minutes. It is not designed for long journeys, although I drive it all over the

22 May 1995 : Column 859

country. My wife finds it uncomfortable because she suffers increasingly badly from arthritis and every jar and bump is painful.

Are my wife and millions of other people suffering from the same complaint to be denied the comfort of ride which only a saloon car can provide at present? Why and for what? Who wants the legislation? The wheelchair disabled? Well, provided that wheelchair accessible taxis are available and can be booked by arrangement, why cannot there continue to be a mixture of vehicles used as taxis outside London? Is that not freedom of choice? Surely it is a question of getting the mix right.

Provincial taxi drivers, particularly owner drivers, do not want to be restricted to the purpose-builts. They are inappropriate in rural settings when long distances are the norm rather than the exception, and they certainly do not suit all disabled people by a long chalk. To bring in such an unnecessary restriction would also be to put operators, drivers and owners of licensed hackney carriages at an unfair disadvantage with operators of private hire vehicles who would not be subjected to the proposals contained in the Bill. If the proposals become the law of the land it seems fairly obvious to me that there would be a large number of provincial hackney carriage badge holders who would switch to private hire in order to continue trying to earn a living. I intend to return to that topic during the Committee stage of the Bill.

7.4 p.m.

Lord Swinfen: My Lords, I believe that the noble Earl, Lord Winchilsea and Nottingham, has done the House a very considerable service in illustrating how diverse are the disabilities from which many people suffer. That is why, when taking the Bill through the House, we have to ensure that, when it leaves us, it is workable for the vast majority of people with disabilities.

I should declare an interest as I work for a charity which works with and for disabled people. I earn my living through that work. However, I welcome the Bill. It is very much a step in the right direction. I also welcome the amendments that the Government already intend to make to the Bill in this House.

However, in my view, the Bill has certain flaws. The national disability council proposed in the Bill has, as other speakers have already pointed out, no power to make the legislation work. It has no authority or resources to enable it to enforce the Bill's provisions, and therefore it has no credibility. As other speakers have already said this afternoon, I consider that we need a commission with similar powers and funding to those which enforce race and equal opportunities legislation. Such a commission would need the power to obtain information and the resources to employ sufficiently committed staff. It should have the power to take legal proceedings and compel the production of information. It should also be able to home in on key areas and issues and produce authoritative guidance. Moreover, its investigations, when made public, would promote necessary change.

The Bill provides that businesses with fewer than 20 employees will be exempt from the legislation. However, as has already been mentioned, that comprises

22 May 1995 : Column 860

some 15 per cent. of the labour force and approximately 95 per cent. of all businesses. I believe that we need to make provision as the Bill goes through its next stages to lower that limit steadily over the next few years.

The Bill provides a duty for businessmen to take reasonable steps to remove physical barriers and provide communication and other auxiliary aids. However, reasonable provision defies simple definition and will vary from business to business. I believe that a commission and its decisions would be helpful to business. I understand that many of the business organisations would also like such a commission.

Access provisions will operate within two constants—a time limit and a financial cap. Without a clear framework to answer those questions, a distant time limit and an indeterminate financial cap will do nothing to encourage businesses to do anything unless they are taken to court. The access provisions in the Bill impinge on unrelated legislation, such as building and fire regulations. When answering the debate, will my noble friend the Minister advise the House whether the Bill will be subordinate to all other Acts of Parliament, which would mean that parts of its provisions would not be made effective?

Not mentioned in the Bill is the genetic predisposition to certain disabling conditions. However, scientific advance is continuing apace. I feel that we should make provision in the Bill for the Secretary of State, by regulation, to introduce provisions at some future date when it proves to be necessary.

I have received a number of letters and correspondence on the provisions in the Bill which deal with the Armed Forces, suggesting that they should also be made liable to all the provisions. I must admit that I am not in favour of that suggestion. Anyone in the Armed Forces, no matter what his job happens to be—whether a clerk, a cook, a driver or a telephone operator—is, first and foremost, a trained fighting man and, subsequent to that, a cook, a clerk, a telephone operator, or whatever.

Finally, I give an illustration from someone who is not a lawyer of why we need to go through this Bill with a fine tooth-comb. I find it extremely odd that Clause 3(2)—as I read it—states,

    "It is unlawful for an employer to discriminate against a disabled person whom he employs...

    (d) by dismissing him".

I do not think that is quite what is intended by the Bill. I think that added to that paragraph should be the words,

    "solely on the grounds of his disability".

That is an illustration of the drafting of this Bill and of why we must be so careful at the next stages. I welcome the Bill.

22 May 1995 : Column 861

7.10 p.m.

Baroness Masham of Ilton: My Lords, I have been asked by the noble Lord, Lord Crawshaw, to give his apologies to your Lordships. He would have added much sense and wise advice to the Bill. The noble Lord has spent many years using a wheelchair and knows of the numerous difficulties and extra expenses that disability brings. The noble Lord is ill in hospital, and I hope very much that he will be well enough to take part at later stages of the Bill. The noble Lord has great charm and wit, as well as experience and might even get some of his Conservative colleagues to understand the arguments.

I thank the Minister for his clear explanation of the Bill before your Lordships. This year we are celebrating the silver jubilee of the Chronically Sick and Disabled Persons Act 1970. I am also celebrating 25 years of being in your Lordships' House. My noble friend Lady Darcy (de Knayth) and I made our maiden speeches on the 1970 Bill. There is no doubt that this legislation has helped over the years. This year I have been disabled for 37 years. That is something I am not celebrating. As a high lesion paraplegic, paralysed from the chest down, I have come into contact with many disabled people and organisations. This year also we are celebrating the 21st year of the Spinal Injuries Association—a self-help organisation which I helped to establish with colleagues for those people who have become paralysed by damaging their spinal cords through injury or illness from the neck or back down.

To take a person with a spinal injury as an example, he or she has an obvious disability such as not being able to use his paralysed limbs and thus having to use a wheelchair. But he also has hidden disabilities such as paralysed bladder and bowels, and the risk of pressure sores due to not being able to feel. These hidden disabilities can be even more complicated. I therefore have sympathy with disability on a very wide plane. For instance, the person with epilepsy, who needs understanding when he or she suddenly has a fit, or the person with HIV, who may find discrimination from lack of understanding and compassion.

The Minister called a meeting so that he could explain the Bill to some of your Lordships. I was sorry that I was unable to attend due to speaking in a debate on rural matters, some of which have important implications for disabled people living without many services because of lack of provision in rural areas. I would have asked the Minister some questions, one of which I will ask him now. The only thing is he is not in his place! My question concerns the title of the Bill, the Disability Discrimination Bill. Does this not give the wrong message? Does it not put the emphasis on discrimination, which might seem to be promoting discrimination? Would it not be better if it was the Anti-Discrimination (People with Disabilities) Bill? I would be grateful if the Minister would explain the reasons for the title of the Bill to your Lordships. There may be a simple explanation. However, I always like to see the emphasis placed on people first, with disability being put in second place.

Over the years I have been contacted by some distraught people when they have been faced with blatant discrimination. Therefore I am sure it is time to bring in anti-discrimination legislation. However, this law should

22 May 1995 : Column 862

be clear, and the people administering it should have training to enable them to understand the great variations that disabilities encompass across the board. One lady from Scarborough telephoned me to tell me she had taken her disabled child in a wheelchair to the cinema. A member of the staff had said, "You can't have that thing in here". An ex-miner from Wakefield, who was a paraplegic, took two newly injured paraplegic men out from hospital, for their first visit beyond the hospital gates, to a pub. When they got there the publican told them, "You will have to sit in the back room. We do not allow dogs in here, so you cannot come in".

A disabled woman came to London on her first visit to attend an interview for a Winston Churchill Fellowship. She was a large lady with a charming personality. She told us that the taxi drivers at King's Cross Station had refused to take her. Incidentally, I have just spent a few days in Barcelona attending a conference and there I found some taxis which had been adapted to take wheelchairs, similar to some of the taxis we have in London. However, the taxis in Barcelona had a ramp which pulls out from under the floor. That is quick and easy and saves the taxi driver wasting time getting ramps out of the boot and assembling them. It would be well worth some taxi firms here considering this simple and efficient ramp in use in Barcelona. Another very practical thing that I found at the hotel I stayed in was that the bathroom door was hinged so that it opened both ways. Therefore, instead of getting stuck behind the bathroom door, which so often happens, one just pushed through either way.

Many European countries are now looking at the sort of legislation which is before us now to make life more workable for disabled people. That is another reason we should get this legislation as clear and efficient as possible as other countries will be looking at what we will or will not achieve in your Lordships' House.

I hope that the Government and NGOs of and for disabled people will work also through the European Commission to get anti-discrimination legislation for all people across Europe with disabilities. I have been told that the Government wanted the citizens advice bureaux to take on the organisation of the workings of this legislation, but that that body turned it down. The citizens advice bureaux are helpful as regards matters concerning disability, but I am sure they know what a mammoth task it will be to do the job properly, and that the variation among disability matters across the board is immense.

Whatever the machinery that is used to do the job, be it a council or a commission, it will have to have a wide range of expert advisers and people who understand all sides of the problems. The correct balance will have to be found and it would be wrong for everyone concerned if this legislation encouraged litigation. It needs to promote reconciliation and good practice for all. Service providers, service users, employees and employers, all need to have the correct attitudes to make it work. I feel that there needs to be a central body with a network across the UK and resources to enable it to work.

The big question I ask the Government is: who will decide whether something is reasonable?

22 May 1995 : Column 863

There is much concern over Clause 5(5), which states:

    "Regulations may make provision as to other circumstances in which, for the purposes of section 4, an employer is to be taken to be justified in treating a disabled person less favourably than he treats, or would treat, others who do not have the disability in question".

I am worried by the list of examples in Clause 6(3) of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1). If there is to be a list, as there is at present in paragraphs (a) to (l), I should like to add paragraphs (m) and (n) to include provision of parking and assistance from a car for a severely disabled person using a wheelchair. I know many well-qualified and skilled tetraplegics who are excellent employees, once they can get out of their transport, which is likely to be a car, and in to their place of work. That may be the only help they need. As other items are written into the Bill it would seem unwise to leave out the two I have mentioned.

It may be better not to have a list as other vital needs may be left out, which could cause problems and prevent people taking up employment. I know that the items listed are only examples, but it will be those which are left out which will be argued about.

Not knowing what the regulations are to be is causing concern. The Law Society feels that the phrase:

    "a clinically well-recognised illness"

will cause considerable uncertainty. What is the Minister's view? It is amazing how many disabilities there are. They may be recognised only by experts dealing in the specialised field of that disability. Are they then to be left out of the legislation? That seems to be most discriminatory and unreasonable.

At present much legislation is going through Parliament which involves people with disabilities, such as the changes in benefits and the Jobseekers Bill. I have been contacted by the organisers of a fishing club for disabled people who fish at Telford. They are very worried that people on the new incapacity benefit will lose benefit if they do unpaid voluntary work, whether it be for one hour or more. Is that true? Will it be the case that only people with jobs will be able to do voluntary work? The members of that club are also concerned that if they go fishing that will be taken into consideration against them. With the effect that the National Lottery is having on small charities, if disabled people are prevented from helping the charities that will be a disaster for the charities and the individuals who will have to sit at home and vegetate. That in itself is discrimination. I should very much like to have an answer, if not today then when the Minister has had time to look into the matter.

With all legislation concerning the complex subject of disabilities one needs clear interpretation, clear guidelines and adequate training of the personnel who administer the resulting legislation at face to face level.

I join with Skill, the National Bureau for Students with Disabilities, in its concern that the Disability Discrimination Bill explicitly excludes further and higher education establishments. When the noble Baroness, Lady Blatch, was Minister at the Department for Education I raised two issues. One concerned a community college of further education, and the other Keele University. Both concerned the lack of lifts. At Keele University there was no lift to the students' union

22 May 1995 : Column 864

building. Students were very upset that students with disabilities were discriminated against because there was no access. More lifts are needed for full integration in colleges and universities. The establishment said that it did not have the money and needed a grant. The Department for Education said that it was up to the individual establishment. The result was that there was no provision. Again, if only some of the lottery money could go towards that type of provision, that would be a help.

As a frequent user of British Rail—or what I think is called British Rail; it may be called something else now—I should like to pay tribute to the improvements made for people with disabilities and to the helpfulness of the staff at ground level. With a growing elderly population, there is anxiety that unmanned stations are causing problems.

All travel is important, and I know only too well the difficulties of lack of space in aircraft for people with stiff legs who need to stretch out. My noble kinsman, who has a deep vein thrombosis in his right leg, had great problems on a recent flight.

Age Concern is worried that many of its members with disabilities will not be covered by the provisions of the Bill unless the definition is more flexible. Perhaps many Members of your Lordships' House will have sympathy with that point.

The Minister and the Minister for Disabled People have a great deal of energy, and I hope enthusiasm. One only has to note the many organisations which are taking an interest in the Bill to see how important it is to have the correct machinery and resources to make it viable. It will affect millions of people. If those two Ministers will take the message to the Treasury and their ministerial colleagues that to make such wide-ranging legislation work realistic resources will have be available, there will be millions of grateful people. Good facilities for people with disabilities is surely an insurance and an investment for future generations.

I hope that the legislation will, in time, help to build bridges across the deep gaps which have developed over years of discrimination through lack of knowledge and willpower.

7.18 p.m.

Baroness Dean of Thornton-le-Fylde: My Lords, first, I wish to extend an apology for my late arrival in this Chamber to the Minister, my noble friend Lady Hollis of Heigham and the noble Lord, Lord Lester of Herne Hill. It is a poor substitute, but tomorrow morning I shall read with great care each of their individual contributions at the start of this debate.

The Bill is a testament to the hard work over many years of Members from all sides of this Chamber, Members in another place, disabled people themselves and the organisations representing disabled people. Therefore, it is a shame that the Bill that they have awaited for so long has severe limitations and, in my view, does not adequately address the needs of disabled people. It does not provide for the enforcement powers that are needed for such legislation. There is no doubt that people with disabilities have a sense of joy about the Bill, but equally are greatly disappointed by its limitations.

22 May 1995 : Column 865

I shall address my brief remarks to Part II of the Bill dealing with employment. In my view and experience, discrimination in employment starts before the interview and is demonstrable at the interview itself. Job applicants without a disability who go for an interview are asked about their skills and their training. They are asked about the positive aspects of their contribution to the employer's organisation. On the other hand, individuals with a disability are asked a completely different set of questions: what are their disabilities; will they be able to do this; will they be able to walk up the stairs; will they be able to deal with customers properly? They are asked a whole range of negative questions. That is where discrimination in employment begins.

My concerns regarding employment provisions relate to the exclusions within the Bill. For instance, why is it legal to reject a deaf person as a secretary, or a person with an artificial limb as a cook if the job is in the prison service, but not legal to reject those people within the hospital service or in a range of other areas? To give that legal exclusion to the prison service is a discrimination.

My noble friends Lord Murray of Epping Forest and Lord Ashley of Stoke admirably covered the exclusion of small firms. However, the provisions of the Bill place a severe limitation on rectifying discrimination, and the manner in which people with disabilities are treated.

Remploy has been mentioned. There is much concern about the possible impact of the Bill on Remploy. I hope that the Minister will be able to give assurances with regard to the work that Remploy does, the protection that it has and the support that it receives. Remploy was formed by strong cross-party support after the Second World War. It is an admirable demonstration of people with disabilities working in employment producing good quality goods and being able to compete extremely well in the market place.

The provision of the support employment programme appears to be threatened by the abolition of the register of disabled people. We need assurances in that regard from the Minister when he replies.

A further employment related aspect of the Bill is the abolition of the employment quota. It will remove the central elements of the Disabled Persons (Employment) Act 1944. That is of deep concern to people with disabilities and indeed their organisations and anyone involved in the employment field. I readily accept that the quota level has not been met. But surely the answer is to monitor it and enforce the provision rather than abolish it. Such a form of deregulation which completely wipes out the quota will harm employment opportunities for people with disabilities, and employment policies relating to such people in many organisations. Only 10 employers have ever been taken to the courts for non-enforcement of the quota. Indeed, since 1975 not one employer has been prosecuted. There has been little attempt to apply a provision in law which the Bill now seeks to eliminate.

In his reply, perhaps the Minister will say why the Government did not take up the suggestion of the Employment Select Committee in another place: to run the anti-discrimination Bill in conjunction with the quotas, and to monitor them to see whether it is necessary

22 May 1995 : Column 866

for the quotas to continue. If the registered disabled people represent only 1 per cent., we might consider reducing the 3 per cent. figure but keeping a quota.

I must comment on the reference made by the noble Lord, Lord Holderness, to employers being favourably disposed to disabled people. That has not been my experience. My experience has been that good employers follow the law. Good employers have good policies for people with disabilities in employment in their companies. Regrettably, many employers ignore the current legislation. It is those employers whom we need to address. As regards the 1 per cent. registration of people with disabilities, I have met many employees who were not registered as disabled. They were afraid to do so because they believed that they would lose their job; and if they did so they would have no chance of other employment. I have spent many hours trying to persuade people to register for disability. They did not do so because they feared the impact on them and their employment chances.

There are many examples—some choose to call them anecdotal evidence—of the need for the Bill to be strengthened in the area of employment. I do not regard such examples as anecdotal. I know that they represent the reality of everyday experience of many disabled people seeking to provide independently for themselves in employment. For instance, an employee in an advertising department of a newspaper was dismissed because he had a mild form of controlled epilepsy. It did not interfere with his job, but he was dismissed. A coach company refused to carry a person in a wheelchair; hence it affected that person's employment chances. A qualified blind telesales person was denied a job because the employer thought that she would not be able to cope with the stairs to the office.

A Department of Employment survey found that employers drafted their job requirements in ways which unnecessarily excluded disabled people. That has been my experience too. In that survey, 65 per cent. of employers thought the ability to climb stairs was "vital" for work in management; 31 per cent. even believed that the ability to walk fairly long distances was vital for a career as a degree level business professional. Those are real examples of the experience of people with disabilities. Those are the main areas of concern regarding employment provisions in the Bill.

The overriding concern of many groups representing people with disabilities is the absence of a central body with the authority and resources to make the law work. The national disability council to be established by the Bill is not such a body. Enforcement powers need to be introduced. I hope that there will be cross-party support for changes that will strengthen the Bill in the area of employment and in the many other areas to which noble Lords referred.

7.37 p.m.

Baroness Stedman: My Lords, noble Lords will regret that the noble Baroness, Lady Macleod of Borve, has had to withdraw from the debate because she is unwell. I am sure that we all wish her well and hope that she will be

22 May 1995 : Column 867

with us at future stages of the Bill. I should like to make a few general remarks and then concentrate on access, transport, and the national disability council.

I am concerned about the exemptions for small businesses and the removal of the quota system and registration. Who will gather the statistics about the number of disabled people in employment? And who will monitor the results of the implementation and effect of the new employment rights? I believe that small businesses should not be exempt for all time and that the Bill should extend to all employers. Like the noble Lord, Lord Ashley, I am concerned that the access-to-work scheme may be under threat. It has been a remarkable success and it ought to continue at least until we see how the new proposals work.

The provisions of the Bill raise many questions for businesses and for their disabled employees and customers. What is a reasonable provision? Is there any order of priority for access improvements? What improvements will give the best value for money? How will fire safety and building management relate to the physical access issues? Surely it is time that we stopped paying lip service to the access needs of the disabled in their houses, workplaces and in places of leisure entertainment?

It is so much easier and cheaper to build in the basic requirements from the start rather than to carry out a major reconstruction later. Why cannot building regulations lay down adequate standards for all new housing developments, estates and social housing so that the designs ensure easier access—wider doors and passages, bathroom aids, and so on? Such housing accommodation would make it easier for the able bodied and disabled persons to use such premises for life, with only minor adaptations. The same applies to educational establishments, to other public buildings and to entertainment and leisure complexes.

This new legislation will be most successful if access provisions can be negotiated between the employees and employers, between the service providers and their disabled customers. That will depend on all parties having a clear understanding of their rights and responsibilities and knowing what options are open to them.

Whether we eventually have an advisory committee or a commission with teeth, sources of advice at local level and nationally will be vital. When some of us had the privilege of meeting the Minister in another place and the noble Lord opposite both of them referred to the need to have advice groups at local level. It seems that they hoped that the citizens advice bureaux might be such bodies, but they are meeting, or appear to be meeting, with some resistance over the increased costs and responsibilities and the need for specialised training.

Access officers have been employed by many local authorities for over 10 years to give advice to developers and to service providers. A provision in the Bill for at least one access officer in each local authority area would ensure the development of a source of independent advice for goods and service providers and users. Then we also have the Access Committee for England, appointed and financed by the Government in 1984 with the object of promoting and advising on access for disabled persons to the built environment.

22 May 1995 : Column 868

This new legislation will stimulate demand from businesses and from disabled people for support and advice. Yet the Government have drastically cut the funding of the Access Committee for England for this year. Why? This has put the committee under the most severe pressure and yet it has a network of over 400 local access groups in England, with personal experience of the disability of its members which is used to great effect to promote better access provision in all key services at a local level. Who better to be called in aid? But it cannot undertake additional work if its core funding is cut so drastically and without due notice.

I am glad that compliance costs have not figured so prominently as they did in the earlier Bill. I can only repeat what I said then, that compliance costs need to be considered together with opportunity costs or cost benefits. Only to consider costs is to consider outlay and ignore the return. That attitude tells us nothing about the merit of the investment.

If we are unwilling to incur compliance costs we leave people with disabilities frustrated at the edge of opportunities for education and employment, lacking public transport which they could use without great difficulty and denied access to many of the buildings in which the social, cultural and economic life of their community is carried on. If accessible transport is not available, then access to education and employment is denied to many disabled persons.

I am delighted that the low floor buses are appearing on the streets of London and elsewhere and that taxi cabs for hire are to be wheelchair accessible. I pay tribute to the Minister, Steven Norris, for his efforts towards the new provisions relating to taxis and private hire cars in the interests of a countrywide, dependable, safe and acceptable system of service.

Accessible taxis are not just about wheelchair users, even though 75,000 to 80,000 people use wheelchairs all day and every day. Those taxis will also have better fittings for the 1 million visually impaired people and will be more suitable for the 4 million people with mobility impairments who do not have to use a wheelchair. It means that the nimble, the not-so-nimble, those with a lot to carry, those with a trolley or a buggy, the partially sighted and the disabled will all benefit from more accessible transport.

My final concern today is about the proposed national disability council which will only have a monitoring or advisory role. Without full powers of enforcement such as those given to the Commission for Racial Equality and the Equal Opportunities Commission, the new laws could be disregarded. If the council is unable to take up general cases of discrimination, the onus will be on individual disabled people to fight their own case. Yet most of those people will be unable to seek redress through the courts unless legal aid is available to them.

We need a full commission to assist those who want to follow up a case, either by giving advice or with full legal representation. The commission should be empowered to issue a non-discriminatory notice against individuals and organisations and be able to enforce compliance. A council lacking resources for follow-up work, both in terms of finance and staff, and which cannot apply statutory enforcement measures is unlikely to be heeded

22 May 1995 : Column 869

by employers and service providers. It will therefore threaten the credibility of the council, both among disabled persons and among the business community. It will have no enforcement powers and it will lack both independence and adequate resources.

The Bill could still be a landmark for disabled people. It is a move in the right direction, but much remains to be done. By widening the Bill to cover transport and education, the Government have strengthened the need for a commission—with teeth—to act on behalf of disabled persons. Discrimination is morally wrong and unreasonable. Unjustified discrimination cannot be tolerated today. We must have a real national commission, adequately funded, with powers to advise, powers to draw up codes of practice and powers of investigation and enforcement. Can we not please the noble Baroness, Lady Masham, by seeing the person and not their disability? Disabled people want and ought to have equal rights like everyone else and equal citizenship. This is an opportunity for us to give them that.

7.48 p.m.

Baroness Seccombe: My Lords, at this hour many of the issues have been covered. I shall therefore confine myself to one aspect and in so doing I shall not delay your Lordships for many moments.

One of my earliest memories as a small child was seeing disabled people being pushed in a variety of chairs. The vehicles were cumbersome and heavy and the disabled person was often completely dependent on the person in charge. He or she was often left outside shops and distanced from normality in many ways. Life must have been very difficult as a result.

One of the biggest changes since those days—I marvel at it—is that even people with very severe disabilities are now able to enjoy the pleasure of getting around independently. That is due to the dramatic advance of technology and the determination of many groups and individuals to see an end to the discrimination against disabled people which was so hurtful and negative. I pay tribute to all those who have highlighted the issue of discrimination. I pay tribute also to my right honourable friend the former Minister for Disabled People, Sir Nicholas Scott, who, as the noble Baroness, Lady Hollis of Heigham, said, fought tirelessly on behalf of disabled people. Indeed, I believe it was he who prepared the ground for the Bill before us today.

I congratulate my honourable friend the present Minister on introducing a Bill that seeks to take forward the current legislation so that we have on the statute book the greatest advance for disabled people in the country's history. The Bill covers employment and access to goods and services while at the same time giving consideration to all employers, particularly small employers, who may not have the financial resources required.

I have to admit that I shall be glad to see the quota scheme replaced. I am sure that it was an honest attempt to raise awareness and give disabled people a right to employment. But it just did not work. The proposal in the Bill giving a statutory right to disabled people, making it unlawful for employers to treat a disabled person less

22 May 1995 : Column 870

favourably than other people without justifiable reason, is a great step forward. I welcome it. More than four in five employees will be covered by the proposal. But, as I said, it is imperative that small businesses are not placed in a position where the law drives them out of operation. The United States decided to exclude small businesses from the Americans with Disabilities Act. Doubtless, that was for similar reasons.

The Bill is very good news for everyone, including those who have not had to cope with disability and who have so much admiration for those who do overcome the difficulties they face. I welcome the Bill and wish it well in its progress through this House.

7.51 p.m.

Lord McConnell: My Lords, I do not intend to delay your Lordships long at this late hour. Mainly, I wish to say that I give general support to this Bill.

My interest in this subject arose a few years ago in response to the case of a young French woman who came to Northern Ireland to take up a post as an assistante in a grammar school. The engagement was merely for one year, but she made many friends, liked the place and wanted to stay on. I tried to help her to get employment. I went to see a man whom I knew who took on staff in a large national company. I told him that she was bilingual in English and French, that she could speak Spanish and that she had a degree in management from a French university. He was very impressed—until I told him, "But she is in a wheelchair". "Oh," he said, "our offices are on several storeys. It's a high building. If it caught fire, somebody would have to carry her down the stairs". He lost interest completely when he discovered that she was disabled. That made me think that we ought to do something to help such disabled people. That, I hope, is the benefit of this Bill.

The Bill may not be the complete solution, but it is certainly a welcome step. I am glad to see in it a degree of flexibility in that it can be extended in certain respects—for instance, the provisions dealing with the number of people in an enterprise which is to be exempt—and the legislation can be brought in piecemeal, so that we can learn from experience and proceed at the proper speed.

I shall mention just two other points. I shall not go into great detail because many experts have already spoken on this subject, and I do not pretend to be an expert. I am glad to see that the legislation will apply to the Crown. Too often in the past legislation has been passed in which the Government have said, "This is what you must do, but of course it does not apply to us. We do not have to do it". There are two recent examples of Crown exemption. One was the fire at Windsor Castle. Sir Alan Bailey, in his report, stated that we should consider the position in respect of Crown exemption. A similar example arose in regard to the fire at the Stormont parliament buildings in Belfast. Again, the fire regulations were not followed by the Crown. Sir Reginald Doyle likewise said that the matter should be looked at. I am glad indeed to see that this Bill applies to the Crown.

I am also glad to see that the Bill applies to Northern Ireland. Too often legislation applies only to Great Britain and not to the whole of the United Kingdom. Eventually,

22 May 1995 : Column 871

Northern Ireland has an order that cannot be amended; we either have to take it or leave it. I am glad to see that Northern Ireland is properly included in this Bill. I extend my support to the Minister in respect of this legislation.

7.58 p.m.

Baroness O'Cathain: My Lords, like all other noble Lords, I welcome this Bill wholeheartedly—particularly as its objective is to tackle discrimination against the disabled. Naturally, it has received the warmest of welcomes. The acknowledgement and universal understanding that disabled people have every right to be treated as equal citizens is a very big step forward if one considers what happened some 50 years ago. We are now a much more caring and humane society.

The Bill before us in effect updates the 1944 Act so as to encompass in law the very changes in universal understanding of the needs and wants of disabled people that have been so apparent in recent years. As well as welcoming the Bill, I believe that a similar welcome should be given to the remarkable degree of consensus that has been achieved on this issue, particularly between those organisations that represent the disabled and the business community. It is as a business person that I wish to make comments on this Bill, but as one who has first-hand knowledge of the real, not imagined, problems of access for the severely physically disabled.

I should like to make four points at this stage of the Bill. First, what the Bill must not do is result in a substantial increase in the cost base of British business. That in turn would affect our painfully won improved international competitiveness. The CBI reproduced for us the Government's estimates of the additional costs that are likely to be incurred—by whom, is an issue in itself, and one that has not been made clear. Those costs range from £375 million to £1,125 million in non-recurring costs, and some £40 million to £120 million per annum thereafter. At this stage it is probably not opportune to ask for a detailed breakdown of where the Government will be responsible for these costs, but I give notice to my noble friend the Minister that I shall pursue this matter in Committee.

In business nowadays, any new piece of legislation, any new computer programme or any new way of improving customer care is not introduced with minimum fuss. The sums that are spent on training, internal helplines and process manuals all involve hidden costs to business on a scale that is really quite frightening. I fear that far too often legislation is proposed without sufficient acknowledgment of the cost burdens that are involved. Being tempted to be cynical, I suggest, gently, that a whole new industry of consultants giving advice on the Disability Discrimination Act will spring up once the Bill receives Royal Assent.

The imperative to retain our determination to improve international competitiveness was brought into sharp focus for me with the release of recent figures that show that, while on manufacturing unit labour costs the growth has been close to zero, they moved up 0.6 per cent. in the first three months of this year compared with the same period last year.

22 May 1995 : Column 872

Even more worrying is the fact that since 1993 the US, Germany and Japan, our main competitors, have seen even steeper declines in unit labour costs. There is no room for complacency here. Any increase in imposed cost must be resisted. My noble friend the Minister must realise that I am putting in a plea for government to take on all the cost, but I know what his response to that will be.

Our progress over the past three years cannot be jeopardised by allowing costs to run ahead of productivity gains. If they do, the inevitable will happen, and the so welcome improvement in the unemployment rate will disappear, creating a risk to one of the objectives of this Bill; namely, more jobs for the disabled.

Earlier today we heard that the Government's second competitiveness White Paper has been published. Indeed, I have already scanned it for latest trend information. There is much in it and much to be welcomed. But we shall have to maintain our vigilance and make sure that we do not slip.

To return to the issue of costs in this Bill, there does not appear to be a clarification of the precise distinction between recurring and non-recurring costs, other than the fact that the CCA (compliance cost assessment) document states that non-recurring costs may include adaptations or alternative services as well as the costs associated with acquiring information on the new legislation, the review of rules and practices and dissemination of instructions to staff. On that point, the "dissemination of information to staff" would almost certainly be a recurring cost depending on staff turnover levels.

I turn to my second point, which follows neatly from the first; namely, the essential requirement for clarity. There exists a huge risk of cost escalation from lack of clarity. I specifically draw attention to Clause 21, which deals with the provision of goods, facilities or services. To give just one example, how will services such as vending machines, banks' ATMs, and telephone boxes be dealt with? Will the provider of those services be obliged to have an employee standing by to ensure that the disabled are assisted to operate those machines? This is not a rogue point but a valid concern. At the Committee stage I am sure that this matter will be addressed. I just put up a marker.

My third point concerns the availability of advice to businesses to ensure that they can do the right thing. The scope of the Bill is immense and there are bound to be areas of confusion which manifest themselves during the operation of the Act and points that none of us will have thought about. What we certainly do not want is a situation whereby, through no fault of their own, businesses fall foul of the legislation because of bad advice or, indeed, no advice.

Let me illustrate my point. I was taken aback when I was shown an internal manual prepared by Bass PLC, who own the company Holiday Inn. That internal manual gave instructions on how to comply with the US ADA legislation. The manual is 292 pages long. It covers a detailed breakdown of the law, analysis of the disability market, disability etiquette, resources to be made available, questions and answers for hotel managers and the rules and regulations attached to each area covered by that Act. It is a sobering process but necessary if that company does not want to get into serious legal problems.

22 May 1995 : Column 873

Yet, in the US there are helplines available. The helpline on access, for example, is provided free by the Department of Justice. I ask my noble friend the Minister whether there is any likelihood of similar helplines being provided by a government department here. That point could be covered, I suppose, by the national disability council, if its remit were widened to provide advice and guidance.

My fourth point concerns small businesses. It is in that area that we are pinning so much hope for new job creation. It is essential that the cost burdens arising from the Bill are minimised. The Government have already committed themselves to reviewing the current exemption from the proposed employment right for those employing fewer than 20 employees. But that creates a possible danger. If regulations and codes prepared with those employing more than 19 people in mind suddenly apply to those employing fewer people, there could be a real problem. It would be far better to consider the situation of that group when the regulations and guidance on unemployment are first drafted rather than later. The Government have said that they will not reduce the level below 20, but regulations and guidance need to reflect that.

It has to be said that if there were not such an exemption for small firms, as advocated by my noble friend Lord Campbell of Croy and many others, there could be significant cost penalties. Employing a disabled person can be very costly, not just in terms of access but in terms of back-up when the person has, for example, to go to regular physiotherapy or for medical checks, etc. In my personal experience, the sick-leave record of the disabled is generally much higher. A larger company can have the luxury of job cover. Smaller firms might not be able to afford it. My noble friend Lady Gardner of Parkes spoke about HIV and how an HIV-positive person has problems. That is very true. A bigger organisation can cope with that, again, allowing back-up and jobshare, but the smaller companies might have problems if the level were extended below 20 people.

Inevitably, there is a great deal more that could be said about the Bill and many noble Lords have already said it. But lest I give the impression that it is all too complicated, I must reiterate how much I welcome the Bill. The principle is excellent; the content needs working out; and the perennial question of who bears the cost must be addressed. However, it is imperative that every effort is made to ensure that clarity is reached on every single aspect of the Bill. We now have a golden opportunity to introduce measures which should make life so much better both for the disabled and for those of us who have a genuine wish to make sure that life is made easier for the disabled.

Perhaps I may make an observation. I do not think it is realised that many people who are in close contact, on a daily basis, with the severely disabled live with a constant nagging guilt that they are not doing their absolute utmost to alleviate the problems of disability. If only things were universally easier, those who are responsible for the complete care of the disabled person would not be so "stressed out", to use the current jargon—but it is jargon which so correctly describes the reality of the situation.

22 May 1995 : Column 874

Of course, things are not universally bad. There are shining examples of good practice: the out-of-town supermarkets, so often the butt-end of recrimination are a case in point. It is so much easier to go grocery shopping in those stores than to try to manipulate a wheelchair up and down kerbs and in and out of congested small shops in the high street. People's attitude to the disabled has improved beyond measure, but there is still a way to go and this Bill will propel the issue forward.

Finally, let me sound a note of caution—a health warning, if you like. What we do not want is a new piece of legislation which is so unclear and so complex that at every turn one has to refer to lawyers. Too much legislation becomes tantamount to writing blank cheques for the legal profession but, more seriously, brings us all into disrepute also.

8.7 p.m.

Lord Robertson of Oakridge: My Lords, I very much welcome the Bill in general. I should like to mention just one area of concern where I feel that further debate is needed; namely, the provision of medical care to disabled people. It is a vitally important area involving, as it does, the patient's right to medical care and, in the last resort, possibly to life itself. It is an area where there are a number of difficult but important ethical questions.

The Bill has very little to say on the subject of medical care—so little indeed that I wondered whether it was intended to cover it at all. However, Clause 12(3) (h) (on page 9) refers to:

    "the services of any profession or trade".

The noble Lord, Lord Mackay of Ardbrecknish, kindly confirmed to me that health authorities and medical practitioners are included in the Bill in so far as they offer services to the public. Nevertheless, from inquiries that I have made so far, it appears that the Bill is regarded as almost entirely concerned with commerce, trade and employment. If that is so, the very considerable medical implications remain to be fully assessed.

I hope that, as the Bill goes through its various stages in your Lordships' House, the public debate on the medical issues will gather pace and provide a forum in which various representative professional bodies and the voluntary agencies can participate.

8.9 p.m.

Lord Beloff: My Lords, I have no intention of echoing previous speakers who have enlarged upon the many important provisions of this important Bill. I want only to take up a point made by my noble friend the Minister concerning amendments that would affect the institutions of higher education, which we understand are to be brought forward at Committee stage along with other government amendments.

It is obviously important that higher education, as education generally, should make adequate provision for all those who, by reason of disability, may not be able immediately to find a suitable place and to vary provisions in order to assist them. With 96 universities (at the last count) and innumerable courses, that should not be too difficult, provided it is accepted that the rights conferred could not be necessarily universal. It is important that

22 May 1995 : Column 875

there should be some place; it need not necessarily be that every institution must provide a suitable place. To take an obvious example, the business of physical access through lifts or other means is relatively easy to apply when one is erecting a new building, but when one is dealing with historic buildings constructed centuries ago real difficulties are involved. Their listed nature involves other permissions and the intervention of other authorities.

But on the whole it cannot be denied, either by the Government or those familiar with the higher education scene, that universities have taken their obligations seriously and that a great deal of work has been and is being done by university staff, assisted by the demands of the student bodies themselves. The University of St. Andrews, with which I am connected, has a student officer whose prime duty is to make sure that disabled students coming to the university are familiar with the facilities available for them and to agitate for suitable facilities where they do not exist. We are not dealing therefore with a static situation.

On the other hand, there does not seem to me to be in the disabilities field any specific reason to go back on undertakings which this House secured in relation to academic freedom. I remind your Lordships that, during the passage of the Further and Higher Education Act 1992, an amendment was passed which prevents the Secretary of State from giving directions to the funding councils which might impinge on academic freedom. As 1992 seems like a long time ago, perhaps your Lordships will pardon me for reading the section. It is Section 68(3), which states:

    "Such terms and conditions"—

that is to say, the terms and conditions of grants from the funding council—

    "may not be framed by reference to particular courses of study or programmes of research (including the contents of such courses or programmes and the manner in which they are taught, supervised or assessed) or to the criteria"—

this was the amendment accepted by the House against the advice of the Government, but which the Government accepted—

    "for the selection and appointment of academic staff and for the admission of students".

That seems firm enough. But we now learn that without prior consultation with the universities the Government (I understand from listening to this debate on the more general issues) consulted fairly widely with those organisations concerned with disability. However, their habit of consultation, which may be powerful in the Minister's Ministry, is not one which the Department for Education finds normal or natural. We now learn that the Government propose to introduce an amendment to the Bill,

    "to provide the Secretary of State with an unambiguous power to require the higher education funding council to seek policy statements from universities and colleges covering their arrangements for access (in its widest sense including admissions and curricular policies as well as physical access) for disabled students".

The letter of 28th March to the Committee of Vice-Chancellors and Principals, which gave the first official indication of the Government's intention, stated that this was being done because of the restrictions in Section 68 of the Act from which I quoted.

22 May 1995 : Column 876

In other words, the genuine and important needs of disabled students are being used, on occasion, for the Government to go back on a decision reached by Parliament that the one thing the funding council may not do is to place conditions on its grants affecting academic matters. The objection is not so much in the substance because all universities do and will continue to give publicity to the arrangements they are making on behalf of disabled students. The difficulty is that once a provision of this kind is overridden on a worthy cause, what will stop the Government from coming forward and providing means of overriding it for some less worthy cause?

One might say that perhaps the needs of disabled students are so important that we should make this an exception to the general rule. But in this case it does not appear that it would be of assistance. The noble Baroness, Lady Darcy (de Knayth), mentioned the national bureau for students with disabilities—SKILL—in which I understand she is a leading figure. But SKILL is opposed to the government amendment. I received a briefing from it which reads as follows:

    "There is no sound reason why the increase in equality for one group should be made to threaten the existing rights of another, the universities. More specific policy statements on provision for disabled students would be welcome and useful, but the amendment needs to be framed in another way if it is to be welcome to the institutions who are to respond to it".

In other words, those who represent disabled students believe that the way forward is through co-operation between such organisations and the institutions of higher education. They deplore the interjection of an unnecessary compulsory power in violation of the undertakings given by the Government when the original Section 68 was finally enacted.

Since I am sure that my noble friend the Minister is anxious that there should be co-operation on all sides of the House in dealing with this important Bill, and will be looking for the greatest measure of goodwill, I ask him earnestly to consider not moving the proposed amendment in order that there should be one big body of opinion—those concerned with higher education—who will look upon the Bill with favour, which they might otherwise withhold.

8.18 p.m.

Lady Kinloss: My Lords, like other noble Lords who have spoken, I welcome the Bill as far as it goes. I also thank the Government for the concessions they have already made and look forward to seeing the amendments they intend to bring forward.

The Bill establishes two important new rights for disabled people in employment and in access to goods, facilities and services. There are around 1 million blind and partially sighted people who could benefit as a result of legislation to outlaw unfair discrimination in those areas. Part III of the Bill deals with goods, facilities and services.

The RNIB is pleased by the Government's pledge to bring forward amendments in regard to transport. The noble Lord, Lord Winchilsea and Nottingham—I am sorry he is not in his place—spoke of transport by taxi. Some taxi drivers refuse to carry guide dogs for the blind

22 May 1995 : Column 877

or talking dogs for the deaf. I understand that it is generally minicabs, which I believe are not licensed. If they do carry the dogs, it is not unknown for the guide dog owner to be charged extra for the dog. That would seem to be very unfair.

Last Thursday evening when I arrived at York station I had to take a taxi the 11½ miles home. I was in a saloon car. The car behind was a London-type black cab, which I can assure your Lordships makes for an extremely uncomfortable journey on country roads. The driver, a taxi driver for 29 years, said he would like to have a mixture of taxis. All taxis and hire cars in York are licensed. His taxi was registered under Ryedale district council, my own council. He had a large notice in a convenient spot for all to read —"Guide-dogs and talking-dogs are carried without hesitation and at no charge". His list advised that an ordinary pet should be charged for at 10p. He would like some saloon taxis allowed as tourists often ask to be taken quite long distances to beauty spots or places of special interest and expect a comfortable car. May I ask the Minister whether this mixture of taxis could not be recommended.

SENSE would like the Bill to afford protection to deaf-blind people in the provision of goods and services. For deaf-blind people this means that companies and shops should not be allowed to charge for services such as Braille copies of brochures, leaflets or menus. If companies or providers of goods and services are able to impose a charge, it could be seen as a disability tax. This would surely be going against the main intention of the Bill—equality before the law.

As other noble Lords have said, the definition of disability is very difficult. SENSE and other organisations for the disabled feel that the definition is too narrow. SENSE draws attention to the failure to include genetic predisposition within the definition. This would appear to throw open the possibility of a person suffering from Usher syndrome being discriminated against by an employer. Usher syndrome is where an individual is born with a profound hearing impairment and then begins to lose his sight in his mid-to-late twenties. The discrimination would be where an employer took into account the future loss of sight, perhaps 10 years hence, when interviewing for a job at a time when only hearing is impaired.

I agree with many of the organisations for disabled people in their wish to see a commission with legal teeth rather than a national disability council without the backing of possible legal enforcement.

Remploy Limited, a government-subsidised company, is very concerned that the Bill could have an adverse effect on the employment of people with severe impairments. Remploy was originally set up after the last war—the 1939-45 war—to provide jobs for disabled people, particularly those disabled in the service of their country. As we celebrate the 50th anniversary of VE Day, it would be very sad if subsections (2) to (5) of Clause 34 of the Bill threatened the unique nature of Remploy. May I ask the Minister if this could happen under the Bill, or is Remploy worrying needlessly?

22 May 1995 : Column 878

I look forward to the Bill leaving your Lordships' House improved not only by promised government amendments but possibly other amendments as well.

8.23 p.m.

Lord Ashbourne: My Lords, it is getting late and I will not detain your Lordships for long. I believe that the Bill deals with an issue of fundamental importance to our society, and I welcome it. I am glad that the Government have responded to the widespread concern about the rights of disabled people and are seeking to strengthen the law and protect the disabled from discrimination. I have experienced the impact of disability in my own family, as no doubt have many noble Lords, and anything that we as parliamentarians can do to enhance the status of the disabled and ensure that they are treated on a similar basis to the rest of society must be welcomed. No doubt noble Lords will have a number of suggestions for strengthening and improving the Bill.

As I read the Bill, I was troubled by a more fundamental concern. I believe that we are in danger of rightly responding to the cries of those disabled people that we can see and hear, but gradually leaving to one side those who cannot speak for themselves. I fear that, in spite of the efforts of a Bill like this, the overall attitude of society to disability and handicap is becoming more negative. I say that because the advances of genetic screening mean that more and more inherited handicaps are identified before birth and the option of abortion is not only offered but is expected to be taken by parents facing the possibility of a handicapped child. In 1993 there were 2,000 terminations of pregnancies on grounds of serious handicap, some of them in very advanced stages of pregnancy, following the changes made to the law in 1990. Noble Lords may feel that abortion raises different ethical issues from the more general concern for disabled rights. But what of the newly born or the confused elderly with disabilities who cannot speak for themselves?

I was shocked to read of a recent case in Holland where, on 26th April, a judge acquitted a gynaecologist of murder charges after he had intentionally killed a three day-old baby girl. The doctor justified his action on the grounds that the girl was seriously handicapped and might only have a few weeks to live. While the Medical Ethics Committee of this House, chaired by the noble Lord, Lord Walton, strongly condemned in its report actions like that, I can see a time when the trends in our society mean that such events could happen here. Perhaps I may add how much I applaud the report of the Medical Ethics Committee of your Lordships' House. I should like to congratulate members of that committee, in particular the noble Lord, Lord Walton, on the admirable report which they rendered.

Similar issues arise where those who are incapacitated but unable to express a view may become less valued by our society and we decide that the best thing is for them to have their lives ended, directly or indirectly. The recent Law Commission report on mental incapacity delves into that issue with results which, in some cases, I find deeply offensive.

It is clear that we need a Bill like the one before us today. But my plea is that we need to think again about our attitude as a society to the disabled. We must eliminate

22 May 1995 : Column 879

discrimination against disabled people but never go down the path we have started with the unborn—of eliminating the disabled themselves.

8.27 p.m.

Baroness Seear: My Lords, I have powerful memories, 50 years ago, of going to a lecture on rehabilitation given by a most outstanding surgeon who had an international reputation for the work that he had done on people hopelessly, it would have seemed, mutilated and disabled either in the forces or as the result of civilian bombing. He took as his text: sympathise not with my weakness but with my strength. That is the principle which should lie behind all legislation connected with disablement and the way we should deal with, and the opportunities we should offer to, disabled people.

To turn to another memory of those years, that strength was very much illustrated by an exhibition near Burlington Academy by disabled people who had been trained to do work which was urgently needed at that time. It was remarkable how during the war people who had been regarded as quite incapable of employment were suddenly found to be very valuable indeed and quite able to get up to high standards of work provided they were given the appropriate training. I should like once again to pay particular tribute to the work that St. Dunstan's did at that time, and has, of course, done since. That is why I want particularly strongly to support what was said by the noble Baroness, Lady Darcy (de Knayth), about the importance of education and training. One cannot give appropriate training to disabled people to bring them to the standard of work which enables them to obtain and to hold very satisfactorily—not as a concession—the jobs for which they can be trained unless they have the essential education to do it. That is a most important matter to be put into the Bill for the development of disabled people. In so doing, I echo what the noble Lord, Lord Beloff, said: it is particularly unfortunate to alienate the education institutions by making unnecessary requirements in order to reach the standard. He was referring to a government amendment that we have not yet seen. The Government still have time to do something about it and to meet the point made by the noble Lord, Lord Beloff, and, by implication, by the noble Baroness, Lady Darcy (de Knayth). Therefore the emphasis on education and training and its absence from the Bill, is something on which we should concentrate.

Employment is at the heart of the matter. To be able to get a job, hold it down, earn a living and to work along with other people in ordinary employment, is probably the greatest benefit that one can give to the disabled. It is also the most economically sensible thing to do because it relieves the strain put on society if the disabled are unable to work. It makes the disabled contributing citizens rather than people who have to draw benefits from the rest of the community. I particularly regret that education is not included in the Bill. I draw the Minister's attention to the fact that under the European Convention on Human Rights, discrimination on grounds of education is illegal. I hope that he will be able to comment on that and tell us what action the Government might consider taking in that regard.

22 May 1995 : Column 880

There are many other points of proposed legislation on which I would like to comment. I very much follow the noble Baroness, Lady O'Cathain, as regards costs. It is quite extraordinary that this Conservative Government, which is quite rightly devoted to the development of industry and its prosperity, and which claims that they are taking burdens off industry, are constantly putting them on. If we want better treatment, facilities and opportunities for disabled people, surely a considerable amount of the cost should be borne by the Government and the taxpayer. Of course, it is not the Government: they are always telling us that they have not got any money and that it is the money they have taken from us, whether we want them to or not. It is unreasonable that industry should have to bear the cost if we want a decent society.

I have said this before and I shall say it repeatedly: if we want a decent society and the proper treatment of disabled people, which is very much part of having a decent society, then we must be prepared to pay for it. The Minister looks extremely doubtful about it. He is going to tell me, of course, that the Liberal Democrats will throw money away right, left and centre and that they do not care what the taxpayer has to pay. We want a decent society and we believe that people are capable of being persuaded that such a society has to be paid for and that the costs should not all be laid on the employer if we want it to work properly.

There are many other points, but there is not a great deal of time to deal with them at the present moment. Once again the question of parliamentary control over the regulations and development of this Bill rears its head. I understand that the council lays down the guidance which the tribunal has to go by in dealing with the complaints which come before it. But that guidance does not come before Parliament. Therefore, the tribunal is adjudicating on cases where Parliament has not had the chance to say whether the standards on which the adjudication takes place are satisfactory. The Government's passion for doing everything by regulation in side tracking and bypassing Parliament, has become a mania. Would it not be possible to look again at this matter to see whether the right can be restored to Parliament to look to see what the guidance will be before it is passed to the tribunal to act on?

We come once again to the question which practically all noble Lords have raised and which I sincerely hope will be dealt with before the Bill leaves your Lordships' House. All the good intentions in the Bill and all the fine words said about it, will add up to absolutely nothing unless there is an effective enforcement procedure. That has to be in place in order to see that the whole purpose of the Act is properly carried out and that discrimination does not take place.

In view of some of the comments made by some noble Lords, perhaps I may add that the anti-discrimination legislation which we are asking for, with powers to have it enforced, is in no way asking employers to take on people who will be economically damaging to them. Previous anti-discrimination legislation has made it entirely clear that employers are not asked to run their businesses less efficiently because there is anti-discrimination legislation. All employers will retain the right—as they have done under legislation dealing

22 May 1995 : Column 881

with sex discrimination and discrimination on grounds of race—to refuse to accept someone if it is justifiable so to do. They are only required not to turn down people for reasons which have nothing whatever to do with their ability to carry out the job.

That point does not seem to be fully understood as regards some of the comments which have been made today. We heard Members of your Lordships' House talk as though employers were asked to carry people who cannot do the job. That is not so: they have never been asked to take on women who are not competent to do the job because they are women or members of ethnic minorities because, as such, they are incapable. They will not be asked to take on disabled people who are incapable of doing the job. There has always been the provision that the employer can turn down—the Minister is telling me to shut up and I shall do so very shortly.

Next Section Back to Table of Contents Lords Hansard Home Page