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Baroness Hollis of Heigham: I dare you!

22 May 1995 : Column 885

Lord Mackay of Ardbrecknish: My Lords, I suggest that the Benches opposite do not try to tempt me. We should still be here after 10 o'clock. I shall look at one or two of the themes that have run through the debate and then take one or two individual points. I have no doubt that we shall be able to return in Committee to most of the issues raised in Committee.

The main theme running through the debate, as it did through the speech of the noble Lord, Lord Carter, was the council that the Government have proposed as opposed to the commission which the Benches opposite seem to want. The theme that runs through the debate is the view that discrimination against disabled people is somehow akin to discrimination on the grounds of race, sex or religion. I do not propose to attempt to counter all the points raised; but I am sure that we shall have plenty of opportunity to go over them.

I should like to explain some of the reasons underlying the approach we have adopted to the Bill. First, we gave careful consideration to adopting the existing model found in the sex discrimination and race relations legislation. We rejected that because in some cases disability can limit someone's ability as an employee or capacity to receive services.

If we are serious about tackling discrimination against disabled people, we must not stop at merely prohibiting unfavourable treatment as in sex and race discrimination legislation. We must also require employers and service providers to take reasonable steps to help disabled people overcome any limitations imposed by their physical or mental impairment. Having done that, we must still remember that some disabled people will, none the less, not be able to do a particular job or to avail themselves of some services. In those cases, regrettably, we must allow that less favourable treatment is inevitable.

Those factors make this area different from race and sex. They also make our endeavours to end discrimination against disabled people a complicated matter. Those complexities are, quite rightly, reflected in the Bill. Where the national disability council can help with some of the examples that noble Lords gave, is when it finds that a particular group of disabled people is having difficulty securing its rights; for example, from considering the information supplied by the advice and assistance service, there will be a number of courses open to the council. It may want the Secretary of State to commission research to find out the reasons for the difficulties. Alternatively, it may wish to take evidence from the advice service and speak to representatives of any industries or businesses concerned in order to identify the problem.

In any event, we would expect the national disability council and the National Advisory Council on the Employment of People with Disabilities to draw their findings to the Government's attention and to make recommendations as to what should be done to overcome any problems. The flexibility provided for in the regulation-making power in the Bill and the provisions for codes of practice allow for the policy intention to be clarified if particular problems arise.

It should be borne in mind that the existing commissions have used their powers of general investigation very infrequently. In 1993, the Commission

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for Racial Equality commenced only three investigations of named bodies and the EOC commenced only one such investigation. The noble Baroness, Lady Hollis, and others, prayed in aid the CBI as being in favour of an effective enforcement body. I believe that the noble Baroness will find that the CBI is neutral on the question of a commission. Its main concern is that there should be an effective source of advice and information for employers. We shall be working with it to ensure that such a service is made available. I am confident that it can be delivered without setting up a commission.

The noble Baroness, Lady Lockwood, seemed to be worried that the council would be responsible only to the Secretary of State. It will provide advice to the Secretary of State, but it will also produce an annual report which will be laid before Parliament and be published. It will be open to Members of your Lordships' House to seek to debate any aspects of that report.

I shall turn to a point made outside the House by the noble Lord, Lord Ashley, who was critical of the lack of a commission in the Bill, as he seems to think that a large number of people will choose to disobey or disregard the law. I can do no better than quote back to him his words in last week's programme "Does he take sugar?" in which he said, "I can't believe that many people are going to break the law, I just don't believe that". Neither do I.

Lord Ashley of Stoke: My Lords, I am sorry to interrupt the Minister. That is precisely what I said today. I was echoing myself. The Minister has misunderstood. He should read Hansard tomorrow.

Lord Mackay of Ardbrecknish: My Lords, I was reading a transcript of the programme; but I shall, indeed, read Hansard tomorrow.

I shall turn to the issue of definition. Again, the noble Baroness, Lady Hollis, complained that the definition excludes some disabled people. The definition is not limited to people whose impairments are clinically well recognised. That qualification relates to mental illness only which, as your Lordships will recognise, has a much greater scope for doubt than other mental impairments or physical impairments.

The noble Baroness has some other misconceptions about the Bill, upon which I have no doubt we shall spend some happy hours in Committee. The definition of "mental impairment" is wider than that in the Mental Health Act. Under that Act, people are covered only if they are a danger to themselves or others. I should not have thought that the noble Baroness would have wanted such a restriction. Someone who has epilepsy, where the substantial effects are controlled by medication, would be covered.

Baroness Hollis of Heigham: My Lords, again, like my noble friend Lord Ashley, I am sure that the Minister would wish to quote me correctly when he is addressing points in his reply. The examples of well-defined conditions that I gave were from MIND. ME and mental disorder would not be considered. I made it clear that when I was talking about that area in which the Bill fails to protect against discrimination, I was talking about mental disorder. The other examples, including controlled epilepsy, related to where it had no adverse or substantial

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effect on normal activities and in consequence therefore were not covered by the Bill. That was a separate part of the answer.

Lord Mackay of Ardbrecknish: My Lords, I said at the beginning that I was not going to answer every point. I thought I had answered one of the points that the noble Baroness made but perhaps that should act as a warning to me. I should probably leave these matters to the Committee. The noble Baroness may be surprised to know that the mildly disabled people would not be covered by the definition in the Civil Rights (Disabled Persons) Bill.

My noble friend Lady Gardner of Parkes was worried about HIV and AIDS. She raised some interesting points about the inclusion of people with HIV and AIDS. I am sure that we shall return to those points later. I can confirm that people with HIV and AIDS will be covered by the provisions in the Bill if the symptoms have a substantial effect.

I shall turn to one of the other main themes in the employment sector, which was drawing the line at 20 employees. It is true that the CBI is against the exemption of small employers; but we should bear in mind that the CBI represents few, if any, employers with fewer than 20 employees. I should think it would be difficult to find many, if any, of those in its membership. Significantly, the Federation of Small Businesses, which of course does have small employers as members, supports the exemption of small employers.

The noble Lord, Lord Rix, explained that he was going to a reception to look for some money for one of his good causes, and that he hoped to return. However, he underestimated the ability of your Lordships to keep speeches within reason—I mean the time and not the content—and I shall attempt to do likewise. The noble Lord came to see me with some people from MENCAP. I should say to him that I do not believe that it would be practicable or reasonable to overlap the quota provisions with the new provisions in this Bill, even for a year. The two laws will not be compatible. One is subject to criminal sanctions, and the other to civil sanctions. They have different definitions. One insists on a system of registration, and the other does not. Those are only three differences. Employers will have to make a transition at some point. It seems to me best to ensure that employers have a reasonable time in which to understand and take account of the new legislation. I hope that they will be able to do that with the guidance which we shall provide for them.

The right reverend Prelate the Bishop of St. Edmundsbury and Ipswich—a splendid title, if I may say so—pointed out on the question of small firms that many of the 96 per cent. of small firms will be in rural areas. I have little doubt that that is true. But I remind the right reverend Prelate and other noble Lords that something like 80 per cent. of employees will be covered by the Bill. Many large firms or branches of them are in rural areas. Therefore, they will be covered.

I thought that the right reverend Prelate made a good point, and I wish to underline it, when he said that 60 per cent. of firms employing fewer than 10 people have disabled employees. Indeed, we are aware that many

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small employers employ disabled people. We welcome that. The Bill will not prevent them continuing to do that if they are doing it at the moment without being covered by the legislation.

In no way do we wish to give the impression that we are content to see small firms treating people unfairly. We are opposed to unfair discrimination in any form. The fact is that we hope that many small firms, in addition to the 60 per cent. already mentioned, will be encouraged by the guidelines in the statutory employment code of practice. We shall consult small firm organisations when we draw those up. While they may not be covered by the legislation, the good practice will be there for them to see.

My noble friend Lady O'Cathain, made some serious points about the loading of costs on to business. We have tried to be mindful of that in the timescale over which we shall implement the legislation. I do not see that you can simply substitute business for the Government because the Government receive much of their income from business and individual taxpayers. Therefore, it is much more sensible to attempt to introduce the legislation and the costs that go with it in a balanced and sensible way over time.

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