Previous Section Back to Table of Contents Lords Hansard Home Page

Baroness Hollis of Heigham moved Amendment No. 1:

Page 1, line 8, after ("has") insert ("or is perceived to have").

The noble Baroness said: I should like to move the first of what will be many amendments on the Disability Discrimination Bill. I am sure that I speak for all Members of this Chamber in saying that we want the Bill to deal with discrimination against all disabled people who suffer discrimination; in other words, we want a comprehensive

13 Jun 1995 : Column 1641

response. But the Bill does not provide that. All the disability organisations like RADAR, Scope, MIND and the Disability Alliance believe that the legislation, particularly Clause 1 and Schedule 1, are too narrowly drawn. However good or effective are the subsequent clauses in the Bill on employment, on goods and services, on education and on transport—and for the most part we are broadly happy with them, although we shall want to push them a little further than the Government may wish to go—if the Bill is not inclusive enough in whom it protects, then it will remain a partial, inadequate and incomplete Bill, as we believe it is.

Why is there a problem? It is because the Government are operating a rather simple-minded and medical model of what disability is. The Government assume in the Bill—and I would ask Members of the Committee to be kind enough to follow me on this point—that those with no disability do not suffer discrimination; that those with only very mild disability suffer only very mild discrimination; but that those with substantial disability suffer substantial discrimination. Therefore, say the Government, in the Bill we need to protect only the most severely disabled because they suffer the most severe discrimination. That is the shape of the Government's logic.

However, a moment's reflection will show that the latter is not the case. You can have a minor disability, such as a minor facial disfigurement, and yet experience considerable discrimination from it, particularly, say, in work. You may have a major disability—for example, you may be blind—but experience very little discrimination in the field of goods and services. In other words, discrimination reflects not just the disability or impairment that a person brings to the situation; but also the perceptions that he encounters as he seeks work or seeks the supply of goods or services. Yet, the Bill outlaws discrimination against only those with severe disability as medically defined.

Therefore, if a person has no disability but an employer wrongly thinks that he has—for example, the employer may believe that he has a mental health problem or may believe, when it is not the case, that the person is HIV positive—then he may discriminate. There is no protection under the Bill to cover that situation. If, perhaps, a person has a mild disability such as mild cerebral palsy but which the employer thinks is a major impediment, the latter may discriminate. Similarly, there is no protection in the Bill to cover that situation. However, if a person has a severe disability, which may, for example, confine him to a wheelchair, the employer may not discriminate because that disability is severe enough to be defined by the definition of "disability" contained in the Bill.

Thus, paradoxically, the less disabled you are, the more an employer can discriminate against you on the grounds of your disability; but the more disabled you are the less he can do so. That is perverse. If the employer is wrong about your disability, you have no redress: but if he is right, you may have. The reason for that is that the Government have focused on a tough medical definition of disability to the neglect of the issue of discrimination. As we know, in practice—and as I have tried to suggest—

13 Jun 1995 : Column 1642

the degree of disability is not tidily related to the degree of discrimination. The Bill assumes that it is. That is why we need to amend both the definition of who is covered, as well as how reasonable the response may be of the employer or the service provider. Hence the amendment. The amendment would forbid discrimination where a person has or is perceived to have a disability; in other words, where the problem of discrimination lies with the perception rather than the impairment of a person.

At a later stage, we shall deal with the amendment tabled in the name of my noble friend Lord Carter, who is trying to widen the definition of disability, which is very tightly drawn and more tightly drawn than in the incapacity benefit Bill. My noble friend's amendment seeks to add functional impairments to the definition. Otherwise, someone may be sufficiently disabled to qualify for incapacity benefit under one piece of government legislation, but not be deemed sufficiently disabled to acquire the protection of this Bill when he wishes to seek work or goods and services.

The Government have tabled their own amendments about past history, which we all welcome. However, my noble friend Lord Carter has also tabled additional amendments which would cover people who have experienced mental disorders in the past. Moreover there are later amendments tabled in the name of the noble Baroness, Lady Gardner of Parkes, covering such conditions such as HIV and asymptomatic situations where, if the employer knows about them, he may discriminate.

The first amendment, which seeks to insert the words "has" and

    "or is perceived to have",

to Clause 1 as regards a person with a disability, perhaps picks up the most unfair situation of all; namely, where the disability may not or does not exist, but where there is a perception in the eyes of an employer that it does, and, because he holds such a perception, he may and does discriminate. However, because the person is not really severely disabled, he does not count as "disabled" under the provisions of the Bill and therefore is not protected.

Such a situation could affect someone who may or may not be thought to be HIV positive; it could affect someone who may or may not have a genetic predisposition such as Huntingdon's Disease; and it may affect someone who is, for example, facially disfigured. The Government protect those with severe disfigurement; but, as the charity Changing Faces makes clear, discrimination is not related to the severity of disfigurement or to the severity of disability. Small wounds can be very disfiguring, whereas a large burn carried by an airman may be worn with pride as a sign of war. Alternatively, mild facial palsy is, for example, very isolating. Therefore, it is not size, it is not seriousness and it is not the conspicuousness of disfigurement which affects the person's ability to cope: it is another person's perception of it. Yet, such a person would not be protected under the provisions of the Bill.

There may also be a perception against older people on the grounds that they are more likely to experience disability, so that they face double jeopardy both in age and in the perception of disability, which may not be the case. Therefore, the amendment focuses on the discrimination that results rather than the disability that

13 Jun 1995 : Column 1643

triggers it; in other words, the consequences as much as the conditions. In the Long Title of the Bill it holds both in balance. It says that it is,

    "unlawful to discriminate against disabled persons".

Yes, but the definition of a "disabled person" is so tightly drawn that discrimination will occur against people who are less disabled than as defined in the Bill and those who are not disabled at all, but where employers think that they are. That is perverse as well as being unfair. That is why we seek to move the amendment. It would mean that not only those with severe disability (as medically defined in the Bill) but also those with less disability and those where there is a perception of disability—indeed, where any such people suffer discrimination—would, as a civil right, receive protection and equal rights against that discrimination. That is the purpose of the amendment. That is why I am happy to move it. I beg to move.

Lord Addington: I rise briefly to support the amendment. I should also like to take advantage of the opportunity to declare that I have an interest in the Bill as I am a registered disabled person. The disability that I have is dyslexia and I have spent many hours trying to explain to people what that is and what it does and does not do. Effectively, a good example of that would be the way in which the education policies of the Government (aimed at trying to convince people of what something is) do not work because people will not listen. People have closed minds. That is why the amendment moved by the noble Baroness is important.

If you perceive someone to have a problem, you will still discriminate against them. The amendment would give them the level of support that they require. I hope that the Government will look favourably on this amendment, or something like it, because by accepting it they would give people the chance to acquire equal opportunities particularly in the workplace, and to strike down ignorance and the failure of a policy that is purely concerned with education.

Lord Ashley of Stoke: I hope that the Minister will be able to accept this amendment because it is of far more profound importance than it appears to be as it appears on the Marshalled List. One may ask why we should protect people where there is a misunderstanding. But in point of fact this misunderstanding recurs over a wide range of issues; it affects a large number of people and results in tremendous damage and unhappiness. The purpose of this Bill is to prevent discrimination which is unjustified. It could not be more unjustified than to discriminate against someone who is not disabled and yet there are countless examples of this discrimination. The classic example, of course, is that of people who have HIV. The other classic example is those people who have been found by genetic testing to be potentially disabled. They are not disabled but they suffer an appalling level of discrimination. This Bill fails to protect those people. There can be no justification for that.

It is ironic that people who are not disabled will suffer even more than those who are disabled simply because, as my noble friend said in her eloquent introduction, those who are disabled will receive some degree of protection. If this amendment is turned down, there is no hope for those who suffer real discrimination because of this

13 Jun 1995 : Column 1644

perception, or rather misconception, by others. The Minister is, I believe, speaking for the Government who have indicated that they do not sympathise with this amendment. In the Second Reading debate the Minister was kind to me at the beginning and at the end of the debate. I am hoping that he will maintain that kindness and say some warm words, not about me but about this amendment. I know that he will do so if he can. All I ask him to do is not to close the door, to think about this amendment and to try to give us a good response later on.

Next Section Back to Table of Contents Lords Hansard Home Page