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Lord Mackay of Ardbrecknish: I am not entirely sure that there was not some far too subtle meaning underlying that intervention. The purpose of the Bill is that people who come within the definition of disability are protected. Therefore I should have thought it self-evident—it does not need me to confirm it—that people who do not come within the definition are not protected within the terms of the Bill. They may be protected in other ways but they are not protected within the terms of the Bill.

Baroness Hollis of Heigham: If the definition of disability is too narrowly drawn, there may well be people who are disabled but who are therefore not protected. That is the point of the amendment.

Lord Mackay of Ardbrecknish: We are getting into this dead-end road to which I referred earlier. The noble Baroness really wants an anti-discrimination Bill (period). That is, discrimination on any ground. I have made my case. I shall stick to it. I hope that the Committee will agree with me that if we are determined, as I certainly am, to help the people whom I understand, and I believe that most of the population understand, we mean by "disabled people", we have to make sure that we do not draw the net so widely that the efforts we put in through the Bill are a waste of time because we have drawn the net so widely that the issue falls into some form of disrespect; or we find that the provision cannot be operated and the very people whom we wish to help are not helped.

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As I stated, and I underline it, we are protecting people whom we believe are disabled, as it is commonly understood. This is a Bill to protect disabled people; it is not a general discrimination Bill. I hope that I do not have to state that too often. I fear this afternoon, just as we start—

Baroness Seear: The Bill refers to "substantial effect". It does not mean a substantial disability. That is extremely important. I am speaking on the Minister's side. I well recall in my industrial days that it was far more difficult to find a job for someone who had a quite mild industrial dermatitis. People would have said that that was a mild disability. However, it had substantial effects. It was far more difficult to place that person than someone who had lost his legs. Most people would have said that that disability was more substantial. It is the substantial effect that matters, not the substantial nature of the disability.

Lord Mackay of Ardbrecknish: That is what I said a moment ago when I spoke of the greater, the middling and the lesser disability having greater, middling or less protection. It is not that at all. We shall come to the various ways of examining and testing whether the disability comes within the definition, but if it does, then there will be the protection of the Bill. Later today we shall discuss some of the points which we have put down which will test whether the person is disabled.

We want to give disabled people an Act which will mean that employers, businesses and the disabled persons themselves will be clear about where they stand and whom we are talking about. We want to be sure that if employers come across someone with a common trait of anger, shyness or stubbornness, they will not say, "I wonder whether he is protected, because the Act goes much wider than the matters I consider when I ask who the disabled people are". I believe that that would be quite wrong.

The last thing we want to do is to allow the Bill to leave this House containing uncertainty and vagueness. We must protect the people whom the Bill seeks to protect; that is, those who are clearly disabled, as most people in the country would understand it. Although Members of the Committee understand the points made by the noble Baroness, for the reason I gave, we should concentrate on the main issue. I hope that the Committee will reject the amendment.

Lord Ashley of Stoke: Before the Minister sits down, he referred to courts of law and tribunals; but earlier he told us that he hoped that there would be few references to courts of law and tribunals. I agree with him. Does he therefore agree that one of the points of the amendment is to send a signal to employers, institutions and other organisations that they must be careful with their perceptions? That is as important—if not far more important—as arguing about arid points of law. I say that with due deference to all the distinguished lawyers here. We need not go to law on the Bill, the Government aim to avoid it and so do we. So please do not send the wrong signals to institutions.

Lord Mackay of Ardbrecknish: Perhaps I may respond immediately. I believe that the noble Lord is inviting me to take a course which would lead to the

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position that he fears. If we draw the definitions tightly, then I hope not many cases will end up in tribunals or courts. But frankly, if we start introducing concepts like perceptions, we shall be in severe danger of many more cases ending in tribunals and in the courts. Like the noble Lord, Lord Ashley, I should not like to see that.

Baroness Farrington of Ribbleton: Before the Minister sits down, perhaps I may press him further on the issue of perceptions and what is in the mind of the employer when the decision is taken. In describing why the Government oppose the amendment, he stated that employers discriminate every day. It is my understanding that the legislation prevents employers from making judgments on the basis of arbitrary decisions and discrimination. If challenged, they must be able to say with justification that the right person who applied for the job, so far as possible using objective criteria, got the job. If a person is from an ethnic minority background or is a woman, he or she can ask to see the process, the judgment and the criteria on which the appointment was made. People can ask to see the notes of those who interviewed applicants for the job to see which factors allowed the person chosen to be appointed. They can challenge the decision if discrimination has taken place.

Presumably the Government's intention with regard to those whom they classify as being within the Bill would be that a similar process will take place. It would equally be a process of identifying the perceptions of the employer, employers or the group of people making the appointment to the job or taking the decision. For example, in a town like Preston it is known that certain families suffer from Huntington's Chorea. There is not 100 per cent. certainty—thank God!—but a strong possibility of it being hereditary and affecting the children. Surely it would be totally unreasonable to have the position where an employer arbitrarily chooses someone who is less qualified for a job on the grounds that that employer believed that another applicant might suffer, or would be extremely likely to suffer, from a disability in the future. That kind of case gives me concern. It may not apply in a large city but it could in a fairly small community. I fail to see how we are now dealing with perceptions any more than we have already done in terms of legislation which says that an employer may not refuse to appoint the best person for the job on the basis of gender or race.

All we ask is that the same protection be given when an unfavourable judgment is made, against all the evidence that such a person should have got the job and when it is clear that the only factor that could have weighted the decision was not gender or race but an assumption as to the disability of the individual. That disability may well not be one which has a major impact on the applicant's ability to carry out a normal set of tasks in daily life in the job. It may not be major, but it could be total in terms of preventing someone getting a job.

Lord Mackay of Ardbrecknish: I am not sure that I can add much to what I have already said to the noble Baroness, Lady Farrington. I believe that she is going down the dead-end road against which I warned her,

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believing that she can have anti-discrimination legislation—period. I am sure that decisions are often taken on hunch grounds or pretty irrational grounds about whom one employs. What the Bill attempts to do (and I hope will do) is to ensure that a person who is disabled is not discriminated against for reasons which relate to his disability. That is a much tighter and more narrowly drawn basis than the one which the noble Baroness would like me to advance.

If you live in a small community, you know a great deal about the work record of families whose members you interview. I have no doubt that that will play some part, perhaps quite unjustifiably. You may decide not to take on the only member who works well of a family who do not work well. That person might have worked well, but you do not know that. Those are prejudices, discrimination or whatever one wishes to call them which will inevitably happen. I for one would have no part in attempting to bring the thought police into that kind of world. We must keep this important Bill on its main track, which is to help people who are clearly disabled. I understand that there is a division between us in the Committee but I believe I shall not be able to bridge it by argument.

Baroness Hollis of Heigham: First, I wish to thank Members of the Committee for taking part in the debate. It was thoughtful and interesting, and we all recognise that there is a problem. It is not easy to shape an amendment which adequately and appropriately deals with it, but almost no one has disputed that there is a problem.

Perhaps I may pick up one or two points before coming to the main thrust of the Minister's argument. The noble Baroness, Lady Gardner of Parkes, says that she finds it hard to support such an amendment dealing with perception, because perception is impossible to test in the courts. I think that was the import of her remarks. The trouble is that whether somebody is or is not suffering from a disability or impairment, while that is objective perceptions are not. But discrimination is about perception. In other words, this Bill is seeking to prevent employers or the suppliers of goods and services bringing into play a consideration of disability when that consideration is irrelevant. That is what we are talking about. There may be other considerations that are relevant: whether you have a good work record and whether you can get up early in the morning, or whatever. We are trying to say that where a disability is irrelevant it should not be brought into play as part of the considerations.

4 p.m.

Baroness Gardner of Parkes: May I interrupt the noble Baroness? My point about perceptions was the question of what the employer was thinking. I believe that in any tribunal or any court no employers will ever say that they thought that a person was disabled if that was not so. If he was disabled, then, as has been said, he will have protection under the Act. So I think it is the perception that is the problem.

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