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Lord Addington: Clause 2 is effectively the most important clause in the Bill, in that it states that guidance will be given. Without the guidance, we do not have advice for courts and tribunals. Without such advice, we do not effectively have anything to provide support and enforcement powers and to make sure that people with disabilities do not suffer discrimination. That is the nub of the matter.

If that sort of power, namely, to make the Bill effective, is taken away from Parliament, we are losing control of this Bill. There are no two ways about it. There is a very important constitutional point here.

On purely practical grounds, I have often seen this House and another place prove themselves very much more open to ideas from many more outside bodies, approaching matters from many more angles than the Government, or indeed any government, can ever expect to do. All governments have their own process of drawing in information. I strongly suspect that that would be the case no matter who sat on the Government Benches. If we are trying to draw in the best information, we must have it debated in the best forum. This Chamber has proved itself on numerous occasions to be the best forum for drawing in all the various groups, and that is especially true in relation to disabilities. The current code of practice in the educational world is probably one the best examples. It was a long and rather drawn-out process, but the end product was very good. If the Government carry on with this legislation as currently structured, they will deny themselves that input. If the Government cannot accept these amendments, they must have a very, very good reason for not doing so. First, they would be denying Parliament its right to make the meat of a Bill work. Secondly, they would be denying the most important input and the most effective method, as has been shown, of trying to get this type of regulation right. I look forward to a positive answer from the Government. As the Minister will see, normal service on these Benches has been resumed over regulating powers.

Baroness Thomas of Walliswood: I rise to make a very brief point and to ask a question. On the matter of regulations and guidance, if we take as an example the

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green belt legislation, which is now quite elderly, over a period of time guidance has changed quite remarkably. Sometimes, from the point of view of those who want to protect the green belt, it changed for the better, and sometimes, I must say, for the worse. Sometimes the worse interpretation has been changed back to a better interpretation at a later stage.

I wonder whether or not that sort of changeability might not conflict at some point with another process which I suppose will take place; namely, the process of precedents in the courts as cases are settled. "Undemocratic" is not quite the word that I wanted to use, but it will do. How do the Government see this process of rather undemocratic guidance interacting with the process of the courts taking decisions over time? We could end up with some rather difficult situations.

Earl Russell: I, too, support these amendments. We are in a very important area and one which extends well beyond the compass of this Bill. The point that we cannot cover everything in primary legislation is a sound one. The point that Parliament needs to be able to find out what is done and decide whether to approve it is also sound. We need to consider how we can find ways of reconciling those two factors. To that end, the amendment is very well designed.

I make just one other point. The noble Lord, Lord Renton, read out Clause 2(3), which states that,

    "A tribunal or court determining ... whether an impairment has a ... long-term adverse effect on a person's ability to carry out normal day-to-day activities, shall take into account any guidance issued under this section which appears to it to be relevant".

I am not quite sure why there needs to be guidance. Is this not just the sort of question that we have a court to decide? Is it not perfectly grown-up and competent to do it? And is there not a risk that the issuing of guidance may tend to be of the "Mother Hen" school of legislation?

6.15 p.m.

Lord Rix: Until this morning, when The Times came through my letterbox, I thought that this was a rather academic and legal point by the noble Lord, Lord Renton, which I did not understand. I am happy to say that the noble Lord, Lord Lester of Herne Hill, wrote an article opposite the editorial page this morning which made the matter clear to a simple soul like myself. Therefore I am happy to support—indeed I wish to support—this amendment.

Lord Mackay of Ardbrecknish: We have had an interesting debate on this matter on the amendment raised by my noble friend Lord Renton. Perhaps I may begin by explaining what Clause 2 does. It enables the Secretary of State to issue guidance about matters to be taken into account when determining whether an impairment has substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities. It is general guidance which must be taken into account by courts and tribunals where relevant. It is fair to point out that guidance, not being legislation, need only be taken into account by courts and tribunals. In that sense, it has a less determining effect than regulations. It will be of great benefit to those who need examples of what constitute

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substantial and long-term adverse effects. This is particularly so given the wide range of possible impairments and hence effects on day-to-day activities, and the fact that this is a new and untested area of law. My noble friend Lord Renton has an amendment before us which would have the effect of making the guidance—and any future revisions of it—subject to the affirmative procedure.

Let us first consider the issue of parliamentary scrutiny. The guidance in Clause 2 has a broadly similar function to the guidance, for example, in the code of practice under Clause 26, which would give practical guidance to employers on eliminating discrimination and on good employment practice. Obviously, I have listened to the argument on this point and I discussed—

Lord Renton: Perhaps my noble friend will allow me to intervene. I think he has made a mistake. It is not Clause 26, but Clause 24, to which he should be referring.

Lord Mackay of Ardbecknish: If my noble friend tells me I am wrong, I am probably wrong. However, my brief refers to codes of practice prepared by the Secretary of State under Clause 26, so I may be right. I do not think that it matters too much. Perhaps my noble friend will just bear with me for a moment as to the argument that I am about to make.

Having discussed the matter with my noble friend Lord Renton and having listened to this short debate, I see the case for making the guidance under Clause 2 subject to perhaps the same parliamentary scrutiny as we have in Clause 26. I say to the noble Lord, Lord Rix, that I am very conscious of the importance of the powers of this Parliament. Ministers are always wise, I trust.

We have discussed the matter at some length, and I fully understand that there have to be checks and balances. Sometimes I am concerned that we are throwing away some of our responsibilities to bodies and courts beyond these shores. That is perhaps a wider issue, but one upon which some noble Lords might reflect when they address the importance of parliamentary scrutiny on matters such as this.

Having reflected on this matter and listened to the debate, and having accepted that we should indeed consider some form of parliamentary scrutiny, we now come to the parliamentary scrutiny that should be used.

The provisions of the code of practice in Clause 26 come within the scope of Clause 27 in deciding on the method of scrutiny to be used. Such a code must be laid before both Houses for 40 days and cannot be issued if either House resolves not to approve it—that is, the negative procedure. We believe that this is the right procedure also for the guidance under Clause 2. As my noble friend Lord Campbell of Croy points out, almost all of the regulation-making powers in the Bill are subject to the negative procedure. The Select Committee on the Scrutiny of Delegated Powers regarded this procedure as appropriate for regulations made under these provisions.

Therefore, I accept my noble friend's argument, though not in its entirety. I believe that Parliament should have scrutiny of this guidance and that it should be done in the same way as other scrutiny is carried out in other parts of the Bill; namely, by the negative procedure. My noble friend said that he had moved a little from his starting

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point where he might have asked for all of this to be the subject of primary legislation to his amendment. I hope he accepts that I have come a little way towards him in saying that there should be parliamentary scrutiny but it should be by the negative procedure. If my noble friend agrees to withdraw his amendment, I will return at Report stage with one which will mean that the draft guidance will have to be laid before Parliament and may be negatived by resolution of either House. With that commitment, I hope that my noble friend will feel able to withdraw his amendment.

Lord Campbell of Croy: Perhaps I may comment before my noble friend rises to speak again. In my earlier contribution, I was going to say that if it had been thought that the contents of the guidance, about whose significance we were inquiring, required regulations to come before Parliament, in my view the negative procedure was appropriate. I was a little surprised that my noble friend's amendments proposed the affirmative procedure. I am happy with what my noble friend has stated. There are points in the Bill where the affirmative procedure is required, but that is in connection with the National Disability Council. The Select Committee, of which I am a Member, said in its report (which I have with me) that the use of the affirmative procedure was correct in that case, and that in other cases it should be the negative procedure. I agree with my noble friend that the negative procedure is appropriate in this case.

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