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Baroness Farrington of Ribbleton: In reply to the first amendments debated today, the Minister stated that it was not possible to accept the amendment because the Bill had to deal with matters of fact and not the perception in the minds of employers. It was stated that it was totally unreasonable to legislate on whether the perception of the employer was that the person suffered from a disability so that the employer did not wish to employ that individual.
The amendment does not refer to a perception but to a specific act: asking for information which will be taken into account. There is no point in asking for the information unless it will be of value. Therefore perhaps I may press the Minister to state whether he considers it unlawful for employers to ask for such information. Will he state quite clearly whether there would be some point along that road at which such unlawfulness would become a risk? The Government state that there are categoric groups of people who can be discriminated against on grounds of their disability.
In the circumstances debated, we refer to a disability in the future, if there is a genetic predisposition. It is a question of degree, and when. We have referred to illnesses which involve serious disability. The Minister cannot argue both ways. He cannot argue that we cannot legislate for perceptions and then refuse to accept an amendment which deals with a concrete and quite visible situation.
Lord Addington: Having listened to the debate on the amendment, I believe that both sides are going a long way round the argument. We are referring to information which defines a strong likelihood of developing a certain type of condition. Does the Minister accept that a level of certainty about a condition can be reached where such a condition becomes a factor? That is all we are talking about. We can go round the houses about genetic testing and whether genetic science will change rapidly. We can only deal with the situation which exists at this point in time. Certain tests can take place now which can indicate that there is a strong possibility that in 30 years' time a condition will occur. Does the Minister accept that such an issue sits squarely with the provisions of the Bill?
Earl Russell: The Minister argued that a genetic defect is not a disability. I have looked at the wording of Clause 1. As a point of law, one could not pronounce on the matter until it had been before a court. But I am not sure that the Minister is right.
Clause 1 includes the words "physical or mental impairment". Our gene base is physical. If our gene base is impaired, surely within the meaning of the Act (and for once I use the phrase literally) one has a physical impairment.
Parenthood is a normal activity. How far it is exactly to be described as a day-to-day activity, I am not entirely clear. However, I should have thought that within the meaning of the Act, arguing that case in court I might have had a sporting chance.
I should have thought that the Minister might be wise to take a little further legal advice on the question. If the Bill is not the right place to make such provision, perhaps he will tell us what is.
Lord Inglewood: We come back again to the point that I made. I understand exactly why noble Lords feel that the basis upon which the Bill is predicated may be wrong. However, it is the basis on which the Government bring the Bill forward; namely, that for this Bill to apply, there must be a disability in place. We have debated genetic screening and genetic predisposition to certain changes taking place in people at some time in the future. However, so far as involves the here and now, we come back to the point that I mentioned earlier: there is not a disability on which the Bill can bite.
I wish now to move to the point made by the noble Earl, Lord Russell. We are talking about day-to-day activities now. That factor relates to the point that he made and to the point that I make. I am no geneticist. I do not wish to go down that road. If the genetic condition which the person may have does not have an impact on his day-to-day activities now, it will be outside the scope of Clause 1 of the Bill.
Lord Swinfen: Before I make up my mind what to do about the amendment, my noble friend Lord Inglewood advised the Committee that a Select Committee in another place was considering genetic predisposition. It would be extremely useful to the Committee for the Select Committee to report before we finish with the Bill. If he is aware of it, can my noble friend give any indication as to when the committee is likely to complete its work and to report, so that those of us who are interested in the subject will have an opportunity of reading the report?
Lord Swinfen: I thank my noble friend for that, but it is not helpful. I appreciate that the matter is outside his control. If there is a possibility of asking, through the usual channels, whether an interim report could be produced, I am sure that everyone who has taken part in the debate would find it welcome and useful.
The point made by the noble Baroness, Lady Farrington, was useful. She said that it might be unlawful for employers to ask whether someone had a genetic predisposition to any disabling condition. I was not sure that we received a satisfactory answer from my noble friend. He has probably not had time to think of it. The whole question of genetics and genetic predisposition is moving so fast that, like me, he will not have had time to catch up with the latest situation. However, I understand that with one of the disabling illnesses to which people can be genetically predisposedHuntington's Choreathere is 99 per cent. certainty of a test accurately showing whether or not a person is likely to have the disease. As my noble friend probably knows, it is a hideous disease which produces both a physical and a mental disability which will probably come out in one's mid-forties,
The matter of insurance is important. In some respects, I know that the subject terrifies the insurance market. Most genetically predisposed diseases will come on slowly and gradually and there is warning. Very few come on with no warning whatever, so I am sure that provision can be made in some way or another.
It is getting late; I did not intend to divide the Committee on the matter and I thank all those who have taken part. However, I warn my noble friend that I do not believe that I can let the matter drop. I am liable to come back either with the same amendment or a revised one at Report stage. I beg leave to withdraw the amendment.
The noble Lord said: My Lords, I beg to move that the draft Public Offers of Securities Regulations be approved. In moving the regulations I also wish to speak to the Financial Services Act 1986 (Investment Advertisements) (Exemptions) (No. 2) Order 1995. Both measures were laid before the House on 10th May.
The two measures are part of a package of regulations which modernises United Kingdom law on public offers of securities and simplifies the law governing the issue of investment advertisements. The package offers a number of benefits. It makes clear what information must be disclosed in a prospectus, it removes some types of offer from prospectus law altogether and it makes it easier and cheaper for United Kingdom issuers to offer securities or gain admission to official listing on stock exchanges in other member states.
The overall effect of the measures is the following: first, to bring United Kingdom legislation on public offers of securities in line with the Prospectus Directive; secondly, to revise, extend and consolidate exemptions from controls imposed on the issue of investment advertisements by Section 57 of the Financial Services Act.
First, let me deal with the alignment with the Prospectus Directive which will change the present position in five ways. First, for offers to the public of listed securities falling within the scope of the Prospectus Directive, the person offering the securities must publish a prospectus rather than listing particulars. The key benefit from that will be that prospectuses which have received Stock Exchange approval will be able to be used in other member states, both for public offers under the mutual recognition provisions of the Prospectus Directive and for official listing under the equivalent provisions of the Listing Particulars Directive. The change will also mean that when the person offering the securities is not the issuer, the offeror will become responsible for the prospectus alongside the issuer.
The second major change will be to make offers to the public of unlisted securities subject to Part II of the regulations and the contents requirements of Schedule 1. That will mean that issuers and their advisers will know precisely what information they must provide in a prospectus.
Thirdly, Part IV of the Financial Services Act will be amended to allow a prospectus for an offer of unlisted securities to be drawn up in accordance with the listing rules of the Stock Exchange and submitted to the exchange for approval. That will enable unlisted securities to benefit from the mutual recognition provisions of the Prospectus Directive and the Listing Particulars Directive.
Fourthly, the regulations will ensure that prospectuses prepared in connection with a public offer in another member state will, if approved by the competent authorities in that state, be recognised in the United Kingdom.
Finally, the regulations will ensure that those offers of securities currently covered by Part III of the Companies Act which fall outside the scope of the directive will be subject to Section 57 of the Financial Services Act. That requires investment advertisements either to be published by a person authorised under the Financial Services Act to carry on investment business, or to be approved by such a person before publication.
I turn now to exemptions from Section 57. This second part of the package will consolidate and extend the exemptions from Section 57 of the Financial Services Act made under Section 58(3) of the Act. It will also make some minor amendments to those provisions necessary to take account of the repeal of Part V of the Financial Services Act by the Public Offers of Securities Regulations. In addition, Article 14 of this order introduces a new exemption from the Section 57 approval procedure in three separate but related cases. The first and second of these, relating to prospectuses issued in accordance with Part II of the Public Offers of Securities Regulations and certain advertisements announcing the availability of such prospectuses, will simply carry forward into the new regime the existing exemptions for prospectuses issued under Part III of the Companies Act and for advertisements concerning prospectuses covered by Part V of the Financial Services Act.
Taken together, the package of regulations secures a number of benefits. It modernises and clarifies the existing law and ensures that the UK has a body of coherent and comprehensible legislation governing public offers of securities. It enhances investor protection by imposing a general duty on those offering unlisted securities to disclose all material information; it is deregulatory in removing certain types of offer from the requirements of prospectus law; and finally it enables United Kingdom issuers of securities to take advantage of the mutual recognition provisions of the Prospectus and Listing Particulars Directives. We believe these regulations have the support of United Kingdom industry, the City and the stock markets. I commend the orders to your Lordships and I beg to move.