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Baroness O'Cathain: I am concerned about Amendment No. 82, which seeks to take away the prescribed maximum, or the cap, on expenditure that a provider of services must spend. That prescribed maximum is an important way of satisfying the natural concerns about overspend that businesses have. To remove subsections (8) and (9) would make it an open-ended commitment and could result in a parsimonious approach; or, indeed, looking at ways to get around it being considered by the provider of services. So I have a genuine concern in that respect.

Lord Addington: I support the amendments tabled in the name of the noble Lord, Lord Swinfen. I must apologise to the noble Lord for missing the first part of his introductory speech, but I am afraid that messages have to be passed on and, when you are the only Member on the Bench, you have to leave the Committee to deal with them.

Basically the suggested provisions are very reasonable. Once again, I hope that the Government will adopt a favourable attitude. I should tell the noble Baroness, Lady Hollis, that I actually recognised one or two of the things that she described when talking about a certain church in Norwich. Indeed, I was playing quite a nice game in trying to think exactly where was the church that had become a boxing hall and the other that had become a tea-shop. I believe that Norwich has one thing right as regards using its old buildings.

Lord Inglewood: We have had a useful and wide-ranging discussion on the amendments. While, obviously, it is getting late, I should like to take just a little time to explain the position, which I hope will satisfy a number of concerns that have been expressed.

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The integration of disabled people into society is an aspiration which we all share. The Disability Discrimination Bill will, over time, result in dramatic changes involving millions of people taking positive action to make that integration a reality. Although the word does not appear on the face of the legislation, it is quite right that integration is part and parcel of the duty that we owe to disabled people in creating a more accessible environment. But, as Members of the Committee will agree, the Government also have a duty to ensure that legislation allows a sufficient degree of flexibility for service providers to develop their own solutions to accessibility problems—solutions which, of course, meet the needs of disabled people but which are also practical and relevant to the business and affordable.

The key objective of the goods and services provision in Part III is to ensure that services are not impossible or unreasonably difficult for disabled people to use. Clause 15 sets out the broad framework within which that will be achieved by changing policies, practices or procedures, by supplying aids to communication or by taking steps to negate the effect of physical barriers. That is a crucial part of our policy.

Within that framework, it will be up to the service providers themselves to decide how best their services can be adapted to meet the needs of actual people as long as, by doing so, they are made reasonably accessible. In our view Amendment No. 77 runs contrary to that principle. It would mean that in many cases businesses, especially small and medium-sized businesses, would be prevented from looking at ways in which their services could be adapted to suit disabled people by delivering them in a different way.

We think that that would be too strict a limitation on business. Further, as my honourable friend, the Minister for Disabled People, has said on a number of occasions (and as was set out very clearly in the cost compliance assessment which accompanied the Bill), the legislation has been deliberately drafted in a way that ensures that sensible, low-cost accessibility solutions are encouraged wherever possible, so long as they are reasonable. The amendment could impose much unnecessary cost on businesses in situations where to contemplate expensive building work which might be considered reasonable in its own right would be to fly in the face of common sense if, as a prior option, a work-around solution could not be considered as well.

Obviously, I want to make it quite clear that there will be occasions when physical alterations will be the only reasonable solution because physical access to premises is a fundamental attribute of the service. I am thinking, for example, of restaurants, theatres, art galleries and so on.

It would clearly not be reasonable for the proprietor of a cafe to suggest that a take-away meal was a suitable alternative to making an adjustment to the layout or construction of his premises which would allow disabled people to enter. Further, the mere fact of physical access would not be enough. The means of entrance must be reasonable.

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It would not be reasonable—to refer to the example given by the noble Baroness, Lady Hollis—to expect a wheelchair user to have to negotiate the rubbish bins and general detritus of a back alley to be let into a restaurant via the kitchens, but there will be instances where such access is not essential to the service on offer. For example, as regards a theatre ticket office of the sort one sees in the West End, a wheelchair user may be unable to get into the shop because of a steep step at the entrance and asks whether the shopkeeper would consider purchasing a portable ramp. The ramp may cost £200 or £300; not a trifling amount but not an excessive amount of money either, and possibly a reasonable expense for the service provider to be put to. However, as an alternative, the ticket agency is prepared to provide a free phone ordering and tickets by mail service. This is an obvious and sensible solution to a practical problem which will provide the disabled person with reasonable access to the service and be of benefit to many others as well, but a solution which would be denied by this amendment.

I sympathise with those who want to see a more accessible physical environment sooner rather than later; indeed this Bill will do much to bring this about, but we have to face the fact that the building stock in this country is old, two-thirds of it being built before the turn of the century. We will not have fully accessible buildings overnight and if the Government try to force businesses to provide them that will fail. It is the businessmen of this country who will provide access to goods and services for disabled people, not politicians. We know that the great majority of service providers wish to play a part and we owe it to them to provide a sufficiently flexible regulatory framework to allow them to get on and do the job. I hope that what I have said will help satisfy and reasssure those noble Lords and noble Baronesses who have expressed concern on this point.

I now turn to Amendment No. 78. As has already been said by others, I am aware of the concern over how listed properties will be treated under the Bill. I hope to explain matters and clear up a lot of the misunderstandings and the difficulties. The Disability Discrimination Bill affords a good deal of protection for service providers and employers who occupy listed buildings. Clause 32 provides that nothing done to comply with other legislation, whether passed before or after the Bill, shall be made unlawful by the Bill. This means that if a service provider is unable to carry out works because in doing so he would be breaching other legislations, he cannot then be in breach of the disability Bill in respect of that particular act. So if, for example, listed building consent to replace a medieval archway with a pair of sliding doors was refused, the service provider who then declined to install the new doorway could not be held to have discriminated against a disabled person for whom the building remained consequently inaccessible. In other words, Clause 32 will prevent people having to act without listed building consent in order to comply with the Bill. The same principle will apply to scheduled monuments. However, I must make it clear—

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Lord Swinfen: If my noble friend will allow me, I do not really want to interrupt the flow of his argument and I quite see the point that this Bill, when it becomes an Act, will not override previous legislation, but what will be the position with subsequent legislation?


Lord Inglewood: I have covered that point. It is mentioned in Clause 32—which is a short clause—which states:

    "Nothing in this Act makes unlawful any act done—in pursuance of any enactment".

It is quite clear that the provision both looks forward and back.

I wish to elaborate further so that there is no misunderstanding about what this provision means. I must make it clear that this provision does not amount to an exemption for listed buildings. In our view, it is right that material adjustments for which listed building consent would be granted will have to be considered. We are going back to the point that the noble Baroness, Lady Hollis, made when she talked of some examples in Norwich. I am rather sorry that my noble friend Lord Mackay is not in his place because I am sure he would be terrified at the thought of her going to the martial arts centre with regard to the next time they face each other across the Dispatch Box.

Lord Carter: I know who would win!

Lord Inglewood: A good "big un" is always better than a good "little un". The aim must be a workable system by which the need to apply for listed building consent can be avoided in cases where it is obvious that an application will be refused. Great strides have been taken in recent years to make historic buildings which are open to the public more accessible. English Heritage and local authorities have considerable experience in advising owners how to adapt historic buildings to meet these needs without detracting from the intrinsic value for which the building is protected.

English Heritage is currently producing guidance on how to approach proposals for making historic buildings and monuments more accessible to disabled people and will be co-operating with the Centre for Accessible Environments in holding seminars later this year to bring those with responsibilities for access together with those, such as local authority conservation officers, dealing with listed buildings. That guidance could prove to be a very valuable tool to disabled people, employers, service providers and their advisers when it comes to resolving any disputes which may arise in this area. It could be that the national disability council will wish to incorporate some or all of that guidance into its codes of practice.

I hope that I have been able to demonstrate why the amendment is unnecessary. I hope that my noble friend may consider withdrawing it.

Turning to Amendment No. 79, I listened with interest to the arguments in favour of transition plans and I found myself in sympathy with much of what was said. The transition plan idea is certainly worth considering. I am aware that the Australian

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anti-discrimination legislation contains a similar provision, and a good place to start would be to seek information from Australia on how well the scheme operates over there.

There could be difficulties. Who, for instance, would decide whether the plans were bona fide? We would want to avoid the necessity of parties having to go to court to establish that. Also, how much leeway would companies be allowed if, for example, following a downturn in the business cycle, a trader did not have sufficient resources to carry out the improvements scheduled for a particular year? And, of course, we would need to decide whether disabled people whose disabilities were not fully catered for in the plan could bring actions against the service provider.

Nevertheless, any idea which seeks to offer some incentive to business to approach accessibility in a structured way is well worth investigating, and we shall continue to look very closely at what might be done.

However, we are not yet at a stage where we could be certain about the proper form of words that would need to be put on the face of the Bill, or whether we could make use of secondary legislation. Therefore, if my noble friend and the noble Baroness whose name is also down to the amendment would consent to withdraw it, I will undertake to take the matter away and consider where the best way forward lies.

Finally, I should like to turn briefly to Amendment No. 82. The power to set a financial limit on the cost of meeting the duties to make adjustments is an essential one if businesses and service providers are to have confidence in the legislation. The Bill has been designed to ensure that the move to a more accessible environment will not place undue burdens on those who will be responsible for delivering its provisions. In forming our proposals we have taken account of the understandable concerns of the business community that the legislation should not be unrealistically ambitious. I believe that the Bill strikes a fair balance between the needs of disabled people and the perfectly respectable need of a business to make a reasonable profit.

In our view, the ability to set a financial limit is a crucial element in that balance in that it gives certainty to business. That was a point to which my noble friend Lady O'Cathain drew our attention. However, turning to the point raised by the noble Baroness, Lady Stedman, we recognise that there are a number of ways in which a test of affordability could be fashioned: different ways in which the size or value of premises or the size or status of businesses can be assessed in order to produce a variable but easy to understand measurement. We have not as yet formed any firm views as to the best way forward. The Government will consult fully with businesses and organisations of and for disabled people alike on whether a financial cap would be helpful and, if so, how it would be calculated.

The provisions of subsections (8) and (9) inject the legislation with a crucial measure of flexibility. The limit could, for example, cater for aggregate amounts of expenditure incurred in different cases, so that a service provider could consult a local access officer, plan a series of improvements to improve access over a period of time and be reassured that, just because individual

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elements of that plan did not come up to the financial limit, he could not be required to make further alterations. That would account for the wide variety of modifications that might be considered: for example, installing a ramp, widening doors or perhaps removing obstructions from corridors or shopping aisles. Such a provision would be a fair way of ensuring that a service provider who planned ahead would not run the risk of having greater liabilities than a service provider who chose to delay taking any action until forced to do so by the threat of legal action.

The financial cap remains an important part of the government proposals. To prevent unwarranted burdens being placed on business we must be in a position to control the application of the legislation.

Members of the Committee having heard my explanation of the Government's position, I very much hope that my noble friend Lord Swinfen will feel able to withdraw his amendment. I hope that I have covered the points and given reassurance.

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