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Baroness Darcy (de Knayth): I welcome the amendments which the noble Lord introduced earlier. I missed the metaphorical bus because I was waiting for my noble friend Lady Stedman, who is much more expert in this field, to speak. I very much look forward to the day when I can use public transport and use it without major forward planning and forethought. I pay tribute to the Department of Transport for its record in working towards making transport more accessible for people with disabilities.

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Lord Mackay of Ardbrecknish: I am grateful to the noble Baroness for those remarks. I shall certainly pass them on to my colleagues in the Department of Transport.

On Question, amendments agreed to.

Lord Inglewood moved Amendment No. 145:

Page 26, line 42, after ("1983") insert ("or the Mental Health (Scotland) Act 1984").

The noble Lord said: In moving Amendment No. 145 I should like to speak also to Amendment No. 146. Lines 41 to 45 of Clause 38 make it clear that the term "mental impairment" as used in the Disability Discrimination Bill does not have the same meaning as in the Mental Health Act 1983. They also make it clear that the fact that an impairment would be a mental impairment for the purposes of the 1983 Act does not prevent it from being a mental impairment for the purposes of this Bill. The effect of Amendments Nos. 145 and 146 is to make the same classification for the equivalent legislation in Scotland, the Mental Health (Scotland) Act 1984. I beg to move.

On Question, amendment agreed to.

Lord Inglewood moved Amendment No. 146:

Page 26, line 43, leave out ("that Act") and insert ("either of those Acts").

On Question, amendment agreed to.

Lord Mackay of Ardbrecknish moved Amendments Nos. 146A to 147A:

Page 27, line 3, at end insert:
(""public service vehicle" and "regulated public service vehicle" have the meaning given in section (PSV accessibility regulations);").
Page 27, line 3, at end insert:
(""rail vehicle" and "regulated rail vehicle" have the meaning given in section (Rail vehicle accessibility regulations).").
Page 27, line 6, at end insert:
(""taxi" means a vehicle licensed under—
(a) section 37 of the Town Police Clauses Act 1847, or
(b) section 6 of the Metropolitan Public Carriage Act 1869.").
Page 27, line 6, at end insert:
(""vehicle examiner" means an examiner appointed under section 66A of the Road Traffic Act 1988.").

The noble Lord said: I have already spoken to these amendments. I beg to move.

On Question, amendments agreed.

Clause 38, as amended, agreed to.

Clauses 39 and 40 agreed to.

Schedule 2 [Enforcement and Procedure]:

Baroness Dean of Thornton-le-Fylde moved Amendment No. 148:

Page 32, leave out lines 17 to 19.

The noble Baroness said: The effect of this amendment is to remove from the Bill a limit, as yet unknown because the level of the limit has not yet been declared by the Government, on any damages which may be awarded for injury to feelings in any action brought under Clause 20 of the Bill.

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This provision to prescribe in regulations a limit on damages which a court can award was not debated in the other place so we have no idea of the thinking behind this measure or the level at which the Government intend to set the limit. I suggest that whatever rationale the Government may have, it cannot be equity-based and, if in fact it is, against which standard are the Government applying it?

A ceiling on damages is also suggested, bearing in mind that they will be awarded only when the discriminated person has established injury to feelings in a court of law. That flies in the face of experience and treatment in this Bill in comparison with other legislation that we have on the statute book. For instance, when the sex discrimination legislation was introduced, a limit was included for damages. Subsequently, that was removed. When the racial equality legislation was introduced, again originally there was a limit on damages, but it has subsequently been removed.

Yet in this Bill we have the Government trying, despite the experience in both those Acts, each dealing with discrimination in one form or another, to introduce a limit. Why? Is the reason to try to keep down the level of damages? Cannot the courts be allowed to be the best arbiters in these cases? After all, they will be dealing with them. How do the Government answer the quite legitimate allegation of people with disabilities that here again in this measure, as in a number of others in the Bill, they are trying to foist on the disabled inferior treatment to the rest of the community?

This provision deals with compensation for injury to feelings where such injury has been established in a court of law. The Bill does not define what constitutes an injury to feelings. One judge expressed it, fairly in my view, as pain caused by discrimination; as being held up to hatred, ridicule or contempt. They are descriptions of attitude which, I suggest, all too many disabled people have experienced in the course of their lives.

Are the Government concerned that the judges will have particular sympathy for disabled applicants and make high awards? If that is the case, where is the evidence? If one looks at awards for injury to feelings caused by discrimination under other legislation as a comparison, the average is about £3,000 damages in each case. Disabled persons will have to take their cases to court when they feel that their feelings have been injured, and that comes under the remit of this Bill. Let us just try to assess the trauma that an individual will go through, having to re-live the experience again in court. It will be quite enormous.

As we know, legal aid is not available for claims under £1,000 so it is crucial, if the Government are not going to move on this issue, to know what is the level that the Government intend to set under regulations. Will it be at a level below that provided for which legal aid would be available?

Of course, damages are not just for the individual. That person receives the compensation, but they also send out a strong message as to how such personal damage is viewed by the rest of society and

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parliamentarians in making the law. An award kept deliberately low by a limit set in statute is a telling message that any injury to feelings is regarded as not really an issue of importance.

This is an issue where the courts have recognised that damages for injury to feelings, humiliation and insult due to discrimination should not be minimal, as that would trivialise or diminish respect for public policy. Those are statements made by judges in courts of law.

The Bill would be better for the elimination of those two lines. There would be no additional cost to the Government. We are talking about court awards of compensation. Accepting the amendment would leave decisions on claims for injury to feelings to the courts to decide. They would have to decide whether a claim is established and, if so, the appropriate level of compensation. We should leave that decision to the judges of the courts which decide the cases. I beg to move.

11 p.m.

Lord Monson: It is true that under the Bill as drafted compensation for injury to feelings is likely in practice to be lower than that generally awarded under race relations and sex discrimination legislation, but the conclusion to be drawn is not that the provisions of the Bill are defective, but that the potential compensation payable under the 1975 and 1976 Acts is much too high—much higher, I submit, than anyone envisaged at the time, and I was present during most of the debates when the two Bills in question were going through this House. Women who joined the Armed Services, for example, knowing perfectly well what the rules of the game were when they enlisted and who were later discharged on becoming pregnant have been awarded not only extremely high damages for loss of earnings, for which some sort of case could perhaps be made, but also preposterously high damages for injury to feelings, for which I submit no case can be made at all. In fact, in many cases such damages are higher than those awarded to people by the Criminal Injuries Compensation Board for quite severe physical injuries. I believe that the Government are on the right lines in this matter.

Lord Mackay of Ardbrecknish: Amendment No. 148 would delete paragraph 7 from Schedule 2 and thus remove the provision allowing for a limit to be set on the amount of damages payable in compensation for injury to feelings. I cannot agree that the power to set such a limit should be removed.

The Government have made clear their belief that there should be a limit on the amount of compensation payable for injured feelings when a disabled person has been discriminated against in access to goods and services. The provisions in paragraph 7 do not mean that we do not place a high value on the feelings of disabled people. We believe the Bill offers practical solutions to the discrimination faced by disabled people.

The Government are committed to ensuring that disabled people can avail themselves of their new rights. That is why, for example, we will be establishing an advice and support service to help disabled people to

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obtain advice on their right of access. We intend the service to promote the resolution of disputes arising under the right of access, without the need for legal intervention.

Where litigation becomes necessary, however, we will ensure that disabled people can obtain redress quickly and effectively. The limit on the amount payable for injured feelings will help to ensure that the vast majority of cases can be dealt with under the small claims procedure, which is informal, cheap and does not usually require legal representation. There will, of course, be no limit set on the amount of damages payable for financial loss incurred in a case of discrimination. As in other anti-discrimination legislation, there will be no limit in such cases.

I believe that it is in everyone's interests for the procedures for redress to be effective and, wherever possible, informal, so as to avoid expensive and lengthy litigation. It is for those reasons that I resist Amendment No. 148 and want to keep in the Bill the powers to impose a limit.

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