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Lord Monson: My Lords, some interesting signals have been coming from various parts of the House. All the safeguards which have allegedly been written into the Bill by the Government and with which they sold the Bill to industry and commerce now seem to be virtually illusory. The noble Lord, Lord Henley, talked about making up one's mind on the basis of experience gained. However, if the Opposition have their way—which they may well do soon—there will be no question of waiting until experience has been gained, the legislation will be forced through within nine months.

Lord Henley: My Lords, if I may interrupt the noble Lord, even the Opposition would accept that, in the unlikely event of them coming to power, they will be bound by the requirement to have a review.

Lord Monson: My Lords, indeed they would, but nine months is not much time in which to see how the provisions have been working. It is a very short time for changing figures in that way.

The difficulty is that the noble Lord, Lord Henley, operates on the assumption that the Government will win the next election and that their policy of waiting four or five years before any change is made will apply. However, in practice that is unlikely to happen.

Lord Henley: My Lords, look at the track record.

Lord Monson: My Lords, all right, I might place a bet with the noble Lord at some point, but not right now. However, if the Government will not accept the help proffered to them by the amendment, who am I to try to force it upon them? With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn. [Amendment No. 44 not moved.]

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Lord Monson moved Amendment No. 45:

Page 6, line 4, after ("20") insert ("or less than 5").
The noble Lord said: My Lords, to some extent we have already covered the ground earlier today when speaking to Amendments Nos. 42 and 44. As I pointed out earlier, in Committee the noble Lords, Lord Swinfen, Lord Addington and Lord Rix, moved an amendment, later withdrawn. One of its effects would have been to set the lower limit at five in perpetuity. Of course, it could have been changed by primary legislation, but only by primary legislation.
Amendment No. 45 is also backed by the Institute of Directors and it would re-set that modest lower limit. Let us suppose, for the sake of argument, that 1 per cent. of the working population is so severely disabled that their productivity is markedly lower than that of their fellow workers. A firm with 1,000 employees would, on average, find itself employing 10 such individuals. The costs of doing so could be absorbed without too much difficulty. I am not talking about the costs of alterations but of giving leave to people who are ill much more frequently than the norm. The situation is very different for a firm with four or fewer employees because if it is obliged to employ even one such disabled employee with a much lower than average productivity, its burden would be 25 times greater than that imposed on large firms. Bearing in mind, as was suggested by the noble Lord, Lord Swinfen, and his colleagues, that a lower limit of—

Lord Addington: My Lords, perhaps the noble Lord will give way for a second. He is aware that under the Bill disabled employees only have to be employed if they are reasonably capable of doing the job. That is the basic premise behind the Bill. The scenario about which the noble Lord is talking simply does not exist under this legislation.

Baroness Hollis of Heigham: My Lords, perhaps I may refer the noble Lord, Lord Monson, to Clause 6(4) (a), (b), (c) and (d). I think his fears will be allayed.

Lord Monson: My Lords, that is all very well in theory. The trouble is that when speaking to employers who employ a number of such people one finds that what happens is that they take on someone thinking that things will work out all right. Then they find the employees have to take off much more time than usual. Being a decent sort of employer, they do not have the heart to sack them but they find them something of a drain on their operations. In a large firm that can be absorbed, but in a very small firm it is difficult.

It should be borne in mind that a number of noble Lords from various parts of the House suggested in Committee that a minimum of five was acceptable to them. I think that the noble Lords, Lord Swinfen, Lord Addington and Lord Rix, would not deny that; it is exactly what their amendment in Committee implied. I suggest that this amendment is acceptable, also bearing in mind that in the United States, where the legislation in this area is frequently praised by noble Lords, the minimum is 15. The argument speaks for itself.

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Lord Carter: My Lords, I have made this point at previous stages in the Bill. Is the noble Lord aware that in California the number has been six for a long time and that in New York it is four?

Lord Monson: My Lords, I was not aware of that. But I also draw the noble Lord's attention to an article in the Spectator last week which pointed out that, far from the legislation working beautifully in the United States, as is so often alleged, it is actually causing a great many problems. We could argue about this matter indefinitely. I beg to move.

Lord Swinfen: My Lords, the noble Lord, Lord Monson, mentioned me quite often in his introductory remarks. The amendment that I and others moved in Committee was designed to bring the number and size of the firms down gradually. Had we been successful then, or a later stage, I should have endeavoured to lower that number still further to zero. No way do I believe that any form of discrimination should be tolerated.

The noble Lord also said that if an employee was taken on who became so disabled that his productivity went down to an extremely low level, it would be a drain on the firm. It could well be a drain on the firm; but it would then be unreasonable to expect that firm to continue employing that disabled person. That, as I understand it, is already within the provisions of this Bill.

The noble Lord is trying to set an "in perpetuity" lower limit. I believe that, as time goes on, the Government will come down to a lower limit of zero as employers generally learn to live with disabled people, learn to appreciate their skills, and learn to adjust to the way in which those people can operate using the skills that they have. We must not forget that there are considerable advances in technology on almost a daily basis, and that more and more people with very severe disabilities will be able to achieve greater and greater things for themselves and for their employers. I hope that the noble Lord will withdraw his amendment, and not attempt to press it.

Baroness Hollis of Heigham: My Lords, I, too, strongly oppose the amendment moved by the noble Lord, Lord Monson. The whole push of the amendment is to assume that disabled people are a burden on society in general and on employers in particular, and that it is not fair because small firms cannot afford that burden. That was the import of his remarks. I wish very strongly to dissociate these Benches from them.

The noble Lord went on to argue that where a disabled person might have markedly low productivity a small company could not afford to carry that person. First, a small company would not have to employ such a person under Clause 6 of the Bill. Secondly, I am assured by my noble friend Lord McCarthy that, on grounds of capacity, it would be grounds for fair dismissal were such a person to show that he or she had markedly lower productivity than was desirable or acceptable. At the end of the day, we totally reject the notion that disabled people are a burden which small businesses cannot afford to carry. On the contrary, we regard them as having abilities and resources which are

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part of the wealth of our society. They, as individuals, are as much citizens of this society as is anyone in this Chamber, and they have the right to the opportunities of employment as much as anyone in this Chamber. Any attempt to limit that should be strongly opposed.

Lord Rix: My Lords, as the noble Lord, Lord Monson, has chosen to put aside me and the noble Lords, Lord Swinfen and Lord Addington, in regard to having said that we would accept five as a minimum figure for employees in small companies, I must reiterate my firm conviction that the figure should not be on the face of the Bill in the first place. Twenty employees should not be a minimum requirement to allow employers not to be associated with the Bill. Therefore, I should like to support entirely the remarks made by the noble Lord, Lord Swinfen, and the noble Baroness, Lady Hollis. I too should like the House to reject the amendment.

9.30 p.m.

Lord Henley: My Lords, I hope that I have given the noble Lord, Lord Monson, some idea of the number of safeguards that are placed in the Bill to ensure that any change in the threshold number will be subject to proper scrutiny if there is a limit below which they cannot go.

As the noble Lord will be aware, there is not a power in the Bill as it stands at the moment for the Secretary of State to use the order-making power to increase the figure above 20. He can only reduce it. He can only use such an order to reduce the figure to two.

The reason for that is that if the Bill is passed with Clause 8 in its present form, Parliament will have signalled that it wants a threshold, whereas an order to reduce the figure below two would, in effect, repeal the provision. That is because the figure "1" would have the result that no employers were excluded. A person with fewer than one employee is not an employer at all.

Firms with no employees or with one employee can therefore never be included in the Bill as it stands. Regulations could be made to change the threshold to any number from two to 20. A limit of fewer than two, while slightly less than that proposed by the noble Lord's amendment of "less than five", nevertheless might satisfy them.

I hope therefore that the noble Lord will accept that the Bill as it stands at the moment cannot be used completely to remove the provision. I do not feel that the noble Lord has found much support in the House tonight for his absolute amendment whereby we could not reduce the figure to below five.

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