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Lord Ashley of Stoke: My Lords, I thank the Minister for that response. My noble and learned friend and I would have liked him to go further but we shall return to the points at a later date. In the meantime, I shall not move my amendment and my noble and learned friend will tell the House what he intends to do.

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Lord Archer of Sandwell: My Lords, I am sorry that I confused my noble friend. It will not surprise your Lordships to know that I propose to ask leave to withdraw my amendment but I did not wish to do so before my noble friend had had an opportunity of saying what he wished.

This is not the time to reply in detail to all that the Minister said. It may be that when he reads what I said he will appreciate that not everything in his brief was totally unknown to me. I too mentioned that this merely added to the list of examples. However, I ventured to say that, in parliamentary draftsmanship, as a matter of wisdom it is a general rule that if you mean it there is something to be said for saying it expressly.

I was of course aware of the provisions made by the noble and learned Lord the Lord Chancellor in relation to court premises. However, before we become too smug, the Minister should visit some of the premises which we on the Council of Tribunals have to visit. There are 70 different systems of tribunals in this country, covering almost every human activity that one can imagine. Most of them have tribunals in most urban centres and there are quite a few rural ones. The Minister said that most of them now have adequate provision for disabled people. I should be happy on some occasion to show him some of them.

I was grateful to hear the Minister's comments about the green form scheme. This is not the time to go into the details of the matter but I shall take it away and look at it. I was also grateful for his comments about contributions for those who have been awarded legal aid. He said that the Lord Chancellor's Department is considering that, but I must point out that, as I said in my opening remarks, it has been considering it for some three years. I had hoped that the Minister would give us an idea of how much longer we must wait.

I promise that I shall read carefully what the Minister said. In return I ask only that he reads carefully what my noble friend and I have said. Perhaps at an hour when we are all a little fresher and we have all had time to reflect on these matters we might consider them further. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn. [Amendment No. 60 not moved.] [Amendments Nos. 61 to 64 not moved.]

Clause 14 [Meaning of "discrimination"]:

Lord Henley moved Amendments Nos. 65 to 67:

Page 11, line 33, leave out from ("treat") to ("cannot"), in line 35 and insert ("others to whom that reason does not or would not apply; and
(b) he").
Page 11, line 36, leave out ("under section 15").
Page 11, line 37, leave out subsections (2) and (3) and insert:
("(2) For the purposes of section 13, a provider of services also discriminates against a disabled person if—
(a) he fails to comply with a section 16 duty imposed on him in relation to the disabled person; and
(b) he cannot show that his failure to comply with that duty is justified.
(3) For the purposes of this section, treatment is justified only if—
(a) in the opinion of the provider of services, one or more of the conditions mentioned in subsection (4) are satisfied; and

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(b) it is reasonable, in all the circumstances of the case, for him to hold that opinion.
(4) The conditions are that—
(a) in any case, the treatment is necessary in order not to endanger the health or safety of any person (which may include that of the disabled person);
(b) in any case, the disabled person is incapable of entering into an enforceable agreement, or of giving an informed consent, and for that reason the treatment is reasonable in that case;
(c) in a case falling within section 13(1) (a), the treatment is necessary because the provider of services would otherwise be unable to provide the service to members of the public;
(d) in a case falling within section 13(1) (c) or (d), the treatment is necessary in order for the provider of services to be able to provide the service to the disabled person or to other members of the public;
(e) in a case falling within section 13(1) (d), the difference in the terms on which the service is provided to the disabled person and those on which it is provided to other members of the public reflects the greater cost to the provider of services in providing the service to the disabled person.
(5) Any increase in the cost of providing a service to a disabled person which results from compliance by a provider of services with a section 16 duty shall be disregarded for the purposes of subsection (4) (e).
(6) Regulations may make provision, for purposes of this section, as to circumstances in which the condition mentioned in subsection (3) (a), or that mentioned in subsection (3) (b)—
(a) is to be taken to be satisfied;
(b) is to be taken not to be satisfied.
(7) Regulations may make provision, for purposes of this section, as to circumstances (other than those mentioned in subsection (4)) in which treatment is to be taken to be justified.
(8) In this section "section 16 duty" means any duty imposed by or under section 16.
(9) In subsections (3), (4) and (7) "treatment" includes failure to comply with a section 16 duty.").
The noble Lord said: My Lords, I spoke to these amendments when moving Amendment No. 10. I beg to move.
On Question, amendments agreed to.
Clause 15 [Circumstances in which less favourable treatment is justified]:
[Amendment No. 68 not moved.]

Lord Henley moved Amendment No. 69:

Leave out Clause 15.
The noble Lord said: My Lords, I spoke to this amendment when I moved Amendment No. 10. I beg to move.
On Question, amendment agreed to.
Clause 16 [Duty of providers of services to make adjustments]:

12.15 a.m.

Lord Swinfen moved Amendment No. 70:

Page 12, line 45, leave out from ("which") to ("which") in line 46 and insert ("has an adverse effect on a disabled person's enjoyment of, or participation in, a service").
The noble Lord said: My Lords, from what was said in Committee, I gather that the Government remain unpersuaded as to the need for an authoritative disability council. That will mean that it will depend entirely on the disabled individual to test the legislation through the courts.

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In court, the disabled person must overcome two hurdles: first, he must establish that discrimination has occurred; and, secondly, he must prove that the service provider has not taken steps which are reasonable in all the circumstances of the case to remove discrimination. That second hurdle is of itself difficult to surmount, dependent as it is on many factors which are particular to the service, the time and the place and the cost cap.
In addition, to establish that discrimination has occurred, the disabled person must demonstrate that it is impossible or unreasonably difficult to use the service. How will that be measured? Even in the most clear-cut situations where there are physical obstacles to access, the service provider could quite easily argue that access was not impossible or unreasonably difficult. For example, he may argue that porters could be made available to manhandle a wheelchair user up flights of stairs or that a disabled person could be redirected to a back alley to use the service entrance. Those strategies make access possible and perhaps not unreasonably difficult. I was going to read a letter from a well-known bank to one of its customer which said that it was far too expensive to lower the steps so that she could get into the bank. Therefore, she still has to conduct all her business on the pavement.
We should be looking for a duty for service providers to take steps which will afford disabled people the same dignity and respect as any other customer might expect. The amendment states:
"has an adverse effect on a disabled person's enjoyment of, or participation in, a service".
That conveys a more positive message to service providers and the courts and it lowers one of the hurdles which a complainant must overcome. I beg to move.

Lord Monson: My Lords, I have some sympathy for the idea behind the amendment but I believe that, as it is drafted, it is rather too sweeping. I suggest that it would be much more acceptable if the word "adverse" were to be qualified by an adverb such as "seriously", "substantially" or "markedly".

The problem here, as elsewhere in the Bill, lies in the interpretation of the word "reasonable". After all, "reasonable" means a hundred different things to a hundred different people. Let us take, for example, the case of a restaurant which spreads over two or three floors. One can think of a dozen such restaurants in London alone. The food served is identical wherever you happen to eat in the restaurant and the prices charged for the food are also the same. A disabled gentleman rings up and says that he would like to book a table on the first floor, or possibly in the basement, but that he will need assistance because he walks with two sticks. He can just about manage steps provided that there are two people to help him. The manager says, "I am extremely sorry, sir, but we are extremely busy and I cannot take two waiters from their other duties to help you up the stairs at the beginning and end of your meal, but you can have an excellent table on the ground floor and I am sure that you will be very happy there".

The would-be customer says, "There is absolutely no question of this; I found the decor on the ground floor quite repulsive. I cannot stand the colour you have painted your walls. It has got to be the first floor or the

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basement or nothing". The manager says, "Well, in that case I am afraid there is nothing I can do about it". If the case goes to court, it is probable that the court will find that the manager had behaved not unreasonably in the circumstances, but perverse decisions do occur and he or she cannot ever be entirely certain about that. The worry will be there. If, however, the word "adverse" were to be qualified by some word such as I have suggested, for example "seriously" or "markedly", I believe that would improve the situation and make it more acceptable. That is a suggestion I put to the noble Lord.

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