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Disability Discrimination (Amendment) Bill [HL]
7.15 p.m.
Lord Ashley of Stoke: My Lords, I beg to move that this Bill be now read a second time. Despite the Disability Discrimination Act, discrimination is still rife against Britain's disabled people. This Bill seeks to transform the legislation into a package of genuinely comprehensive and enforceable civil rights.
Its message is that discrimination in any area will no longer be tolerated. It is time for it to go and we want urgent government action, complete with a timetable. Despite the legislative advances made since the admirable Chronically Sick and Disabled Persons Act, initiated by my noble friend Lord Morris of Manchester in 1970, vast numbers of disabled people are still excluded from the protection of the Disability Discrimination Act. Much of transport is excluded, and so too are private clubs. Tribunals lack the powers to be able to dispense justice for disabled employees and the Disability Rights Commission needs to be able to take proceedings on behalf of disabled people under the Human Rights Act.
All these serious and significant shortcomings are addressed in my Bill. When I was preparing it, I had very much in mind the recommendations of the Disability Rights Task Force and the Government's response in Towards Inclusion. But we now want government action rather than words on the recommendations of the task force.
Many disability organisations strongly support the Bill and the Disability Rights Commission has called publicly for the changes that it proposes. I greatly appreciate the help that I have received from the commission in preparing my Bill. It prepared an excellent briefing for noble Lords. I am also grateful for the help that I have received from RADAR and the Public Bill Office.
Of course, I am aware that some of the proposals in the Bill can be implemented by regulations. But a unified, focused approach, as in this Bill, is preferable to a piecemeal one. The elements all hang together, affecting the lives and the happiness of many disabled people.
In a debate on the need for a new disability Bill on 8th November last year, the Minister was sympathetic, but reserved. That is an understandable posture for a cautious Minister, but it is not good enough. This Government deserve credit for some measures on disability, such as the Disability Rights Commission Act, the Special Educational Needs and Disability Act, the Disability Discrimination Act and the Carers Act, but they have failed to keep their categoric promise in their 1997 manifesto of "comprehensive and enforceable rights" for disabled people and they are not moving fast enough on most of the task force recommendations. It is time to get a move on as disabled people cannot wait indefinitely.
Now a word of explanation about the Bill's clauses. Clause 1 deals with the problem that people with progressive conditions can suffer discrimination well before they have symptoms. Yet the DDA does not cover a person until symptoms have emerged, which is preposterous. So Clause 1 ensures, for example, that HIV is included from the point of diagnosis, and that cancer patients are included from the point at which significant treatment is required.
Clause 2 includes private clubs in Part III of the Disability Discrimination Act, which relates to goods, facilities and services. This will help prevent discrimination in applications for membership and,
specifically, in terms of membership. Let us take the following example. A British Legion branch is citing the DDA's exemption for private clubs in its shocking decision to bar a long-standing and active member from attending with an assistance dog. This lady has been a member for 10 years, and was recently elected branch secretary of the Royal Air Forces Association. When people can behave in that manner and use the DDA in order to defend such an indefensible posture, it seems to me that it is time for this Act to be changed and improved.Clause 3 addresses the problem of some important rights for disabled people that are established not by the DDA but by the Human Rights Act. These include the right that no one should be deprived of life intentionally or be subjected to inhuman or degrading treatment. Perhaps I may give the House an example. A company director with spinal muscular atrophy, a qualified solicitor, was admitted to hospital with a chest infection. To her horror, she found that a doctor had placed a "Do Not Resuscitate" notice on her medical notes because it was considered that her quality of life did not warrant such intervention. Do not noble Lords find that quite incredible? Nevertheless, it is what actually happened. As yet, there is no commission to enforce the Human Rights Act. The power to represent such people should, therefore, be given to the Disability Rights Commission, along with the Equal Rights Commission and the Commission for Racial Equality. Indeed, it should be done without delay.
Clause 4 extends the cover of the DDA to the police, prison officers, fire fighters and the Armed Forces. There is no valid reason why they should not have been included in the first place. While including them in this Bill, we can ensure that, for the Armed Forces in particular, there should be nothing to interfere with their operational effectiveness.
Clause 5 would ensure that all firms were covered under the DDA. I think, as I have always thought, that it is ludicrous that 382,000 disabled employees are without protection from even the most blatant forms of discrimination. The Act provides for 92.5 per cent of employers a continuing legal licence to discriminate. It is a funny old piece of legislation: it does not really protect people because of these absurd exemptions. The original Act included only firms with 20 or more workers. The Labour Government's change to firms with 15 or more workers was helpful, but insufficient. It merely brought in 70,000 employees, whereas this Bill will bring in 382,000. Nor is the Government's decision to include all firms by 2004 acceptable. There is absolutely no need for delay because including these firms now simply means that they should not discriminate; that is all. It asks them not to discriminate against their disabled employees and to take "reasonable" steps to accommodate them. Therefore, no unreasonable demands would be made on any firm. So why not get on with it, and bring in all these firms under the legislation pronto? The size of the firm should be irrelevant.
Clause 6 would give employment tribunals power to order reinstatement of an employee who had suffered discrimination. At present, they can only order
reinstatement for cases of unfair dismissal. Clause 7 removes the short clauses in the DDA that exclude transport. It is absurd that transport was mainly excluded in the first place. Transport is currently an enormous hole in the provision. Accessible jobs and services are useless if inaccessible travel prevents disabled people from getting to them. As my noble friends will confirm, that is often the case.Clause 8 seeks to ensure that the vast majority of public authorities are forbidden to discriminate against disabled people. Obviously, we need to exclude the Security Service, Government Communications Headquarters, and any judicial bodies making decisions such as not to institute criminal proceedings and related actions. These would mirror the Race Relations (Amendment) Act exclusions.
Clause 9 is based on the belief that it is inappropriate to leave responsibility for change on such vital issues to disabled individuals protesting and establishing case law because it would take far too long. It is unfair to leave it to them. The clause places a duty on the public sector to promote equality of opportunity for disabled people. It also gives the Secretary of State power to specify appropriate duties. If anyone fails to do so, the Minister can issue a compliance order, which is very necessary. This clause would speed up understanding and awareness of disability rights.
Clauses 10, 11 and 12 are linked. They ensure that the duties in Part III of the DDA are extended to landlords. There is evidence of landlords withholding consent for disabled people to make much needed changes to property, such as installing a stairlift. It beats me why they should have the power to veto improvements that are vitally necessary for disabled people. This Bill would certainly deal with that anomaly.
The background to Clause 13 is that the DDA has already established a questionnaire procedure for discrimination in employment claims which enables applicants to assess from employers' responses whether or not they have a case. It is a very valuable questionnaire that can clarify the strength of a potential claim and prompt an early resolution—something that we all want. The clause would extend this provision to the goods and services sections of the Act.
Clause 14 ensures that all goods and services discrimination cases under the DDA are commenced in an employment tribunal. The Disability Rights Commission quotes research by Income Data Services showing that the number of cases alleging discrimination regarding goods, facilities, services and premises brought before the county court in the first four years of operation was very small—only some 50 odd—compared with the thousands of claims to employment tribunals. I have seen an estimate of some 11,000, which, when compared with 50, speaks volumes because people are equally discriminated against in the provision of services. The reason for that difference is that, unlike county courts, tribunals do not charge fees. They are flexible and informal, and they do not frighten and deter disabled claimants.
I have reached the end of my speech. I hope that the Government will support and assist the Bill's progress. What we really need are specific dates for action. I am, of course, willing to consider any amendments. If I can help my noble friend in any possible way, I shall be only too glad to do so. If the Government can give a guarantee of some kind to introduce their own Bill on similar lines, it would provide significant reassurance to my noble friends, to the many disability organisations, and to me. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Ashley of Stoke.)
7.29 p.m.
Lord Swinfen: My Lords, the whole House will be very pleased that the noble Lord, Lord Ashley, has explained his Bill in such a clear way. I am sure that all noble Lords will extend a warm welcome to the Bill. The noble Lord is now, and has been for many years, a tireless fighter on behalf of people with disabilities. This is but another action in his long campaign.
As the noble Lord said, the Bill is designed to put into effect the recommendations of the task force established by the Government in its report of December 1999 entitled, From Exclusion to Inclusion. We should all remember that this Bill, as well as benefiting disabled people today, could in the future benefit those of us who are not disabled, as there is always the chance that we ourselves could become disabled.
I particularly welcome Clause 2 which prohibits discrimination by associations. That will bring disability legislation into line with the laws on both racial and sexual discrimination. Why should private clubs be exempt from the general law?
The House knows that when the Conservatives were last in power I was often a thorn in the flesh of our Front Bench on disability matters. For over 20 years I have fought in this House for disabled people.
I have serious doubts about Clause 4 as it affects the Armed Forces. I speak as someone who was at one time a regular soldier. The Armed Forces already do their best to keep employed servicemen and servicewomen who become disabled. But it is not in my view practical to recruit disabled people. All service people, whatever their task and wherever their service, must be able to fight. A disabled recruit, unlike an able-bodied recruit, cannot acquire the experience or training that would enable him to effectively assist his colleagues in the way that an able-bodied person could who later suffered a disabling injury. I say sorry to the noble Lord, Lord Ashley, whom I greatly respect, but I cannot support him on that particular point.
I do not have experience of the police or of fire fighters. Therefore, I shall not comment on them. However, I wonder whether some of the points that I have made about the Armed Forces may apply also to them. The matter needs to be carefully looked at.
I very much welcome Clause 5—the extension of the Disability Discrimination Act to small employers. I welcome the fact that the Government have already reduced the threshold from 20 to 15 employees. I, along with others, tried unsuccessfully to have this new proposed lower limit written into the original Disability Discrimination Act when it was a Bill passing through this House. The noble Baroness, Lady Hollis of Heigham, will recall that point because we worked together on it at the time.
Clause 7 of the Bill brings transport within the remit of the Disability Discrimination Act. I welcome that. For example, why should a bus driver who is possibly late be allowed to refuse a disabled person from boarding his bus just because he would take longer to get on board than someone more active?
Clause 9 provides a general duty to promote equal opportunities for disabled people. It is to be welcomed. In the long run, it will lead to a general improvement in our society of the position of people with disabilities.
Clauses 11 and 12 deal with rented property. They may need to be looked at in Committee to ensure that they work properly because I can see that there are likely to be certain difficulties. On the whole, I welcome the idea behind the clauses.
I do not need to say a great deal more. Generally, I welcome the Bill, but with the exceptions that I have mentioned. I trust that the Government and the usual channels will help it to have a speedy passage through this House. I look forward with great interest to its Committee stage.
7.34 p.m.
Lord Rix: My Lords, first, I must declare my long-standing interest in the world of learning disability as president of Mencap. We are all grateful to the noble Lord, Lord Ashley of Stoke, for giving us a further opportunity to fine tune the 1995 Disability Discrimination Act. I know that he will have many allies, for your Lordships are among the foremost advocates for disabled people and none more so than the noble Lord, Lord Ashley, himself.
We have come a long way, particularly in the world of learning disability, since our Down's Syndrome daughter was born some 50 years ago. The first improvements surfaced in 1971, with the White Paper, Better Services for the Mentally Handicapped, and with the enactment of the Education (Handicapped Children) Act 1970, which included children with severe learning disabilities in the education system for the first time. It was at that time too that the noble Lord, Lord Morris of Manchester, as we have heard, was piloting his Private Member's Bill through another place—eventually the Chronically Sick and Disabled Persons Act. All these ground-breaking achievements—for they were ground-breaking achievements, believe me—came only a year or two after the population of the old "subnormality hospitals" had peaked, with the appalling number of 70,000 men, women and children still virtually incarcerated and cut off from all normal communication with the outside world.
Today, there are still about 1,500 people with a learning disability in English hospitals. Hopefully, they are living under greatly changed circumstances, while those still alive from that peak figure of 70,000 have become part of the care-in-the-community population, to the great enjoyment of the majority of them.
Successive governments deserve great credit for their policies on disability. Our current rulers are, I am glad to say, no exception. There is a vast range of legislation for which we are all very grateful. All have, with various degrees of enthusiasm, vigorously promoted the interests of disabled people over the years. I congratulate them warmly on so doing.
However, there is still a long way to go before disabled people gain equal rights and opportunities in all areas of life. The noble Lord, Lord Ashley, has already highlighted the need for further progress and I wholeheartedly support his Bill.
The first of my concerns is the thorny issue of employment and the exclusion of small employers from the DDA. While I recognise the Government's wish to carry these small employers with them, giving them time to understand in full the meaning of the DDA, I must remind your Lordships how pitifully few people with a learning disability are afforded full employment, or employment that is anything other than token, and many of the smaller employers would never consider employing them anyway. Other disabilities, well, maybe; learning disability, frankly, no. Yet the Government have set a target for the employment of learning disabled people in their recent, excellent White Paper, Valuing People, of 30 per cent in order to achieve parity with other disabled persons. They will never achieve that figure unless smaller employers join the ranks of the already proactive big boys—the Marks and Spencer's, the Sainsbury's, the Tesco's et al—in realising the potential of people who until recently were probably considered to be hopeless basket cases.
Even when disabled people secure jobs, therefore enhancing their independence, there is no guarantee that they will be able to travel to those jobs. In recent years we have seen many improvements in public transport. We have to thank the Disabled Persons Transport Advisory Committee for these improvements, but unnecessary problems still abound.
Twenty years ago, while working with the BBC, I presented the programme "Let's Go" for people with a learning disability. It is an interesting fact that one of these programmes highlighted transport issues and mobility training. Twenty years later, we still do not have accessibility for the majority of disabled people right. That can be rectified only by the omission of Section 19(5)(b) from the DDA.
Although physical access is a major issue for disabled people, people with a learning disability experience discrimination on a different scale. In Mencap's recent report on bullying, people with a learning disability stated that they were regular victims of bullying while using transport, often by groups of fellow passengers. Many felt isolated and trapped in an
enclosed environment. Unfortunately, the bullying was not just by members of the public but by transport staff. People with a learning disability reported that bus drivers often harassed them, so much that many were forced to leave the bus.Clause 7 of the Bill introduced by the noble Lord, Lord Ashley of Stoke, is much needed. It will not only greatly enhance the ability of disabled people to travel throughout the United Kingdom but will remove the somewhat anomalous situation in which rail and bus stations must provide access while transport itself is not covered by the DDA. I do not believe that access to training will impose great costs that threaten our already beleaguered transport service.
Like the noble Lord, Lord Swinfen, I welcome Clause 2 of the Bill, which takes away the right of any association—public or private, small or large—to discriminate against disabled people. The noble Lord cited the British Legion as an example of the DDA being used unfairly. I shall add a further illustration. Last year, a number of parents of children with a learning disability wrote to Mencap expressing their concerns about the withdrawal of riding lessons for their children by the Riding for the Disabled Association. The children are between eight and nine years old. Some have profound learning difficulties and some have additional physical disabilities. Horse riding has been a valuable activity for them.
I respect enormously the achievements of the RDA, and I do not want to demand the impossible, but the rationale given for the withdrawal of the service was that staff were having difficulties lifting the riders onto the ponies. There were no male volunteers to help with lifting, and there was no hoist available. Some of the children in question weigh well under six stone. Although some are profoundly disabled, they were never unruly in the saddle. Even so, there was little that parents could do about it, for the DDA excludes membership organisations that provide social, cultural and recreational activities, such as the Riding for the Disabled Association and, of course, the Scout Association. That goes against the spirit of the Government's policy of integration and inclusion of disabled people in recreational and leisure facilities. Once again, the noble Lord, Lord Ashley of Stoke, is on the side of the angels.
Whether we like it or not, we live in a doctrinaire age. A number of interested parties are determined on change for change's sake. In this case, I argue strongly that change is needed sooner, rather than later, to ensure that disabled people have the rights and opportunities that the rest of us take for granted. I would welcome a reassurance from the Government that, if the Bill does not gain parliamentary time, they will introduce a comprehensive new disability Bill in the next Queen's Speech. I hope that we can set an example that will be a beacon to all other countries and will further tackle widespread discrimination, enabling even more disabled people to live fuller and happier lives.
In 1941, Franklin D. Roosevelt, the severely disabled President of the United States, proclaimed the four essential human freedoms: freedom of speech,
freedom of religion, freedom from want and freedom from fear. He might well have added a fifth: freedom from discrimination. The Bill introduced by the noble Lord, Lord Ashley of Stoke, is one further step in granting that freedom. I wish it well.7.44 p.m.
Baroness Wilkins: My Lords, I strongly support the Bill. My education in the necessity of civil rights legislation to create equal opportunities for disabled people began over 20 years ago with a television documentary called "We won't go away", which I made with Patricia Ingram. The documentary was an exciting revelation to us here in Britain, showing the integrated schools, accessible buses and subway trains, signed TV and other wonders that had resulted from America's first civil rights legislation for disabled people. That was Section 504 of the Rehabilitation Act 1973, passed nearly 30 years ago. Since then, the Americans have built a comprehensive body of anti-discrimation law on those initial foundations, most notably with the Americans with Disabilities Act 1990.
I am delighted to say that my noble friend Lord Ashley of Stoke has the same staying power as the title of our documentary. Fortunately, he won't go away either. He has been a tireless advocate, and this is one of his many Private Member's Bills promoting the civil rights of disabled people. I support the Bill wholeheartedly.
As the Minister will no doubt be reminded many times during discussion of the Bill, the Government made a manifesto commitment in 1997 to ensure full civil rights for disabled people. To that end, I hope that the Minister will be able to give the Bill her invaluable support. The Bill would take us well down the road from our partial civil rights legislation towards the full and enforceable civil rights provisions pledged by the Government. The Bill is doubly effective. It identifies and fills many of the loopholes in the Disability Discrimination Act 1995, and it takes a new, more proactive approach to equality for disabled people that would make it easier for us to access and enforce our rights.
I shall briefly mention the main loopholes that my noble friend's Bill identifies. Our current legislation falls far short of full civil rights for disabled people in key areas of life where discrimination continues to be sanctioned by the law. The most glaring of those, as noble Lords have said, are in employment, housing and transport. I support the clauses that seek to address those shortcomings.
Clauses 4 and 5 would end the current employment exemptions and bring small employers, police officers, fire fighters and the Armed Forces within the DDA. The Government have agreed in principle to end those exemptions, apart from the Armed Forces, so why should we not grasp the nettle and act now? No employer is asked to recruit or retain people unable to carry out the job required or to make unreasonable adjustments. If disabled people are not to continue
pointlessly being barred from the Government's policy of providing work for those who can, the Minister must support those clauses.I particularly welcome Clause 7, which would bring transport operators under Part III of the DDA. The current exclusion has meant that people continue to experience discrimination in ways that non-disabled people would be shocked to hear about. MIND has reported to me the case of a woman who declared her diagnosis of schizophrenia when she booked a coach ticket, explaining her need to sit at the front. She was sold the ticket on that basis, but when she tried to take her seat and explained her reason to the driver she was told to get off the bus. Another instance involved deaf passengers on a train who were denied service at the canteen because the attendant was too impatient to communicate on paper.
Clauses 10 to 12, which would apply duties to make reasonable adjustments in housing, are also extremely welcome. The lack of accessible housing is a major difficulty for physically disabled people, and it is one of the major hurdles in pursuing job opportunities. Under the Bill, a landlord could not withhold consent unreasonably if a disabled person needed to make physical alterations to the premises. It would also mean that basic forms of discrimination such as guide dog bans could be challenged more effectively.
As I said, the Bill not only addresses loopholes in the current law but tackles no fewer than five of the key barriers to access to justice for disabled people and the effective enforcement of our civil rights. Having rights by law will have little practical impact unless there is an easy and effective means of enforcing them. The clauses would give the Disability Rights Commission the power to assist disabled people under the Human Rights Act 1998; introduce positive duties on public authorities; and enable Part III cases to be commenced in tribunals. I shall resist the temptation to expand on those parts of the Bill but will give them my full support during the passage of the Bill.
I turn to the definition of disability, which is one of the major deficiencies in the current law. Many disabled people have discovered that they are excluded from its protection. Indeed, the DRC has found that one in four—a quarter—of the cases of alleged discrimination, fall at the first hurdle.
I strongly support Clause 1 of the Bill which calls for the extension of DDA protection to those with cancer and HIV from the point of diagnosis. However, the Bill does not go far enough. I hope that the Government are willing to consider amendments during progress of the Bill to extend the definition of disability in order to ensure that people with mental health problems and blind or partially sighted people are also given protection against discrimination.
Despite being registered as blind or partially sighted, visually impaired people have often had problems establishing that they are covered by the DDA. That is either because they have developed coping mechanisms, or because tribunals have failed to apply the guidance correctly.
The matter of definition was one of the most complex issues facing the Disability Rights Task Force and one which it acknowledged needed further work. Case law has already provided evidence that people with mental health problems are particularly ill served by the Act's current definition of disability.
First, they have to prove that their condition is clinically well recognised. That is not required for someone with a physical condition, even though diagnosis can often be just as difficult—as in the case of ME.
Secondly, the claimant must show,
- "a mental impairment which has a substantial adverse effect on normal day to day activities".
As the task force acknowledges in its report, since "normal day to day activities" does not cover impairments of "thinking, feeling, or social interaction", it may not serve people with mental health problems well. In a recent unpublished survey of decided cases at employment tribunals, the DRC found that the definition caused more problems for people with mental health conditions than for any other group.
There have been numbers of cases where employees with depression have failed to satisfy the definition—either because the period was shorter than 12 months, or because they failed to convince the tribunal that their ability to concentrate was impaired. Out of a total of 210 cases in which the employment tribunal found against the applicant, around a quarter were mental health cases. Of these 210 cases, 67 were criticised as being unfair.
The issue of definition of disability needs much further consideration and I hope to return with amendments at Committee stage of the Bill.
Since coming to power the Government have done much to further the civil rights of disabled people with the creation of the Disability Rights Commission, the setting up of the Disability Rights Task Force and the passage of the Special Educational Needs and Disability Act. However, there is still a long way to go before they fulfil their pledge of full and enforceable civil rights for disabled people.
I hope that the Government maintain the momentum of the past few years and demonstrate that the civil rights of disabled people are high on their agenda by supporting the Bill. By now, the Minister must be only too aware that, as the demonstration placard said of disabled in that documentary all those years ago, "We won't go away".
7.54 p.m.
Baroness Darcy de Knayth: My Lords, I would like to congratulate the noble Lord, Lord Ashley of Stoke, on bringing forward this excellent Bill which will be welcomed by all disabled people and by all who campaign for a genuinely inclusive society.
The noble Lord gave a wonderfully clear and comprehensive introduction, and I would like to concentrate on one or two of the measures it introduces which I feel are essential improvements to the 1995 Act.
First, I am delighted that the definition of disability should be widened to include people who have been diagnosed as HIV positive or who have cancer likely to require substantial treatment. The mere mention of either of those conditions sometimes leads to panic discriminatory measures long before the people concerned can qualify as disabled people under the Act. That leads to unacceptable injustices.
The same is true of people with a mental health problem, and I very much hope that it will be possible to expand the definition of disability to cover more effectively the hundreds who now face discrimination on account of a mental health problem. The noble Baroness, Lady Wilkins, has already spoken of this and I know that the noble Lord, Lord Bragg, will speak in much more detail and with much more expertise.
However, it seems that Australia, Canada and now Ireland have arrived at a definition which has been tried and tested and works and that no floodgates have been opened, as people always fear. Therefore, I would wholeheartedly support any amendment which may be brought forward in Committee to end the discrimination. I believe that the statistics on discrimination against people with a mental health problem are horrific.
I very much welcome Clause 4, which will make it illegal to discriminate against disabled people in relation to employment in the police forces, the fire services and the Armed Forces. I fear that those who argue that discrimination against disabled people is essential if those important services are to function properly are being misled by watching too many Rambo-style police and special forces television programmes and films.
I heard what the noble Lord, Lord Swinfen, said and I stress that I am certainly not referring to him. He spoke with experience, but I am talking generally about people. Surely there are many non-combative jobs that people in the Army can do.
As the noble Baroness, Lady Wilkins, has already said in what I thought was an excellent speech, there are numerous jobs in all these services which many disabled people could do effectively with or without reasonable adjustments. I have never heard anyone advocate that those services must employ disabled people to do the jobs for which their disabilities make them justifiably unsuitable.
Unfortunately, however, the existence of some jobs requiring high degrees of physical ability is used to justify banning disabled people from every job. As the noble Lord, Lord Swinfen, said, some of those services already keep employees who have been disabled in the course of their work. That shows that the opportunities are there in the forces and yet, surprisingly at present, the employers would be
entirely justified in refusing employment to others with identical disabilities in identical jobs who were not already in their employ.I am delighted that Clause 5 of the Bill will abolish any exemptions, no matter how many employees a firm might employ. I find it very difficult to justify any number when it comes to discrimination. I found it difficult in 1995 and I found it even more difficult in 1999. Therefore, this is a most welcome measure.
However, despite the proviso of reasonable adjustments, I can foresee difficulties that might arise because of human nature and a conflict of personalities in small two or three-person businesses. It could be made difficult, but rather than exempt such firms on those grounds, might it not be possible to arrange added safeguards to protect the interests of those employing one or two people against malicious prosecutions?
The RNIB would like to bring voluntary work and work placements fully within Part 2 of the DDA, and I totally agree. I tried hard, in conjunction with SKILL, of which I am the president, to get work placements covered during the passage of the Special Educational Needs and Disability Act.
The further education and higher education institutions will be responsible for the accessibility of courses, including work placements, but they do not fully cover students on work experience against discrimination in the workplace. We really must do something about that. Work experience is becoming an increasingly central element of the curriculum in secondary education, as well as in FE and HE.
To ensure that disabled learners have access to the same opportunities as their non-disabled peers must be a priority for the Government—a government who place such strong emphasis on boosting the employability and employment of disabled people. Yet disabled learners on work placements and disabled volunteers are denied the protection of the DDA in the workplace unless they are paid.
Employers are not required by law to make any kind of reasonable adjustments for them. I hope that we can find some way of removing the disincentives to employers against giving work placements to disabled students. The task force stated that a code of practice should be developed to cover volunteers and that if necessary a reserve power should be taken to include them in the DDA. The question of work placements was not even addressed.
When she comes to reply, can the noble Baroness, Lady Hollis, detail what steps are being taken to develop the code of practice? Can the DRC be asked to consult as regards what form DDA protection for disabled volunteers and students on work experience should take? What systems of support need to be put in place to protect and encourage such students? I have not given notice of this question so I shall be content if the noble Baroness replies to me in writing.
Another remedial measure that I wholeheartedly support is Clause 7, which excludes transport from the effects of measures covered by Part III of the Act.
Surely it is totally illogical to allow discrimination in respect of goods and services provided on trains and buses whose accessibility has been prescribed under Part V of the Act. It has led to some gross injustices, in particular in respect of blind people. Transport is an issue particularly close to my heart because I am a member of the Joint Committee on Mobility for Disabled People. Furthermore, it is a subject which is close to the heart of its president, Sir Peter Large, whom noble Lords will know instigated the CORAD Report, in which anti-discrimination legislation was first advocated. I am greatly indebted to him for his thoughts on this matter, which have informed much of the speech I give tonight.Whether and how Clause 7 will affect physical access to aircraft and ships not presently covered in the Act remains to be seen, but I hope that the possible difficulties here will not preclude goods and services on accessible transport vehicles being made subject to the Act.
I must confess that there are certain measures in the Bill the full ramifications of which I cannot yet assess. I look forward to further enlightenment on those issues during the course of our discussions on the relevant clauses.
I should like to flag up two areas of uncertainty in the 1995 Act which I hope will be clarified during the passage of the Bill or taken note of in good time before they become significantly important in October 2004. I do not think that either will require primary legislation; both can probably be remedied in regulations.
The first concerns uncertainty about the application of the Act. What exactly is meant by "facilities"? Do they include, for example, bridges, roads, on-street and off-street parking, children's playgrounds, village greens, nature reserves and nature trails? Further clarification and specific examples of what is and is not a facility would be extremely useful. As president of the Disabled Ramblers—although I must say that I have never been a rambler myself—I know that this is a point of great interest to the members of that association. Issues such as the accessibility of footbridges over rivers, towpaths and so forth have created huge problems. If some or all of these examples are deemed not to constitute facilities, there will be ample scope for making the lives of disabled people more difficult, narrower and less enjoyable than they need to be.
The second area of uncertainty is when the greater expense or additional cost of making reasonable adjustments can or cannot be passed on to a disabled customer. When an accessible taxi is available, is it permissible to charge a disabled passenger something extra, as I have been told has happened? Other possible examples include adaptations to a powered wheelchair to enable it to be controlled by a particular disabled person; ticket surcharges levied to pay for the hire of helpers to enable disabled people to attend or take part in New Year's Eve celebrations at an hotel; loading disabled people who cannot walk into aircraft seats; hiring a BSL interpreter to allow a deaf person to hear
a paid lecturer at a function in a village hall; and a woman with cerebral palsy being charged more at a hairdressing salon because of her uncontrolled head movements. Those examples should show which of the additional charges are legitimate and which are not.This is a hugely welcome Bill. No doubt some will argue that one or two of the clauses do not go far enough. Others will point out that there are still areas of discrimination that are excluded. No doubt others will think that we have done enough to eliminate discrimination and that some or other element, or even the entire Bill, goes too far and is yet another unwelcome addition to legislation governing people's rights. Perhaps those people should read what was said by the noble Lord, Lord Swinfen, in his speech. I hope that we will be able to make progress and will improve the Bill during its passage through this House, in particular with regard to mental health.
To those people who say that we have gone too far and to those who say that we should not pass the Bill because it will not plug all the gaps, I would point out, as did the noble Lord, Lord Ashley, that several of its clauses fill holes in the existing legislation that were exposed and well delineated during debates held in 1995 when the original legislation was being considered in this House. I very much hope that those acknowledged gaps will not be allowed to persist merely because this amendment Bill omits some desirable extension to the DDA or because someone might consider that one or other measure goes too far to be contemplated at this time.
I wish the Bill a safe and speedy passage and that it will receive the Government's blessing. Better still, as suggested by the noble Lord, Lord Ashley, perhaps the Government will come forward with a Bill of their own.
8.6 p.m.
Lord Bragg: My Lords, I thank my noble friend Lord Ashley for bringing the Second Reading of this Bill to your Lordships' House. Over the past months we have heard many reasons for the continuation of this House. Some have been to do with the number of amendments considered—I believe that well over 4,000 were considered and sent back to the other place, where most of them were adopted—while others have to do with the independent voices and deeply informed experience which make the opinions and the cases of some noble Lords heard in this place. I would suggest that none has been more successful and more important than that of my noble friend Lord Ashley in the area of disability.
I have known my noble friend since the 1960s when we worked together at the BBC Lime Grove studios. I admired him then as a television producer. I admire him even more now, if that is possible, as a fighting Member of your Lordships' House.
I hope that the House will excuse me for a moment while I clean my contact lens which is disabling me from reading my speech. It is ironic and rather trivial, but I shall have to see to it. That is better.
Tonight marks the first occasion on which I have had the opportunity to make such remarks about my noble friend. I could not let it pass by.
I should also like to point out that I, like many others concerned in the general area of disability, welcome the Bill. I welcome also all that the Government have done so far. There are shortcomings. Those shortcomings are seized on by the usual standing army of the Government's critics and, rightly, they are being addressed here tonight. However, I would suggest that disability is one of several areas in which the Government are now making steady, if unspectacular—certainly unsung—but definite progress. The Bill marks a fundamental and important step forward and I support it, but in one area, at least, it is not yet enough. More steps are needed.
I speak as the president of MIND. I have been associated with MIND for over 15 years and now have the privilege to serve as its president. Nevertheless, I hope that the House will be assured that I also speak, as do all noble Lords, independently on this issue. Others have covered many and different areas of disability, but I shall concentrate on mental illness, mental ill health and, in this context, mental disability, as did my noble friend Lady Wilkins in her excellent speech, and the noble Baroness, Lady Darcy de Knayth. Inevitably there will be some overlap—something which is not entirely unusual in your Lordships' House.
The ambition to work is widespread among people who use mental health services, yet exclusion from employment is very extensive for this group. The employment rate for people with mental illness is 19 per cent, compared with 47 per cent for all disabled people, and is the lowest for any disability group. In one survey, over one-quarter of employers said that they would never or only occasionally employ someone who had had mental illness in the past. That rose to almost half for people with current mental illness. Yet it is estimated that up to 40 per cent of people with a psychiatric disability are well capable of holding down a job.
Strengthening the Disability Discrimination Act to combat discrimination against people with mental health problems who wish to enter the workforce or who are dismissed from employment is a vital reform. The Bill addresses this issue and we at MIND welcome that.
While we support the Bill, we should like it to be amended in terms of the definition of "disability" to provide greater protection for people with mental health problems. By amending the list of "normal day-to-day activities" in Schedule 1, by amending the definition of "long term" and by deleting the requirement that mental health illnesses be "clinically well-recognised", this aim would be achieved.
A comparative survey of the 11 countries whose disability discrimination laws contain a detailed definition of "disability" shows that the UK DDA is the most disadvantageous for people with mental health problems. The Irish and Australian federal law, for instance, specify,
- "a condition, illness or disease which affects a person's thought process, perception of reality, emotions or judgement or which results in disturbed behaviour".
The Disability Rights Task Force report made several recommendations on this issue. The Government's response was, I am afraid, very disappointing. They recommended that the Disability Rights Commission should keep these issues under review as part of its general monitoring of the operation of the Act. None of the task force recommendations appear in the proposed Bill. I suggest that this should be thought through again and that a truer measure of need be put in the Bill.
There are three main problems with the current definitions. First, the long term. The "mental impairment" must have a long-term adverse effect on normal day-to-day activities. "Long term" is defined in Schedule 1 to the Act to be a period of at least 12 months, or likely to last for 12 months. This is particularly problematic for a person who suffers a period of depression, or who suffers from post traumatic stress disorder, which may last for only six months or less but be sufficiently severe to require sickness leave or hospital treatment. It is estimated that 20 per cent of people who have a first episode of manic depression do not get another. These people would therefore not be covered by the provision in the definition for recurrent conditions. Several of the cases found by the DRC to have been rejected in employment tribunals concerned people with severe depression lasting up to six months only.
The second problem concerns the list of "normal day-to-day activities". The effects of mental health problems do not fit readily into the categories listed as "normal day-to-day activities", and some effects not at all. The problem is also compounded by the fact that the substantial effect must be to one of the activities, not spread across them with a cumulatively substantial adverse effect.
Finally, I turn to the point of clinically well-recognised mental illness. This requirement sets an extra condition for people suffering from mental illness who wish to rely on the Act. That is very unfair. It is problematic because medical definitions and diagnoses of mental illnesses are both uncertain and controversial. To have a different rule for physical and for mental conditions is itself discriminatory and out of place on the face of the Disability Discrimination Act. However, there is very little evidence to suggest that this is causing problems in practice.
Let me take depression as an example. People who have a depressive condition may exhibit a variety of symptoms—disruption to normal sleep patterns, a withdrawal from social life, difficulty in going out of the house, agoraphobic symptoms, intermittent panic attacks and a persistent pattern of self-harming or attempting suicide may all be characteristic of a
diagnosis of depression. None of these distressing symptoms is satisfactorily encapsulated in "normal day-to-day activities". It is difficult to estimate accurately how many people are denied protection by the Act because of the deficiency in the definition, but people with a diagnosis of depression are the group most likely to find problems.The ONS 2000 report, Psychiatric Morbidity Among Adults, found that at any one time in Great Britain, of people aged between 16 and 64, one in six suffer from mental distress. Of these, 9.2 per cent have mixed anxiety and depression; 4.7 per cent generalised anxiety disorder; 2.8 per cent a depressive episode; 1.9 per cent phobia; 1.2 per cent obsessive compulsive disorder; and 0.7 per cent panic disorder.
One in five people in our country will be affected by depression, and one in 100 people will experience manic depression at some point in their life. More than 2.9 million people in the UK are diagnosed as having depression at any one time—that is, at this moment in time, now. There are 30 working days lost due to depression and anxiety for every single day lost to industrial disputes. About one in six people who experience severe depression eventually commit suicide. Seventy per cent of recorded suicides are by people who have experienced some form of depression. On average it takes 10 years for someone to receive an accurate diagnosis of bipolar affective disorder, which is manic depression. One in five people who are not accurately diagnosed go on to commit suicide.
I said at the beginning of my remarks that I spoke as president of MIND, as indeed I do. I also speak as someone who has had two unhappy experiences of depression. I have some experience then of the blight that this can bring to people's lives. It is, in every sense and by any comparison, disabling.
Although we are undoubtedly making progress, it is still true that mental illnesses are simply not regarded as equal to physical illnesses, although they can be just as disabling if not more disabling. You pull a muscle or damage a disc in your back and everyone sympathises. You suffer from a depression which fells you equally and people are nervous and shy away. Obviously I generalise. The mood is changing and many people in our society are becoming much more tolerant and understanding. These people include the Government, I think. Once again, I welcome the Bill, but I hope and trust that in the area of mental distress they will take up the suggestions made here, by MIND and by other associations and go further. Like my noble friend Lord Ashley, I commend the Bill to the House and hope for the speedy passage of a strengthened version through your Lordships' House.
8.17 p.m.
Baroness Masham of Ilton: My Lords, I shall speak exceedingly briefly, but I want to give my support to the noble Lord, Lord Ashley of Stoke, and to most parts of his Bill.
I spent today chairing the Winston Churchill Fellowship in the category of "Long term medical conditions". The Bill follows well the debate on the
National Institute for Clinical Excellence. One of the applicants we interviewed today was a professor with multiple sclerosis. I asked him if he had tried beta interferon. "No", he sadly said. Postcode prescribing discriminates. For severely disabled people who might have their quality of life improved, it is a tragedy that drugs which can help so many people with complicated disabling conditions are not available. I hope that the drugs will become cheaper and available to all those who need them.It is not surprising that this Disability Discrimination (Amendment) Bill is now before us. Disability is very complex and very varied, as the noble Lord, Lord Bragg, said. People have many different needs, but discrimination must be eliminated wherever possible. The Bill aims to fill some of the gaps in previous legislation.
I welcome the extension of the DDA protection to those with cancer and HIV. There have been problems and serious cases of discrimination when people have been diagnosed with HIV. The registered blind and partially sighted people should be included, as stated by the noble Baroness, Lady Wilkins, in her excellent speech.
I welcome the removal of employment exemptions in regard to police officers, fire fighters, prison officers and the Armed Forces under the DDA. I hope that suitable employment can be found for people who wish to work in their chosen profession. But a realistic and safe framework should be found; they must never put fellow workers at risk because of their disability.
I have some reservations about the proposals relating to small employers—some of whom are having great difficulty surviving as it is. I hope that the Minister will comment on this point.
Helpful information should be available to all those who want to improve the many facilities and needs of disabled people. I have heard from many who would like to help but who do not know where to obtain information. Could the Minister ensure that local authorities do more to make information available to all those who need it? That would be helpful.
8.20 p.m.
Lord Clement-Jones: My Lords, I am speaking in the gap because, when the list of speakers was drawn up, I was not sure that I should be able to be present. I strongly support the Bill. It will have a beneficial effect on many of those who are not covered by the current terms of the DDA. In particular, as a member of the All Party Parliamentary Group on AIDS, I welcome the extension of the Act to cover people with HIV from the point of diagnosis rather than onset of symptoms. HIV/AIDS organisations have long wanted such a provision. There is no doubt that discrimination in such cases begins at diagnosis rather than at the point of actual ill health. As a trustee of Cancer Backup, I very much welcome the provisions relating to cancer patients, as I do those abolishing some of the exemptions under current legislation.
Secondly, I very much hope that the noble Lord, Lord Ashley of Stoke—whom we all hold in high regard—will consider certain amendments to the Bill;
for example, those so ably dealt with by the noble Baroness, Lady Wilkins, and the noble Lord, Lord Bragg. Mental illness may soon overtake physical illness as a disabling condition in this country. There are currently some 650,000 people with a diagnosed severe mental illness. At any one time, the vast majority are economically inactive. Yet most of them want to work—and work could contribute greatly to their well-being. A survey conducted by the Mental Health Foundation in 2000 demonstrated the extent of the discrimination that such people face in finding employment.As has been made clear, the current Disability Discrimination Act does not deal with the matter satisfactorily. I shall not repeat the points made by the noble Baroness, Lady Wilkins, or those so ably made by the noble Lord, Lord Bragg, in relation to the wording of the Act; for example, in terms of mental illness being a clinically well recognised mental impairment which has,
- "a substantial adverse effect on a person's ability to carry out normal day-to-day activities",
There are issues relating to the blind and the partially sighted, who have also experienced problems in establishing that they are covered by the present legislation. I hope that the noble Lord, Lord Ashley, will take on board some of the suggested amendments during the forthcoming stages of the Bill. Apart from that, we strongly support the provisions of the Bill as it stands.
8.24 p.m.
Lord Addington: My Lords, most of the "usual suspects" are present for this debate, with one newcomer, but not all of them. It seems odd not to hear the views of the noble Lords, Lord Campbell of Croy and Lord Morris of Manchester. However, I am sure that they will soon join this particular fray. The noble Baroness seems to be slightly ambiguous about the prospect.
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