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Baroness Darcy de Knayth: My Lords, the Minister said that she expects that bridges and footpaths will be covered by the legislation. Has she said that in a Pepper v. Hart sense? May one apply that interpretation to her comments?
Baroness Hollis of Heigham: My Lords, it may be interpreted more as "Yes, Minister" than as "Yes, Pepper and Hart". However, the guidance that I have been given on the specific point is that they are likely to be covered by the Act when they are part of public footpaths. I cannot say, beyond that, what weight the courts will give to that assertion. It is the courts who will ultimately interpret the word facility, but my understanding is that we expect them to be covered by the word facility.
Baroness Darcy de Knayth: My Lords, there has been a huge amount of trouble over the issue.
Baroness Hollis of Heigham: My Lords, it might be more helpful if the noble Baroness and I followed up the matter in correspondence. If she wishes to write to me more fully on the issue, I shall seek more expert advice than I have been able to receive today. The issue was somewhat thrown at us, and it is one of the very few not precisely addressed by the amendment that my noble friend Lord Ashley makes in his Bill.
In framing his Bill, my noble friend has—with his usual wily perspicacity—taken elements from the Government's response to the Disability Rights Task Force, Towards Inclusion, and found inspiration from other sources. However, whatever our view of the Bill's content, the Government do not believe that it is the right vehicle at the right time for taking forward legislation to amend the Disability Discrimination Act 1995 or the Disability Rights Commission Act 1999.
The Government have a positive agenda on civil rights for disabled people, and we have taken action to deliver on our commitments. I shall return to that point. However, before addressing the issue of the Bill itself, I should like to remind the House of some of our achievements and to outline recent progress, to help put discussion in context.
When we came to government in 1997, our manifesto made it clear that the DDA was neither comprehensive nor easily enforceable. I am delighted to welcome the noble Lord, Lord Astor of Hever, from the then government, to that view. We said that we would put that right and we started to do so very quickly. We established the Disability Rights Task Force within a few months to advise us on what to do and how best to do it. The task force was chaired by the Minister for Disabled People, with members from disability organisations, the business world and the public sector. Many members were disabled people or people with other personal experience of disability.
Setting up a commission to enforce civil rights was its first task. In March 1998, the task force made recommendations to the Government about what the role and duties of a disability rights commission might be. We then consulted and produced the Disability Rights Commission Act 1999. By April 2000, the Disability Rights Commission was up and running. Since then, as your Lordships may be aware, the commission has established itself as an important source of information and advice for disabled people and also for business and employers.
In its first 18 months the commission's Helpline has received almost 100,000 calls; its website has received around 400 visits each day and its caseworker service has assisted over 3,000 disabled people who have brought forward complaints of discrimination. It has also established a conciliation service for disputes arising under the goods and services provisions of the DDA and has provided legal representation in nearly 80 cases. I am sure that noble Lords will agree that that is an excellent start and will want to join me in thanking Bert Massie, the chairman of the commission, and his staff for what they have achieved over this time. It is remarkable and effective.
The task force then looked at a wide range of complex issues which impacted across all areas of society. It published its final report From Exclusion to Inclusion. Noble Lords may recall that the report made 156 recommendations for change, including some which involved legislation. Prime among those was the need to bring within the scope of the DDA the provision of education to disabled children and adults in schools and in further, higher and adult education.
We immediately announced our intention to take forward that recommendation. The Special Educational Needs and Disability Act 2001 ensures that, from September this year, disabled children and adults seeking to access education services will be protected against unlawful discrimination and education providers will have to consider making reasonable adjustments.
Aside from the work of the task force, the setting up of the Disability Rights Commission and the SEN Act, we also committed ourselves to implement the final phase of Part III of the DDA in October 2004. As your Lordships are aware, that will require reasonable adjustments to physical features of premises where access to a service is impossible or unreasonably difficult. The duty will be supported by a revised code of practice, which the DRC has prepared. That was laid before Parliament in November and completed its laying period today. It is a significant document that will help service providers and the courts understand the new and existing access duties.
I understand that the DRC intends to publish the code towards the end of February. And it is our intention to bring the code into force around the middle of the year. That will ensure that service providers have it well in advance of the new duties coming into force thus enabling them to prepare properly. Indeed, we are encouraging service providers
to make adjustments to physical features before the new duties come into force; for example, while they are refurbishing their premises.Implementation in 2004 of this final phase of the duties will be a major move forward in improving access to goods and services for disabled people. It will open up to them many more services and bring closer an inclusive society, one in which disabled people can enjoy the services that non-disabled people, such as those of us in this Chamber, often take for granted—simple things like eating out in a restaurant, using the local library, using train services or visiting a cinema or a theatre in due course.
In preparation for that, we have today launched "Open to Change", the latest in a series of publicity campaigns. These advertisements are aimed at small service providers and encourage them to make minor adjustments to ensure that disabled people can use their services. The campaign invites businesses to contact the Disability Rights Commission Helpline or website for help and advice.
Towards Inclusion was our response to the task force's final report. It outlined the progress we had made on issues of importance to disabled people and explained our position on all the task force recommendations. Although we are well forward on considering responses to the proposals in Towards Inclusion, we now have to do so in the light of what is needed to implement the employment directive brought forward under Article 13 of the EC Act.
That directive provides a common framework of protection against unfair discrimination in employment, vocational guidance and vocational training across Europe. It covers discrimination on grounds of age, disability, sexual orientation and religion or belief. This Government played an active part in its negotiation and adoption in November 2000. The Government are currently consulting on the implementation of this directive and also a directive on race equality. That consultation—in a document called Towards Equality and Diversity—does not end until 31st March.
During negotiations we ensured that the employment directive takes an approach to tackling discrimination—both direct and indirect—against disabled people which allows us to continue with the main, familiar elements of the DDA using the concept of reasonable adjustment, while underpinning our commitment to bringing into coverage a range of currently excluded employment and occupations. The consultation looks at options for amending the DDA in the few instances where it is possible that reasonable adjustments may not be the better approach; that is, in relation to performance pay schemes, occupational pension arrangements, group insurance schemes and bodies which control entries to professions or trade generally known as qualifying bodies. In each case we are consulting on whether the interests of disabled people and the sectors concerned will be best served by adopting an approach to indirect discrimination which involves objective justification or one which relies on making reasonable adjustments.
We will also be making improvements to the DDA which did not form part of Towards Inclusion. For example, we will be specifically outlawing harassment and including provisions on the burden of proof so that, once a disabled person can show a prima facie case that discrimination has taken place, it will be for the respondent to show that their actions were not discriminatory.
We have to decide exactly how to reflect the directive when we amend the DDA, and what implications that might have for other things we may wish to do to improve the Act. We believe that the right approach is to look strategically at how all that impacts on the DDA and then to take forward appropriate legislative changes for securing effective civil rights in this area. That clearly has implications for proposals which are in Towards Inclusion, not least because, in a number of respects, we will be going further than envisaged even by the task force.
We have an opportunity to ensure that, as we seek to implement the directive's requirements across a wide range of areas, we do so in a coherent way which takes account of our other plans. What we have proposed in the Article 13 consultation document is to implement the directive's disability provisions in October 2004, two years ahead of the requirement in the directive. I am sure that this House welcomes that commitment. It means that the provisions will be implemented at the same time as we will be introducing the final part of the DDA's rights of access to goods, facilities and services.
Noble Lords will be well aware that we are committed to ending the exemption of small employers at that time. However, the directive means that we will also be covering business partners, barristers, advocates and their pupils, the police, prison officers, fire fighters, qualifying bodies and others. All told, these changes mean that we will be covering around 7 million new jobs in which disabled people could work, including around 600,000 in which they currently do.
As your Lordships will see, we have a very important package of changes due to be implemented in October 2004 which will make a meaningful difference to disabled people's lives. If we can add to those, we will do so. But now is not a time when I can outline every detail of the Government's overall strategy.
That brings me to the substance of my noble friend's Bill. It is difficult for me to comment on the proposals in the Bill when I am not in a position to confirm the Government's own strategy in every detail. I cannot, therefore, be drawn into addressing our intentions for each and every proposal that we have made, or which my noble friend has made, or which your Lordships have indicated tonight they may go on to make to my noble friend's Bill. However, I can make some comments which I hope will help the House.
Before I do that, I want to challenge the assertions that have been somewhat unfairly bandied around the House tonight that the Government are failing to
advance comprehensive and enforceable civil rights for disabled people. I repeat, since 1997 we have introduced the Disability Rights Commission, education has been brought into the scope of DDA by the Special Educational Needs and Disability Act 2001, and we propose to implement Article 13 of the directive two years ahead of when we might otherwise need to.Perhaps I can make some further points. First, I wish to emphasise the extensive changes coming forward in October 2004, not only covering all small employers and bringing them within the framework of the DDA, and extending it to cover important occupations such as the police, but also the bringing forward of the final, full rights of physical access to premises for disabled customers.
Secondly, we will not legislate while we are consulting on the employment directive. Copies of the consultation document have been sent to over 6,000 people and organisations, including many disability organisations. The consultation does not end until March and we shall need to consider the responses thereafter. That takes time.
Thirdly, Ministers in the Department for Transport, Local Government and the Regions will shortly undertake their major consultation exercise on extending the scope of DDA to cover transport. They will consult widely with transport providers and disability organisations. My colleagues there would not intend to legislate until that consultation is over.
Finally, we have made absolutely clear—this was a point made both by the noble Lords, Lord Swinfen and Lord Astor, both of whom I believe have experience in this field—that there are some things we simply will not do. Extending the DDA to the armed services is one such. It is not a question of consultation or discussion but of our concept of good and responsible government.
My noble friend's proposals in the Bill are affected by all four of the qualifications I have just outlined. It cannot therefore be right for us to seek to legislate in this way. Some of my noble friend's proposals flow from the Employment Directive, one involves the transport proposal on which the Government are consulting in a different department and yet another seeks to bring the Armed Forces within the scope of Part II of the DDA, which we have said we shall not do. As I said earlier, I shall not enter into a process of testing all the clauses in the Bill to see whether we agree with them now or may agree with them in the future or with some modified version of them. But I shall say this: if we did, there are difficulties with them which would require significant work to overcome.
It is not a one issue Bill that my noble friend has introduced, despite his seductive style. This is not a one issue Bill with simple provisions. These are complex issues and the Bill seeks to amend rightly a complex Act. It affects the Human Rights Act, the Police Act and employment tribunals. It has implications for Northern Ireland, education and transport provisions and the consultation that may be required with every government body, every government agency, every
local authority and every public and private transport body, to say nothing of the regulation that would necessarily follow. I do not want to add to the complexities but your Lordships will understand that one does not address a problem by a simple piece of legislation. It has to be preceded by elaborate consultation across government and elaborate consultation with all the appropriate affected bodies. It has then to be extended to Northern Ireland, Scotland and the like. It also has to be followed up with workable regulations.Inevitably, my noble friend's Bill confronts the problems that face all Private Members' Bills. Legislation has to be carefully thought through before it can be advanced. Taking forward my noble friend's Bill would result in piecemeal legislation which would have to be amended again when we took forward other of our proposals. That would be a strategy guaranteed to confuse those affected, I suspect, and certainly might bring down the wrath of some employer organisations which would be in the interests of no one, including disabled people.
In conclusion, it is customary to congratulate a noble Lord on introducing a Private Member's Bill where the Government believe that the Bill reflects their own policies and priorities. Therefore, I congratulate my noble friend on introducing his Bill and on his wily and shrewd attempt to draw out from us plans that we are not yet ready to produce. Therefore, I cannot offer the Government's wholehearted support.
We remain committed to pursuing an agenda that will produce effective change for disabled people. There can be no doubt that the changes we have introduced since 1997 have been widely welcomed and, in this context, the major stepping stones of the establishment of the DRC and the enactment of the Special Educational Needs and Disability Act stand out. What we do next to amend the DDA will represent a further significant step forward and we must therefore ensure that it is a fully correct step. We are building on what we have done. We shall legislate when there is an opportunity to do so, and once we have taken account of all the factors involved in producing an effective legal framework.
We shall introduce significant and coherent improvements for disabled people in October 2004. And we shall continue to respect, and respond to, the desire of disabled people to lead independent lives as equal members of society. However, the Government cannot support my noble friend's Bill today as the appropriate, best and most suitable way forward.
9.4 p.m.
Lord Ashley of Stoke: My Lords, some sections of the press are quick to report odd debates in this House such as the discussion yesterday at Question Time on whether House of Lords Christmas cards were the correct size. The press reports that kind of debate in order to mock this House. However, if the press covers this debate, the public will gain a very different impression of what this House does. It really has been
a superb debate and one of which I believe we can be proud indeed. The speakers have been eloquent, well informed, human and thoughtful and, indeed, if I may say so, thought provoking.I am grateful to all noble Lords who have taken part in the debate which has constituted a wonderful discussion. I hope that it will be widely read by people interested in this subject. The few examples that we have heard of people suffering discrimination could be multiplied a millionfold. Enormous discrimination is taking place now in Britain, and we should be ashamed to allow any of it. Our legislation should be so comprehensive and so enforceable that such discrimination is not possible. This is supposed to be a civilised country but we allow that discrimination to go on and on and on. The fact is that discrimination equals suffering. It is our job to try to stop that suffering as best we can.
Before I address the speech of my noble friend the Minister, I wish to refer to some criticism from Members of the Back Benches. I fully appreciate concerns as regards the Army. However, all I would say is that the Army is a massive industry. It is, indeed, the best Army in the world, as the Minister said. It is a massive industry. Thousands of men do not go to the battlefront and into the trenches as in the 1914-18 war. The tail of the Army is enormous, as with any army. There are few personnel fighting at the front. Many personnel are involved in administration.
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