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Baroness Wilkins: I am grateful to the noble Lord, Lord Addington, for his support.
On Question, amendment agreed to.
Clause 1, as amended, agreed to.
Baroness Wilkins moved Amendment No. 5:
- After Clause 1, insert the following new clause—
The noble Baroness said: The purpose of Amendment No. 5 is to ensure that coping or avoidance strategies are taken into account when determining whether someone has a disability for the purposes of the Disability Discrimination Act so that the true effects of an impairment are considered.
Currently, the statutory guidance on the DDA definition suggests that if a person can reasonably be expected to modify his behaviour to prevent or reduce the effects of an impairment to a minor level, then that person may not meet the definition of disability. However, this is irrelevant in terms of any discrimination which he experiences since, whatever he does, he may still face discrimination because he has an impairment.
Many disabled people, like everyone else, will avoid activities or situations that lead to difficulties. They may stop watching television, stop reading the newspaper or stop going out for walks because they do not feel able or confident in doing so and they do not receive adequate support. They may also employ coping strategies that they regard, after many years, as unexceptional, such as appearing to follow a
That was the situation in the case of Wright v. Discount Cards and Stationery Limited in which a woman with cataracts was working for a greeting cards company. Her job required photocopying, which generally took her longer to complete as she had to hold the material closer to her eyes than others would. She was consequently dismissed. At the employment tribunal hearing, she significantly underplayed the impact of her visual impairment and the hearing found against her, saying that she was not disabled for the purposes of the DDA.
The Disability Rights Task Force argued that the statutory guidance should make it clear that unreasonable coping strategies should be disregarded by tribunals and courts, including those that significantly restrict the person's range of activities or ability to undertake them, even if the person accepts that level of restriction. However, in their response in Towards Inclusion, the Government argued that subsequent case law has clarified this issue. When deciding whether someone is disabled, tribunals must now focus on the things that an applicant cannot do, or can do only with difficulty, rather than the things that the person can do.
The RNIB and other organisations argue that the 1995 Act itself and not just the guidance should be amended to reflect that understanding. Case law is not as accessible as provisions on the face of legislation, and revisions to statutory guidance can be quickly superseded. This amendment to Schedule 1 would give the greatest level of clarity possible. When the DDA was passed, the effects of medical treatment were seen to warrant inclusion in Schedule 1 of the Act; that being the case, so should the effects of coping and avoidance strategies. I beg to move.
Lord Addington: I wish to say simply that this is a sensible amendment. If people with disabilities are to function, their coping strategies are by definition a part of them. If they do not have such strategies, they will not be in employment in the first place because their disabilities will overpower them. They are an essential part of the person and should be included.
Lord Ashley of Stoke: In any walk of life it would be unacceptable to penalise people for trying to solve or cope with personal problems. It is particularly wrong that blind and partially sighted people should lose out by trying to overcome their disability and cope effectively with it. I accept the amendment.
Baroness Wilkins: I am grateful to the noble Lord, Lord Addington, for his comments and I am grateful to the noble Lord, Lord Ashley, for accepting my amendment.
On Question, amendment agreed to.
Clause 4 [Extension of the 1995 Act to police etc]:
Lord Astor of Hever moved Amendment No. 6:
The noble Lord said: I rise to move Amendment No. 6, which is in my name and that of my noble friend Lord Swinfen.
The first duty of any elected government is defence of the realm. That is surely an accepted and unambiguous view of those on all sides of the House.
The Disability Rights Task Force report of December 1999, From Exclusion to Inclusion, stated that the employment provisions of any civil rights legislation should cover the Armed Forces while recognising the need for adequate safeguards to maintain operational effectiveness. The Government in their March 2000 response to the report—Towards Inclusion on civil rights for disabled people—did not accept that the current exemption of the Armed Forces from legislation prohibiting discrimination on the grounds of disability should be dropped.
In a speech to the United Services Institute on 19th December 2000, General Sir Charles Guthrie, the former chief of staff, now the noble and gallant Lord, Lord Guthrie, said that the demands of the disabled to serve in the Armed Forces were "ill-conceived" and would cause untold damage to their combat effectiveness.
The then shadow Secretary of State for Defence, Mr Iain Duncan Smith, responded:
The Bill does not seek to instil any of the inadequate safeguards that the Disability Rights Task Force deemed necessary. The deep concern that we have with this aspect of the Bill is that it creates a situation in which serving members of the Armed Forces could put themselves and others at unnecessary risk. The overriding consideration must be operational effectiveness. Like my noble and gallant friend, as a former Army officer with some experience of active service, I can attest to the very difficult and dangerous situations in which members of the Armed Forces can find themselves.
At Second Reading, the noble Lord, Lord Ashley, said that the Army is a massive industry and that its tail is enormous. The Armed Forces has out-sourced many of the non-combatant jobs to civilians. To give just a few examples: civilians act as driving instructors; they train tank crews; and they man base repair maintenance workshops. Civilians do much of the administrative work of the Armed Forces. Static establishments have civilian catering firms and they carry out military guard force duties. Undoubtedly some of these civilians are disabled.
We oppose this aspect of the Bill for reasons of pragmatism, not discrimination. The Armed Forces are clearly concerned and we on these Benches support the Government's very sensible position.
I know that my remarks will disappoint the noble Lord, Lord Ashley, for whom I have the greatest respect. However, I assure him of my very real desire to fight whenever I can for the interests and aspirations of all disabled people. I beg to move.
Lord Ashley of Stoke: The noble Lord, Lord Swinfen, is waiting for me to speak and then he can fire all his ammunition after I have done so. That is a typical soldier's tactic.
The provision in my Bill merely seeks to extend the protection of the DDA to disabled service personnel. But as the whole question of the role of service personnel has been mentioned by the noble Lord, Lord Astor, perhaps I can respond briefly.
It has been claimed that everyone in the services should be capable of fighting. The noble Lord, Lord Swinfen, said at Second Reading that even butchers in the services should be able to fight. In raising this relic of the past, he may have thought that they could butcher the enemy with knives and choppers, but as modern wars are fought largely with computerised equipment and communications, the British Army would be in a sorry state if it had to call on butchers to operate those computers.
I see nothing ignoble in extending the DDA to protecting disabled service personnel from discrimination. To claim that making that discrimination unlawful will affect the fighting ability of the splendid British Army, and, as the noble Lord, Lord Astor, said, will put disabled people and others at risk, is absolute nonsense. That is tantamount to saying that the British Army is effective only when it discriminates against some of its troops. That is obvious moonshine. No one can really go along with that kind of theory.
I believe the noble Lord, Lord Astor, said that the noble and gallant Lord, Lord Guthrie, said, that demands for disabled people to serve in the Armed Forces were misguided. I am not sure of the exact words that he used. The fact is that disabled personnel are kept on in the Army and other services when they become disabled during service. That is fine and I fully agree with it, but it contradicts the principle put forward by the noble Lord, Lord Astor, and, on Second Reading, by the noble Lord, Lord Swinfen. If it is wrong to have disabled people in the Armed Forces, why are disabled people retained when they become disabled during service? As I say, I warmly welcome the fact that those people are retained, but the noble Lords' arguments are illogical.
The disabled service personnel in the Army today are those who have become disabled in the course of their service. So, denying them the protection of the Disability Discrimination Act means denying reasonable protection to people who are injured while fighting to protect their country, or training to do so. Where is the sense in denying them protection just because they have become disabled in the service of their country? That does not make sense or add up. Despite the kind words that the noble Lord, Lord Astor, said about myself, I regret that I am unable to accept the amendment.
Lord Swinfen: I greatly admire the noble Lord, Lord Ashley. Earlier he sprang to his feet thinking I had indicated that he should speak. However, I thought that the noble Baroness, Lady Darcy de Knayth, wanted to speak and I indicated that she should speak before me.
The noble Lord and the Committee know that I have spent the past 20 years in this House fighting for disabled people. I shall continue to fight for disabled people. However, I shall not continue to fight for them to be put into a position where they risk a greater chance of being killed because of their disability than an able-bodied person, or for them to be put in a position where they stand a strong chance of having their disability made even worse because of enemy action.
The briefing I have received from the Disability Rights Commission refers to a policy in the past of dismissing servicewomen who became pregnant. Pregnant women are now retained in the services as those who were dismissed won substantial damages. However, what the briefing does not state is that the Armed Services, particularly the Army, are now considering carefully the physical ability of women to carry the loads and to take the physical stress involved in combat units. It is well known that female recruits often suffer much in the way of injury during their normal recruitment training due to the physical work that they have to do. That position is changing.
I used a bad example at Second Reading when I said that a soldier could be a butcher. If you have ever seen a carcass being butchered, you will know that it requires a considerable degree of fitness and force. However, as the noble Lord, Lord Ashley, knows, fighting nowadays is often done on a computer in brigade or divisional headquarters. You need mechanics to service and maintain the vehicles. You need clerks to do the paperwork and to make certain that orders go out. You need people to maintain and operate radios. They can often carry out those tasks if they are disabled. I do not deny that. The noble Lord said, if I understood him correctly, that the Armed Forces retained servicemen who became disabled in the course of their service. We know that; that has been done for years and for generations. However, they have not retained servicemen who have been disabled to the extent that they cannot operate effectively.
It has been said recently that most warfare today is carried on from 30,000 or 35,000 feet. However, the Kosovo campaign would probably have ended a great deal faster if we had put troops on the ground at the same time as the aerial bombing took place. You still need to be able to put troops on the ground who are capable of physically fighting the enemy and holding that ground once they have captured it.
The noble Lord, the promoter of this Bill, will know that the exploits of the Long Range Desert Group and the Special Air Service, now a very fine regiment, in the 1939-1945 war in North Africa operated far behind enemy lines, attacking their supply lines and their headquarters in order to deal them very severe blows. The same could happen to us in action.
Since that time, other nations have developed similar forces and are quite prepared to use them against us. We now have an escalating terrorist situation. There has been one in Northern Ireland for over a generation, but it has now become a world-wide problem. Our headquarters, our tail, which, as the noble Lord, Lord Ashley, said, is very large, can be attacked. The soldiers in that tail, whether butchers, bakers, candlestick-makers, computer operators or wireless maintenance individuals, will have been trained as soldiers before they take on those tasks. They, as any other servicemen, have to be prepared to fight in exactly the same way as those in the front line.
Although I appreciate the noble Lord's desire to improve the lot of people with disabilities, I believe that in this instance he is making a mistake. I hope that he will take that on board and accept this amendment.
"EFFECT OF COPING AND AVOIDANCE STRATEGIES
(2) In Schedule 1 to the 1995 Act, after paragraph 6, insert—
"6A (1) An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that the person concerned has unreasonably modified his behaviour to prevent or reduce the effects of the impairment to a minor level, is to be treated as having that effect.
(2) The person concerned shall be taken to have unreasonably modified his behaviour if he has developed coping or avoidance strategies which significantly restrict his range of activities or ability to undertake them, even if the person accepts that level of restriction and therefore underplays the effects of his impairment.""
Page 4, line 7, leave out "to (8)" and insert ", (6) and (8)"
"We are in agreement with General Sir Charles Guthrie. The issue is not about the disabled, it is about the Armed Forces being able to make decisions from a practical standpoint on the basis of what works".
9.15 p.m.
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