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Lord Addington: I am in danger of trying to wave a white flag of truce between two embattled sides, and I promise that that will be my last pun. What the noble Lord said about the Army's defensive strategy is accepted. It is true that many troops go through basic training and even through wars without handling guns, but it is accepted that they may have to. That is part of military thinking.
However, what concerns me is not so much the fact that disability may prevent people from fulfilling basic infantry functions—the primary point to which I think the noble Lord was referring—but the suggestion that if one has a disability, one can be removed by means of a blanket ban. I again use the example of dyslexics—we have reached Clause 4 of this Bill without my mentioning them by name, so I have not done too badly—who have undoubtedly formed a part of Her Majesty's forces, and still do. Indeed, I have known several people with dyslexia, albeit perhaps not in its severest form, who have held commissions.
The current provisions of this Bill could result in a perfectly effective soldier, seaman or airman being removed from the job because someone decides that he does not like the idea of dealing with slightly incorrect spelling on a report form. That example should possibly be borne in mind when consideration is given to the issue of a blanket ban.
In an attempt to reach agreement on this matter, I should like to make a suggestion for consideration by both sides involved in this argument. The Bill contains many good provisions. However, there is room for compromise. At present everyone appears to be running frightened and screaming about this matter, but it would not be worth while to allow the argument to wreck the Bill.
Lord Ashley of Stoke: Having read my Bill very carefully—I have read it three times—while the noble Lord, Lord Swinfen, was speaking, I can find no reference in the provisions to pregnant women. I therefore do not intend to detain the House on that subject.
The noble Lord, Lord Swinfen, has conceded that disabled people are able to operate computers. He then spoke about the SAS and the Long Range Desert Group. Having been in the Army, the noble Lord should know that it is extremely difficult, even for some of the fittest men and women, to obtain membership of the SAS or the LRDS.. They are unique regiments. It is therefore clearly preposterous to refer to the activities of the SAS and the Long Range Desert Group in terms of the whole Army, Navy and Air Force being involved. He simply used "scare" phrases, which do not really cut any ice. A butcher could not operate with the Long Range Desert Group because he may not have the relevant skills. The noble Lord chose the wrong example.
The noble Lord overlooked another matter. By objecting to this element of the Bill, he is defending discrimination in the armed services. However, there is no justification for doing so. We all know that he has done splendid work for disabled people and that he always makes distinguished contributions to such debates. His approach is not in question, except in relation to the armed services. It is completely wrong to deny the defence of the DDA to disabled service personnel—Army, Navy or Air Force.
I am sorry that I am unable to agree to the amendment, but at least we have had a good exchange of views.
Lord Astor of Hever: I am particularly grateful to my noble friend Lord Swinfen for his support—he set out the case very clearly. I am sorry to say to the noble Lord, Lord Addington, that I fear that there is no ground for compromise on these Benches. I also hope that the Government will not compromise on this matter.
The noble Lord, Lord Ashley, referred to our not defending discrimination. We are not defending discrimination in the Armed Forces, but we could be discriminating against able-bodied servicemen if the proposal were agreed to. I fear that we must disagree on this matter. I believe that the Government are absolutely right. It would be inappropriate to divide the Committee at this point but if there is a vote on this matter at any other stage, we shall support the Government. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Addington moved Amendment No. 7:
- After Clause 5, insert the following new clause—
The noble Lord said: The amendment would bring voluntary workers within the scope of the Bill. There is much agreement among those concerned—indeed, the Government, agreed—that a voluntary code should cover voluntary workers. The Disability Rights Task Force issued a recommendation, which stated:
The Government said that they prefer the voluntary approach, but such approaches take time. One could still be trying to reach an agreement 20 or 30 years down the line. People often decide not to agree because the relevant matter does not bother them. That is why we have to legislate in this regard. If everyone was a reasonable man, we should never have to pass any legislation. That is why the amendment is necessary. I beg to move.
Baroness Darcy de Knayth: I support the amendment. It is important for disabled people to be able to give something without discrimination. Volunteering is useful not only because it builds one's confidence and provides some form of employment
Lord Ashley of Stoke: It is one of the little oddities of life that voluntary workers are not usually taken as seriously as those who are paid, and their efforts are often not sufficiently appreciated. The amendment goes a considerable way towards redressing the balance.
The Government said that they will take the power to bring a range of voluntary workers into the DDA when legislative time allows, and that they will use the power if necessary. I assume that this amendment, which covers the necessary point, will be uncontroversial.
There is a quote from Patricia Hewitt, the Secretary of State for Trade and Industry, in the admirable briefing from the Disability Rights Commission saying, in another context, that leaving matters to a voluntary approach would mean taking 20 years to secure the necessary changes and that setting new legal standards will bring them forward by a generation. I hope that the Government take that message on board. I accept the amendment.
Lord Addington: I thank the noble Lord for that response, and the noble Baroness for her support.
On Question, amendment agreed to.
Lord Addington moved Amendment No. 8:
The noble Lord said: I saw this amendment initially while I was going through the wording with those who helped me with the drafting. At that time I was appalled by its length, but not by its content. "Qualifying bodies" are one of those groups that are
By historical accident and also by not being traditionally a part of legislation, those bodies have, thus far, been outside the cover of most mainstream legislation. The Disability Rights Task Force recommended that they should be brought in under such legislation; and, indeed, there is a requirement under an EU directive that such bodies should be brought under the same type of legal framework as applies to other forms of qualification.
If you cannot get the qualification, you cannot get the job. It is that simple. So, if we can remove any possibility of discrimination in this respect, we shall be enabling many people. It is totally in keeping with the original Bill, which dealt with employment, goods and services. I beg to move.
"DISCRIMINATION AGAINST VOLUNTARY WORKERS
(1) The 1995 Act is amended as follows.
(2) After section 9, insert—
"9A DISCRIMINATION AGAINST VOLUNTARY WORKERS
(1) The Secretary of State may by order provide that the provisions of this Part apply to work sought or carried out by a disabled person on an unpaid, voluntary basis as if he was an employee or an applicant for the employment concerned with such modifications as are specified in the order.
(2) Before making any order under subsection (1), the Secretary of State shall conduct a review.
(3) Unless he has already begun or completed a review under subsection (2), the Secretary of State shall begin to conduct a review immediately after the first anniversary and if no order is subsequently made under subsection (1) he shall conduct a further review after the third anniversary.
(4) Any review shall be completed within nine months.
(5) In conducting any review, the Secretary of State shall consult—
(a) such organisations representing the interests of disabled persons in voluntary work or seeking voluntary work as he considers appropriate; and
(b) such organisations representing the interests of employers as he considers appropriate.
(6) If, on completing a review, the Secretary of State decides not to make an order, he shall no later than one year after the commencement of the review lay before Parliament a report—
(a) summarising the results of the review; and
(b) giving the reasons for his decision.
(7) Any report made by the Secretary of State under subsection (6) shall include a summary of the views expressed to him in his consultations.
(8) In this section—
"anniversary" means the anniversary of the coming into force of this section; and
"review" means an assessment of the effects of extending the scope of Part 2 to disabled persons who seek or undertake unpaid voluntary work and what modifications to the provisions of Part 2 may be required in respect of voluntary workers.""
"In principle, voluntary workers should be covered by civil rights legislation. However, in recognition of the diversity of voluntary workers and organisations that engage them, a good practice approach should be adopted. Organisations engaging volunteers should be consulted on the preparation of guidance and a power taken in civil rights legislation to bring volunteers into coverage through regulations".
9.30 p.m.
After Clause 5, insert the following new clause—
"EXTENSION OF PROVISIONS TO QUALIFYING BODIES
(1) In the 1995 Act, after section 15, insert—
"15A DISCRIMINATION BY QUALIFYING BODIES
(1) It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or trade (a "qualifying body") to discriminate against a disabled person—
(a) in the terms on which it is prepared to confer on him that authorisation or qualification;
(b) by refusing, or deliberately omitting to grant, his application for it;
(c) by withdrawing it from him or varying the terms on which he holds it;
(d) in the way it affords him access to any relevant services or facilities provided in connection with the conferment of an authorisation or qualification or by refusing or deliberately omitting to afford him access to them; or
(e) by subjecting him to any other detriment.
(2) In this section—
(a) "authorisation or qualification" includes recognition, registration, enrolment, approval and certification;
(b) "confer" includes renew or extend;
(c) "relevant services or facilities" includes the means of course delivery and assessment.
(3) In the case of an act which constitutes discrimination by virtue of section 55, this section also applies to discrimination against a person who is not disabled.
(4) Sections 15A to 15C do not apply to the extent that a qualifying body is already subject to any provision in sections 28R to 28T."
(2) In the 1995 Act, after section 15, insert—
"15B MEANING OF "DISCRIMINATION" IN RELATION TO QUALIFYING BODIES
(1) For the purposes of section 15A, a qualifying body discriminates against a disabled person if—
(a) for a reason which relates to his disability, it treats him less favourably than it treats, or would treat, others to whom that reason does not, or would not, apply; and
(b) it cannot show that the treatment in question is justified.
(2) For the purposes of section 15A, a qualifying body also discriminates against a disabled person if—
(a) it fails, to his detriment, to comply with section 15C; and
(b) it cannot show that its failure to comply is justified.
(3) The taking of a particular step by a qualifying body in relation to a person does not amount to less favourable treatment if it shows that at the time in question it did not know, and could not reasonably have been expected to know, that he was disabled.
(4) Subsections (5) to (7) apply in determining whether, for the purposes of this section—
(a) less favourable treatment of a person, or
(b) failure to comply with section 15C,
is justified.
(5) Less favourable treatment of a person is justified if it is necessary in order to maintain necessary and appropriate professional or trade standards.
(6) Otherwise less favourable treatment, or a failure to comply with section 15C, is justified only if the reason for it is both material to the circumstances of the particular case and substantial.
(7) If, in a case falling within subsection (1)—
(a) the responsible body is under a duty imposed by section 15C in relation to the disabled person, but
(b) fails without justification to comply with that duty,
its treatment of that person cannot be justified under subsection (6) unless that treatment would have been justified even if it had complied with that duty."
(3) In the 1995 Act, after section 15, insert—
"15C DUTY OF QUALIFYING BODY TO MAKE ADJUSTMENTS
(1) A qualifying body must take such steps as it is reasonable for it to have to take to ensure that—
(a) in relation to the terms on which it is prepared to confer authorisation or qualification, disabled persons are not placed at a substantial disadvantage in comparison with persons who are not disabled; and
(b) in relation to any relevant services and facilities provided in connection with the conferment of an authorisation or qualification, disabled persons are not placed at a substantial disadvantage in comparison with persons who are not disabled.
(2) In considering whether it is reasonable for it to have to take a particular step in order to comply with its duty under subsection (1), a qualifying or awarding body must have regard to any relevant provisions of a code of practice issued under section 53.
(3) This section imposes duties only for the purpose of determining whether a qualifying body has discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such.""
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