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Lord Lester of Herne Hill: Ever since Gladstone's time, Liberals have been in favour of federalism, as I am myself. I am also sympathetic to the amendments, for special reasons, but I want to begin on a cautionary note.

The Government are wise and sensible in seeking to move towards a single equality commission. The Joint Select Committee on Human Rights of which the noble Baroness, Lady Prashar, and I are both members, will publish a report next week that gives our views on a human rights and an equality commission. That will have some relevance to the issues we are discussing.

The danger of an approach that labels a series of commissioners with particular responsibility and a committee structure of a rigid kind is that one loses the benefits of cohesion in having a single commission. At the same time, one needs a single commission that combines the expertise, special skills and insights of the different strands with which it seeks to deal. The institutional architecture of any equality commission requires the benefits of cohesion combined with the benefits of specialist expertise.

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I am indebted to the noble Lord, Lord Ashley of Stoke, who referred to the desirability of the chairman of the DRC being disabled. One must be careful about that notion, for several reasons. First, as Mr Bert Massey, who chairs the DRC, once pointed out to me, the mere fact that one is blind does not mean that one is any better than someone with normal vision at understanding other forms of disability. In other words, unless all the mental and physical disabilities were embraced in one person, that person would not necessarily comprehend all the problems. A race commissioner, a gay or lesbian commissioner, a commissioner dealing with age discrimination and a commissioner dealing with religious discrimination would all have to be separately designated a rigid committee structure, which would weaken the cohesion.

Lord Ashley of Stoke: The noble Lord makes a legitimate point. However, will he bear in mind that a person with a specific disability necessarily moves along with other disabled people because of a common general interest? It is almost as if there were a federal type of communication between disabled people. It is far more likely that a blind person, for example, will know about deafness, paralysis and so on than a person with no disability because that person will tend to congregate with other disabled people in various social or economic circumstances. Consequently, a blind person is not necessarily isolated from other disabilities. In fact, he or she will be very much in touch with those disabilities.

Lord Lester of Herne Hill: I fully agree and did not mean to suggest to the contrary. What I was seeking to do was simply to explain that there are limits to giving labels to different parts of an equality commission in a very rigid way. That would tend to lose the whole point of having an equality commission. However, I also recognise that, in the case of disability discrimination, there are compelling reasons for accepting these amendments. The Disability Rights Commission has only recently been established and has not yet been able to use its powers as the other commissions have. There are also special problems associated with disability that require special treatment.

The most important reason of all is that it is very important that all groups which are vulnerable under the different strands of discrimination should unite together and make common cause, if I may say so, to persuade the Government to raise their game by having a single equality commission and a single equality Act. That seems to me a very small price to pay for a federal link of the type proposed by the noble Lord, Lord Ashley of Stoke, and others who have spoken. That seems to me a perfectly sensible way forward. If it can unite everyone, then it seems highly desirable.

We made special provision in the Bill by providing that the Disability Rights Commission could not in any event become part of an equality commission within less than three years after the Bill comes into force, which would effectively mean five years from now. That is a different approach, and I see no reason why one could not have those arrangements.

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The Bill deliberately does not give a lot of detail about the internal structure of the commission. That is because it is very important, as I have tried to explain, that there should be a unified principle of a single commission rather than complex arguments about the detail. I am anxious that the Bill, if it were accepted by the Government, should not unnecessarily fetter any future commission in its freedom to establish itself in an appropriate way and at an appropriate time. In other words, I would not wish it to be supposed that I was favouring a strand-specific approach that could—to mix my metaphor—balkanise the entire commission into a series of disjointed, separate and compartmentalised commissioners, committees and so on. That would lose the entire thrust of what we are seeking to do. I am comforted to see that the noble Baroness, Lady Prashar, is nodding affirmatively. She has much more experience than I do, as does the noble Baroness, Lady Greengross. Having said all of that, I certainly accept these amendments.

Baroness Scotland of Asthal: I assure my noble friend Lord Ashley that the Government are represented in the Bill's passage purely so that we can listen very carefully to everything that is said. We will take it into consideration.

On Question, amendment agreed to.

Clause 38, as amended, agreed to.

Clauses 39 to 47 agreed to.

Clause 48 [Matters referred to a tribunal]:

Lord Lester of Herne Hill moved Amendment No. 3:

    Page 36, line 7, leave out "if" and insert "except where"

The noble Lord said: This is a purely technical amendment to correct a mistake. As currently drafted, Clause 48(1) states:

    "Where a provision of this Act provides for any matter to be referred to a tribunal, the matter is to be referred to an employment tribunal if the matter falls within sections 49, 50 or 51".

The very opposite should be the case. It should state,

    "except where the matter falls within sections 49, 50 or 51",

in which case it is not dealt with by an employment tribunal at all. As I say, this is a technical amendment to rectify that mistake. I beg to move.

On Question, amendment agreed to.

Clause 48, as amended, agreed to.

Clauses 49 to 92 agreed to.

Clause 93 [Regulations and orders]:

Lord Lester of Herne Hill moved Amendment No. 4:

    Page 67, line 4, leave out "25 or 28" and insert "4(5)(a), 25, 28 or 93(2)(a)"

The noble Lord said: This amendment seeks to implement the recommendations of the Select Committee on Delegated Powers and Regulatory Reform in its ninth report of 2002-03. The change means that the delegated powers of the Secretary of State to make further provisions concerning the definition of disability would be subject to the affirmative procedure. The Secretary of State already has similar delegated powers under the Disability

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Discrimination Act. Further, where the Secretary of State makes any other adaptations, amendments or repeals in consequence of the Equality Act, that would also be subject to the affirmative procedure. The amendment seeks to meet the concerns of the Delegated Powers Committee as expressed in its recent report on Henry VIII powers. I beg to move.

On Question, amendment agreed to.

Clause 93, as amended, agreed to.

Clause 94 agreed to.

Schedule 1 [Definitions relating to meaning of disability]:

Baroness Wilkins moved Amendment No. 5:

    Page 68, line 5, leave out from first "illness" to end of line.

The noble Baroness said: In moving Amendment No. 5, I wish to speak also to Amendments Nos. 6 and 7 with which it is grouped and which stand in my name.

These amendments seek to widen the definition of disability in the Bill to give greater protection to people with mental illness. The Bill of the noble Lord, Lord Lester, replicates the definition of disability laid down in the Disability Discrimination Act 1995 which has been found to face people with mental health problems with extra hurdles in meeting the definition of disability. MIND has found that in particular the conditions of depression, eating disorders and schizophrenia are inadequately or inappropriately covered by the Disability Discrimination Act definition.

Amendments addressing MIND's concerns were passed with the full support of your Lordships' House during the debate on the Private Member's Bill of the noble Lord, Lord Ashley, last year (Hansard, 6th March, 2002, cols. 346-354). Since then these changes to the definition have been officially accepted by the Disability Rights Commission in its first review of the Disability Discrimination Act 1995.

Amendment No. 5 seeks to remove an unnecessary qualification from the definition of disability that any mental impairment must be clinically well recognised in order to meet the definition. Problems of mental health run on a spectrum of behaviour from mere "character traits" to a range of disorders from depression, manic depression, personality disorders through to schizophrenia. In practice, the boundaries may be blurred. There is also controversy about what constitutes clinical illness. In tribunal cases, medical reports can disagree, with different psychiatrists making different diagnoses of the same person or making a diagnosis that blurs the distinction between different disorders. The extra requirement that the illness be clinically well recognised imposes an extra legal hurdle for people with mental health problems which is not applied to people with physical impairments, thereby giving less protection from discrimination on grounds of disability.

The purpose of Amendment No. 6 is to give people with short-term but severe depression protection from discrimination. To qualify as disabled for the purposes of the DDA, the claimant must have an "impairment" which has a,

    "long term adverse effect on normal day to day activities".

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"Long term" is defined to be a past period of at least 12 months or the likelihood that the period will be 12 months. Recurrent conditions are also covered by the DDA.

Those provisions cause real problems for people with depression. First, for many people, depression may be severe but relatively short lived. Secondly, it can be very difficult to diagnose whether it is likely to be an underlying recurrent condition. Thirdly, discrimination against people who have had a period of short-term depression is commonplace.

Reports from the employment tribunals show that to be a consistent problem. In one case, the applicant took five months' sick leave for depression and was on medication for more than a year. The tribunal recognised the depression as an impairment but was still not satisfied that the effect of the applicant's impairment had a long-term effect as it had not lasted for at least 12 months, and the case was dismissed.

The purpose of Amendment No. 7, the last amendment in this group, is to improve the coverage of mental health conditions within the definition of disability by including activities that are most likely to be severely affected for people with eating disorders, depression, anxiety disorders and schizophrenia. In order to come within the definition of "disability" under the DDA and consequently under the Bill of the noble Lord, Lord Lester, a person must be adversely affected in carrying out one of a list of,

    "normal day to day activities".

That list was framed with physical impairments in mind and contains six physical activities but only two mental ones. The effects of mental health problems do not fit readily into those categories and some do not fit at all.

A person's perceptions may be distorted such that they misinterpret colleagues' behaviour, for example by understanding what is said but perceiving hostility, criticism or mistrust where there is none. A person who is severely depressed and/or suicidal may be able to carry out any of the specified activities but still not be able to function in a workplace at that time. A person may be experiencing withdrawal, paranoia, anxiety or depression to the extent that they cannot communicate effectively. If the definition of disability is better to protect people with mental health problems from discrimination, the list of day-to-day activities needs to include the ability to care for oneself, the ability to communicate and interact with other people and the ability to perceive reality.

Discrimination on mental health grounds is a serious problem in the UK and discrimination in employment is one of the biggest problems facing people with a history of mental ill-health. They have the highest rate of unemployment among people with long-term health problems, with only around 19 per cent in employment, compared with 47 per cent of people with all long-term health problems. In a survey by MIND, more than one-third of respondents reported that they had lost their jobs as a result of their psychiatric history, while 38 per cent had been harassed, intimidated or teased at work, 69 per cent

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had been put off from applying for jobs because of their psychiatric history and around half concealed their psychiatric history for fear of losing their jobs.

There is strong evidence that the current definition of disability in the DDA, which has been replicated in the Bill of the noble Lord, Lord Lester, provides inadequate protection for people with mental health problems. In a survey of 210 cases in which employment tribunals decided that the applicant did not meet the definition of disability the DRC legal team found that people with mental illness formed the largest category to be excluded by the definition.

I do hope that the noble Lord, Lord Lester, will be able to accept the amendments and provide people with mental health problems with the same protection from discrimination as presently exist for people who are physically impaired. I beg to move.

4 p.m.

Lord Ashley of Stoke: I support the amendments for the reasons put forward by the noble Baroness, Lady Wilkins. I do so also because in all kinds of legislation the problem of definition bedevils people with mental illness. There is no clear definition, and those people are neglected and ignored time and time again. The issue of definition is crucial.

I believe that if any one group of people requires legislation, it is those with mental illness. They are the most misunderstood people in the world. It is a most complex issue. Therefore, I briefly and warmly endorse the amendments proposed by the noble Baroness, Lady Wilkins, and I hope that the noble Lord, Lord Lester, will accept them.

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