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Lord Ashley of Stoke: My Lords, I have one regret to express about these regulationsthat is, that it has taken so long for the Government to get around to them. It was always scandalous that millions of workers should be excluded from the protection of the Disability Discrimination Act. One million employers and some 7 million workers were excluded from such protection. The Conservative government made a great mistake when they made the provision for any firm employing fewer than 20 workers to be excluded from the provisions of the Act. The Labour Government brought that figure down to 15, missing a great chance. They acted too timidly by making it 15 instead of zero. All this time has been wasted. It has been perfectly legal to discriminate against vulnerable workers. There is no excuse for that and no reason why the Government should not have acted before.
Having said that, they have now acted, and I congratulate my noble friend because we have been at cross purposes on this issue for a very long time. I suggested changing the regulations. I am not saying that we are clashing on this, but the Government did not do what we wanted in good time. The All-Party Disability Group will be delighted that these provisions have now been brought forward by my noble friend.
Lord Lester of Herne Hill: My Lords, I, too, very much welcome these regulations. Within the limits of the powers conferred by Section 2 of the European Communities Act 1972, to which I shall return in a moment, they are exceptionally well drafted.
The Minister will know of my main criticism, in which I am not alone. I was the sponsor of the single Equality Bill, which went through the House, and which received commendation from more than 220 Members of Parliament in an Early-Day Motion. It brought together the most modern, coherent and accessible legislation on disability discrimination as one Bill.
I shall continue to believe that the Government made an important strategic mistake in deciding to proceed using subordinate legislation under the European Communities Act 1972, instead of introducing a primary Bill that could have dealt in one go with the imperfections in the Disability Discrimination Act. Unfortunately, the Government did not take that decision. There was a poverty of ambition and perhaps a lack of basic skill in the decision-taking process.
Although the regulations are very well conceived within the tightly boned corset of European Community law, the Government will have to legislate again and again in this and other areas of discrimination law. We shall be treated tomorrow to regulations on race discrimination, and next week to religion and sexual orientation discrimination, all of which will be under different regulations, and all of which will add to the incoherence and opaqueness of the overall scheme. One needs to be almost a rocket scientist to appreciate the law, but it does not have to be that way.
I very much believeand hopethat in two or three years a future Government will clear up the mess that Parliament is being compelled to make by passing incremental legislation by delegated legislation.
Having said all that, I do not take away from what I said at the beginning. The regulations in their own terms are most welcome. I hope that when the Government produce a draft Bill to reform the Disability Discrimination Act, they may take a leaf from the Equality Bill that was included as a result of suggestions made by the noble Lord, Lord Ashley of Stoke, and others. I am referring to the very narrow definition of disability, especially when dealing with mental disability. I was persuaded that that definition needs to be widened.
I understand why that cannot be done in these regulations, as it would affect areas that are not covered by EU law. But it is a good example of why we need to have either a Disability Discrimination Act, which deals with all of this in one place, or an Equality Act that includes disability discrimination within it. We should not have this kind of creeping mess of legislation, for which the Minister is not responsible, as I am sure that it is not her decision to proceed in a piecemeal way.
I hope that my remarks do not take away from my welcome of the regulations and the expertise involved. The drafter of the regulations must be outstandingI believe that she was a member of my chambers. I very much hope that she will be employed in drafting a single Equality Bill sooner rather than later.
Baroness Wilkins: My Lords, I thank the Minister for her clear explanation of the regulations, which will be widely welcomed, including by many employers. They will extend civil rights to some 600,000 disabled people who are working in jobs that are currently excluded from the DDA and will strengthen the career and employment opportunities for all disabled people.
However, it is argued by the Disability Rights Commission and others that the regulations do not go far enough towards full implementation of the EU employment directive, nor do they do enough to tackle systemic discrimination. Moreover, many key changes required in the employment field, including numerous outstanding recommendations of the disability rights task force, will need to be made by primary legislation, as pointed out by the commission. Disabled people are anxious that the Government press on with those, too. There is growing unease at the delay in bringing forward the promised draft disability Bill and a desire not to lose momentum on civil rights, especially in view of moves towards a single equality body.
One of the undoubted benefits of the regulations is the introduction of the concept of direct discrimination in the Disability Discrimination Act. This means that there will be no possible justification when a disabled person with similar abilities to a non-disabled person receives less favourable treatment by an employer on grounds of disability. It will clearly outlaw prejudicial treatment imposed simply because a person is disabled, such as a blanket ban on employing people with a particular disability.
However, an equally pressing issue is discrimination against disabled job applicants and employees on the basis of medical reports that are tainted by prejudicial assumptions. Recent case law has demonstrated how assumptions made by health professionals about disabled people can be used to justify discriminatory treatment. Can the Minister assure the House that it will no longer be justifiable to refuse employment to a disabled person because of reliance on a medical report, which is based on assumptions about a disabled person, without adequate consideration of the individual's abilities or the impact of the impairment in that particular case?
Finally, one area of concern that appears not to have been addressed by the regulations is the lack of protection for those who face discrimination because they are falsely perceived to be disabled, or because of an association with a disabled person. A recent example of this involved a secretary whose child had cerebral palsy and who felt pressured into leaving her job because of her employer's attitude.
Under the employment directive the right to equal treatment is not limited to the person who is disabled. Rather, discrimination occurs when someone is treated less favourably than another on grounds of disability. Surely the DDA must be extended to cover discrimination by association, or on the basis of perceived disability to comply with the directive.
Can the Minister assure the House that this matter will be addressed alongside other much needed changes to the definition of disability, as the noble Lord, Lord Lester, said, in the forthcoming disability Bill?
There was the appalling provision that the Act did not cover an employer with 20 or fewer employees. The noble Baroness can certainly take some credit as being the person who eventually removed that provision, but it meant that vast sections of the workplace were not touched by the legislation. The appallingly long run-in time and so on has meant that many of the intended effects of the Bill have not worked. But it was a first step and, effectively, this very limited framework is now, for the first time, reasonably coherent.
But there are still holes. I wonder why the Armed Forces have to be excluded. The defence of reasonableness and the fact that a person has to be competent to do a job means that the Armed Forces would not have to take someone who could not fulfil a basic function. But those are battles for another day. The Bill is now as it should have been originallya limited vessel in the field of disability. But we have still not gone far enough.
The Minister is on very good form. Another analogy that comes to mind is that she is someone who has come with a good hand and played it very well. She is now saying that a draft Bill is coming along through which we shall be able to address many of the points raised by my noble friend.
Baroness Hollis of Heigham: My Lords, to be clear, I said that we expect to publish a draft Bill. As the noble Lord will knowI am sure that he is teasing mea decision as to when and if any Bill comes to your Lordships' House is not for me or your Lordships to determine.
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