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Baroness Wilkins: My Lords, I am conscious that I am surrounded by noble Lords who are steeped in the history of this Bill. It is to them that the country owes a real debt of gratitude for promoting, over the past quarter of a century, 14 major efforts at legislation to protect Britain's disabled people from discrimination. In particular, my noble friends Lord Ashley of Stoke and Lord Morris of Manchester have never let this issue stray far from the Government's attention. I am only sorry that the noble Lord, Lord Morris, cannot be with us today.
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Like all previous speakers, I greatly welcome the Bill. The Disability Rights Commission rightly said that it,
"represents a major extension of civil rights for 10 million disabled people in the UK and the fulfilment of a key Government manifesto commitment to implement outstanding recommendations of the Disability Rights Task Force".
The Minister in another place, Maria Eagle, has won great respect in the disability community for her commitment to the Bill and to the difficult issues that it tackles. She has championed the Bill so effectively that, amidst all the competing demands for legislation from other government departments, it has won pride of place in being the first Bill to come to your Lordships' House in the new parliamentary Session. This Government can be truly proud of their record in tackling discrimination against disabled people.
The measure which I particularly welcome is the public sector duty in Clause 3, described by the DRC as the "centrepiece" of the Bill. It is obviously sensible to try to ensure that, when public bodies make decisions or develop or implement a new policy, they make consideration of the needs of disabled people an integral part of the policy-making or decision-making process. That is so much better than waiting for disabled people to suffer some harm and then expecting individuals to pursue the matter through the courts in order to rectify the discrimination.
Over the past year, I have been involved with a best value review of disability services in my borough, Hammersmith & Fulham. The review has laid bare almost a decade of good intentions and well thought through plans which have never come to fruition because the political imperative has moved on and interest has shifted. Considerable expenditure and months of hard work came to nothing because there was no duty on the local authority to promote disability equality. That has now changed with regard to race issues in the borough since the public sector duty formed part of the Race Relations Act. I believe that the inclusion of this duty for disability in Clause 3 will make a real difference to disabled people's lives. It could not be more welcome.
I was honoured to be invited to join the Joint Committee on the draft Disability Discrimination Billa committee which had two major advantages. First, it had an excellent chairman in my noble friend Lord Carter, who brought to it the wealth of his personal and political experience of disability issues, together with his expertise in chairing the recent Joint Scrutiny Committee on the draft Mental Capacity Bill. Secondly, we had the benefit of two outstanding specialist advisers, Dr Jenny Morris and Barbara Cohen, whose clarity of thinking and freshness of approach were invaluable.
As my noble friend Lord Carter said, the Government accepted a great number of the Joint Committee's recommendations. It was particularly pleasing that they agreed to remove the requirement for a mental illness to be "clinically well recognised" for it to fit the definition of disability.
Obviously it is very disappointing that a number of the Joint Committee's recommendations were not accepted by the Government. I hope that we shall manage to convince my noble friend the Minister by our arguments
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when amendments are brought forward at later stages of the Bill. In particular, those will cover the issues of the definition of disability for people with mental health problems and the right of tenants to make reasonable adaptations to the physical features of their homes. I shall come back to those in a moment.
I, too, want to draw attention to one early recommendation made by the Joint Committee, and I am delighted by the support that it has already received in this debate. I refer to Recommendation 9, which resulted from our discussions around the social model of disability. The recommendation is not as forceful as the disability movement might have wished but, in effect, it says that the Disability Rights Commission should consult and make recommendations to the Government on developing a social model definition of disability for the DDA, focusing on challenging discrimination on grounds of impairment and removing disabling barriers.
I believe that that represents a major step in the recognition of the concept which has driven the disability movement since the early 1970s. The realisation that it is not our impairment that limits our opportunities and life chances but the way that society reacts to that impairment was a concept which liberated disabled people and formed the basis of the disability movement. It was that understanding which provided the ground-swell demanding anti-discrimination legislation to which so many in the Chamber today listened and gave effect.
It was 29 years ago this month that Vic Finkelstein first publicised on television the concept of the social model with his story of a disabled village. For a public accustomed to stories of plucky cripples facing the tragedy of their lives, it was not what they were expecting. He described a village designed for wheelchair users which "disabled" everyone else with its low ceilings and its institutional discrimination against those who walked. It forms part of my private litany of proud moments that this appeared on the first recording of the "Link" television programme, and I declare an interest as its first presenter.
Vic Finkelstein was a South African disabled activist, recently exiled by the apartheid regime, who had recognised the connections between the segregated treatment of black people and the treatment of disabled people. In truth, in the early days there was considerable resistance to this new conceptwe were so entrenched in the medical model. It takes considerable time for society to alter its fundamental concepts and it takes even longer for those concepts to be enshrined in legislation. That is why the Joint Committee's recommendation is so significant. The Disability Rights Commission has said that it intends to honour this recommendation "long term", and we must not let its huge workload before the establishment of the single equality commission eclipse that commitment.
It is because the Disability Discrimination Act 1995 is based on the medical model of disability that clearly disabled people are caused many difficulties in meeting the definition of "disability" under the Act. In particular, mental health service users have faced the biggest hurdles
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in claiming their rights under the DDA because the definition of disability inadequately captures the challenges that they face.
I welcome Clause 17, which removes the need for a mental impairment to be "medically well recognised". However, I want to give my noble friend the Minister notice that amendments will be brought forward in Committee to end the remaining bias towards physical impairments, as she has already heard today. In particular, the list of day-to-day capacities causes major problems, and the requirement for a mental impairment to have a substantial, adverse and long-term effect often excludes cases of depression where typically the effect is severe but short term.
The other area that we shall want to pursue is the right for disabled tenants and leaseholders not to be unreasonably refused consent to make vital physical adaptations to their homes to enable them to get through the front door and move around safely. This is an urgent matter. The Survey of English Housing 2001-02 showed that 18,000 disabled people were living in unsuitable accommodation because the landlord refused to let them make the necessary modifications. It is an issue which my noble friend Lady Darcy and I pursued during the passage of the recent Housing Act, and the Government recognised that there was a gap in the law for which a solution must be found.
While we obviously have a considerable amount to debate in the weeks ahead, I trust that the Bill will find its way swiftly on to the statute book. It is urgently needed to rectify some of the most obvious and disabling problems relating to the DDA. It is also vital that there is sufficient time for these new measures to bed down and become accepted before the Disability Rights Commission becomes incorporated into the promised Commission for Equality and Human Rights. I wish it good speed.
Baroness Darcy de Knayth: My Lords, I congratulate the noble Baroness, Lady Hollis, on her masterly exposition of a Bill which is very difficult to read but which is hugely welcomed by disabled people and disability organisations. As others have said, it will have a major impact on the life chances of disabled people. It closes many gaps in anti-discrimination law. I congratulate the Government and the Joint Committee on the draft Bill. As the noble Lord, Lord Oakeshott, said, it shows how valuable the scrutiny process is, particularly by a committee composed of people who really know their subject. I agree very much that it is important to get the Bill on to the statute book before the end of the Session.
It has been a long journey, as my noble friend Lady Wilkins said, and there is still some way to go before complete anti-discrimination law is achieved. It was in 1979 that CORAD, the Committee on Restrictions Against Disabled People, was set up by the noble Lord, Lord Morris of Manchester, and chaired by Sir Peter Large. In 1982, it reported to the noble Lord, Lord Morris, who was then the first
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Minister with responsibility for disabled people, on the need for anti-discrimination legislation. The noble Lord, Lord Morris of Manchester, truly is one of the grandfathers of this Bill and of the 1995 Act. As the noble Baroness, Lady Hollis, said, the Government brought in the 1999 Act and other pieces of legislation, which have further improved anti-discrimination law. I too am sorry that the noble Lord, Lord Morris, is not in his place. He sends his apologies.
I emphasise that the Bill is hugely welcomed by all disabled people. I shall pick a few areas on which to comment and on which we think we may need to bring forward amendments. As the twelfth speaker, I have done a certain amount of amending and slashing of my speech, so I hope that it makes sense.
Clause 1 contains the very important provisions that make it unlawful for listed, locally electable authorities to discriminate against their members in the carrying out of official business. That is welcome. Like the noble Lord, Lord Skelmersdale, I too regret that the new provisions do not apply, for example, to the election or appointment of officers to an authority and appointments to any other body to which an authority has the power to nominate, such as a police authority.
Sir Peter Large points out that those are exactly the areas where unfair discrimination is likely to occur. I hope that the Minister will say why such areas are excluded and whether she will reconsider the point. One of the most significant improvements that the Bill would bring about is extending the prohibition of discrimination by public authorities to cover virtually all public functions and services.
Clause 2, together with, as my noble friend Lady Wilkins said, the hugely important Clause 3the public sector duty to promote disability equalityis a major step forward and should make a huge difference to disabled people's lives. Can the Minister confirm that those clauses will deal with the problems, for example, of huge pedestrianised schemes where there is no parking near enough for disabled people? Will they also cover footpaths, towpaths and bridges? The noble Baroness, Lady Hollis, will remember only too well the copious correspondence between herself, me and the Minister responsible for disabled people about footbridges over rivers. I see the Minister nodding. I would very much welcome that.
That issue seemed to be a grey area. The question was whether highway authorities were acting as service providers in maintaining and ensuring access to footpaths and bridges, or whether that was a part of their regulatory functions and, therefore, not covered by Part 3 of the DDA. Can the Minister assure the House that this Bill will put an end to the uncertainty once and for all? I would welcome her saying something about that in her summing up. If there is uncertainty, please will she consider adding a clause to make the position absolutely clear?
Of particular interest to me is the position of schools, to which the noble Lord, Lord Ashley of Stoke, referred specifically. The point is whether schools will be covered by the duty to promote disabled equality, not merely the general duty. I support that for the reasons given by the
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noble Lord, Lord Ashley, which relate to the impact on children with special educational needs and their education. I hope that the Minister can confirm that schools are covered by the specific duties; otherwise we may have to pursue the matter.
I have a different point on Clause 2. I shall go into detail on this as no one else has mentioned it. The matter hangs on one word, but I believe that I should alert the House to the point so that it can be considered in Committee in case anyone else is worried about it. Clause 2(5), page 6, line 7, declares that discriminatory,
"Treatment, or a failure to comply with a duty, is justified . . . if the acts of the public authority which give rise to the treatment or failure are a proportionate means of achieving a legitimate aim".
When he gave evidence to the Joint Committee, Sir Peter Large thought that that proviso might nullify many of the objectives or emasculate the effectiveness of Clause 2. He tells me that, notwithstanding the Government's reassurance, he still believes that. As he sees it, the problem is the word "proportionate", which involves a subjective assessment of the degree of injury between those helped by the legitimate aim and those discriminated against. It requires both an estimate of the numbers helped and the numbers likely to be affected by the legitimate aim of the authorityperfectly legitimateand a subjective assessment of how far some had benefited from the authority's action and how much harm it had caused others.
Disabled people are in double jeopardy in all such assessments. They are always likely to be in a minority. The actual harm done to disabled people is seldom fully recognised. I shall give an example of what I am talking about. How proportionate would a pedestrianisation of a shopping centre be if it meant improvements for 500 fit pedestrians but forced 50 disabled people to shop elsewhere? Would that be proportionate? Would that be legitimate? We need to think about that.
Clause 9, on transport, is most welcome, but I join with others in saying that it should all happen earlier. I also welcome at long last the fact that it will be possible for the police, traffic wardens and particularly attendants to check blue parking badges and question those displaying them. I cannot help thinking that, if identity cards are issued, it will not be 34 years before they can be inspected by the police.
On housing, the noble Baroness, Lady Wilkins, has already given notice that we shall pursue amendments, particularly on the important omission from the Bill of provisions preventing private landlords and management companies from unreasonably refusing consent to disabled people to adapt their homes and the knotty question of communal areas. I am interested to see that the Law Society briefing that arrived today said that it believed that in practice the Landlord and Tenant Act 1927, which is what the Government believe protects the situation, actually favours landlords. We shall have to pursue that in Committee.
Clause 15 is extremely welcome. It will cover bodies which award general qualifications such as GCSEs and A-levels. As the Minister said, that is something very close to my heart and of concern to Skill, the
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National Bureau for Students with Disabilities, of which I am president. That is very good. RADAR says that there are some examining and standard-setting bodies that are not covered by the public sector duty. We may have to look into that.
I return to where I started. The Bill is hugely welcomed by many disabled people and it is very important to bring such improvements to the 1995 and 1999 Acts as soon as possible, not least because, as the noble Baroness, Lady Wilkins, said, many disabled people are seriously worried that the fight to end discrimination against them willor maybe relaxed when the proposed Commission for Equality and Human Rights is established and that the currently proposed safeguards are unlikely to succeed.
Therefore, they believe that it is essential that as much time as possible is given to allow the Bill's important additional protections for disabled people to bed in and to permeate the public consciousness so that their special needs are not forgotten in favour of the more popular and readily understood endeavours of improving community relations, equality and human rights. I hope I do not misquote her, but I believe the Minister said that she also saw the importance of the Bill being bedded in carefully before the matter was subsumed. I wish the Bill a safe and speedy passage, enhanced, I hope, with some amendments.
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