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Baroness Hollis of Heigham: The noble Lords, Lord Skelmersdale and Lord Higgins, have tabled a series of amendments which the noble Lord, Lord Skelmersdale, has introduced and described for us. Amendments to Clauses 2 and 3that is, Amendments Nos. 7, 9, 13, 21 and 22would remove a number of exemptions for bodies and acts of bodies from the provisions outlined in Clauses 2 and 3 which deal with discrimination by public authorities when carrying out their functions and places a duty on them to promote equality for disabled people. Amendments Nos. 3 and 4, which relate to Clause 1, refer to the coverage of Members of Parliament in Westminster and Edinburgh and would provide rights under the DDA when Members are carrying out their official business.
I would like to begin by addressing those amendments which relate to Parliament. Amendment No. 7 would remove the exemptions granted to Parliament and persons exercising functions in connection with proceedings in Parliament from the requirement not to discriminate in exercising functions of a public nature. Amendment No. 21 would remove from the Bill the exemptions from the general duty to promote equality that would be introduced by Clause 3, including the exemptions relating to Parliament and the Scottish Parliament. Amendments Nos. 3 and 4 would provide protection from discrimination for MPs and MSPs.
The Disability Rights Task Force in its 1999 report, From Exclusion to Inclusion looked at whether the Disability Discrimination Act should be extended to cover elected members including councillors, MPs, MSPs and Members of the Welsh Assembly. The task force was unequivocal in its recommendations. While it sought the protection of the law for local councillors, which my noble friend Lord Carter has just pressed me on and which we are delighted to see in the framework of the Bill. The task force recommended that internal procedures of Assemblies or Parliaments should be used to secure reasonable adjustments for their Members. The Government agree with that conclusion.
The inclusion of Members of Parliament within Clause 1 would undermine an important principle. That principle is that Parliament should have sole control over its own affairs and procedures; it is the principle of "exclusive cognisance".
Contrary to this principle, the imposition of non-discrimination duties in relation to MPs would mean that issues surrounding the conduct of their official business could be determined by employment tribunals and, on appeal, the courts.
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The same argument applies to the exemptions for Parliament from the new duties applied to public authorities. These very limited exemptions follow the pattern of the exemptions from equivalent provisions in the Race Relations (Amendment) Act 2000.
If the DDA were extended to functions such as these, MPs here in Westminster who had been disciplined by the Speaker might expect to be able to challenge such sanctions in courts or tribunals. This would allow the courts to exercise control over parliamentary procedures in breach of the principle of "exclusive cognisance"
Members of the Committee will wish to note that the Joint Committee which scrutinised the draft Bill considered this exemption and invited the Clerks to the Parliament to give written evidence. The Joint Committee did not, however, recommend that these exemptions should be removed from the Bill. So there has been no support from either the task force or the Joint Committee.
Nevertheless, while the Government believe that these exemptions are necessary, I hope that Members of the Committee will agree that Parliament should still choose to behave as if the exempted functions relating to Parliament were within the scope of the DDA in the same way as it voluntarily applies the provisions of other Acts. In other words, as far as possible it should bring itself within the spirit of the legislation without exposing Parliament to external jurisdictions. For example, it would be only right that noble Lords who are wheelchair users should be able, as they are today, to enter the Chamber, take part in debates, and so on.
Amendment No. 21 also refers to exemptions relating to national security. These are designed to ensure that information of a sensitive nature is not disclosed in proceedings under the DDA. I think that Members of the Committee would accept that need.
Finally, Amendments Nos. 9, 13 and 22 would remove the powers for the Secretary of State to prescribe by regulation certain public bodies which are not subject to the duty not to discriminate in Clause 2 and the new public sector duty in Clause 3. They would also remove the power that enables the Secretary of State to prescribe that certain acts are excluded from the anti-discrimination provisions. There is no hidden agenda there; should the security services be reorganised, for example, it would allow for a consequent adjustment to be made quickly and simply rather than needing primary legislation. That is the type of instance where such a regulatory power would be needed. The Delegated Powers and Regulatory Reform Committee and the Scrutiny Committee are content with this regulation.
With this explanation, which is essentially about the supremacy of Parliament to control its affairs while expecting it to exercise the spirit of the legislation, I hope that the noble Lord will feel able to withdraw the amendment.
Lord Skelmersdale: Yes, of course I will withdraw the amendment. However, I rather think that time has
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moved on since the task force reported. The whole subject has been thought about much more widely as a result of that report. To rely for your principal argument on what the task force said
Lord Skelmersdale: I shall get to the Joint Committee in a minute. As I was saying, relying on the task force is rather like saying, seven years into a particular party's term of office, that all ills are to blamed on another party's government. I do not think that that particularly carries any weight.
I am sure that it will continue to consider this. Sooner or later, it will come back to the government of the day with its suggestions or requirements, if any. In the mean time, as I am perhaps being a little previous, I beg leave to withdraw the amendment.
The noble Lord said: The amendment is straightforward and seeks an assurance from the Government. The Joint Committee had a number of concerns because the provisions to protect disabled councillors against discrimination were confusing. That was particularly the case for reasonable adjustment where there was concern that it did not explicitly cover auxiliary aids. It was also felt not to be consistent with the wording of the employment provisions. The committee therefore recommended that the wording of new Section 15C followed the duty of employers to make reasonable adjustment.
We were pleased that the Government have listened to our concerns and streamlined the reasonable adjustment duty of the Part 3 provisions. There is an inconsistency which we believe can be answered on the record by the Minister. The Government have retained a regulation-making power further to define the reasonable adjustment duty. This means that the Government could, if they wished, restrict the duty in the future.
The Disability Charities Consortium pointed out to me that since October 2004 the Government do not have this power in other areas of employment, including contract workers, officeholders and barristers. I should have thought that the barristers would be well able to look after themselves.
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I am sure that the Government would not abuse this power to place disabled councillors at a disadvantage compared with other employees. We merely seek an undertaking that the Government would not want to restrict the duty in future. I beg to move.
Lord Skelmersdale: The negative instruments, which are to control the duty on authorities and their members to make adjustments, need elucidation, as the noble Lord, Lord Carter, said. Exactly what do the Government have in mind, especially when regulations make provisions for steps which may never be reasonable for authorities and their members to undertake?
"Never" is a dangerous word in politics. I have a hazy memorywhich I was trying to clear with a rapid question to my noble friend Lord Higginsof a politician in the 50s, well before my time, who said "never". He was subsequently proved wrong and had to resign. While this is not a parallel situation as orders can be changed quickly in the light of experience, nevertheless the noble Lord, Lord Carter, and I would like to know how far the Government are proposing to go.
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