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Lord Skelmersdale: Yes, indeed. But I should have thought that rather than going through all this rigmarole it would have been far easier to amend Section 55. However, that is how the draftsmen have decided to do it, and I am not in a position to press the matter any further. I beg leave to withdraw the amendment.
The noble Lord said: Amendment No. 20 in Clause 3 has been grouped with Amendment No. 11. Again, I hope that this is a quick question with a quick answer. However, one can never be entirely sure with the noble Baroness quite what sort of an answer one will get.
The policy intention of new Section 21B(7) is, according to the Explanatory Notes, that the rest of the Act takes precedence over Section 21B other than when appointments are made by a Minister or on recommendation or approval by a government department. That would apply during periods of direct rule in Northern Ireland. It also covers the National Assembly for Wales, or any part of the Scottish Administration, or when someone else directs the
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employee, in which case any failure would fall to the fault of the director. These exclusions are logical given new subsections (2)(b) and (3).
If the rest of the Act takes precedence, why make special provision in this way for public authorities? Again, this is slightly related to my last question, it seems a very difficult way to achieve the policy objective. Subsection (1) is only a catch-all subsection, which then goes on to have exclusions such as subsections (2) and (3). I really cannot see how that fulfils the policy intention of the Government. I beg to move.
Baroness Hollis of Heigham: In defence of the Government, just because a question is simple does not mean to say that it has a simple answer, despite the efforts of noble Lords sometimes to say "I want a yes or no".
These amendments would remove important provisions to prevent overlap, or double provision. In particular, Amendment No. 11 would remove new Section 21B(7)(b), which ensures that Section 21B, the new provision that requires reasonable adjustments and outlaws discrimination against disabled people when exercising public functions, does not apply when another provision of the DDA would have applied but for a provision made by or under the Act.
I think that it would be helpful to give an example here. Section 28C of the DDA places a duty of reasonable adjustment on schools. However, Section 28C(2) makes it clear that the duty of reasonable adjustment would not require schools to make adjustments to physical features of their premises or to provide auxiliary aids and services. The reason that there is this exemption to the reasonable adjustment duty is that provision is already made through other means. In respect of school premises, Sections 28D and 28E of the DDA place a duty on schools to plan strategically to improve accessibility, while auxiliary aids and services are provided through the special educational needs framework.
The effect of this amendment would be to require double provision in schools. They would have to provide auxiliary aids and services both in response to the DDA and in response to the special educational needs framework. It is not only unnecessary, but confusing. That is why we have those exemptions. I could go into further detail, but that may answer the concerns of the noble Lord.
Lord Skelmersdale: That may be. However, perhaps I shall try the English version first before rushing to my computer to get it translated into other languages, which I may or may not be capable of interpreting.
I think that I got the point, and I certainly will not cross-question the Minister further. We are told that with my Amendment No. 11 there would be double
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provision. I shall have to look at that, especially in terms of the legislation on special educational needs. I shall do so between now and the next stage. In the mean time, I beg leave to withdraw the amendment.
"anything" surely means just that, including subsections (1) to (8). Why make special provision for Part 5, which covers public transport? In other words, in terms of this clause is not paragraph (c) of subsection (7) already covered by paragraph (a)? I beg to move.
Lord Davies of Oldham: The argument with regard to this amendment largely follows the one that we have just had on the last amendment. This is indeed a technical provision which is designed to ensure that the prohibition of discrimination in the exercise of public functions does not overlap with provisions elsewhere in the Act.
In particular, Part 5 of the DDA allows the Secretary of State to make regulations setting accessibility standards for public transport vehicles such as rail and other public transport vehicles. Not all of these powers have yet been exercised. For example, Section 32 of the Act applies to taxi accessibility regulations, for which powers have not yet been exercised.
If the amendment were accepted, the new provisions prohibiting discrimination in the exercise of public functions would apply in cases where powers under Part 5 of the Act had not yet been exercised. That would mean that a public authority that operated a public service vehicle, which was not within the scope of current PSV regulations, would be placed under a duty of reasonable adjustment in respect of those vehicles. The trouble is that that would undermine the general approach taken in Part 5 of the Act which seeks not to require piecemeal adjustments but rather that vehicles meet appropriate standards as set by the Secretary of State.
The approach to making vehicles accessible which is in Part 5 of the Act ensures that the access solutions are effective and sustainable and, most importantly, that they cover the needs of the widest range of disabled people. The Part 5 provisions are quite clear in specifying that not only must the vehicles meet the comfort and reasonable safety requirements in relation to wheelchair users, they must also meet the needs of disabled people generally. That is an important distinction enshrined in the Act. After all, some vehicles can be made suitable for a wheelchair user but may be very difficult for someone with walking difficulties to get in and out of. The issue
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was identified during the passage of the DDA when Parliament sought assurances from the Government that we would press for higher access standards, for example, than were then currently available in taxi designs.
Our overall approach is to ensure that activities regulated by one part of the Act are not also regulated by other provisions. We are concerned that this technical amendment would make an obligation on public authorities for partial requirements on public transport providers in circumstances in which the DDA itself requires higher, wider and more comprehensive standards which we are seeking to preserve. For that reason, on technical grounds, we ask the noble Lord to recognise that the amendment would cause real difficulty in this area.
Lord Higgins: One of the problems with the legislation is that sometimes it is not in the least bit apparentnot only as far as the clause is concerned but also as far as the amendment is concernedprecisely what its scope is. I would like to focus on one word that the Minister used. He said that the Government were against a "piecemeal" approach. Of course, that depends on how large the piece is. If the piece were to cover the whole of local authorities, the Act would be implemented faster in those areasfor example on school buses or whateverthat might be desirable. We do not necessarily need to wait for the whole of the implementation of Part 5 for the public sector to move a little faster. Is the Minister saying that any improvements in the public sector will have to wait until we do the whole lot?
Lord Davies of Oldham: The danger is obvious. If we seek to make progress by incremental approaches to the issue, that might militate against the overall standards to which we are committed through the DDA, which are necessary for the widest possible provision. The answer to the position is that we need a standard approach for each vehiclenot piecemealbut an approach that is comprehensive so that we meet the objectives and the standards of the DDA itself. Our anxiety about the amendment being agreed is that it would indeed potentially enforce upon public authorities a narrow and very limited advance which itself would militate against meeting the standards to which we are already committed.
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