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Lord Higgins: I notice that the Minister has abandoned the word "piecemeal" in this context. He is really saying that if one were to make some improvement sooner in this particular area, it would somehow prevent one doing any more in the future. I have some difficulty in understanding that argument, but let me consider the matter. I will not re-read what he said because what he said was clear enough, but it seemed not to make sense. I will consider the matter and if need be return to it at Report.

Lord Oakeshott of Seagrove Bay: It made perfect sense to me and I congratulate the Minister on a brilliant performance in paraphrasing the word "piecemeal" without actually using it.

Lord Skelmersdale: The amendment has not been withdrawn by my noble friend so I shall have a go. I
 
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thought that I understood the Minister to say that orders that had not yet been made under this Act would be covered if the subsection were removed. I find that extremely difficult to follow notwithstanding what the noble Lord, Lord Oakeshott, seems to have understood from the remark. Like my noble friend, I shall consider the Minister's argument extremely carefully on this occasion because even in Sanskrit it does not make sense. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 13 not moved.]

Baroness Darcy de Knayth moved Amendment No. 14:

The noble Baroness said: I have kept silent until now because I did not wish to delay the Committee. However, I am afraid that I shall be taking my time on this amendment. I was not silent because I did not support many of the other amendments, particularly Amendment No. 6 in the name of my noble friend Lady Masham.

Amendment No. 14 seeks to ensure that public bodies do not discriminate against disabled people by narrowing the scope of their justifying discrimination under subsection (5). I raised this issue on Second Reading, on 6 December, when I said that Sir Peter Large, in his evidence to the Joint Committee,

He has not changed his mind since Second Reading.

I have huge respect for Sir Peter's views, as, I know, does the Minister. While I would like her to accept the amendment or bring in one of her own, I know that there is little chance of that, so I very much hope that she will be able to answer some questions and clarify what the new justification means in practice. The DRC says that this would enable it effectively to explain it in the code of practice that it will have to write. I hope that the Minister will give examples of how, and how often, the Government expect the provision to be used and thus, I hope, allay some fears.

There seem to be three problems: where the line lies between functions and services; the fact that regulations under subsection (7) will have effect as a longstop so it may not be possible to effect redress retrospectively; and the fact that "proportionate" depends on two tests, neither of them truly objective.

On the line between functions and services, let me say at once that I understand, as does Sir Peter, why the "legitimate aim and proportionate" proviso was introduced and that functions and services have to be treated differently. It just needs tightening and narrowing down, which is what Amendment No. 14 would do.

Clause 2 is so hugely to be welcomed that it would be more than disappointing if it did not live up to our expectations. Our fears centre on the activities of some
 
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local authorities whose attitudes and behaviour towards disabled people are not always ideal. We fear that sooner or later the proviso will be used to override disabled people's interests.

Several questions arise on the functions and services divide. Are the functions of planning and granting of planning permission by local authorities covered under Clause 2 as functions or as services? The process of planning a car park could be a function, whereas operating one is presumably a service. Pedestrianising an area could be held to be a function. Could its continuing existence be deemed a service? What about, for instance, congestion charging, park-and-ride schemes, establishing home zones, setting out nature trails, and any other activities involving highways, roads, footpaths and pavements? Are they covered as functions or as services?

On Second Reading, I raised the question in relation to footbridges over rivers in col. 697. The Minister referred at col. 709 to functions such as providing and maintaining them but said that there may be some exceptions which doubtless will be explored in Committee.

If all these areas are not covered—and these are only examples—can the Government do anything to ensure that they are? Moreover, can the Government now do anything to avoid complications that will arise if it is not clear which problems should be tackled as functions and which as services?

Paragraph 38 on page 8 of the Explanatory Notes refers to one justification. It says:

Two questions arise: what exactly is meant by "matters of public interest", and why is this significant limitation not stated on the face of the Bill? It is very important that the Minister spells out the answers to these two questions.

Although the distinction between a function and a service is not always clear, it would seem that many of the problems associated with access relate to functions, not services. Add to that the fact that regulations made under subsection (7) would seem to act as a longstop after some treatment or failure to comply has caused harm—it may not be possible to effect redress retrospectively—and I hope that the Minister and the Committee will understand why I am concerned about the "legitimate aim and proportionate" proviso on its own, unamended.

As I said in col. 697 on Second Reading, Sir Peter's worries about subsection (5) stem from the fact that it depends on two estimates—an assessment of the number helped and the number harmed if the action is taken to achieve the legitimate aim, and an assessment of the extent of injury caused by those harmed compared with the degree of benefit enjoyed by others.

Sir Peter Large writes:

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I hope that Sir Peter is being unnecessarily gloomy. I hope that he is proved wrong. I remind the Committee and the Minister that the Disability Rights Commission also said that it would welcome clarification of what the new justification means in practice to enable it to write the code of practice.

It has to be said that Clause 2 is not exactly even-handed. Subsection (4)(c) allows discrimination if it is too expensive to avoid it. Are not resources always scarce? Subsection (4)(d) allows discrimination if,

The concept of legitimate aim and proportionate means comes into the equation only when the rights and freedoms of disabled people are being considered.

I very much hope that the Minister can set our minds at rest. Clause 2 could enable public bodies to do so much, and is hugely welcome in principle, but I fear that it may, as it stands, provide a loophole for some public bodies to do very little. I look forward to some clear and, I hope, encouraging and positive answers from the Minister. I beg to move.

Lord Morris of Manchester: I regret very much, as a serial legislator and proposer of legislation in this policy area, that illness made it impossible for me to attend the Second Reading debate on this deeply important Bill. Better late than never, however, and I most warmly welcome it now as a major further advance toward full citizenship for disabled people.

Like my noble friend Lady Darcy de Knayth, my noble friend Lord Ashley and many others, I look forward to the Bill's early enactment and will do all I can to hasten its progress. As before, I congratulate Ministers on their achievement in making this the first Bill to come to the House in the current parliamentary Session: more especially, of course, Maria Eagle as Minister for Disabled People, but also and not least my noble friend Lady Hollis. Naturally, too, I express my admiration of my noble friend Lord Carter; we are all indebted to him.

My special interest in this amendment has to do with its source. It was in 1978, as the then and first Minister for Disabled People, that I appointed Peter—now Sir Peter—Large to chair the Committee on Restrictions Against Disabled People (CORAD) to inquire into, and make recommendations on, discrimination on grounds of disability. There could have been no better choice for it was CORAD's report, of which this Bill is a lineal descendant, that first set out the compelling case for legislation.
 
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Ever since then Peter has performed a hugely important role in the long and arduous campaign to outlaw disability discrimination; whatever concerns him is eminently worthy of our attention in this Committee.

While very few disabled people I have known have been more severely disabled than Peter, no one I have known was or is more able than him. The noble Baroness has most ably expressed his concern, which in hard summary is expressed in his observation that,

I know that my noble friend will, as ever, respond as helpfully as she can to the extremely important questions posed by the noble Baroness; and I do hope that an accommodation can be reached that will fully reassure Sir Peter.


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