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Lord Addington: The wording of the amendment—

is probably its most attractive feature initially. That wording, if included in the Bill, would reinforce the central message of what we hope we are achieving; that is, only if there is no other way of achieving an aim will people be permitted to discriminate. For all the reasons that have been stated, having such a provision on the face of the Bill would reinforce the aim that we are discussing.

I very much support the noble Baroness, Lady Darcy de Knayth. I am very glad that the noble Lord, Lord Morris, is present. Our earlier deliberations had a certain feeling of not being official as the noble Lord was not present. I welcome the noble Lord back to the fold.

Lord Ashley of Stoke: I echo what my noble friend Lord Morris said about our great friend Peter Large, and, of course, what he said about my noble friend Lady Hollis and Maria Eagle. I mentioned them at Second Reading.

We cannot improve on the comprehensive and detailed presentation of the noble Baroness, Lady Darcy de Knayth. However, I should like to make a further point. If the proposed new justification provision could provide wide scope for public bodies to justify discrimination, we should not accept it. If it could provide narrow scope for such discrimination it would be unacceptable, but for it to provide wide scope for discrimination would be the death of the object of this Bill. We all know that—at least in my estimation—public bodies all tend to make any excuse and clutch at any straw to save costs. If they think that this provision will be costly, they will grab that excuse at all costs. I hope that my noble friend will give her usual sympathetic consideration to the amendment.

Lord Carter: We dealt with this matter on the Joint Committee. Although we were reasonably satisfied with the provision in the end, I believe that concern
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arises given the problem of defining a service and a function. I believe that constitutes part of the problem. The Joint Committee stated:

We took legal advice as this is a legal point. If my memory serves me right, I am sure we were satisfied that we had the correct use of the term.

Lord Skelmersdale: Yes, but given the short debate we have just had, it seems that the question of Sir Peter Large, to whom we all very rightly pay tribute, concerns what exactly constitutes public interest. It seems to me that the words in the Explanatory Notes and the words in the Bill are quite different. The Bill refers to,

That may or may not be in the public interest, but it is certainly in the interest of the authority that is pursuing the particular course of action.

The noble Baroness, Lady Darcy, may not have chosen exactly the right words, but I, for one, would certainly like to see the limitation that has been suggested; namely, that the justification is only in relation to matters of public interest in one way or another on the face of the Bill. The noble Lord, Lord Addington, is absolutely right. We do not want in any respect to undermine either the aims of the Act, or the amendment order, and the changes being made by this Bill. We want to make sure that the thing is as watertight as it possibly can be. I should have thought that some form of words in that respect are most definitely necessary here.

Baroness Wilkins: I would like to add my support to the amendment of the noble Baroness, Lady Darcy de Knayth, because it would seem that both she and Sir Peter Large have identified a loophole through which some public bodies—and local authorities in particular—will squeeze. Potentially the new justification provision could provide wide scope for public bodies to justify discrimination.

The main problem is that the assessment of whether treatment or a failure to comply with a duty under Section 5 depends on subjective judgments, as the noble Baroness, Lady Darcy, has said. Sadly, disabled people are always likely to lose out in those judgments. I hope that my noble friend will be able to allay our fears.

Baroness Hollis of Heigham: I shall do my best and I shall give a longer answer than I had originally intended as we seem to be running together several different issues regarding what is a function and what is a service. I am very grateful that the noble Baroness, Lady Darcy, gave me notice of the questions that she wished to raise. Therefore, I hope that I shall be able to answer them.
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Behind this matter is the question of what we mean by "proportionate". There seems to be a general belief here regarding "proportionate" being considered in some Benthamite sense as regards 500 versus 50, and the 50 always losing out. The example given by the noble Baroness concerned pedestrianisation. She asked whether the provision would always mean that minority rights would be overridden because you can claim that "proportionate" means that the majority will must always prevail. I had hoped that we had had a go at that at Second Reading, but clearly we did not do so sufficiently. No other body that I am aware of has raised this concern. "Proportionate" is a good term here. It does not relate to a balance of numbers but to whether there are proportionate means of achieving the aim of public policy. A pedestrianisation scheme, for example, would not be judged on the numbers affected—500 for, 50 against, or whatever—but on whether it achieved that public aim, taking into account the effect on the rights of disabled people and whether the way of going about it had the least detrimental effect on disabled people. That is the intent. There may very well be clashes of policy, of which I shall give examples. A clash may arise between the pressure exerted by the provisions of the DDA and another consideration, for example, the environment.

I refer to the concept of "proportionate" with regard to pursuing a public interest policy. I take issue with the noble Lord, Lord Skelmersdale. If I may say so, by definition only decisions taken in the public interest would be legitimate aims of public bodies. That is the definition with which we are working. A local authority may have broader policy concerns; for example, an environmental concern to take traffic out of a city centre due to a desire to reduce pollution, increase pedestrian access and so on. You then have to decide whether the way in which that local authority is going about that is proportionate; that is, whether it has chosen a policy that is the most sensitive to the needs of disabled people, and the least detrimental to them.

What you cannot say, obviously—I think that everyone would agree with this—is that the needs of disabled people will always trump all other legislation. That has been accepted in the case of listed buildings. However, one has to adopt a proportionate response. That proportionate response ensures that the needs of disabled people are not overlooked as opposed to the argument being advanced that they would be outvoted. The concept of proportionality comprises ensuring that those rights are considered and are protected when pursuing a different goal, for example, as I say, an environmental goal or the repair and rehabilitation of major listed buildings. That is the push behind the concept of proportionality. As I think the disability organisations have made clear, "proportionate" is a good and protective term, not, as has been suggested, a way of overriding the rights of minorities.

The second set of questions raised by the noble Baroness in particular concerned functions and services, and whether there was confusion in that regard. The underlying approach is the same for both.
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It is important that bodies understand their duties and that they should broadly take the same approach for services and functions. The DRC will issue guidance. I agree that it is a difficult area. The matter is not immediately obvious even to those of us who have been involved in local government for many years. As I say, the DRC will issue guidance that I hope will address the questions that the noble Baroness raised.

However, as regards the specific points of which she helpfully gave me notice, all the functions of public bodies will be covered unless explicitly excluded on the face of the Act. For example, planning and planning permissions are a function; operating a car park is a service; highways and pedestrianisation et cetera depend on the facts of the case, but Clause 2 ensures that all activities of public authorities are covered. The noble Baroness pressed me on what was meant by matters of public interest. New Section 21D(5) permits justification of less favourable treatment, or failure to make a reasonable adjustment, only if it is a proportionate means to meet a legitimate aim of a public authority. That phrase is built into EU law and means that the treatment must be in the public interest.

I hope that I have allayed some of the fears about the concept of proportionality. As I say, it is used in the Employment Equality (Sexual Orientation) Regulations 2003, and is a well known principle of EU law and ECHR law, carefully designed to enable a court to assess the legality of government action.

Let me give another example, as opposed to the pedestrianisation one that we have explored fairly thoroughly this afternoon. It might be necessary for a law enforcement agency such as HM Revenue and Customs to stop a higher proportion of wheelchair users than other travellers coming through customs, if it had information suggesting that particular passengers were likely to be concealing illegal drugs in the frames of wheelchairs on a certain day. On the other hand, it would clearly not be proportionate for a wheelchair user to find that the local police stopped him or her every time that he or she visited a local shopping centre.

I shall give another example. A blind juror might not be selected for a case if it was necessary to see the evidence. That would be less favourable treatment for a reason related to disability, but the overriding importance of administering justice fairly means that the less favourable treatment would be proportionate in that case.

One further argument may be worth mentioning. Those of us with local or central government backgrounds will be familiar with the fact that there are often several different routes to achieving a particular policy outcome. For example, one might want a park and ride system or greater facilitation of the use of public transport, both ways of trying to keep cars out of a city centre. There may be very different ways of achieving that aim. It is rare that there is only one route to achieving a particular policy outcome.
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The Government believe that the amendment would limit the justification defence too severely. The principle of proportionality is an accepted principle of administrative law that is designed to deal with a public authority having to choose between a number of courses of action. It has three key elements that the public authority must show. I hope that the first allays some of the concerns raised by the noble Lords, Lord Addington and Lord Skelmersdale. The first element that an authority must show is a pressing policy need to show that there is a legitimate aim. The second is that the authority's action is causally related to achieving that aim. The third is that there was no other way to achieve the aim that had a less detrimental impact on the rights of disabled people.

If we were to accept the amendment, no public authority that had a choice of two equally proportionate and legitimate courses of action would be able to use the justification—even if the overall benefit of the action was generally accepted—which would be perverse.

The matter is clearly of concern to Members of the Committee. That is a fairly full explanation on proportionality—it is a good and well established issue that protects disabled people's interests so far as possible, but accepts that they may have to be overridden where essential and less favourable treatment is justified in particular circumstances, such as justice and courts of law—and on the specific questions asked by the noble Baroness, Lady Darcy de Knayth, and my noble friend Lord Carter, about functions and services. That issue is more apparent than real; we seek to respond in the same way to both issues. I hope that I have allayed her fears and, through that, those of her friend, Sir Peter Large, who is someone whom the entire Committee respects and whose views it takes very seriously.

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