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Baroness Darcy de Knayth: I thank the Minister for her very full reply. I thank the many people on both sides of the Committee for their support. I agree with the noble Lord, Lord Addington; it is nice to have the noble Lord, Lord Morris, with us, and his support is telling given his outstanding record on disabled people's legislation. The noble Lord, Lord Addington, put his finger on it as usual; the amendment would deliver exactly what we hope that it has been designed to achieve. I am grateful for the support of the noble Lord, Lord Ashley. As he said, I fear that some public bodies clutch at any straw to save costs.

The noble Lord, Lord Carter, referred to the grey area, which he thought was more or less cleared up in Committee; but as the noble Lord, Lord Skelmersdale, said, it is not totally cleared up. We need to know what the public interest is.

The Minister gave a very careful and detailed reply, and I will have to read it very, very carefully. However, she has not set my mind at rest. I absolutely understand that proportionate is meant to be good, and Sir Peter Large understands that it is meant to be a good thing. You still come down to the fact that it will be a subjective assessment of what the impact is on people. She said that justice would be involved in the public interest, and she has mentioned the prevention
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of crime. She said that a blind juror might not be able to be on a jury because it required reading. I would have thought that the evidence that required reading—

Baroness Hollis of Heigham: Forgive me. I said that the juror might be required to see part of the evidence, not something that could be translated into Braille. For all I know, it may be fabric, clothing or photographs, something that was perhaps not immediately available to someone who was blind.

Baroness Darcy de Knayth: There is texture . . . This is the sort of thing that shows that it is difficult, and it is a subjective judgment.

The Minister said that the DRC will issue guidance that would help us to understand the function-service divide. The DRC has specifically said with regard to this amendment that it would welcome a clear answer from her to say where the divide is, which would help when writing guidance.

I will read what the Minister said extremely carefully, and I am grateful to her and to her department and her officials for all the trouble that they have taken over this. I apologise that the notice of my questions was reasonably late in the day. I am not totally satisfied, so perhaps we could continue discussions outwith the Committee, and perhaps by letter. I may have to come back again, because in a Pepper v Hart situation it might be useful to know precisely what is in the minds of the Minister and the Government. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clause 3 [Duties of public authorities]:

Lord Rix moved Amendment No. 15:

The noble Lord said: During my Second Reading speech, I spoke about what I believe is a policy gap between what the Government are trying to achieve through the public sector duty as it is currently framed, and what is actually likely to be achieved. I hope that noble Lords will forgive me if I dwell on this matter for a short time more.

Amendments Nos. 15, 16 and 17, put forward today by the noble Lords, Lord Carter, Lord Addington and Lord Adebowale and me, are our best attempt at a sensible package of measures to fill this policy gap. I know that Amendment No. 19 has been grouped with ours, for it addresses part of the same issue, but harassment is dealt with under Amendment No. 15 only. We have sought to address both the Government's conviction that it is not possible to mirror the Race Relations (Amendment) Act 2000, and the conviction of most of the rest of us that dealing with harassment under the wording of this Bill would relate to employment only, and possibly to service provision and education; nothing more. That would be most unsatisfactory, and it would be well short of the Government's intention to tackle proactively the harassment of disabled people.
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For example, both Mencap and Mind have local experience of ill-informed nimbyism at its best—or should I say at its worst. I have with me a recent example from Andover, where the local Mencap society encountered something more akin to a hostile mob rather than an informed debate on proposals to purchase a house for four people with learning disabilities. Public education can only do so much to promote common sense and common decency. The fact that nimbyism has gone on now for so many years seems to indicate that a number of prospective neighbours display a great deal less intelligence and dignity than the very people who they denigrate and vilify.

It may be argued that this kind of policy gap in the public sector could be filled as part of the more general duty to promote equality of opportunity. The argument would go that if a disabled person cannot leave their home because they are likely to be a victim of harassment, the public authority is not promoting their equality of opportunity effectively. I would not be at all convinced by such an argument.

Recent research around the Race Relations (Amendment) Act shows that public bodies direct resources to meet their explicit duties first. Therefore, unless we make harassment a clear priority, very little will happen. It could also be argued that this policy gap is already filled by current legislation, namely the Protection from Harassment Act 1997 and the Criminal Justice Act 2003. However, both laws are again reactive. Tackling the problem on a person-by-person basis would be to rely on the traditional model of anti-discrimination, which the Government have made clear is insufficient to drive forward positive changes in society. Indeed, that is the very point of the public sector duty.

Anecdotal evidence would also suggest that clear-up rates for cases of harassment, bullying or hate crimes against disabled people, and particularly people with a learning disability, are not good. Getting cases to court is proving extremely difficult. Mencap's Living in Fear report of 2000 found that in over half the cases bullying of a person with a learning disability continued well after the matter was reported. In the Andover example that I gave, I would expect the appropriate public bodies, most likely the local council and the police, to undertake early, pro-active intervention once they were aware of the problem. I would expect that to involve listening to residents' concerns; tackling ignorance and prejudice; demonstrating that these types of housing projects are already happening very successfully in Andover and the rest of the country; ameliorating genuine worries and ensuring a safe and positive local environment in which disabled people can live and be active and respected members of the local community.

I assure your Lordships that I could give many more examples in a range of areas, and I am sure that many of your Lordships are aware of some too. I will refrain from doing so for the sake of brevity. I thank noble Lords for their patience, and I hope that the Minister
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will accept Amendment No. 15, or at least promise to come back with a government amendment that covers the same ground. I beg to move.

Lord Carter: As I added my name to this amendment and also I am the lead name on Amendments Nos. 16 and 17, perhaps it would be helpful if I explained, as has been made clear, that we have taken the amendments together because obviously they cover the same area. Amendment No. 15 deals with harassment or hate crime, as the noble Lord, Lord Rix, said. Amendments Nos. 16 and 17 are alternative words to promote good relations, and Amendment No. 19 in the name of the noble Lords, Lord Skelmersdale and Lord Higgins, reflects recommendation 40 of the Joint Committee, which was not accepted by the Government.

First, I will deal with the hate crime issue. This amendment would extend the definition of harassment to a public sector duty. As it stands now, harassment is only unlawful in the area of employment, and is not explicitly covered in education, or goods or services. It does not extend to community relations. Obviously, these areas are important for disabled people if they are to enjoy their opportunities in freedom and safety.

The Disability Rights Commission strongly supports amendment of Clause 3 to ensure that the scope of the public duty is widened, to enable effective action against harassment of and violence against disabled people outside the workplace; a duty to eliminate harassment, which currently in the Bill applies only to harassment that is unlawful under the DDA, not to wider hate crime which affects, they claim, one in five disabled people and nine in 10 people with learning difficulties; inclusion of disabled people in community and cohesion initiatives; the promotion of general understanding and awareness of disability in the community; including respect for distinct communities such as the deaf community, and improving civic participation and combating social exclusion and deprivation.

As the noble Lord, Lord Rix, has said, two pieces of law attempt to tackle this issue reactively. We are pleased that the Government recognise in the Criminal Justice Act 2003 that hate crimes against disabled people are a significant problem.

The key questions for the Minister are as follows. If the general duty is not amended to fill what we feel is a gap, is the duty sufficient to give public authorities the power to act to tackle hate crimes and the causes of hate crimes against disabled people? For example, in a judicial review, could a public body argue that it did not believe that it had the power to tackle the issue under the Bill as currently worded? Does the duty legally require public bodies to tackle hate crimes and the causes of hate crimes? Does it make it clear that they should do something if there is a problem? Does the duty sufficiently prioritise and tackle the issue even if the public authority recognises that it could do something and is supposed to do something? In other
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words, could a public authority argue that it would have liked to do something but that there were a number of other important priorities? As I have said, there is doubt whether the duty is sufficient and whether it requires public bodies to tackle the issue proactively.

As I have said, unlawful harassment under the Bill applies only to harassment that is unlawful under the DDA, and does not tackle the wider question of hate crimes. Recent research on the Race Relations (Amendment) Act 2000 shows that public bodies direct resources to meet their explicit duties first, with all other duties vulnerable to fluctuating will and competition from other priorities. We heard that from the noble Lord, Lord Rix.

I turn to Amendments Nos. 16 and 17, which are alternatives to each other. Amendment No. 16 strengthens the disability equality duties, requiring public authorities to take into account the effect of their actions on the social inclusion of disabled people. The intention behind the proposal for a duty to promote inclusion for disabled people is to place a duty on public authorities to assess their policies, practices and procedures for impact on a safe environment for disabled people; to take proactive steps to eliminate so far as they can the negative and stereotypical attitudes towards disable people, which may ultimately result in harassment, lack of opportunities and exclusion; to increase awareness and understanding among non-disabled people of the benefits and the positive action measures; and to take steps to encourage and enable disabled people to take part in civic participation.

To sum up, is the duty sufficient to give public authorities the power to tackle hate crimes and the cause of hate crimes? Does it legally require them to tackle hate crimes and the cause of hate crimes? Does it give sufficient priority to performing that duty?

On the wording of the promotion of good relations, which the Joint Committee supported but the Government turned down for reasons which I still find hard to understand when I read them, we want to see an explicit duty which achieves the following key aims. It should tackle harassment and hate crimes against disabled people, and promote a positive attitude towards disabled people and the civic participation of disabled people. In conclusion, I quote the Minister at Second Reading, who said: "My noble friend"—that was me—

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