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The Deputy Speaker (Baroness Turner of Camden): My Lords, I remind the House that if Amendment No. 40 is agreed to, I cannot call Amendments Nos. 41 and 42 because of pre-emption.

Lord Addington: My Lords, getting to know the noble Lord, Lord Tebbit, in the process of considering the draft legislation, I found that he had a very subtle hand with which he wielded a stiletto or scalpel. Here he has very successfully done that by not concentrating on the disability discrimination part of the Bill. He may well have a case in saying that the list of conditions should be more exhaustive, but it includes conditions which lead to discrimination before symptoms show.

We deal with other forms of discrimination in other legislation, and ageing is a good example of that—or we are considering dealing with that issue. The discriminatory effect of the conditions mentioned in the paragraph, once they are known—certainly when they are feared and when the old wives' tales dig in—has had an effect on people's lives. If we concentrate on that aspect, the wording as it stands is justified.

There is not much more to say on the matter. The conditions may not be disabilities in themselves, but discrimination certainly does occur.

Lord Skelmersdale: My Lords, my noble friend Lord Tebbit, has produced a very interesting
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argument as to why the three conditions—and hence the paragraph—should not be included in Schedule 1. I believed that during the discussions in the Joint Committee my noble friend had come to a conclusion, when he said on 24 March in the Joint Committee report that,

Apparently not.

The fact of the matter is that this Bill is about the effects of the disabilities themselves, not the reasons why the disabilities have occurred. The three conditions fit into two groups, with HIV and cancer in one group, where there is stigma attached even in the early stages, and multiple sclerosis in another. I suppose one could say in retrospect that that last was an accident waiting to happen. We all believed that multiple sclerosis was included in the definition of the Act until the case against the University of Surrey. Eventually, the Employment Appeal Tribunal found that it was not included and said that it fell outside the definition of progressive conditions in Schedule 1. So that is a discrete category.

I believe—and the Minister will correct me if I am wrong—that the other two conditions are included because of the stigma attached to them. People are frightened of what they do not understand and treat people with HIV and cancer differently from how they would those with other, perhaps unnamed, disabilities. It is for those reasons that I have always been content that multiple sclerosis, HIV and all cancers—and we shall get on to cancers in a minute—should be mentioned specifically in the provisions. So I am afraid that I cannot follow my noble friend's reasoning.

Lord Carter: My Lords, I should just point out that the Joint Committee considered this matter, and the evidence that we received was overwhelmingly in support of the Government's intention to introduce these three conditions into the Bill. We welcome the extension of the definition to include HIV, cancer and multiple sclerosis. As the noble Lord, Lord Skelmersdale, said, everyone believed that multiple sclerosis was covered until there was a court case which showed, surprisingly, that it was not. Therefore, it was included. The point that the Government are dealing with here relates to the discrimination and the stigma and not the actual disability.

On the other point that the noble Lord, Lord Tebbit, made about extending the provision to other conditions, we recommended that all progressive conditions covered under the DDA when they begin to have an effect should be included from the point of diagnosis.

The Government accepted the principle of the recommendation but said they would ensure that there were sufficient powers in the Act to enable the definition of "disability" to be amended should that prove necessary in the light of future evidence. That would meet two of the committee's concerns. It would allow further progressive conditions to be covered more effectively when the need arose and would provide flexibility in the event that case law emerged which showed that the definition was not working in the way intended.
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It would be helpful if my noble friend the Minister could confirm that these powers are in the Bill.

Baroness Hollis of Heigham: My Lords, this amendment would mean that the Bill would no longer include provisions which would treat people with HIV infection, cancer and multiple sclerosis as disabled people for the purposes of the DDA from the point at which they are diagnosed with the condition and before any adverse effects of the condition may have emerged.

For HIV and some cancers we have evidence to show that disability discrimination starts early, at the presymptomatic stage. This discrimination is often reinforced by other prejudicial attitudes deriving from fear and ignorance but that does not make it any the less disability discrimination which the Act ought to deal with.

In particular, evidence in the form of research reports, newspaper articles, and so on, suggests that there is still widespread fear and prejudice against people with a diagnosis of HIV infection. The noble Lord, Lord Tebbit, mentioned the example of my right honourable friend Chris Smith. One can see from his history just how finely balanced a judgment some people must make when disclosing their HIV status. From his experience one can draw exactly the opposite conclusion from the one drawn by the noble Lord, Lord Tebbit; namely, that Chris Smith did not feel able to declare his HIV status even though, so far as he was concerned, he was well, able to climb the Munros with John Smith, and so on. However, he did not feel able to declare his HIV status because of the prejudice he considered he would then face. He and the Government considered that that prejudice should be protected against in the form of this Bill. As I say, I think you can read the Chris Smith experience in exactly the opposite direction from that suggested by the noble Lord, Lord Tebbit.

Chris Smith told the Highbury and Islington Express:

I deduce from that story of someone I am proud to call a friend that he felt that the fact that he suffered from HIV, even though it did not in practical terms disable him, would none the less have led to some of the same consequences in terms of the world's responses to any statement he had made on that. That is what I draw from his experience.

Recently, Marie Stopes International and Interact Worldwide published their findings from a World AIDS Day survey highlighting that significant numbers of British citizens still have prejudicial attitudes to people living with HIV. The report by the National AIDS Trust and the Sigma Research report,
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Outsider Status, brought to light the fact that a fear of dismissal prevents many people from disclosing their HIV status to their employers.

In October 2004 BBC News Online carried a report about an employee who initially received support from his employer, having told the latter of his HIV status. I believe that he was ostracised by those with whom he worked. Having DDA protection from diagnosis would have supported that person in that difficult situation and it would do the same for all those who are diagnosed as having been infected with this virus when they are at the vulnerable stage of coming to terms with it.

This evidence supports the recommendations of the Disability Rights Task Force which recognised that people with HIV infection were experiencing disability discrimination at a point before symptoms or effects emerged and said that the protection of the Act was required much earlier on. This is what the subsection does; we must not lose it.

We shall discuss cancer. The task force identified the need for additional protection for people with some cancers. These are cancers which are likely to require substantial treatment. We have responded to that in this Bill. We had understood that people with multiple sclerosis would be protected but we needed to clarify the law as a result of the court case. That is what we are doing.

There is an argument that if we treat some people with progressive conditions as disabled people from the point at which they are diagnosed, we should do the same for all of them. We agreed with this in principle but we are not persuaded that there are any additional conditions which are inadequately covered. Other serious illnesses such as motor neurone disease—I pressed my officials on this—or muscular dystrophy are identified when the symptoms show. At that point the DDA comes into effect in any case. That is why they are not included in the list of identified illnesses in which there can be asymptomatic possession of a disability before it results in an impairment of a substantial kind in people's daily lives.

We have widespread support for the clause from the DRC, the Disability Charities Consortium, the Terrence Higgins Trust, the National AIDS Trust and the Multiple Sclerosis Society. We are dealing with those few conditions where there may be an impairment in the perception of the employer and others in advance of the obvious visibility of symptoms which would automatically bring someone within the protection of the DDA. We consider that in those exceptional cases we need this additional power. I hope that having heard the views expressed all round the House the noble Lord, Lord Tebbit, will accept that this is a decent, humane and proper way forward. I hope that he will withdraw the amendment.

4.15 p.m.

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