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[The page and line references are to Bill 71, as first printed for the Commons.]


1 Clause 18, page 46, line 1, leave out subsection (3)

Baroness Hollis of Heigham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1.

We are considering the Disability Discrimination Bill following its amendment in another place. Only one substantive amendment was made to the Bill, which was to remove subsection (3) of Clause 18, which inserted a new subparagraph 2A into paragraph 2 of Schedule 1. The effect of the sub-paragraph would have been to enable a person with two periods of depression, when the first occurred in the preceding five years and had had substantial adverse effects on his ability to carry out normal day-to-day activities for six months or more, to meet the long-term requirement of the definition of disability for the purposes of the DDA.

That new provision was debated extensively on Report in this House and, as I explained, the Government considered the provision was flawed on a number of points. Fundamentally, it cuts across one of the basic principles of the DDA—that the Act is intended to provide protection against discrimination for people who are disabled in the generally accepted sense of the term; that is, that they have a long-term, or permanent impairment. The idea that a person who has been
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impaired by depression for six months, perhaps following a bereavement, should be regarded as disabled for life after having a further but short and unconnected period of depression—perhaps a fortnight—flies in the face of common sense.

Basically we are making a distinction between depressive illness, which is rightly covered by the DDA, and unconnected separate periods of depression, which can be triggered by bad luck events that may affect individuals. But it is simply not true that that means that depression has less coverage, because anyone with a depressive illness as diagnosed receives—and rightly so—full coverage under the Act. That does not indicate that, in seeking to reverse the amendment made in this House, we do not take the social barriers faced by people with mental health conditions seriously. Indeed, we are addressing these barriers through measures such as the removal of the "clinically well recognised" requirement in the DDA definition and our implementation of the wide-ranging recommendations in the Social Exclusion Unit's report on mental health and social exclusion.

Nor does this Bill represent the end of the disability rights agenda. The scrutiny committee asked the DRC to review the social model of disability and we welcome that review. We believe that the need for any future changes to the definition should be considered in that context. It is something that needs to be addressed in just such a strategic way, not through piecemeal amendment of the DDA. My department very much looks forward to working with the DRC to see if we can find a way through these issues.

The DRC has said that,

The commission recognises that even with the removal of the new provision on depression the Bill contains vital new rights and provisions for mental health service users. It agrees with us that its review of the social model is the right way to take the matter forward.

This Bill is vital to ensuring disabled people have greater opportunities to participate fully in society. We cannot deny them those opportunities by seeking to overturn the amendment made in the other place. Therefore, I beg to move that the amendment made in the other place is agreed to.

Moved, That the House do agree with the Commons in their Amendment No. 1.—(Baroness Hollis of Heigham.)

1.30 p.m.

Lord Skelmersdale: My Lords, I am grateful to the Minister for explaining the Government's position on this matter. I note that her colleague in another place, the Minister for Disabled People, said yesterday that,

about whether the amendment could be incorporated. They may have thought long and hard about the amendment but the fact of the matter is that they did
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not pursue their thought very far. The other place has chosen not to listen to the large number of people in this country who are affected by depression.

As the noble Baroness said, earlier this year we debated the matter in detail during the passage of the Bill in this House. We on these Benches, along with the Joint Select Committee on the Bill feel that there is a strong case for people with recurring depression to be better protected under the Disability Discrimination Act. Depressive illnesses have a strong tendency to recur. At least 50 per cent of people, following their first episode of major depression, will go on to have at least one more episode, with those experiencing their first episode of depression before the age of 20 being particularly susceptible to relapse. Meanwhile, the risk of recurrence of an episode of depression within a five-year period is about 70 per cent.

Defending the Government's position on Report, the Minister claimed, as she has again today, that the DDA already enables people with recurring or fluctuating conditions, including depression, to meet the long-term definition of disability if there is a continuing underlying impairment, and thus they are covered by the Act both in the past and as amended. This continuing underlying impairment is most commonly known as dystemia and is so rarely used by GPs or psychiatrists as to be worthless, besides which a person might have two or more bouts of depression in a five-year period without any underlying condition being found.

The discrimination faced by people with depression or a history of depression is most commonly based on stigma. A recent study found that where two job applications, one disclosing a diagnosis of diabetes, the other one of depression, were submitted to 200 personnel managers, the applicant with depression had significantly reduced chances of employment. The Government have recognised the debilitating effects of stigma in relation to HIV and some forms of cancer, and have changed the definition of disability in the Bill accordingly. Not to do the same—as I have argued before—in relation to depression is both perverse and of itself discriminatory.

It is true that the change in the definition brought about by our "depression amendment"—I am using shorthand—would exclude some people who did not fit the new definition. However, it was a much needed and much called for step in the right direction. It is a recognition of a problem and an attempt to deal with it. The Government's insistence on removing the amendment makes it look as if they are ignoring the problem in the vain hope that it will go away. It sullies what is in most respects—especially with the scrutiny of your Lordships' House—a much improved piece of legislation with no fewer than 13 agreed amendments to the Bill. Should the Government be re-elected and more case law prove that the amended Act is still not working for people with depression, will they look again at this intractable problem for people with this kind of mental illness? I am glad that the Minister has just said that the DRC, as the scrutiny committee suggested, will look again at the social model, which of itself would cover people with depression.
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We should not have been put in this position today. The Bill both could and should have been introduced much earlier when there would have been time to come to an agreed solution. However, we welcome the fact that the Government have managed to arrange their timetable, particularly in these curious electoral circumstances, to enable this Bill to go through. In the normal way of things I would fight tooth and nail to keep a version of this amendment in the Bill. However, we would never risk the loss of the Bill over the Government's stubbornness and as such it is with great regret that I advise your Lordships to accept the Motion from the other place.

Lord Morris of Manchester: My Lords, the Bill is clearly very soon to become law, and I am delighted. This is an exciting moment for disabled people all across Britain; and I thank my noble friend for her constancy in pressing the measure forward with all possible speed. Its purpose is further to establish that what is morally unacceptable—as discrimination against disabled people that leaves them doubly disabled must surely be regarded—will no longer be legally permissible.

Naturally, I thank and most warmly congratulate also my honourable friend Maria Eagle, the Minister for Disabled People, on her striking achievement in steering the Bill so successfully to the statute book.

I know that both my noble friend and Maria will join me now in marking the huge contribution made in this policy area by my noble friend Lord Ashley. Regrettably, he is unable to be here today but our thoughts are with him. Could my noble friend have been here he would, I know, have thanked all the parliamentarians on both sides of both Houses of Parliament who have contributed to making the Bill so admirable. I am sure he would have acknowledged too the extremely important role played by my noble friend Lord Carter. I too am most grateful to him.

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