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Baroness Darcy de Knayth: I apologise to my noble friend for interrupting her earlier. I am delighted that I did not succeed in cutting her off, because we learned a great deal about human rights and I know nothing about them, really. I shall try to be as brief as possible on this huge group of amendments. We have heard clear and comprehensive explanations and some telling points have been made. I shall try to remain coherent, if that is possible—bear with me.
First, Amendment No. 47, regarding the future of the Disability Committee, is of huge concern to disabled people. Unless it is written into the Bill that disabled people specifically must be consulted in the five-year review, we can have no confidence that their views will be given due weight.
Regarding Amendments Nos. 51 to 53, spoken to by the noble Lord, Lord Ashley, and my noble friend Lady Wilkins, disability organisations thought that the deal struck on the Disability Committee meant that the five-year review would be open and objective, not based on any assumption about whether the committee would continue. But the Bill appears to state the opposite. I thought that I saw encouraging nods from the Minister—and I see another encouraging nod, so I am even more encouraged. My question would have been: if participants in the review called for a permanent committee, or continuation for 10 years and a further review, how could that be done without a change in the Bill? Perhaps her nod means that she is backing the change in the Bill. I am cheered.
Amendment No. 54 is important. It is not acceptable to propose abolition of the key disability guarantee in the Bill, thereby significantly altering the structure and remit of the CHR without coming back to Parliament to obtain approval.
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Amendment No. 76 on independent living has been well covered by the noble Lord, Lord Ashley, and my noble friend Lady Wilkins, particularly regarding human rights. She and I were involved with disabled people's problems over housing and the serious concerns about too many people receiving residential care, when alternative support might have been more appropriate. Under the Human Rights Act, authorities are unlikely to be able to insist upon a care package that institutionalises a disabled person merely because it is the cheaper option. Indeed, I am advised that avoidable or unnecessary institutionalisation could be vulnerable to a challenge involving Article 8.
I strongly support removing us, as disabled people, from Clause 10 and 20 and putting us with everyone else in Clause 11. I meant to put my name to Amendments Nos. 94, 95, 97 and 98, in the names of the noble Lords, Lord Carter and Lord Addington. By mistake my name has inadvertently been added to Amendments Nos. 88, 90, 91 and 92, in the names of the noble Lord, Lord Lester, the noble Baroness, Lady Falkner, and the noble Lord, Lord Addington, relating to Clause 11. Also, I am afraid that I did not put my name to Amendment No. 113, in the name of the noble Lord, Lord Goodhart. However, I shall return to the amendments in question.
There is nothing that the CHR could do under Clause 10 that it could not do equally well, if not better, under Clause 11. That would have the added benefit that disabled people who faced multiple prejudice due to their race, religion, sexuality or gender would be more comprehensively included.
My name is intentionally to Amendment No. 112. The amendment asks for clarification of the status of legacy codes of practice and, specifically, whether they will be valid for the purposes of judicial proceedings until CEHR replaces them with new codes. It may seem like a minor point, but that is one on which disabled people, in particular, seek firm assurance.
I shall leave human rights as my noble friend has covered that point beautifully.
On Amendment No. 167, I feel strongly about the DRC transitional commissioner. At Second Reading, the Minister justified the anomaly of the DRC transitional commissioner's short term of office by reference to the establishment of the Disability Committee. I can see no logic in that, as the transitional commissioner has a backward-looking role and is concerned with the effective transfer of expertise, whereas the Disability Committee has a forward-facing role, taking forward new disability initiatives from CEHR.
We know that it can take some time for a new commission to reach its full staff complement and to establish new working practices. I would have thought that we would not want to lose the expertise of the DRC transitional commissioner during such a critical period. I understand that three commissions agreed that the terms of all three transitional commissioners should be on a common basis and provide similar opportunity to contribute to the success of the CEHR in its early days. I hope that the Minister will reconsider this point too.
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As I very well know, the Minister is very much a listening Minister, as is the noble and learned Lord, Lord Falconer, so I hope that during the passage of the Bill, with a few tweaks and one or two definite changes, we shall improve a basically good Bill.
Lord Northbourne: I have a huge respect for the disability lobby in this Committee. I only wish the children's lobby were half as effective. I raise the question of whether this mass of amendments on disability does not, in some way, imbalance the Bill? After all, there are many other disadvantaged groups in this country. As I understand it, the Bill's objective is to bring equality to those who lack equality, and to legislate against discriminating in favour of those who are considered to be within the group that does not lack equality. Therefore, there is quite a premium in being disabled or in falling into one of the other groups that are covered. Otherwise, the Bill will forbid any kind of favourable discrimination in schools, except those schools that are accepted by the Bill, and so forth.
My particular concern, as many Members of the Committee will know, is for those who have been disabled by their early upbringing or by their educational background. The noble Lord, Lord Carter, said that there are many forms of impairment. Are people with that kind of impairment included among the disabled, and, if not, why not? Their life chances are damaged, not in the same way, but in a way that is equivalent in its effect to the disadvantages of some disabled people. It seems to me, that they should be able to benefit from the same kind of advantages that the Bill offers, in terms of positive contribution and support. Therefore, I ask: what is the definition of "disabled"?
Baroness Ashton of Upholland: I am glad the noble Lord ended with an easy question. I look longingly at the officials to see whether they can come forward with a full definition. I suspect many Members of the Committee could do a far better job than I can in seeking to address the problem.
Lord Northbourne: I omitted to say that the Disability Discrimination Act, to which reference is made in the Bill, gives this definition:
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Baroness Ashton of Upholland: Not at all really. However, we will try and get a definitive definition. I could give the noble Lord my own, but I am very mindful that I am in the presence of people who would do a far better job.
Perhaps I may say at the outset that the reason this is such a huge group is the result of a request of my noble friend Lord Carter and not the Government trying to make it more difficult to have a huge debate. My noble friend thought that it was—and I think rightly—important to have one big debate on the subject. I thought I should explain that to the Committee.
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I say to the noble Lord, Lord Northbourne, that the children's lobby is pretty effective in this House. In taking through the Children's Bill, I felt its presence on many occasions and was delighted to do so.
I hope that noble Lords who contributed to Second Reading will have received today copies of the "Easyread guide" to the Bill. Noble Lords will remember that I apologised unreservedly at Second Reading, and did so in letters to some noble Lords, that it was not available. It is available; it is on its way to you today; it is in the Library of the House; and it will be sent out to those who might benefit from receiving it. I am very grateful that noble Lords raised that matter with me. We will endeavour to do that more swiftly in the future.
A number of amendments and key points have been raised. I shall go through them more systematically than usual to make sure that I cover them all, but I will do so with a degree of brevity because noble Lords, I know, will want to continue to pursue other aspects of the Bill.
My noble friend Lord Carter began with Amendment No. 6. The existing provision required that we appoint one commissioner who is or has been a disabled person. The "or has been" is an important factor, not least because of the point made by the noble Lord, Lord Northbourne, about those who may suffer from impairment or mental illness as a consequence of upbringing, for which they may receive treatment and may indeed recover. So that recognises that disabilities are not always of a permanent nature, but none the less it is extremely important for them to be recognised within the Bill.
We think that having one disabled commissioner gives a sufficient degree of assurance, with the requirement that there is also a disability committee. At least half its members will be people who have, or who have had, a disability. We think that that is enough to ensure that we have reflected the importance of influencing the CEHR. Because of what I have already said about not trying either to hamper the effectiveness of the commission, or, indeed, to get further into lists, I think that we have reached a very good position in terms of ensuring that the particular issues addressed by the Disability Rights Commission are dealt with through the committee and the commissioner, but without trying to prescribe to such an extent that we walk into the issues we discussed regarding the amendments of the noble Lord, Lord Ouseley.
We have a series of amendments—Amendments Nos. 47 to 54 and 56—on the terms of the review of the activities of the Disability Committee. Noble Lords will know that I said in my letters following Second Reading that we are committed to ensuring that the review consults "people whom they think likely to have an interest". We would expect that to include organisations representing people with disabilities, and, of course disabled people themselves. We also expect the Secretary of State, when corresponding with the commission—as he sets out in the commission's priorities in the year the review is due to happen—to stress the importance of fully involving those people and their organisations in that process.
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Further, those who conduct the review have to publish a report. That will reflect the views of those who have been consulted, including disabled people and organisations for, or of, disabled people. It must be a transparent and open process with—again back to the word used earlier by the noble Lord, Lord Dholakia—a degree of confidence in its application. Otherwise, it will simply be a waste of time.
After the review, as noble Lords know, it will be open to the Secretary of State to decide for how long the Disability Committee should continue. I want to be clear that we intend to ensure that the Secretary of State in that context would write in that way. I have checked with officials in our legal department about the status of my comments on this. I am told that if there were a judicial review on whether the process was as I have said, my comments in Hansard would support a case for judicial review but would not in themselves be conclusive. So I have been very deliberate in saying what we would expect in order to put it on the record.
We come to an issue that exercised Members of the Committee, especially my noble friends Lord Ashley and Lord Carter, but also my noble friend Lady Wilkins and the noble Baroness, Lady Darcy de Knayth: the five-year review. I had a conversation with the noble Lord, Lord Addington, yesterday, in which I described the process as removing the Secretary of State. I want to explain what I mean by that.
We are setting up a separate committee specifically for the reasons that I have given, to consider the role of the Disability Rights Commission. But, as I said, my colleagues and I are deeply reluctant to create silos or to be too prescriptive. We think that five years is about right. Inevitably, it is a compromise, but it is about right before review, because that gives the committee time to settle down and for the strategic planning and so on to have taken place. After five years, it is appropriate to revisit the case for the committee.
At the point of that review, the Secretary of State then says, "On the basis of what has been recommended to me by the commission and was said in the review, I will let the committee continue for X". That might be two years, five years, 15 years or whatever. At that point, the Secretary of State's role disappears. But the commission can decide to continue with the committee. In other words, if the Secretary of State says, "I am going to continue this committee for another five years", in year four, the commission can decide that it thinks that the committee is so valuable that it wants it to continue and set it up itself—with the exception of Scotland and Wales, which are legislated for differently in the Bill.
So all we are doing is removing the role of the Secretary of State. In the context of our discussion about independence, that is important. It does not mean that the committee has a finite life; it means that the responsibility for determining whether the committee continues rests with the commission. I hope that when Members of the Committee have had time to reflect on what I have said, that will change their view about what happens as a result of the review.
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The Delegated Powers and Regulatory Reform Committee commented on paragraph 61 of Schedule 1. It believes that the main purpose behind the power does not require a high degree of parliamentary scrutiny. I hold that committee in the highest esteem and would never—I never have so far, anyway—seek to undermine or do anything other than what it suggested. I take with great seriousness its views on whether we have got it about right. So I will stick with supporting and listening to what it has said.
Given what I have said about what happens to the committee, the Committee may reflect that the amendment is unnecessary. So I hope that that set of amendments will not be pressed, but I am happy to discuss what I have said in more detail.
Amendment No. 56 concerns budgets. The Committee will by now be easily able to predict what I am going to say. It is critical that we resource this correctly. There is a 40 per cent increase in the total budget built in for the new commission. We are clear that the commission must allocate a sufficient share of resources—both staff and money—to the disability committee to enable it to exercise its functions. I rather hope that there will be some economies of scale, not least on accommodation and IT—perhaps even on staffing resources. I am also minded that the commission may decide that particular pieces of work that it wants to do require it to move resources around—not to the detriment of people with disabilities nor the committee, but to enhance what it does.
So, for all the reasons that I have mentioned about freedom of action, I am not minded to go further to say that we must take this pot of money and transfer it across, because of economies of scale and because it would prevent the committee doing what it ought to do and constrain it. That is not appropriate, but it is certainly not in anyone's interest for the commission to be anything other than adequately resourced.
Amendments Nos. 76 and 82 relate to independent living, which was also discussed during Questions, when my noble friend Lord Hunt of Kings Heath addressed the question of the proposed office for disability issues to ensure that the recommendations for independent living become a reality. The Government have made clear on many previous occasions that we are committed to the recommendations of the Strategy Unit report on Improving the Life Chances of Disabled People.
I will not go through all the preamble, but say categorically that we would expect the commission to continue the DRC's work on independent living and to work collaboratively with the proposed office for disability issues. That is an absolute expectation. We expect the commission to continue with that work. I hope that is a sufficiently positive and adequate reassurance that promoting independent living is part of the CEHR's remit under existing provisions and that the amendment is therefore unnecessary and can be withdrawn with safety and, I hope, jubilation.
I turn to the question that Clauses 10 and 20 stand part and Amendments Nos. 44, 46, 87, 94 to 98 and 158. They all concern Clauses 10 and 11 and whether we have addressed the issue of communities correctly.
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Let me spend a moment explaining where the clauses have come from and what I propose to do. To begin with, the amendments remove the terms "sub-group" and "sub-class" from the definition of communities and bring disabled people into the scope of Clause 11.
Let me start with Clause 11, with which the noble Lord, Lord Addington, and my noble friend Lord Carter are especially concerned. It retains the duty, currently with the Commission for Racial Equality, to promote good relations between people of different racial groups, but applies it across the breadth of the new commission's activities. We think that there are real differences between the issues raised by race and disability equality and are not sure that the concept of "good relations" is especially helpful to disabled people.
This was discussed during the passage of the Disability Discrimination Act, but I have not yet had time to read the debate in detail. My noble friend Lord Carter spoke then of the importance of action to tackle harassment and hate crime against and the involuntary isolation of disabled people—the point raised by the noble Lord, Lord Addington, under Amendment No. 87.
I well understand the issue of involuntary isolation. It is especially applicable to people with learning difficulties. We will want to consider that, because there is clearly more to be done on that issue. I commit to do that straightaway.
Clause 10 imposes a duty to promote understanding of and encourage good practice in the treatment of disabled people and places those duties imposed on the commission for the other strands within the context of disability. I have already discussed the need for the commission to be able to behave flexibly. Some aspects of the application of race equality—good relations—are relevant to disabled people.
Clause 10 also rolls forward the duty currently placed on the Disability Rights Commission to encourage good practice. We did not want to remove the good practice power that it has used to such beneficial effect unless we could be clear that it was fully reflected in the more generic duties of the commission.
The difference lies in the concept of communities, as I have tried to describe them. It is not always desirable or right to express the duties of the commission in exactly the same way for every equality strand. That was our approach in drafting Clauses 10 and 11.
Amendments Nos. 94 and 97 remove the terms "sub-group" and "sub-class". Many of us will be aware of the discomfort and disapproval expressed by some stakeholders because of the connotations of that terminology and their wish to remove it from the Bill.
Let me leave that to one side for a moment and turn to Amendments Nos. 95 and 98. It is important that the commission is empowered to tackle prejudice and to strengthen society and communities. As I said, we must ensure that we get those duties about right. I should like to look again at the group of amendments that we have just talked about, including Clauses 10 and 11, and the points raised about them. I have already indicated informally that there is work to be
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done and there is no resistance from government on that. We will try to capture the concepts that already exist, particularly those of the Disability Rights Commission.
I empathise absolutely with the aim of Amendment No. 112, which would preserve the status of the codes issued by the current commissions after the removal of the relevant functions. We want to achieve that but it is not necessary to amend the Bill because the existing legislation—the Sex Discrimination Act, the Race Relations Act and the Disability Rights Commission Act—provides that a failure to observe a code of practice does not of itself render a person liable to proceedings, and that the provisions of the code made by each of the commissions shall be admissible in evidence in a court or tribunal and must be taken into account where that is relevant. Clause 44(3), which deals with transitional arrangements and functions of the dissolved commissions, provides that a code of practice issued by the existing commissions shall continue to have effect until revoked or revised. My argument is very simple: sufficient legal mechanisms are already in place to ensure that the codes of practice are admissible in evidence. I hope that, on that basis, the noble Lord will not move his amendment.
Amendment No. 137 was spoken to very passionately by the noble Baroness, Lady Wilkins. I am very aware of the importance of that power for disabled people. That is why it has been included in the Bill. As we have said, there should be no regression from the powers of the existing commissioners. However, I cannot give my noble friend the detail that she seeks. We want to proceed on an informed basis when making decisions on the case for exercising that power. I am very alive to the Burke judgment, with which I lived for some considerable time during the passage of the Mental Capacity Bill, and to the credit that Justice Munby gave the Disability Rights Commission for its work.
We have carried forward the legislation on the basis that we will implement it having assessed the impact of the changes that we seek, and that we want the commission to provide the evidence and recommendations on that as part of its role of keeping legislation under review. I suspect that my noble friend will require further reassurance, so we will write to her to explain more of the detail and place a copy of the letter in the Library rather than take up the time of the Committee.
We have provided the new commission with an express power to intervene in human rights cases and we expect it to use that power as effectively as the DRC has done in cases relating to disability—for example, its intervention in the case against East Sussex County Council on fair lifting and handling policies, which were fundamental to promoting disabled people's independence, dignity and inclusion. The new commission will have a strong set of human rights powers which will serve the commission stakeholders well, including disabled people. I will write to my noble friend about when we will think about enactment of the other power.
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My noble friend Lord Carter said that he would not go into the technicalities on Amendment No. 140. Sadly, I can, as my noble friend would have expected—I made sure that I understood it. I shall go through it briefly. An independent adviser who gives advice on settling a discrimination case must take out indemnity insurance. I shall go no further; that is the issue. At the end of my very long speaking note it says that the amendment seems very sensible and we would like to consider it further with colleagues. I hope that, on that basis, the noble Lord is happy that I will look at the amendment in more detail.
Amendment No. 167, tabled by the noble Baroness, Lady Darcy de Knayth, relates to the transitional role. We believe that the disability rights transition commissioner's role will be taken forward by the chair of the Disability Committee—we have already said that it will be a person who is either disabled or has had a disability—and the committee members. The appointment of the disability transition commissioner will cease when the committee receives its primary duties in respect of Clauses 8 and 10. That reflects the fact that the Disability Committee, which may include former commissioners from the Disability Rights Commission, will be operational by the time the CEHR opens for business.
I am not convinced that a triple arrangement for disability—a dedicated transitional commissioner, the requirement for a disabled commissioner, and the committee—is justified. It makes complete sense to have transition commissioners for the other commissions but we have already done the belt-and-braces work for the DRC. On that basis, I will resist the amendment.
The definition of "disability" is taken from Section 1 of the Disability Discrimination Act 1995, as supplemented by Schedule 1. It is:
"A person with a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities".
I hope that that is what the noble Lord, Lord Northbourne, seeks, and that the noble Lord, Lord Carter, will withdraw his amendment.
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