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My understanding of the Government's defence is that they do not want to specify the provision in the Bill for fear of narrowing it. The worry is that specification would mean that people might interpret the Bill to mean that those forms that were not expressly stated were not covered. That may be correct, and it would not do to narrow the definition too much. However, the Minister must understand that we worry that without the provision being in the Bill, this too will narrow the scope and focus of the provisions that we

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all welcome. Can she reassure us that this will not be the case? How will this work in practice? What assurances can she offer the Committee that something that the Government have impressed upon us as one of the important changes that the Bill will introduce-the Minister mentioned it in her Second Reading speech-will not just be left in the Explanatory Notes?

Baroness Wilkins:I strongly support this amendment. It seems to offer very helpful clarification of the new rights that we are enshrining to extend protection from direct discrimination and harassment on grounds of association or perception. These new rights are a major breakthrough for carers and colleagues of disabled people, but they need to be in the Bill. Why should they be hidden away in Explanatory Notes that probably only parliamentarians, lawyers and lobbyists ever read? We need these rights spelt out on the tin, so that people can access and use them more easily, rather than hidden away in the small print.

Another major advantage of this amendment is that it focuses on the fact that it is the defendant's motivation for the discrimination that matters, not whether the claimant meets the stringent legal definition of disability. That seems to me to be entirely the right approach, and I very much hope that the Government will adopt it.

Lord Low of Dalston: I, too, support these amendments, particularly as they relate to disability. The Bill makes it possible for non-disabled people to claim protection from direct discrimination or harassment because they are associated with a disabled person or are perceived to be a disabled person or to have any other protected characteristic. This is an important and welcome step as it moves the focus from the disability of the disabled person to the allegedly discriminatory treatment that they have received and the reason for that treatment.

I shall not go over the ground that has already been ably traversed by the noble Baronesses, Lady Warsi and Lady Wilkins, but I would welcome some clarification from the Government, particularly on how they see perceived disability working in practice and on whether additional provision is needed to address the long-term requirement. We have heard from the noble Baroness, Lady Warsi, about someone who is perceived to be disabled because they have suffered from depression at some point in their career, perhaps intermittently, but without an episode lasting 12 months, and therefore not satisfying the requirements of the definition of a disabled person. This is clearly a case of someone who is subject to prejudice by the way in which they are perceived. I would be grateful to hear from the Minister how she sees the legislation working to protect people who fall into this kind of category.

Lord Lester of Herne Hill: My Lords, the Government have done something splendid in moving beyond the old discrimination law. Old discrimination law on direct discrimination went something like this: if I went into a pub with someone who was black and I was rejected because of my association with that person, that would be discrimination on racial grounds-in other words, it would be because of my association with my black friend-or if went into a pub and I was

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thought to be black when I was not and I was discriminated against for that reason, again I would have a remedy under the old Race Relations Act. But because of the way in which the Sex Discrimination Act was structured, a woman or man had to show that the discrimination was on the ground of her sex, not on the ground of an association with someone else. What the Government have done is admirable. They have produced a more general and less cramped test of causation-to use that legal word. The test is whether the less favourable treatment is because of a protected characteristic.

Later we will have a debate about "on the grounds of" and "because of". But that does not matter. My point is that the noble Lord, Lord Ouseley, is correct in saying that his amendment is not radical and does not significantly change the law. We can decide after we have heard the Minister whether or not we need language to spell it out. The substance of the amendments is correct. I entirely agree with the noble Lord, Lord Low, on what he said about disability discrimination.

Lord Mackay of Clashfern: My Lords, I should possibly declare an interest as vice-president of the Princess Royal Trust for Carers in respect of disability. I support the amendment proposed by the noble Lord, Lord Ouseley, or that proposed by the noble Baroness, which seems to do the same thing. The only possible advantage of the earlier amendment is that it seems to state a principle which goes through the whole range of later provisions. But the essence of it seems to be highly desirable and I venture to think that it may be necessary as well.

Baroness Thornton: My Lords, the proposed new clause under Amendment 7 and similarly veined Amendments 21A, 24, 38 and 54 are variants on an amendment which was debated in Committee in the other place. In resisting that amendment, my honourable friend the Solicitor-General highlighted the danger that if the Bill were to refer expressly to association and perception, by implication Clause 13 could be misinterpreted as excluding or devaluing other forms of discrimination. In fact, as well as discrimination based on association and perception, the definition of direct discrimination in Clause 13 is broad enough to cover, for example, cases of less favourable treatment because of a refusal to comply with instructions to discriminate. There are other reasons why the Government resist the proposed new clause and Amendment 21A.

I turn now to the question raised by the noble Baroness, Lady Warsi, about whether it would be better to have this in the Bill. The Bill refers to discrimination because of a protected characteristic, not because of the protected characteristic of the claimant. The key issue is the reason for the less favourable treatment. If the reason is disability, it would be disability discrimination, whether or not the victim is actually disabled. The Bill clearly provides for that, to which I shall return in a moment.

The word "association" inevitably invites a potentially confusing debate about what is meant by that word. In his recent judgment in the case referred to by the noble Baroness, Lady Warsi-Attridge and Coleman, which was handed down on 30 October 2009-the president

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of the Employment Appeal Tribunal reformulated the Disability Discrimination Act's definition of direct discrimination without using the language of "association". He preferred to,

What matters is that A has treated B less favourably because of a protected characteristic, and the fact that the characteristic in question is not B's own is not of the essence. That is clear from the judgment of the European Court of Justice in the Coleman case.

We believe that we have addressed association, but Amendment 24 would explicitly confer protection from direct discrimination on those who are treated less favourably because they are "perceived", rightly or wrongly, to have a disability. It could also, in relation to Clause 13(3), explicitly protect, for example, a service provider who treats a person they wrongly perceive to be disabled more favourably than another, who then takes action against the service provider.

In relation to Amendments 24 and 38 which deal with perception, similar arguments against an explicit approach apply. We suggest that there is no need for such amendments. The definition of direct discrimination in Clause 13 is broad enough to cover cases where the victim of the less favourable treatment is wrongly thought to have any of the relevant protected characteristics, not just disability. The same principle applies in relation to subsection (3) when considered in the context of the operation of Clause 13 as a whole. Aside from it being unnecessary, by singling out disability, the amendment wrongly implies that discrimination based on perception is not prohibited if the protected characteristic is one other than disability.

Clause 13(3) as drafted will help to address the very real disadvantage that disabled people can face in their everyday lives and sits alongside the other key provisions in the Bill such as the reasonable adjustments duty. We have acted in the Bill to outlaw the direct discrimination and indeed harassment of people who are perceived to be disabled because that is the right thing to do. We are not convinced that there is any need to be prescriptive in circumstances where more favourable treatment is afforded to a person who is incorrectly perceived to be disabled. The broad, single definition of direct discrimination in Clause 13 allows the courts to be flexible in their approach to its interpretation. On the other hand, listing the different kinds of direct discrimination could not be done exhaustively and would arguably reduce the courts' ability to interpret the legislation flexibly in the future.

I would like to say a little more on Amendment 38 which would extend protection from indirect discrimination to people who do not have a disability. If an employer refuses to employ a person because the employer thinks that the person has HIV/AIDS, a remedy is provided for such a person under Clause 13, even if the employer is wrong and the person does not have HIV/AIDS. What matters in a case of direct discrimination is that the victim has received less favourable treatment because of a protected characteristic. The fact that they do not actually have the protected characteristic is not relevant. They should not suffer

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discrimination because of that incorrect perception, just as someone else should not suffer discrimination because of a correct perception.

By contrast, indirect discrimination in terms of both the Bill and underlying European directives occurs where an apparently neutral provision, criterion or practice puts or would put people who have a protected characteristic at a particular disadvantage compared to others, unless the application of the provision, criterion or practice can be objectively justified. An example of this would be where a bus company has a general policy of not allowing on its buses people who swear loudly. Unless the bus company could objectively justify the application of this policy, it would be indirectly discriminatory if the policy is applied to a person who has Tourette syndrome and as a result could not help swearing loudly in public. However, if the policy is applied to someone who does not have this disability, the policy would be perfectly reasonable. The bus driver's perception of the person who swears loudly would be totally irrelevant. In the absence of any evidence that this protection is required, it is the Government's view that only people who actually have a protected characteristic should be protected from indirect discrimination. Further, if we did extend protection from indirect discrimination to those who are perceived to have a particular disability, we would be giving them greater protection than those perceived to have any of the other protected characteristics listed in this clause. This would run contrary to the overall harmonisation and simplification objective of this Bill. The approach we have adopted in this clause is consistent with our obligations under European law.

More generally there is a further risk, were discrimination based on association or perception to be set out on the face of the Bill, that this could be interpreted in a different way from how the courts have read that concept into the "on the grounds of" formulation used in current domestic and European legislation. Some might argue that the absence of a specific prohibition risks leaving victims unaware of their legal rights or generating uncertainty among employers and service providers. However, it is well established and well understood that the definitions of direct discrimination in current legislation using the "on the grounds of" formulation are broad enough to cover discrimination based on association and perception. As I will explain when we come to consider Clause 13, the "because of" formulation in that clause does not change the legal meaning of the definition. Guidance from the Equality and Human Rights Commission will clarify the legal position.

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Amendment 54 relates to the definition of harassment. Clause 26 defines one of the three forms of harassment as,

This formulation means that protection is not limited to a person who has one of the characteristics to which the prohibition of harassment applies but also covers the person who is harassed because they are perceived, whether or not correctly, to have a protected characteristic. Indeed, its coverage is even wider than that and also includes protection where a person is

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harassed because of their association with someone who has a protected characteristic. This broad protection applies equally to all of the protected characteristics listed in Clause 26(5), of which disability is one.

To set out explicitly that harassment related to perceived disability would cast doubt unnecessarily on the breadth of protection which can be covered by the "related to" formulation in respect of all the characteristics protected against harassment. We therefore consider the amendment is not necessary. For all those reasons, I urge the noble Lord to withdraw his proposed new clause and ask the noble Baronesses not to move their amendments.

Lord Lester of Herne Hill: Perhaps I may make a practical suggestion. I know it is the first day in Committee and we are far from achieving our target, but might it be possible, as in previous Bills, for the Government to circulate notes on clauses and amendments in order to make the proceedings a bit quicker and to avoid the poor old Minister having to read it all out? In my experience of previous Bills, Ministers have authorised the distribution of notes on clauses and amendments. It does not mean that the notes cannot be read in, but it would accelerate the process. I know that has all the disadvantages of common sense.

Baroness Thornton: I shall look into that. Thank you.

Lord Ouseley: My Lords, I thank the Minister for her response and those who have contributed in support of the proposed new clause. I had hoped that we would provide the opportunity for a wider understanding of the accessibility that association and perception in the Bill as a protected clause would have offered. However, I shall not press the matter and I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

Clauses 5 and 6 agreed.

Schedule 1 : Disability: supplementary provision

Amendment 8

Moved by Baroness Warsi

8: Schedule 1, page 129, line 16, at end insert-

"( ) Without prejudice to the operation of sub-paragraph (2), the mental impairment consisting of or resulting from depression that has ceased to have a substantial adverse effect on a person's ability to carry out normal day to day activities shall always be treated as if that effect is likely to recur if the person has had within the last 5 years a previous episode of such impairment which has had a substantial adverse effect on the person's ability to carry out normal day to day activities for a period of 6 months or more."

Baroness Warsi: My Lords, Amendment 8 is designed to address how long-term conditions fit into the provisions of the Bill. As currently drafted, Clause 6 is quite strict. It defines someone as having a disability if they have a "physical or mental impairment" and that impairment has a,

on their,

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This is quite tight but we welcome the fact that Schedule 1 includes the provision that,

"If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur".

We welcome the fact that this will include fluctuating and recurring conditions. In other words, even if the person suffered a condition which then subsided, they could still be considered to have a disability for the purposes of the Bill. This is important because it gives disabled people stability.

The obvious example is depression, which has been given in the Explanatory Notes to Schedule 1. This illustrates that the section is supposed to include the possibility of a person with depression finding simple decisions or tasks difficult, which would amount to a disability because it would be considered to have a "substantial adverse effect" on their ability to carry out daily activities. It would also count despite the fact that the occurrences of depression were split into separate periods over two years. It therefore appears at first glance that our concerns have been answered.

Nevertheless, we have tabled the amendment to probe in the Bill the status of "long-term" and fluctuating conditions because the Disability Charities Consortium remains worried. The example stated would allow the individual to be covered under the Act only because the separate instances of depression had been,

Many fluctuating and recurring conditions are very hard to diagnose, often because there is a lot of disagreement about them in the medical profession. This can mean that claims fail because of the expense and complexity of obtaining hard and firm medical evidence rather than because the condition is any less valid. The disagreements may be based, as in the case of depression, around whether the symptoms represent a continuous condition which also has separate episodes where it is specifically active or whether the episodes are self-contained occurrences. That would obviously affect whether such a person would be covered under the Bill. For this reason, the Joint Committee on Human Rights in conjunction with the Equality and Human Rights Commission and the Disability Charities Consortium recommended the removal of "long-term" to create a,

While we do not advocate its take-up here, our amendment specifically addresses depression to draw attention to the fact that it is vital to be clear about which conditions are included in the scope of the Bill. At this moment, it could be argued that it is quite vague.

As the Disability Charities Consortium states, it can be difficult to predict the duration of such a mental health problem. Without being able to forecast this accurately, it would be very difficult for one to judge whether the,

There are two problems here. The first is that this vague area may mean that some people with very serious conditions are left out in the cold and not covered by the Bill. They may be people who have

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recently been diagnosed as having had an "episode" of depression, but it is unclear whether they will have a repeat occurrence. The second, as we said in another place, is that a debate about the likelihood of recurrence will give rise to a legal wrangle where a court might be forced to take a decision. This is surely far from ideal. This issue was debated in another place and it was concluded that it might be best to put advice on how to deal with conditions such as this into statutory guidance. Will the Minister confirm that this guidance will contain provisions relating to specific conditions such as depression where medical opinion may be divided? Will she inform the Committee of any further provisions which might be included? Can we hope to see draft guidance soon?

The Solicitor-General in another place rightly pointed out that,

This is true, but does the Minister agree that the language should not be left vague enough for the Disability Charities Consortium, the Equality and Human Rights Commission and the Joint Committee on Human Rights to worry that there may be groups who are not included? I beg to move.

Baroness Thornton: My Lords, this amendment would make an addition to the provisions in Schedule 1 for some people who experience depression. It would apply only to a person who has had a period of depression in the past five years that has had a substantial adverse effect on their ability to carry out normal day-to-day activities for a period of six months or more. It would enable them to always be treated as if that substantial adverse effect is likely to recur, and thus to meet the long-term element of the definition of disability.

I recognise that depression can have a profound effect on a person's life, but I do not consider that extending the Equality Bill in this way is the appropriate way forward. The Bill is intended to cover those people who are disabled in the generally accepted sense of the word. That is, they have a condition which is long-term, or even permanent. This is reflected in the current definition, which requires that a person must have an impairment that has a substantial and adverse effect on the ability to carry out normal day-to-day activities. These are issues that the noble Baroness referred to. That effect must have lasted, or be expected to last, at least 12 months, or for the rest of their lives.

If the amendment was accepted, it would treat some people with depression more favourably than others who experience periods of ill health or impairment, which can also have substantial adverse effects, but where those effects last for only a few months. Ill health, or an impairment such as a broken limb, is not the same as a disability. I am sure that we all know that. I am sure that people in that position would not regard themselves as disabled, because their conditions are temporary and short term. A disability is by its nature more substantial, as the noble Baroness has acknowledged. What is being suggested here is a move away from the well established approach taken in the Disability Discrimination Act, which we are carrying forward to the Equality Bill. Sub-paragraph 2(2) already

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provides for people whose impairment has fluctuating or recurrent adverse effects, and that provision can help people with recurring periods of depression to gain the protection of the Bill. If a person has experienced a six-month period of depression, which had a substantial adverse effect on their normal day-to-day activities, and that effect is likely to recur, the Bill enables those effects to be treated as continuing. That would apply regardless of whether the previous period was within the past five years or not.

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