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The noble and learned Lord, Lord Mackay of Clashfern, and the right reverend Prelate, asked whether people who appear in broadcasts will be subject to the duty. Programme participants are not providing a public service and therefore are not excepted, but it is unlikely that they can be thought to be discriminating. Any comments giving rise to an accusation, for example-and I am grateful for the answer coming to me from the Box-of racial hatred would be covered by other legal remedies, but that is something that I would wish to clarify in writing. It is a matter that I have some concern about as well and so I would wish to put this in writing to clarify it in my own mind as well as for noble Lords. I ask the noble Lords to withdraw Amendments 113 and 114.

Lord Lester of Herne Hill: We are delighted that the amendments standing in my name and that of the noble Baroness, Lady Howe, have been accepted, and I am sure the broadcasters will be as well. On that point, I need to deal with two serious issues: first the teasing by the noble and learned Lord, Lord Mackay of Clashfern, of the charge of inconsistency. He said, as I understood it-and I have to deal with this very serious matter right away since it is so important-that he was glad that on this occasion I was legislating to deal with the silly and ludicrous examples. But why this really matters on this occasion is because of the chilling effect upon freedom of speech and broadcasting which the ability to bring those complaints under the

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Bill would have. That is why it is important to deal with the chilling effect and why the amendment is so important.

The second and equally serious matter is that I am accused of misquoting the Bible and the Book of John. It is probably my poor enunciation. As a boy who went to a bad state school in my early years it is probably the disadvantage of that. I thought I said John, chapter 1, verses 1 to 14. If that is wrong, then I blame the BBC. It is very sad that the BBC does not know its Bible. That is the problem with a secular society that does not know its own Bible properly.

The problem with the public sector duty is that it is vital that broadcasters are included because of diversity, for example, and because they are committed by Ofcom's code and other provisions to full equality. As I understand it, they are not objecting to being included in the public sector duty and it is simply a question of negotiating in the right way. They are in consultation, which I am sure will lead to the correct result.

As to the individuals taking part in programmes, they are not providing a service to the public within the meaning of Clause 29 by participating in the broadcast. They are not performing a public function by doing so and, if they defame, incite to hatred or commit any other civil or criminal wrongdoing, they will be liable for doing so. I hope that that gives some assurance. We are not covering that; we are covering the editorial independence and judgment of the broadcaster. For all those reasons, I again thank the Minister, and the Box, and sit down.

Amendment 58C agreed.

Amendment 59

Moved by Lord Hunt of Wirral

59: Schedule 3, page 145, line 17, leave out paragraph 30

Lord Hunt of Wirral: My Lords, the amendment is tabled in order to ask the Minister why there is a need to replicate provisions in the Disability Discrimination Act. Perhaps she can inform the House of the reasons for this exception.

Baroness Thornton: My Lords, Amendment 59 proposes the deletion of paragraph 30 of Schedule 3 which, at present, disapplies Clause 29-"Provision of Services, etc."-in Part 3 of the Bill in relation to transport by air in the context of disability discrimination and I am happy to expand on the need for this part of the Bill.

The Bill does not make it lawful to discriminate in the provision of services on board aircraft. Part 7 of Schedule 3 provides exceptions with regard to services and public functions only in relation to disability discrimination. The exemption with regard to disability is justified because a specific European regulation protects disabled air passengers against discrimination. European regulation 1107/2006 made it illegal for airlines to refuse to carry disabled and less mobile passengers, and airlines have to give assistance to all

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people of reduced mobility, including blind people. The EU regulation is directly applicable to the UK.

The enforcement regime is provided by means of a regulation contained in statutory instrument 2007/1895. Aviation is an international business and, as such, it makes sense to make rules on aviation issues internationally. We have a good new European law which has only recently come into effect in the UK. We therefore consider it unnecessary to change the current position whereby air transport services are exempt from the services provisions of the Disability Discrimination Act. Indeed, it would be inappropriate to do so. The existing law will apply to aircraft in respect of all strands other than disability, where European law applies. Therefore no amendment is necessary.

The amendment appears to be based on a misunderstanding, although I realise that it is a probing amendment. In seeking to delete paragraph 30, the amendment would delete the carve-out in paragraph 32, which is made in favour of European regulation 1107/2006, and this would be wholly inappropriate.

A disabled British passenger travelling by air in Europe knows that under the European regulation he or she is entitled to the same level of assistance in all 27 countries of the European Union and we do not want to damage that position in any way. It would be insufficient to rely only on domestic legislation in this area. To do so would result in different strands applying in different countries and would give little reassurance to disabled passengers travelling abroad in Europe. I ask the noble Lord to withdraw the amendment.

Lord Hunt of Wirral: I beg leave to withdraw the amendment.

Amendment 59 withdrawn.

Amendment 60 had been withdrawn from the Marshalled List.

5.45 pm

Amendment 60ZA

Moved by Baroness Royall of Blaisdon

60ZA: Schedule 3, page 146, line 19, at end insert-

"( ) But provision by virtue of subsection (1) may not amend this Schedule-

(a) so as to omit an exception in paragraph 1, 2 or 3;

(b) so as to reduce the extent to which an exception in paragraph 1, 2 or 3 applies."

Baroness Royall of Blaisdon: My Lords, Schedule 3 currently contains a power for a Minister of the Crown to make an order varying, removing or adding to the exceptions to the services and public functions provisions in Part 3. This power is necessary to allow changes to be made in response to unforeseen circumstances and is subject to the affirmative procedure.

When we considered this power, the Delegated Powers and Regulatory Reform Committee recommended that it should not be used to omit or reduce in scope any of

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the exceptions in paragraphs 1 to 3 of Schedule 3. These are the exceptions to the functions of Parliament-the preparation, making, consideration or approval of legislation-and the functions of the courts. Given the particular constitutional significance of these exceptions, it was considered more appropriate that they be removed or reduced in scope only by primary legislation in order to allow full parliamentary scrutiny. After consideration, we are happy to accept this recommendation. The amendment will amend the scope of the power accordingly and I hope noble Lords will support it. I beg to move.

Lord Hunt of Wirral: My Lords, perhaps I may ask the noble Baroness if there was ever any intention to use this part. I am not sure why it was put in the Bill in this way and I do not think the noble Baroness has explained that. Can she confirm what comes under the heading of "Parliament" in this context? Which parts of the workings of the Palace would be included if there was ever any such intention? I was going to ask all kinds of questions but I shall cut back on the amount of time. It would be helpful if the noble Baroness could clarify the background to all this. Most of us strongly agree with the committee's recommendation.

Baroness Royall of Blaisdon: My Lords, the power as a whole is necessary to allow for new and unforeseen circumstances that may affect what counts as the provision of services or the exercise of a public function. It also allows for any future policy change on the exception of air transport services from the disability provisions, enabling the exception to be varied or removed as appropriate. Such a need is recognised in existing legislation.

The noble Lord asked what we mean by the "functions of Parliament". As I understand it, it is to do with the preparation, making, consideration or approval of legislation-for example, debating, legislating and other proceeding-but not the parliamentary shop. It relates to the proceedings in the House, including debates and so on. I cannot enlighten the noble Lord any further at this instance.

Amendment 60ZA agreed.

Schedule 3, as amended, agreed.

Clauses 30 to 36 agreed.

Clause 37 : Adjustments to common parts in Scotland

Amendment 60ZB

Moved by Lord Hunt of Wirral

60ZB: Clause 37, page 20, line 25, leave out subsection (1)

Lord Hunt of Wirral: My Lords, the amendment seeks to leave out subsection (1) of Clause 37, which gives Scottish Ministers the powers to make regulations to provide that a disabled person can make relevant adjustments to common parts in relation to some residential premises in Scotland. Amendment 136ZC seeks to leave out the relevant regulations from Clause 202, which refers to the powers exercisable by Scottish Ministers.

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The Minister will be aware that we tabled these amendments to probe the Government's thinking about why such a substantial power was delegated to Scottish Ministers. This was a concern raised by the Delegated Powers and Regulatory Reform Committee in its second report, to which we have already referred. This report stated that the clause had introduced quite a considerable reform because the Disability Discrimination Act 1995 is a reserved matter under the Scotland Act 1998. In response, the department produced a very helpful brief which stated that equal opportunities remains a reserved matter under the Scotland Act and reserved matters are outside the legislative competence of the Scottish Parliament. Under this Bill, despite equal opportunities remaining a reserved matter, on the policy in relation to common parts it has been considered necessary to give to Scotland the power to make regulations where it sees fit. This is, I understand, partly because the regulations would need to fit into many areas of devolved law-such as property law, contract and civil justice.

This document appears to answer many of the questions left unanswered in the Explanatory Notes. Can the Minister inform the House of the consultation and discussions which were had with the Scottish Executive? For example, can she share with us the intention of the Scottish Ministers regarding using this power? The document states that the various limbs of the power are necessary to ensure that the process for Scotland will contain the same main elements as are provided for in the English and Welsh process. It would be interesting to be made aware of whether the Scottish Ministers' intention was to use them in the same way. I beg to move.

Baroness Thornton: Amendment 60ZB would remove a power conferred on Scottish Ministers that would permit them to establish a distinct process by which disabled people could gain consent to, and have made, disability-related alterations to the common parts of residential accommodation in Scotland. The noble Lord, Lord Hunt, is right that we are trying to reconcile the different legal framework in Scotland. I am happy to explain further.

The Delegated Powers and Regulatory Reform Committee in its second report of Session 2009-10 said:

"The House may wish to invite the Government to justify in more detail the delegation to Scottish Ministers of this substantial power".

The Solicitor-General sent the Government's response on references to the Equality Bill in its second report to the committee. It includes a detailed memorandum on the case for the power in Clause 37. This memorandum is now included in Appendix 2 of the committee's third report of Session 2009-10. It is my sincere hope that the reply and the memorandum will satisfy any residual concerns over the power in Clause 37.

This power is necessary to ensure that disabled people in Scotland have similar rights to those in England and Wales. Clause 36 and Schedule 4 create a framework for enabling certain disabled tenants and other occupiers of property to have alterations made to the structure of the common parts of that property. This is the case where such alterations are a reasonable

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way to reduce or avoid the disadvantages experienced by the disabled person using the common parts. Examples of the kind of alteration that fall into this category are the fitting of a stairlift to enable the disabled person to go up and down stairs, providing a ramp for entry and exit to the property, or the widening of a doorframe to allow a wheelchair through. Measures such as these can make all the difference to a disabled person's ability to get out and about.

Making similar provision in Scotland is not straightforward, for three reasons. First, in terms of devolution powers, this subject is at the interface between a reserved matter-discrimination-and a devolved one-housing law and the landlord/tenant relationship, where that exists. Secondly, land law in Scotland is very different from that in England and Wales. Particularly relevant to the Scottish power is the fact that is it common to have joint ownership of common parts in Scotland, which does not arise in England and Wales. Thirdly, these difficulties are compounded by the fact that the Scottish Parliament has already passed legislation giving some tenants in Scotland the right to make alterations for similar purposes to those in Clause 36. In those cases, tenants already have a process in place to facilitate making alterations.

The power in the Bill is needed because Scottish legislation cannot cover two specific situations. These are when a landlord wishes to give consent to his tenant but the work cannot be undertaken because he does not own the common parts, and when disabled owner-occupiers cannot undertake the work themselves because they need the consent of other joint owners. In these cases there will be no provision to ensure that disabled people are able to undertake the necessary alterations to enable them to use the common parts of the property. It would have been possible for the Equality Bill to have made provisions solely in relation to these two situations, but that would have left tenants wishing to make an alteration to have to consult two different sets of legislation-Scottish legislation in relation to seeking their landlord's consent, and the Equality Act in relation to the consent of other joint owners of the common parts. This would make an already complicated process even more difficult and discourage many disabled people from seeking consent. Of course, throughout this process we have been discussing this with our colleagues in Scotland who understand the complications very well.

It was decided, therefore, that in these specific circumstances the best way to protect Scottish disabled people not covered by the Scottish law was to grant Scottish Ministers the power to make regulations to remedy the gaps in their legislation so that all the provisions that the disabled tenants and owners need are in one place, thus helping to facilitate the use of these provisions. Through Clause 37 we are also providing for Scottish Ministers to consult a Minister of the Crown before making the regulations, and for the regulations to be subject to affirmative procedure in the Scottish Parliament. This is considered the appropriate level of scrutiny, given that the provisions made under the power will have an impact on property rights and, by virtue of Clause 199, will be capable of amending primary legislation.

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In answer to the noble Lord's question about consultation, this was done by request from Scottish Government officials and disabled people in Scotland, who recognised that this was an issue that we needed to address. I trust that noble Lords will agree that the provision in Clause 37 will significantly benefit disabled people in Scotland by ensuring that they, like disabled people in England and Wales, can benefit from improved access to the common parts of their premises. I hope that explanation has gone some way to reassure the noble Lord.

Lord Mackay of Clashfern: This is an excellent provision in so far as Scotland is concerned, and I congratulate the Minister on her accuracy in expressing the difficulties that exist in this particular area of the law in Scotland. I am just wondering why Scottish Ministers must consult a Minister of the Crown. I suppose it is something to do with co-ordination.

Baroness Thornton: The noble and learned Lord is correct. It is to do with co-ordination to make sure that we marry the wording used in both countries so that there are no gaps or conflicts.

Lord Hunt of Wirral: That was a very helpful outline. In the circumstances, I beg leave to withdraw the amendment.

Amendment 60ZB withdrawn.

Clause 37 agreed.

Clause 38 agreed.

Schedule 4 : Premises: reasonable adjustments

Amendments 60A to 60D not moved.

Schedule 4 agreed.

Schedule 5 agreed.

Clause 39 agreed.

6 pm

Clause 40 : Employees and applicants: harassment

Amendments 61 to 63 not moved.

Clause 40 agreed.

Clauses 41 to 52 agreed.

Schedule 6 agreed.

Clauses 53 and 54 agreed.

Clause 55 : Employment service-providers

Amendment 64

Moved by Lord Hunt of Wirral

64: Clause 55, page 36, line 14, at end insert-

"( ) An employment service-provider must not ask for details of an applicant's health or disabilities before an offer to which subsection (1) applies has been made, except in so far as is necessary to make reasonable adjustments to the selection process."

19 Jan 2010 : Column 925

Lord Hunt of Wirral: My Lords, we now turn to the much discussed provisions regarding pre-employment inquiries and their place within the recruitment process. As the Minister will know, we on these Benches believe that employers should not be permitted to make use of pre-employment health-related questions which are not directly relevant to the candidate's ability, in particular for the job for which they have applied.

We were therefore delighted that, in another place, the Solicitor-General took on board the concerns that we had in this respect and stated that,

That is language that I would love to hear much more from the Government in this place. Nevertheless, we were disappointed with the new clause which the Government brought forward in response to our worries. For this reason, we have retabled some of the amendments which were discussed in another place.

Amendments 65 and 66 would mean that an employment service-provider would not be able to ask any questions about health or disabilities as they would apply to arrangements made about the provision of the service, except as it was necessary to make reasonable adjustments to the selection process. Amendments 66 and 67 would apply the same proviso to the clauses dealing with trade organisations.

We have also tabled an amendment to remove Clause 60, which, as I have mentioned, the Government inserted on Report in another place, because it does not go far enough. Further to this, we have tabled alternative Amendments 69 and 136A, which cover the issues more adequately and which I hope mean that we will now have a debate during which we find a solution that is more acceptable to all concerned.

Clause 60 goes some way towards addressing our concerns regarding pre-employment questions around health or disability. We are very grateful for the efforts made in drafting the new clause. As the Explanatory Notes state:

"This provision will deter employers from asking questions and therefore opportunities for direct discrimination in recruitment".

It will do this by making it easier for an applicant with a disability to take their case to a tribunal if they feel that they have been discriminated against in the application process. The inquiries, however, are not strictly prohibited. I think I am right in saying that it is hoped that easier access to a tribunal, where the case can be made on the very existence of a pre-employment questionnaire and where the burden of proof is on the employer, would act as a strong enough disincentive to employers.

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