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Lord Davies of Oldham: My Lords, I am grateful to all noble Lords who have participated in the debate. By their very participation, they have answered the charge that there is very little opportunity to discuss the issues. I hasten to add that it is also the case that we are confident that the Flood and Water Management

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Bill will be before the House immediately after the Recess. There will be a number of weeks before there is any question of Parliament being dissolved. Consequently, we look forward to constructive debate on the issues during that time, within the framework of the Bill. Far from the Government having denied any opportunity, they have provided a dual opportunity: the opportunity for debate on the regulations, and the opportunity for subsequent debate on the Bill. I am grateful that noble Lords have indicated that there is merit in both, and that there is not much that we will want to see translated into law.

I will add that if noble Lords are critical of the opportunities for discussion of the regulations in the other place, the fault lies with those who had the opportunity of asking for that debate. Here, the noble Lord from the opposition Front Bench asked for this debate and duly got it. The fact that his colleagues in another place did not ask for a debate is not the Government's responsibility: it rests firmly with those who chose priorities other than this important one. I am glad that the noble Lord chose this important one, and that we have the chance to debate the issues. As I indicated, we will be able to do even more when the Bill is before us.

I emphasise the links between the two. The noble Earl, Lord Selborne, is absolutely right to say that the Government were probably worried about the issue of infraction if they delayed too long their response to the directive: that is why they introduced the regulations in November. We were then able to take into account what the regulations covered when it came to the drafting and presentation of the Bill. We have the advantages of both being contributory to dealing with what we all recognise is a matter of great importance and some urgency, given what that the noble Lord, Lord Taylor, and others who have spoken, identified as the risk of flooding and the horrors that were visited on Cumbria in the latter part of last year.

The Government are not apologetic about the situation: far from it. This is largely because the directive substantially followed the pressure that they were applying to the European Community to secure the directive that they wanted. We find it relatively straightforward-although there are always problems-to follow the principles of the directive and bring them within the framework of our regulations because they are largely consistent with how we want to act.

We are also conscious of the fact that the European dimension on this is important. There is no doubt about the flood risk in Europe. The noble Lord, Lord Lawson, is in his place, so I will not provoke him by any reference to climate change; but the noble Lord, while disavowing any such concept, will recognise that parts of Europe have been subject to more extensive and dramatic flooding than has been the case in the recent past. Therefore it is right that the Government address the issues. After all, we experienced floods in 2005 and 2009 that produced devastating effects on localised communities, and so have reason to act.

I repudiate the idea that the Government have not been keen for scrutiny: quite the opposite. We will provide opportunities for that, and will be constructive about the legislation. I have no doubt that the

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contributions made here today will be constructive, because no noble Lord has addressed the regulations-or, in passing, the Bill-without offering the view that they are necessary and that we need legislation that is effective and deals with the problems that we all appreciate.

The noble Lord, Lord Taylor, rightly identified one crucial issue. He was by no means the only one because the noble Baroness, Lady Byford, and the noble Earl, Lord Cathcart, also raised this point. I recognise that there are obligations on the local authorities, but we have made it clear, and the local authorities have in their representations accepted that point, that resources will be available for this. We have indicated that if there are additional costs above and beyond the provisions that we have made, this is part of the negotiations that we had in the preparation of the legislation. We have been concerned to increase the level of public involvement. Obviously local authorities have been involved with costs and I assure the House that Defra recognises its responsibility as regards costs, and the responsibility will remain with Defra.

We have said that if it becomes clear that local authorities have incurred additional costs in fulfilling their responsibilities under the directive, Defra will provide the extra funds in full.

Lord Campbell-Savours: My Lords, will my noble friend give way? Is any information being made available on who is going to get this money? Many local authorities will have a minimal case to make in terms of flood risk. Has any work been done on the profile of expenditure and who is getting it?

Lord Davies of Oldham: My Lords, of course it will be the local authorities which are involved in the risk management exercise and for which the risk with regard to floods is important. The noble Lord, Lord Taylor, spoke of his visits to Cumbria. He will recognise that my noble friend Lord Campbell-Savours lives there and represented part of the area in the other place for a considerable time. I want to assure him that there are different funds available with regard to clean-up and clear-up after the devastation. I applaud what the noble Lord, Lord Taylor, said about the necessity of recognising-the noble Baroness, Lady Byford, also emphasised this point-the catastrophic impact upon some farmers from the floods. We are going to give help with regard to that. We have clearly signalled it and the issue of clear-up is enormous. The noble Lord, Lord Taylor, identified in his graphic description what a formidable challenge that is for land that has been devastated in this way.

The Government of course have indicated that they will address the consequences of the floods for Cumbria. It will not be overnight and not by the stroke of a pen-everybody recognises the difficulties. As regards farmland, of course, time is also key because there is no way in which clear-up of that kind of devastation can be effected in a short period of time. But that is separate from the resources that I was indicating related to the directive and the implications and the work that derive from it.

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In these terms, the Government maintain that we have consulted on the directive, we have consulted certainly on the Bill; noble Lords have indicated in their speeches the responses that we have had on these issues. We know the degree of public anxiety. I want to assure the noble Baroness, who raised the next stage of public consultation, that the maps will go on line. There is every intention of seeking to involve the public with regard to the presentation of the maps and the proposals in these terms. Consequently, I hope it will be appreciated that the Government intend to act in as open a manner as possible, knowing full well that local areas are extremely important sources of information on risk assessment as regards flooding. It is important that we tap into that.

I hope noble Lords will also appreciate the drafting of the regulations and especially the drafting of the Bill. I know that the Bill is not immediately before this House but it has had very extensive consideration in the other place with which noble Lords will be acquainted. Those deliberations indicate the openness of the legislation, the necessity for consultation and, above all, the necessity of effective co-ordination with localities on the implementation of the legislation. In that respect, I hope I can reassure noble Lords.

This is our only debate on these regulations-it is customary to have only a one-hour debate on regulations. However, we also have the Bill. The advantage with the proper response to the European directive and the regulations is that we were given an early start in November and a chance to put the regulations alongside the Bill. We are conscious of the constraints of time and everyone knows that we do not have a full parliamentary Session before us. The Bill was introduced into the other place at an early stage and it will come to us a week after the Recess. Therefore, we have a framework for a full debate on it.

I want to assure noble Lords about the opportunities for getting this legislation right and seeing that the regulations complement the Bill. I heard the criticism that the regulations offer less debate. Of course they do, but they also supplement the Bill and enable us to cover a range of areas which otherwise might lead to a very protracted debate on the Bill with the danger that it might not be delivered in the time allotted. There is a logic to that position.

Therefore, the Government are in no way apologetic about the way in which they have approached these issues. First, although we are as one with everyone who has spoken this evening on the importance of action in this area, we must have a clear definition of why we need legislation. Secondly, I want to reassure the House on the issue of costs. We are addressing the costs and we appreciate above all that effective consultation at a local level is the only way in which these issues will be conducted satisfactorily.

I realise that I have not answered every single point in what has been a fairly wide-ranging debate, but I hope I have succeeded in indicating to the House that far from these issues not being subject to open and full consultation and then debate, this House will soon enjoy the opportunities which the other place has had to debate the Bill. Therefore, where there are weaknesses with regard to the regulations-I am the first to recognise

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that any form of regulation, given the extensiveness of this issue, is bound to be limited in its impact-we will be able to address them when we consider the Bill.

Baroness Byford: My Lords, by his last comment, is the Minister indicating something that does not normally happen: that if for any reason this House decides that changes need to be made to the statutory instrument that may happen? Normally, that never happens.

Lord Davies of Oldham: No, my Lords, I was not indicating that. The noble Baroness will be well aware of the fact that we cannot amend a statutory instrument that will be part of the regulation that has been passed by Parliament if in fact it goes through this stage this evening. What I was indicating is that we will be able to look at what is then in law as far as the regulations are concerned and consider the Bill against that background. I am indicating that, of course, the regulations make their contribution to addressing this issue.

The Bill is far more important and much more wide-ranging, as would be expected, and I was indicating to the noble Baroness that the Bill should be seen in that context. If from that we had a position in which the regulations needed to be advanced further, we could then subsequently address that, but we are dealing this evening with regulations which will go through as they stand. Of course, it may be from the Bill that there is a necessity identified of secondary legislation and, of course, the Government will be prepared to look at that.

8.45 pm

Lord Teverson: My Lords, I do not think that the Minister has answered any of my questions. While some of them may be too difficult within such a short debate, perhaps he could just tell me when these flood-risk management plans need to be completed and ready, since, as I said, I do not see that anywhere.

Lord Davies of Oldham: My Lords, we have to deliver this by 2011: that is the deadline that we are working to and that is why the deadline for the introduction of the legislation was in November last year. We did not quite hit that deadline, but we were within two weeks of doing so, in terms of the European directive. I think that all noble Lords who have spoken in this debate will be concerned not just with deadlines which are derivative from a European directive. We are all conscious of our fellow citizens and their industries-of which farming is an important one, as has been identified this evening-who have suffered from the flooding problems in very graphic ways and we need to address ourselves to those issues.

Lord Taylor of Holbeach: My Lords, I thank the Minister for responding to this short debate. My noble friend Lady Byford got to the nub of the issue in her challenge to the Minister-there is no doubt that the passage of this statutory instrument does indeed, to some degree, prejudice our capacity to debate the Flood and Water Management Bill. However, that is not an unusual situation.

I thank all noble Lords who have spoken in this debate for their general support for what we have

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sought to do this evening. Generally approving the Government's purpose in introducing the Flood and Water Management Bill also exposes our responsibility as Members of this House to debate the Bill and to ensure that it achieves the Government's objectives and the objectives that are shared by other Members of this House, so I hope the Minister will not assume that that debate will be all sweetness and light. At least the debate this evening has shown that the detail of the Bill will be very properly debated on its arrival here.

As for the regulations, I am grateful for the Minister's assurances to the noble Lord, Lord Campbell-Savours, first, that local authorities' expenditure will be fully funded by Defra-I believe that that is what the Minister said-and, secondly, that funds will be made available beyond what has already been committed to deal with the extraordinary circumstances in which certain businesses and individuals find themselves as a result of the Cumbrian flood damage.

Given the nature of these things, I am sure the House will wish me to withdraw the Motion.

Motion withdrawn.

8.50 pm

Sitting suspended.

Equality Bill

Committee (4th Day) (continued)

9 pm

Amendment 101D

Moved by Lord Low of Dalston

101D: Schedule 9, page 165, line 39, at end insert-

"( ) a requirement not to be a disabled person"

Lord Low of Dalston: My Lords, in moving Amendment 101D, I shall speak also to Amendments 101E and 101F, which all amend paragraph 4 of Schedule 9. Their effect would be to remove the blanket exemption of service in the Armed Forces from the employment provisions of disability discrimination legislation. But it is important to be clear just what the amendments do and do not do. They amend paragraph 4(3) of the schedule so that it no longer disapplies Part 5-that relating to work-from service or work experience in the Armed Forces as regards disability. However, Amendment 101D adds,

to the requirements which may be applied to service in the Armed Forces if they can be shown to be a proportionate means of ensuring combat effectiveness.

The exemption I seek to modify was in the Disability Discrimination Act when it was enacted in 1995, along with similar exemptions in respect of service in the police, prison and fire services. In 2004, the police, prison and fire services were brought within the scope of the DDA by the regulations implementing the European directive on equal treatment in employment and occupation. But an exemption from that directive was negotiated in respect of service in the Armed Forces. That exemption is retained in the Bill and also

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formed the subject of a reservation to the UN Convention on the Rights of Persons with Disabilities when it was ratified last June.

At first sight, trying to lift the taint of discrimination from the ban on disabled people serving in the Armed Forces seems like political correctness gone mad. What disabled person would want to make a point of serving in the Armed Forces if they did not have to? Of all the bastions of exclusion that one would most like to storm, the armed services would probably not rank high on anyone's list. Surely it could have the effect only of undermining fighting capability. Disabled people need to recognise their limitations and be realistic about how far they take the principle of inclusion.

Why, then, do disabled people care about this? The answer is that excluding any occupation lock, stock and barrel sends a very negative signal about disability and undermines the principle of full inclusion and citizenship for disabled people. Is it even necessary? What about all the civilian jobs that do not require combat effectiveness, including cooks, radio operators, quartermasters and the like? But a principle is not worth having if it flies in the face of all practicality. Therefore questions of practicality inevitably come into it. In the fighting services of today, it is said, sharp demarcation of roles no longer exists. You can be cooking one minute and fighting on the front line the next, or if not actually fighting on the front line, then fleeing for your life, which requires you to maintain a pitch of fitness which is out of the question for disabled people. This begins to make the argument based on the wide diversity of jobs available in the forces difficult to sustain.

But there may be more to this than meets the eye. The argument that bans all disabled people from serving in the Armed Forces on the basis that people in wheelchairs or people who are totally blind could not possibly go into action is based on a very narrow and outdated stereotype of what disability is and certainly not one that is recognised by the DDA. There disability includes things like severe disfigurement, diabetes, controlled epilepsy, having had a mental illness at some time in the past, and many more conditions, none of which would necessarily disable a person from active service in the Armed Forces.

What is to prevent such a person being fully combat-effective? This is the crux of the argument for sticking up for disabled people's right not to be excluded automatically from serving in the Armed Forces. It is not about the diversity of jobs but the diversity of disabilities. The matter was considered in 1999 by the Disability Rights Task Force, of which both the noble Baroness, Lady Campbell, and I were members, along with the question of service in the police, prison and fire services.

The MoD was understandably concerned about operational effectiveness. It argued that disability, or a history of disability, was not compatible with the need for a combat-effective fighting force able to undertake military operations anywhere in the world at any time. The task force recognised the special nature of the Armed Forces and the significant efforts they make to retain personnel who become medically unfit. However, it did not consider there was a case for a major public sector employer to be exempt from the provisions of

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the Disability Discrimination Act or that disabled people in the Armed Forces should be denied protection against unfair discrimination in employment. It noted that, under the DDA, employers are not required to do anything that is unreasonable and, for example, employ or retain someone who cannot do a particular job after any reasonable adjustments have been made. This acknowledged the concerns of the defence chiefs about being sued by disabled people claiming to do things which they plainly could not do. The task force therefore recommended that the employment provisions of the DDA should cover the Armed Forces as well as the police, prison and fire services. But, in the case of the Armed Forces, it recognised that adequate safeguards needed to be put in place to ensure that operational effectiveness was not compromised.

That is what my amendments do. They would relax the total exemption of service in the Armed Forces but add the requirement not to be a disabled person to the requirements which may be applied to service in the Armed Forces if they can be shown to be a proportionate means of ensuring combat effectiveness. In this way, disability is placed on the same footing as the requirement to be a man or not to be a transsexual person, and the safeguards called for by the task force in the interests of combat effectiveness are guaranteed.

The matter was considered again last April by the Joint Committee on Human Rights in the context of reservations to the UN Convention on the Rights of Persons with Disabilities. It said that it had seen no evidence to support the Government's position that the exemption was justified and appropriate. It noted the conclusion of the EHRC that lifting the exemption which had previously applied to the police and fire services, which both place similar demands on their personnel, had had no negative impact upon the ability of both services to determine objectively who joins the service or upon operational effectiveness and that so far no other EU party to the convention has felt the need for such a reservation.

Given the breadth of the proposed reservation, the committee considered that it is open to challenge as being incompatible with the object and purpose of the convention, which the UK has ratified, and reiterated its recommendation that this should be reconsidered in the context of the Equality Bill. If the Government decide to lodge a reservation in the terms proposed or any alternative based on the principle of combat effectiveness, we recommend that they should commit to keep the reservation under review and undertake to reconsider the necessity for it within six months of Royal Assent.

It is very disappointing, therefore, that the Government have not seen fit to reconsider the matter in the context of the Equality Bill. What we are speaking of here is a right not to be automatically excluded from service in the Armed Forces, not an automatic right to do so. No one is saying that any disabled person can perform any role in the services. In the words of the noble Lord, Lord Lester of Herne Hill, speaking in the debate held in Grand Committee on the ratification of the UN convention:

"Recruitment should be based on assessments of individual merits, rather than on the basis of stereotype or prejudice".-[Official Report, 28/4/09; col. GC26.]

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All that disabled people want is the right not to be subjected to a blanket ban which states that the one thing a disabled person cannot be allowed to do is serve in the Armed Forces of his country. I beg to move.

Baroness Wilkins: My Lords, I strongly support Amendment 101D moved by the noble Lord, Lord Low, which seeks to remove the Armed Forces exclusion from the provisions of the Disability Discrimination Act. The noble Baroness, Lady Campbell, also very much wanted to support this amendment. As the noble Lord has said, the matter was strongly pressed when she was a member of the Disability Rights Task Force, but unfortunately, although she would have liked to be here, the hour has grown too late.

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