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The military has a narrow view of what constitutes disability. Perhaps I may expand on that. The military believes that all forces personnel must be fit to be deployed instantly to any part of the world and to be fully operational in whatever circumstances they happen to find themselves. Some people believe that inclusion in the DDA would mean that the military would have to consider blind soldiers, submariners in wheelchairs and so on. They have not grasped the concept of genuine occupational requirements. It is perfectly reasonable for the military to impose a fitness standard for new recruits and, providing that the standard can be justified, people who do not meet it could be rejected. The DDA permits this. However, the military has a blanket ban on disabled people.

Everyone should be considered on their merits. It is worth noting that when Sir Bert Massie was chair of the Disability Rights Commission and spoke to military commanders, they were shocked to learn that facial disfigurement counted as a disability. Ironically, the many soldiers who have been burnt in the course of their duty would be protected if the military were subject to the DDA. When the Act was first passed, the uniformed police and the fire service were also excluded. They used the same defence that is now used by the Armed Forces. From 1 October 2004, the exemptions for the police and the fire service were abolished, and it is interesting to note that the performance of both has continued to improve.

A recent report in the press showed that the Armed Forces were doing a great deal to retain soldiers who have been injured in Afghanistan. To a large extent, the military is already beginning to implement some of the principles of the DDA, and surely the exclusion of the military from the Act makes less and less sense as the years pass. I suspect that part of the anxiety within the military is the fear of appearing in civilian courts because of the belief that civilians cannot possibly understand the rigours of military life. This is the same belief that was applied to gender and race, but the military is now subject to the law regarding both; disability is still the exception. I urge noble Lords to think again about this exclusion anomaly and to support the amendment.

9.15 pm

Lord Craig of Radley: I would like to start by recognising the determination and commitment to this theme of the noble Lord, Lord Low, over many

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years. He wrote to alert me to his Amendments 101D, 101E and 101F and, predictably, wanted me to speak in support of his proposal. The noble Lord is aware that I am not going to speak in support of his amendment.

I am not the first former Chief of Defence Staff not to be in favour of, or attracted to, this idea. Way back in 2000, the noble Lord, Lord Low, was very active in seeking to lift the restrictions on disabled persons from joining and serving in the Armed Forces. At that time, the then serving Chief of the Defence Staff-now the noble and gallant Lord, Lord Guthrie-spoke in a very public way against the idea, no doubt much to the disappointment of the noble Lord, Lord Low, and others seeking honourable ways to eradicate discrimination against the disabled. The persistence and commitment shown by the noble Lord deserves acknowledgement but I share the reservations of the noble and gallant Lord, Lord Guthrie.

The Minister will be well briefed on the reasons for the policy of the Ministry of Defence, so I shall not attempt to cover all the points in her notes. Only a fortnight ago, the Under-Secretary of State for Defence and Minister responsible for veterans, Mr Kevan Jones, was reported as giving a number of cogent reasons why the Armed Forces must confine their search for recruits to those individuals who meet certain medical, physical and fitness standards. To do otherwise is to limit the potential for flexible and worldwide deployment, following training, of individuals for their particular roles. The Ministry of Defence's policy is clear and robust, and with good reason.

Noble Lords will recall that in recent years the Armed Forces have not only been heavily committed to operations but have been steadily civilianising posts where front-line fighting and operational capabilities are not required. This applies not only to HQ posts but also, through the use of public finance initiatives, to many other tasks once undertaken by men and women in uniform but now contracted out to civilian companies. So on a practical level, the opportunities that once might have existed for some disabled individuals are all but gone. I know that the noble Lord, Lord Low, is not expecting the Armed Forces to recruit disabled men or women to tasks that they are unable to perform satisfactorily, so realism as well as principle is at stake.

As a good employer, the Armed Forces are rightly keen to do all that they can to retain trained individuals who have been wounded or injured while on duty and who wish to stay. For the very few who remain and cannot return to full time operations, there is, hopefully, still some small scope to use them productively. Indeed, I hope there always will be. It is both morally right as well as helping to amortise the cost of their training and experience to fit them in to a less demanding position-a position which could well not be available if the Armed Forces were to change their policy and recruit a uniformed element solely to fill such positions. We could offer no hope for those who have fought and recovered from their injuries. Surely that would be even more unfair.

The less expensive alternatives of employing a civilian or contracting to industry have helped to reduce the size of the uniformed services, thereby cutting pay and

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pension provisions and easing pressures on the defence budget. I do not foresee any change in that position. There may well be opportunities for the disabled in these non-uniformed posts where they are able to integrate with and support the Armed Forces in their vital work, but for those who seek to become full-time members of the Armed Forces, the present MoD recruitment policy is realistic, rational and reasonable. I do not support the amendments.

Lord Lester of Herne Hill: I do not intend to draw upon my rather inglorious career in national service as a second lieutenant in the Royal Artillery, although I should say, as one who was at 24 hours' notice to help invade Suez, that I do not think that if the amendments of the noble Lord, Lord Low, had been in force, we would have been any less effective in some areas than we proved to be. That, though, is beside the point.

I shall explain why we so strongly support the noble Lord, and not only for the reasons given in the report by the Joint Committee on Human Rights, to which I was party. I shall not read the relevant two pages of the report now-they are there for everyone to read. Instead, I shall explain why the Ministry of Defence and senior members of the Armed Forces have in the past persistently opposed the application of equality legislation on very similar arguments to those that are now being deployed in relation to disability. Not only is that true of the Armed Forces but it was once true of the police service.

The case that I am most proud to have argued in my career was not about the Armed Forces but about the police service in Northern Ireland. In 1986 the chief constable of the Royal Ulster Constabulary had decided, a few years before, that in order to combat the IRA and terrorists it was important that the part-time reserve police force should be composed of men, because it was ungallant to expose women to the risk of death by terror and because men were more likely to be effective than women in combating terrorism in the police service. The Minister of the day blocked the women's access to justice by granting a national security certificate, which was, like the present law in relation to disability in the Armed Forces, a blanket ban allowing of no exceptions.

We eventually finished up in the European Court of Justice, this being a case about sex discrimination, and the court said, "Even in terms of national security, you must not have a blanket ban". The case went back to Belfast, I had the privilege of cross-examining the chief constable, evidence was given in camera, and of course it turned out that the women were every bit as able as the men-more able, in certain posts-in combating terrorism. In the end the chief constable had to concede and the policy had to change. That was a case about police power, not Armed Forces power, but it involved violence, the use of weapons and all the rest of it.

Next, the Ministry of Defence decided, in its wisdom, that women could not enter the Armed Forces if they were pregnant, nor if they became pregnant. It became necessary for us to bring a judicial review challenging that on the basis of European law. Ridiculous though it seems, that was the policy, and it was deployed with powerful arguments by the military in the same way

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that it is doing now. The Ministry of Defence was forced reluctantly to change that policy.

The next case was with regard to homosexuality. There was a blanket ban on becoming a member of the Armed Forces if you were openly gay, so Mr Lustig-Prean and others eventually had to go to the European Court of Human Rights in order to establish their right to equal treatment and overturn the blanket ban.

Now we are faced with a ban on disability. The Joint Committee on Human Rights questioned the Minister from the Ministry of Defence, received written evidence and so on. We could not understand how it was possibly justifiable to ratify the UN Convention on Disability with a blanket reservation allowing any discrimination on the basis of disability rather than a flexible test that, of course, made sure that members of the Armed Forces were combat-effective in the posts that were needed. Now we face very sensible amendments by the noble Lord, Lord Low, which introduce proportionality and flexibility, while maintaining the combat effectiveness of the Armed Forces.

I have no doubt whatever that Ministers will have to get up on behalf of the Ministry of Defence, which-and I say this with the utmost respect-has never knowingly been in the vanguard of reform in the equality area, to explain why the Government cannot accept these amendments because the MoD will not allow it. Very well. If that is the Government's position I predict that, at some point, somebody or a group of disabled people will challenge the Government in the courts and they will succeed.

For those reasons I oppose the blanket ban and strongly support the noble Lord, Lord Low. I admire him hugely for his persistence in raising the matter and I only wish that glasnost would come to the MoD.

Baroness Masham of Ilton: My Lords, in this amendment we speak of brave and honourable people, who have risked their lives. To have a blanket ban cannot be good for rehabilitation. The Committee should think for a moment of some past leaders. Douglas Bader lost both legs, yet had very high morale. Nelson had one eye. Napoleon had one arm. They were leaders of men. Rehabilitation is so important. If people from the services feel that they have no future, rehabilitation goes downhill.

I hope that the amendment of the noble Lord, Lord Low, will be looked at carefully because a blanket ban is a dangerous thing.

Baroness Howe of Idlicote: My Lords, I also support my noble friend Lord Low's amendment. Listening to this discussion takes me back even further to the Sex Discrimination Act, where there were various exemptions for the police over height requirements for certain jobs and goodness only knows what. We have moved a little way since then.

I understand fully what my noble and gallant friend Lord Craig is saying. However, given the speed at which we are treating people with disabilities, people are living who might well not have lived in the past, We have a proportion of our population who have absolutely the same rights as the rest of us to lead a full and fulfilling life. I suggest that we follow the examples that have been given. It is not an absolute requirement.

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Clearly, reasonableness dictates what can and cannot be done. We already know that those who are in the armed services have been looked after, resettled and so on quite effectively. We are saying that entrance should not be blocked either. That is a very important point.

I hope that the Minister will give some hope that this will be seen as part of our future behaviour and attitudes to everyone, whether or not they are disabled according to this huge range of so-called disabilities that we have now got-and we have heard how wide the range is these days-to lead full and satisfying lives.

9.30 pm

Lord Hunt of Wirral: My Lords, I pay tribute to the noble Lord, Lord Low of Dalston, who put across his amendments in a very reasonable way, rehearsing a number of the arguments we have heard before. This is a very difficult issue. Everyone who has participated in the debate has contributed to a greater understanding of what is at stake here. Listening to the debate, the problem I had was that there were so many cross-issues here. Perhaps the most important concerns what happens to someone who is injured or suffers some form of illness or disability while on active service. Certainly, it is my experience that our Armed Forces look after those who suffer in that way exceedingly well. Issues around this have arisen in the past, but in every case that I have investigated I was satisfied that rehabilitation was very much at the top of the priorities for the individual concerned.

Therefore, we come back to the point raised by the noble Baroness, Lady Wilkins, about the fitness standard. I can see that that can be justified. We are asking our Armed Forces to do more and more, and we pride ourselves on our flexibility and the ability to utilise everyone who is part of the team on the front line. The noble and gallant Lord, Lord Craig of Radley, knows a tremendous amount about this subject. We should heed his words that the situation is being addressed by the Ministry of Defence in a realistic, rational and reasonable way. Confronted with that evidence, I need some persuading that we should change the law. The noble Baroness, Lady Masham of Ilton, said that a blanket ban, on the face of it, seems a dangerous thing. I am not sure that it is a dangerous thing, but there has to be a broader attitude towards disability than we have at present. I am not sure that that should apply to the front-line forces, but I want us to put rehabilitation much higher up the list of priorities.

As always, the word "reasonable" summarises the attitude of the noble Baroness, Lady Howe of Idlicote, to all these issues. She used that word again tonight. Is it reasonable to continue in the way that we have? The noble Lord, Lord Lester, knows a tremendous amount about this subject and I bow to his expertise. I said earlier that we should try to simplify, rationalise, consolidate and codify the existing law so that everyone can understand it. I think most people would understand that you have to have able-bodied people on the front line who are able to undertake all those tasks which put their lives at risk in defence of freedom and in our defence.



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Lord Lester of Herne Hill: I am grateful to the noble Lord. He keeps using the phrase "the front line", but does he realise that the blanket ban we are talking about does not apply only to the front line? Does he think that it would be good to protect ourselves against the kind of litigation about which I have warned?

Lord Hunt of Wirral: I was really following the noble and gallant Lord, Lord Craig of Radley, when he pointed out that in today's flexible fighting force, the front line summarises the line to which you could be called at any time, whatever your task. I think that the noble Lord, Lord Low of Dalston, conceded that in opening the debate. If one wants to see an even more flexible fighting force, I am not sure that we should impose these restrictions on the forces' ability to provide the fittest possible fighting force. I agree with the noble Lord about the need to avoid litigation. We must ensure that when this Bill eventually leaves this House it is immune to such challenges, which could otherwise occur unless we make the law simple and easy to understand.

The Chancellor of the Duchy of Lancaster (Baroness Royall of Blaisdon): My Lords, I, too, thank the noble Lord, Lord Low, for tabling this important amendment. We have given long and careful consideration to whether it is appropriate to retain the Armed Forces' exception in relation to disabled persons. As we have heard this evening, this exception has been carried forward from the current disability discrimination legislation.

I hear what many noble Lords have said about the police and fire services, which have done away with their disability exemptions. However, the Armed Forces perform a role that is fundamentally different from organisations such as the police and fire services. All service personnel are weapons trained and need to be able to respond to the uniquely harsh realities and complexities of warfare. This involves deployment overseas and prolonged working in stressful situations and arduous environments. Service in the police and fire services is intrinsically different, not least because there is no requirement for everyone to be weapons trained or to serve overseas for prolonged periods. The Government do not therefore consider that a direct comparison can be drawn between services in such disparate organisations.

We believe that it is right for decisions on operational effectiveness to be taken by Ministers, accountable to Parliament and based on military advice, not by the courts. Like the noble and gallant Lord, Lord Craig of Radley, we believe that the Armed Forces must be able to determine and set their own standards, based on the tasks to be performed. Combat effectiveness relies on teams consisting of fully able personnel in order to meet the worldwide obligation to deploy.

The Armed Forces are called on to perform in a wide range of different tasks and great damage would be done if the base requirement for physical fitness was abandoned. It is important to ensure that personnel have the fitness attributes to cope with the physical demands of service in the Armed Forces. The Armed Forces thus have a medico-legal obligation to ensure that they do not recruit individuals who are clearly unfit for task and to protect vulnerable applicants

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from harm. Recruiting those who are not fit for task potentially endangers not only the individual's health and well-being but also the safety of other personnel serving in the same unit or in the same operational environment.

The noble Lord, Lord Low, rightly spoke of the diversity of disabilities and, as my noble friend Lady Wilkins and others have said, the Armed Forces no longer make generalisations about disabled people's capacity to serve. Indeed, the Armed Forces already demonstrate their willingness to follow the spirit of disability legislation by recruiting people who have some degree of impairment, including learning disabilities, and by retaining service personnel who became disabled in the course of their duties. The noble Lord is absolutely right to say that there is much more that we could and should be doing in this area.

The noble Baroness, Lady Masham, and the noble Lord, Lord Lester, spoke of a blanket ban of disabled people in the Armed Forces. Whereas the provision permits the Armed Forces to discriminate against disabled people, its purpose is not to allow the operation of a blanket ban. The purpose of the exception is to allow the Armed Forces to organise themselves so as to be able to operate effectively. The Armed Forces have a good record of recruiting and retaining service personnel.

The retention of service personnel who become disabled, whom the Armed Forces have a clear moral obligation to look after, requires a sensible balance to be struck between the needs of the service and those of the individual. Adjustments for disabilities are made when practical, but it is not possible for the services to retain everyone who becomes disabled. Cases are considered on an individual basis against manpower requirements. While the services endeavour to continue to employ people injured on duty, where necessary in an alternative role, they do not artificially create posts to accommodate them.

I add that the Armed Forces' exemption is entirely consistent with European law. Member states have an exemption from the relevant directive, which says that,

it,

In 2009, the UK ratified the UN Convention on the Rights of Persons with Disabilities, to which we entered a reservation on behalf of the Armed Forces to safeguard the exemption. The European Union has also ratified the convention without prejudice to the derogation in the directive for all member states' Armed Forces.

In response to the question of when the UK's reservation to the convention will be reviewed, the Ministry of Defence gives careful consideration to whether its policies and practices meet our current needs or whether they could be revised. The MoD reviewed the current arrangements recently but concluded that it remains essential that we retain our reservation and the Armed Forces' exemption from domestic disability legislation. We will, however, continue to keep these under review.



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I know that the EHRC has suggested that there should be a pilot exercise whereby the employment provisions of the Bill, plus specific justifications concerning combat effectiveness, should be simulated and that the exercise should be independently reviewed to determine any risk to the MoD's ability to ensure the fitness of the people whom it recruits into the Armed Forces. However, we do not think that such an exercise would be helpful and would not want to run the risk of recruiting someone who was not fit for task. Recruiting those who are not fit for task potentially endangers not only the individual's health and well-being but the safety of other personnel serving in the same unit or operational environment.

Therefore, while I note what the noble Lord, Lord Lester, said about the potential for future challenges to our current position, for the moment we have not changed our position, although I have carefully listened to what noble Lords have said. I ask the noble Lord to withdraw the amendment.

Lord Low of Dalston: I am grateful to everyone who has spoken. In particular, I am grateful to my noble and gallant friend Lord Craig of Radley for the collegiate way in which he expressed his opposition to my amendment. We remain in mutual respect of one another, but in mutual disagreement.

I did not expect the Government to roll over and accept the amendment. The Minister's response was fairly predictable. I have heard it several times before. The Ministry of Defence may keep the matter under review, but its response does not change. It has not changed for the past 10 years and I do not expect it to change in a hurry. However, like the noble Lord, Lord Lester, I predict that it will have to change one of these days, just as the responses of the police, prison and fire services have had to bow to the onward march of our concern for equality in this society.

The noble Baroness said that the stance of the British Government is consistent with EU law. That is perfectly true, in that the European Union permits an exemption in respect of service in the Armed Forces as regards disability. The UK just happens to be isolated and alone as the only country within the EU that has felt the need to avail itself of such an exemption.


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