§ 8.23 p.m.
§ Report received.
§ Clause 6 [Provision of goods and services to qualified person with a disability]:
§ Lord Monson moved Amendment No.1:
§ Page 5, line 17, leave out from ("hotel") to end of line 18.
§ The noble Lord said: My Lords, as I explained to the noble Baroness, Lady Lockwood, earlier today, I was unfortunately unavoidably absent during both the Second Reading and Committee stage of the Bill. Therefore, I hope that my intervention at this relatively late stage will not be interpreted as being discourteous to those who take a great interest in the Bill. It is certainly not intended to be.
§ I have strong misgivings about the Bill as a whole. Not only is it yet another example of coercive liberalism, as I term it, but if passed it would have the added disadvantage of importing extreme subjectivity into our law. That is no doubt why this Conservative Government, which is by no means averse to coercion in other fields, are so decidedly lukewarm about the Bill. How on earth are any two people going to be able to agree on "undue hardship" or on what would "unduly prejudice the operation" of a business? The lawyers would have a field day, or a series of field days. However, that is perhaps a matter best discussed at greater length at Third Reading.
§ In the amendments which I have tabled tonight I want to concentrate on a few aspects of the Bill which seem to me to be especially worrying. They involve personal relationships at potentially very close quarters which might lead to confrontation. It may be convenient if I speak to Amendments Nos.1 and 2 together since they are fairly closely related. In practice they concern mainly the mentally as opposed to the physically disabled.
§ Your Lordships will be aware of the sort of eccentric one finds all too often on a London bus who alternately mumbles incomprehensibly and then shouts obscenities, usually at the top of his or her voice—more often it seems to be a female—while the other passengers in the bus sit rigid with embarrassment, staring straight ahead to avoid eye contact with the person concerned.
§ Then there are the more severely disabled people such as one finds at a day center which has opened recently near to our home in London. Some 60 or 65 per cent. of the people are perfectly harmless and innocuous. The remaining 35 or 40 per cent. cannot be so described. They are mainly young people whose problems are attributable to drink or drugs, or so I deduce. They are often extremely aggressive. They walk the streets shouting and glaring at people. I have seen one of them urinating in the street at 11 o'clock in the morning. I am told by shopkeepers that some have urinated in shop doorways, and that others smash windows. I accept that whether or not it is their own consumption of drink or drugs which has brought them to that condition they cannot help it.296
§ Nevertheless, it is an inescapable fact that they do not make life particularly pleasant for other people in the district.
§ Most of us present tonight can afford to spend holidays in a hotel. Hotels are probably able to cope with such people in the event they should want to use hotels. Most hotels nowadays have private facilities, meals can be served in rooms, and so on. However, boarding houses are very different. Boarding houses have shared bathrooms, and total strangers are obliged to sit next to one another at close quarters at the same table. Do not people, mainly of modest income, who have saved for a quiet holiday, have rights too? It may not happen often, but if they have to be confined at close quarters with people who are aggressive, unpredictable or doubly incontinent, would it not ruin their holiday?
§ There is also the question of entertainment, which is covered by Amendment No.2. No one would want for a moment to deprive disturbed people of their pleasures. In the days when I used to take my sons to the pantomime many years ago I remember that there were often considerable numbers of educationally retarded people in the audience whose uninhibited pleasure and shouts of appreciation positively added to the occasion and to the pleasure of everybody else, both in the audience and on the stage. The same would presumably apply to the circus, for example.
§ However, when one is at a non-musical stage play with moments of great dramatic tension, or at a concert featuring a string quartet or a solo pianist, cellist or violinist, very different considerations apply—hence the need for Amendment No.2. It is no good saying that these people are not very likely to go to such events. One cannot frame statute law on the supposition that something will not happen very often. If it happens at all I contend that it is something that has to be dealt with.
§ Clause 7 does not help to mitigate the situation since it covers only technical and financial considerations. The same applies to Clause 9 since it provides only for the possibility of temporary exemptions not exceeding five years, not permanent ones. This is not something where temporary exemptions would help very much for obvious reasons. What would help would be the importation into Part III of the concept of reasonableness to enable providers of facilities and services without contravening the law to exclude on reasonable grounds not people en bloc but those who look as if they are going to mar the enjoyment of much greater numbers of other people. If that were to be agreed to, perhaps on Third Reading, Amendments Nos.1 and 2 would be unnecessary. For the moment, I beg to move Amendment No.1.
§ 8.30 p.m.
§ Baroness Lockwood
My Lords, I am very sorry that the noble Lord, Lord Monson, has thought fit to propose amendments to the Bill tonight particularly in view of the terms he has used in relation to the first two. I know that the House will accept his apology for the fact that he was not able to be involved earlier for understandable reasons. Nevertheless, I should like him to note that the Bill has had all-party support in 297 this House. It came to us having been initiated in another place, again with all-party support. It has arisen from long discussions with groups of people, some disabled and others concerned to assist the disabled. It seems to me that the two amendments to which he has spoken and the others that he will seek to move take much of the heart out of the Bill in relation to the provision of goods, facilities and services. That would cause great dismay among many disabled people who have been campaigning for legislation to give them the same rights as those enjoyed by people without disabilities.
There exist two pieces of legislation, the Sex Discrimination Act and the Race Relations Act, which have not caused any difficulty. I know that we are now talking about a completely different group of people who have in the past, as clearly indicated at Second Reading, suffered great hardship through discrimination because they have been denied access to certain places. The framework of Clause 6(2) is such that it is intended to provide facilities for access to these places, but it has to be read in conjunction with Clause 7 which makes clear that the modifications and changes necessary to provide such access should be reasonable. In this connection I think the courts would be well able to interpret what was meant by "reasonableness".
The noble Lord, Lord Monson, mentioned the difference between a boarding house or similar establishment and an hotel. I would suggest to him that the problem he has outlined needs to be dealt with by different means; that is, assistance to the young people whose habits he described. If he were to press his amendment it would exclude not only such people but all people with disabilities; it would have a much wider effect than he suggested. I do not think it would deal with the problem he has in mind, because boarding houses and any such organisations often accept applications for accommodation not knowing the kinds of persons they are dealing with. All of us in all kinds of contexts have had examples where perhaps we would rather have sat next to somebody other than the person we were sitting next to. The amendments to which the noble Lord, Lord Monson, has spoken remove the dignity from disabled persons which the Bill is designed to help restore.
§ Lord Renton
My Lords, this is the first time I have addressed your Lordships on this Bill, which I consider to be overdue. As to the case put forward by the noble Lord, Lord Monson, I would say that subsections (1) and (2) taken on their own would be totally unworkable. But, as the noble Baroness, Lady Lockwood, said, they have to be regarded in the light of Clause 6(3) and the test of reasonableness as applied by Clause 7. With that qualification in mind, I think it would be wrong for us to strike out the words "boarding house or other similar establishment" in subsection (2) (c) and the words "entertainment, recreation" in subsection (2) (g).
I know from the experience of having a severely handicapped daughter that although she cannot speak and entertain other people much, unless they know her very well, entertainment and recreation add a new 298 dimension to her sad life. To strike out "entertainment, recreation" would be very unfortunate. I sincerely hope that the noble Lord, Lord Monson, for whose initiative I so often have high regard, will not press the two amendments.
§ Lord Rix
My Lords, I find the logic governing the amendments moved by the noble Lord, Lord Monson, extremely interesting. I am surprised that they do not go even further to exclude other groups from accommodation, entertainment, clubs, and so on. How about those over 65 with incipient or actual disabilities of age? I fear that might exclude many of your Lordships' House, including myself. What about overweight people who take up too much room in theatre seats or ruin a landlady's mattress in many a boarding house? I am sure that the noble Lord was testing your Lordships' collective sense of humour. I cannot believe that these amendments were moved without the noble Lord's tongue being firmly rammed in his cheek; otherwise, they should he rejected with the contempt that they deserve.
§ Lord Auckland
My Lords, as the noble Baroness, Lady Lockwood, said, this is an all-party amendment. With his considerable legal experience, my noble friend Lord Renton put his finger on the point. I happen to have family in the hotel and catering industry. There are old establishments which are difficult to adapt for disabled people, whether those people are physically disabled or mentally disabled. However, I should point out that it is now compulsory to have fire doors in hotels. I am not sure of the position in boarding houses.
Adapting such places for the disabled is not as difficult as it seems. In cases where architecturally it is very difficult to make allowances for the disabled, subsection (3) gives some leeway to local authorities or others who are responsible for adapting those places.
Nowadays more and more people are becoming disabled because they are living longer. It seems to me that the amendment would bar not only many young disabled but also elderly disabled. After all, as I mentioned at Second Reading, some of those people may have become disabled through war injuries received while serving their country. Are those people to be excluded? The amendments of the noble Lord, Lord Monson, seem to me at any rate to have that effect.
There are difficulties and not every establishment can immediately provide such facilities. I hope that the House will not accept these amendments, even at this late hour. Whatever deficiencies the Bill may have, I believe that Clause 6 in the main is a very practical clause.
§ Lord Rochester
My Lords, after what has been said by a number of speakers, there is no need for me to add much from these Benches. In his opening remarks the noble Lord, Lord Monson, said that he had considerable misgivings about the Bill as a whole. I am sure he will acknowledge that, as the Bill received a Second Reading, the principle that there should be a curb to discrimination against disabled people was accepted by the House.
299 Clauses 6 and 7 have been carefully framed. In my view they take adequate account of the reservations to which the noble Lord gave expression. Indeed, I thought that in his very last remarks he hinted that that might be the case. However that may be, I share the view expressed by several noble Lords that it is important that if at all possible the Bill should go forward with the support of all parties and of the Cross Benches.
In those circumstances, I hope that the noble Lord, Lord Monson, will feel able to withdraw these amendments.
Baroness Darcy (de Knayth)
My Lords, when I saw the amendments of my noble friend Lord Monson I thought that they had been formulated on the grounds of cost and not of feelings about how disabled people might behave. Able-bodied people have the right to enjoy themselves unmolested. If someone with a disability was being objectionable he would probably be asked to leave the premises. He would be treated in exactly the same way as someone without a disability because this anti-discrimination is simply on the grounds of a person's disability.
As the noble Baroness, Lady Lockwood, said, the amendments go to the heart of the Bill. Entertainment and recreation are just as important to people with disabilities as to others. Sport in particular is probably even more beneficial to someone who has a disability and who is less mobile.
Does my noble friend Lord Monson recognise that people with disabilities have equal rights? Of course the provision would be subject to the clauses on reasonableness anyway. I hope that he will think about this matter again during the Recess if he decides to withdraw his amendments.
§ Lady Kinloss
My Lords, I apologise that I have been unable to take part in this debate until now. I am puzzled by the amendments of my noble friend Lord Monson. Surely Clause 6(3) deals with many of his worries. As the noble Baroness, Lady Lockwood, said, Clause 7(1) would certainly help him. I cannot understand his worries.
§ 8.45 p.m.
§ Lord Carter
My Lords, in speaking to this Bill I shall follow the usual convention on a Private Member's Bill. I should explain that I speak on my own behalf. If a Labour Government had been returned at the last election, we should have introduced a Bill very similar to the one in front of us.
I was struck by a phrase of the noble Lord, Lord Monson, who referred to the Bill as an example of "coercive liberalism". I am not sure whether he is aware of a Bill introduced in America which goes much wider than this Bill; namely, the Disabilities Act, which was introduced by the Bush Administration. The Bush Administration has been accused of many things but I am sure that coercive liberalism is not one of them.
The noble Lord described the symptoms of mental illness and then described people as eccentric. He moved on to speak of delinquents and people suffering 300 from problems with drink and drugs. I did agree with one comment of the noble Lord. He said that there are some people with whom one would not wish to be confined at close quarters. He is quite right about that.
The noble Lord also said that one should exclude people who look as if they are going to mar the enjoyment of others. Who decides about that? Who decides that they look as if they are going to mar the enjoyment of others? He also used the phrase "educationally retarded" which I think went out of style a long time ago. He reveals an inability to distinguish between the mentally ill and the mentally handicapped.
To put everything together, I shall restrict myself to saying that if these amendments are accepted, they will be less than helpful. I hope that the noble Lord has taken the feeling of the House and will now agree to withdraw them.
§ Viscount Goschen
My Lords, when this Bill was considered in this House at Second Reading and during Committee, my noble friend Lord Henley made clear the Government's position. That position has not changed.
The Government have considerable sympathy with the thinking behind this Bill. We recognise that discrimination does still exist, although there is no doubt that considerable progress has been made over the past few years to improve the quality of life of disabled people across the whole spectrum of the activities of everyday life. But we are fully aware that there is still some way to go before disabled people are able to participate fully in an integrated society. The Government continue to take appropriate action to eliminate discrimination on the grounds of disability, including taking legislative action where appropriate.
The Government neither support nor oppose these amendments. We shall of course continue to listen carefully to any points put forward here today.
§ Lord Monson
My Lords, if this discussion has shown anything, it has demonstrated how extremely subjective is the concept of rights. Many noble Lords take it as axiomatic that the state should not only prevent people from doing harm to others, which is right and proper, but also force them positively to do good. The concept of rights is indeed subjective, and I say so advisedly, because one could theoretically apply the principle to elderly people and people who are below average height and so on and so forth. That has not yet been done and so far as I am aware will not be done.
I say in parenthesis to the noble Lord, Lord Rix, that over the past 16 years or more I have consistently opposed all such legislation, whether it involved religion, sex, height, weight or whatever. I certainly would not dream of singling out disabled people to be treated any differently. I shall keep to my phrase "coercive liberalism". However, the fact that President Bush, heavily influenced by the wave of political correctness sweeping the United States, has supported such a Bill does not prove much. The fact that there is all-party support for the Bill does not mean that it should be automatically rubber-stamped and immune from criticism whether or not such criticism is 301 justified. I suspect that there are many people in this Chamber and in another place who tacitly support the Government's lukewarm feelings towards the Bill but are reluctant to say so openly for fear of being branded as hard hearted.
The most interesting contribution was from my noble friend Lady Darcy (de Knayth). If her interpretation were right, and people who behave badly, whether or not intentionally, could be asked to leave premises under the Bill as drafted, my amendments would be totally unnecessary. However, my interpretation does not accord with hers. I have read the clauses several times. They do not seem to indicate that interpretation. Clause 6(3) states:This section does not apply where compliance … would be impracticable or unsafe".Safety does not come into my amendment. Nor does "impracticable". When one refers to "impracticable", one means physical measures such as widening doors and so on. That is my interpretation. If the supporters of the Bill will assure me otherwise, I shall be delighted and gladly beg leave to withdraw the amendment.
Clause 7 refers to the test of reasonableness. However, it does not refer to "reasonableness" in isolation but,reasonableness of any modification to rules, policies or practices".That is an ambiguous phrase. I should be much happier if the provision were redrafted to ensure that the pattern that my noble friend Lady Darcy (de Knayth) suggests will be permissible is beyond doubt.
My amendments were somewhat probing and broad brush. I prefer that the concept of "reasonableness" is made clear beyond doubt in Clause 6 and in Part III. It is not clear at present. However, if those with drafting expertise assure me that it is clear and that my noble friend Lady Darcy (de Knayth) is right in her interpretation, then no one will be more pleased than I shall be. I do not intend to press the amendments. I never did. I have put the amendments forward with the aim of discussing the issue. It would be helpful if those who sponsor the Bill will investigate further the wording of Clauses 6 and 7 to ensure that the meaning imputed to them by my noble friend Lady Darcy (de Knayth) is correct. If so, that will be splendid. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No.2 not moved.]
§ Lord Monson moved Amendment No.3:
§ Page 5, line 27, leave out from ("associations") to end of line.
§ The noble Lord said: My Lords, I feel much more strongly about Amendment No.3. Clubs have never been my scene, as they say, but I have always understood that a club is a club, for which applicants for membership can be accepted or rejected for the most quixotic of reasons which have nothing to do with fairness, balance or any other virtuous considerations since they are essentially private places. That has been the normally accepted attitude throughout the western world for decades, if not for centuries, except in the latterly politically correct United States. In 1976 a passionate opposition within the Conservative Party involved both Back Benchers 302 and Front Benchers. It was led by Mr. William Whitelaw (as he then was) and Mr. Patrick Mayhew QC (as he then was) against the Labour Government, who included clubs in their Race Relations Bill. One still waits for the Conservative Party to live up to the principles expressed so passionately in 1976 by repealing that section.
§ Associations are a different matter because one often needs to join an association for professional purposes. Associations are not private organisations in that sense. But clubs are different. They arc private. If people choose of their own free will to be virtuous and to admit anyone, that is splendid. But in essence clubs are an extension of one's home and people are under no legal obligation to be virtuous about whom they admit into their home. I beg to move.
§ Baroness Lockwood
My Lords, does the noble Lord realise how limited the provision is? Many people would like to see it go much further. The provision before us is somewhat different from those within the Sex Discrimination Act and the Race Relations Act. Nevertheless, the operative wording is the same.
I again draw the noble Lord's attention to Clause 6(2) which states:This section applies to the provision … of goods, facilities and services to the public or any section of the public".Those words are also in the Sex Discrimination Act and in the Race Relations Act. They have been the subject of court cases. Indeed, there was similar wording in the 1976 Race Relations Act; and a House of Lords case in 1973 ruled that private clubs which had membership rules that they enforced would not be covered by the Act. Therefore clubs which operate a formal selection procedure to control their membership can claim that they are private and therefore outside the scope of the legislation. That might cover a number of points to which the noble Lord has referred.
Clubs which are included are those which automatically accept into membership people of certain categories such as those with certain qualifications or interests or anyone working in a particular company or area. Such clubs cannot claim to be private and are therefore included within the terms of the clause. I hope that the noble Lord will have second thoughts on the amendment.
§ 9 p.m.
§ Lord Renton
My Lords, subsection (2) (j) in itself looks terribly wide in its application. Indeed, if one looks at in its most absurd expression, for example, the word "club" includes the Athenaeum, which is a club for the intellectual elite. I cannot imagine anybody with a learning difficulty being elected to the Athenaeum. If we were to leave that phrase in paragraph (j) as it is, it would be an absurd provision to have in a Bill.
However, we do not leave it as it is because subsection (3) has in the second line the word 303 "impracticable", which covers the application of what has gone before. Therefore, I believe that the fears expressed by the noble Lord, Lord Monson, are not justified.
§ Lord Monson
My Lords, I am grateful to the noble Lord for his intervention but I still contend that the word "impracticable" is somewhat too subjective.
I am rather more heartened by what the noble Baroness, Lady Lockwood, said. If I understood her correctly, she implied that the wording in this clause is comparable to that in sex discrimination legislation, which covers only clubs which are generally open to everybody and is not comparable to that in race relations legislation, which goes further.
§ Lord Monson
My Lords, I am afraid that they are not because there has been a recent case in North London where clubs have been told that they must elect certain people, whether or not they want to. That does not apply as regards sex discrimination legislation because there has been the recent case of the Garrick Club, which attracted a great deal of publicity. I accept that clubs which are more in the nature of associations but which call themselves clubs should be included in the Bill, if we are to accept the general premises of the Bill. With the assurance given by the noble Baroness that this follows the Sex Discrimination Act, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 10 [Enforcement of Part II]:
§ Baroness Lockwood moved Amendment No.4:
§ Page 6, line 33, leave out ("an order") and insert ("a recommendation").
§ The noble Baroness said: My Lords, in moving Amendment No.4, I shall speak also to Amendments Nos.5 and 6.
§ In Committee I put forward a number of amendments to place disabled people who were discriminated against in the field of employment on the grounds of their disability on a similar basis to those who were discriminated against on the grounds of race or sex, in the sense that the latter two categories can pursue their cases through industrial tribunals. However, my amendment went somewhat further than the provisions of the sex discrimination legislation and the race relations legislation, as I indicated at cols.846 and 847 of Hansard on 1st July.
§ The amendments were in line with suggestions by the Equal Opportunities Commission for amending the Sex Discrimination Act. They would have simplified procedures and strengthened the position of tribunals vis-à-vis county courts. In my view, they were and still are desirable amendments. However, the noble Lord, Lord Campbell of Alloway, whose experience both in the operation and in the drafting of law is much greater than mine, intervened in the debate and suggested that the amendments were objectionable on the grounds that they would have 304 consequential effects on other statutes, and in particular on the statute conferring jurisdiction on industrial tribunals.
§ In subsequent discussion with the noble Lord, it emerged that a Private Member's Bill such as this would not be the proper mechanism to bring about such far-reaching changes. Therefore, these amendments are much more limited and would bring the provisions of the Bill back into line with the provisions of the Sex Discrimination Act and the Race Relations Act, in that employment cases would appear before industrial tribunals but the procedures for those cases would be just the same as they are at present.
§ This amendment may not go as far as some, including myself, may wish. However, it ensures that the industrial tribunals will be the appropriate means for dealing with discrimination in the field of employment for those who have been discriminated against on the grounds of disability. I hope that there may be other channels which can ultimately bring about the effect of my original amendment. However, this evening, I beg to move Amendment No.4.
§ Lord Renton
My Lords, at first sight, to insert in the Bill the word "recommendation" instead of "order" looks as though we shall enact something which is not enforceable. However, as I understand it, the noble Baroness has covered that point by subsection (6), which alters subsection (3) as it stands at present in the Bill and deals specifically with the problem of failure to comply with the recommendation. That provides a means of enforcement.
Therefore, although I was rather hesitant about this group of amendments, I concede that there would not be the problem which occurred to me at first sight.
§ Baroness Lockwood
My Lords, I am glad to hear the comments of the noble Lord, Lord Renton, on this matter. Perhaps he and I might discuss the situation to see whether we can bring about the elements of the amendment by other means. I hope that the House will accept the amendment as it is tabled. I beg to move.
§ On Question, amendment agreed to.
§ Baroness Lockwood moved Amendment No.5:
§ Page 6, line 34, leave out ("and necessary").
§ On Question, amendment agreed to.
§ Baroness Lockwood moved Amendment No.6:
Page 6. line 38, leave out subsection (3) and insert:
("(3) If without reasonable justification the respondent to a complaint fails to comply with a recommendation made by an industrial tribunal under subsection (2) (c), then, if they think it just and equitable to do so—
§ The noble Baroness said: My Lords, I have already spoken to Amendment No.6. I beg to move.
§ On Question, amendment agreed to.
§ Lord Monson moved Amendment No.7:
§ Page 7, line 8, leave out subsection (3)305
§ The noble Lord said: My Lords, most of us over the age of 45 or 50 were brought up in an era where teasing, taunting and name calling were rife among young people of school age. If we had all been given financial compensation every time our feelings had been hurt, we would all be multi-millionaires.
§ The provision introduces an undesirable transatlantic litigious atmosphere into our affairs. Having said that, I recognise that comparable legislation containing identical provisions is already on the statute book. I therefore do not believe it is appropriate to press the amendment tonight. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.