§ 1. The modifications referred to in section (Past disabilities) are as follows.
§ 2. References in Parts II and III to a disabled person are to be read as references to a person who has had a disability.
§ 3. In section 4(1) (a) and (2) (a), for "do not have" substitute, in each case, "have not had".
§ 4. In section 5(1) and (5), for "do not have" substitute "have not had".
§ 5. In section 6(1), after "not disabled" insert "and who have not had a disability".
§ 6. In section 6(5), for "has" substitute "has had".
§ 7. In section 18, for "do not have" substitute "have not had".
§ 8. In section 19(1) and (3), for "do not have" substitute "have not had".
§ 9. For paragraph 2(1) to (3) of Schedule 1, substitute—
- "(1) The effect of an impairment is a long-term effect if it has lasted for at least 12 months.
- (2) Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect recurs.
- (3) For the purposes of sub-paragraph (2), the recurrence of an effect shall be disregarded in prescribed circumstances."").
§ The noble Lord said: I have already spoken to this amendment. I beg to move.
§ On Question, amendment agreed to.
§ Clause 2 [Guidance]:1686
§ Lord Renton moved Amendment No. 14:
§ Page 1, line 12, after ("may") insert ("by order").
§ The noble Lord said: With Amendment No. 14 are grouped Amendments Nos. 17, 19, 20 and 142. We have now come to Clause 2 which raises a matter of constitutional importance; namely, whether laws should be made by or with the consent of Parliament or whether they should be made by Ministers under the guise of giving guidance; and whether Ministers can therefore, under that guise, decide what the law should be and merely inform Parliament by laying a copy of such guidance before each House, as required by Clause 2(5).
§ We are not told what kind of guidance will be given: whether it will contain matters of principle or of relatively minor detail, we just do not know. But, as it stands, I suggest that the whole of Clause 2 is fundamentally flawed. May I say in passing that I am grateful to the noble Lord, Lord Lester of Herne Hill, who cannot be here today, for alerting us to the implications of Clause 2. He raised the matter briefly at Second Reading at col. 891 of Hansard when my noble friend Lord Mackay of Ardbrecknish was winding up. There is a small misprint there, because there is a reference to Clause 4 whereas it should be to Clause 2.
§ One would have been justified, I suggest, in moving that this Clause 2 should not stand part of the Bill and that it should be replaced by a clause containing the guidance intended to be given by the Secretary of State. In that way it could have been turned into primary legislation and so be directly enacted by Parliament. But in what I hope your Lordships will regard as a spirit of constructive and helpful compromise, the amendments I have tabled—with the support, I am glad to say, of the noble Lord, Lord Addington—will still enable the Secretary of State to give guidance, but that guidance would have to be contained in an order approved by both Houses of Parliament under Clause 37(4), to which Amendment No. 142 refers. That would make it subject to affirmative resolution of each House.
If any noble Lord wishes me to explain the drafting effect of any of these simple amendments I shall of course be glad to do so. I should mention that our Delegated Powers Scrutiny Committee has considered this Bill, including Clause 2; but as the guidance to be given under that clause is not legislation our scrutiny committee could not comment on it or advise us about it, except to say, as the legal adviser to that committee did say in a letter to the noble Lord, Lord Lester, and I quote the exact words:
It does not lessen the importance of the question"—
referring to the fact that the Delegated Powers Scrutiny Committee had no power to comment on it.
It is indeed an important question. Its importance, I suggest, is highlighted by Clause 2(3) on page 2. For the sake of the record and for the benefit of your Lordships, I think I should read it out. It says:
(3) A tribunal or court determining, for any purpose of this Act, whether an impairment has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities, shall take into account any guidance issued under this section which appears to it to be relevant.
§ Surely any guidance so given could have a crucial effect in deciding most of the cases brought before a tribunal or court by any disabled person. That is the 1687 position. It is not enough for the Government to say, as is said in Clause 2 (4) and (5), that the Secretary of State has got to consult appropriate persons and lay a copy of any guidance issued before Parliament. That is not good enough. I trust therefore that the Government will gracefully accept these moderate amendments. I beg to move Amendment No. 14.
§ 6 p.m.
Lord Campbell of Croy
My noble friend has raised an important point. It was first raised by the noble Lord, Lord Lester of Herne Hill, not just at the end of our debate on Second Reading; he mentioned it generally in his speech at the opening of the debate. He raised the point: what would be in the guidance? Here was guidance which might contain important matters, but there was not an opportunity for Parliament to debate it.
I am a member of the Select Committee on delegated powers, and our report on this Bill happened to be published at midday on that day, so it was technically available but of course those who were taking part in the debate did not actually have it in their hands. As my noble friend has said, we looked through the Bill. Of course I am speaking for myself in your Lordships' Committee, but I think that I am the only Member of the Committee who is here, so for the information of your Lordships I can say what we did. However, I speak with my own views on the Bill. We did, as my noble friend said, consider all the points in the Bill where it was proposed that delegated legislation would be used after the Bill had been enacted. We did not consider that guidance fell into that category.
In the Bill the guidance has to be laid before Parliament, but there are no arrangements for it to be discussed, far less to be amended or thrown out. So the real question is: what would that guidance contain, and would it be important? I hope that my noble friend the Minister will be able to tell us that at the end of this debate. Except for powers of altering or adding to the functions of the National Disability Council, which require the affirmative procedure, the delegated legislation elsewhere is proposed to be governed by negative procedure, if there is procedure at all. So I think we need to hear how significant the guidance is likely to be.
I must tell your Lordships that organisations representing disabled people and employers and businesses have made it clear that they are opposed to too much going into this primary legislation which would make sweeping judgments on subjects which they think are to be worked out in detail in consultation after the Bill has been enacted. I understand that feeling arising on a Bill where a great deal needs to be sorted out afterwards with the people who are going to be mostly concerned. I have received this information from both the disabled organisations and from the employers. The guidance of course should play a major part in that process—guidance from the Government—and they are seeking that guidance. When we come to later parts of the Bill I am sure that some of your Lordships will be saying that certainly employers are seeking guidance and I think that guidance will be sought on other parts of the Bill as well as in connection with employment. There is general agreement that a lot should be left to be dealt with in subordinate legislation after the Bill is enacted. The 1688 question is, how much of that needs to come before Parliament as regulations in orders of affirmative or negative procedure, and whether something which is called "guidance" should come into that category too.
This is very definitely not a skeleton Bill. During the past two or three years we have had some Bills which have been described as "skeletons" because there was not very much in the primary legislation and pretty well all the decisions needed were to be taken by means of secondary legislation. This is not one of those Bills; but I think that there is a constitutional matter here, as my noble friend Lord Renton said, because at some time in the future we could have a short Bill with very few clauses which did not say very much, and where everything else would be done by guidance. So there is a point there. We need to know what "guidance" means and how it will be used in legislation, both in this Bill and in future. What is the status of the guidance in this Bill, and should it be made debatable by Parliament? That is the issue that we must now address.
§ Lord Addington
Clause 2 is effectively the most important clause in the Bill, in that it states that guidance will be given. Without the guidance, we do not have advice for courts and tribunals. Without such advice, we do not effectively have anything to provide support and enforcement powers and to make sure that people with disabilities do not suffer discrimination. That is the nub of the matter.
If that sort of power, namely, to make the Bill effective, is taken away from Parliament, we are losing control of this Bill. There are no two ways about it. There is a very important constitutional point here.
On purely practical grounds, I have often seen this House and another place prove themselves very much more open to ideas from many more outside bodies, approaching matters from many more angles than the Government, or indeed any government, can ever expect to do. All governments have their own process of drawing in information. I strongly suspect that that would be the case no matter who sat on the Government Benches. If we are trying to draw in the best information, we must have it debated in the best forum. This Chamber has proved itself on numerous occasions to be the best forum for drawing in all the various groups, and that is especially true in relation to disabilities. The current code of practice in the educational world is probably one the best examples. It was a long and rather drawn-out process, but the end product was very good. If the Government carry on with this legislation as currently structured, they will deny themselves that input. If the Government cannot accept these amendments, they must have a very, very good reason for not doing so. First, they would be denying Parliament its right to make the meat of a Bill work. Secondly, they would be denying the most important input and the most effective method, as has been shown, of trying to get this type of regulation right. I look forward to a positive answer from the Government. As the Minister will see, normal service on these Benches has been resumed over regulating powers.
§ Baroness Thomas of Walliswood
I rise to make a very brief point and to ask a question. On the matter of regulations and guidance, if we take as an example the 1689 green belt legislation, which is now quite elderly, over a period of time guidance has changed quite remarkably. Sometimes, from the point of view of those who want to protect the green belt, it changed for the better, and sometimes, I must say, for the worse. Sometimes the worse interpretation has been changed back to a better interpretation at a later stage.
I wonder whether or not that sort of changeability might not conflict at some point with another process which I suppose will take place; namely, the process of precedents in the courts as cases are settled. "Undemocratic" is not quite the word that I wanted to use, but it will do. How do the Government see this process of rather undemocratic guidance interacting with the process of the courts taking decisions over time? We could end up with some rather difficult situations.
§ Earl Russell
I, too, support these amendments. We are in a very important area and one which extends well beyond the compass of this Bill. The point that we cannot cover everything in primary legislation is a sound one. The point that Parliament needs to be able to find out what is done and decide whether to approve it is also sound. We need to consider how we can find ways of reconciling those two factors. To that end, the amendment is very well designed.
I make just one other point. The noble Lord, Lord Renton, read out Clause 2(3), which states that,A tribunal or court determining … whether an impairment has a … long-term adverse effect on a person's ability to carry out normal day-to-day activities, shall take into account any guidance issued under this section which appears to it to be relevant".
I am not quite sure why there needs to be guidance. Is this not just the sort of question that we have a court to decide? Is it not perfectly grown-up and competent to do it? And is there not a risk that the issuing of guidance may tend to be of the "Mother Hen" school of legislation?
§ 6.15 p.m.
§ Lord Rix
Until this morning, when The Times came through my letterbox, I thought that this was a rather academic and legal point by the noble Lord, Lord Renton, which I did not understand. I am happy to say that the noble Lord, Lord Lester of Herne Hill, wrote an article opposite the editorial page this morning which made the matter clear to a simple soul like myself. Therefore I am happy to support—indeed I wish to support—this amendment.
§ Lord Mackay of Ardbrecknish
We have had an interesting debate on this matter on the amendment raised by my noble friend Lord Renton. Perhaps I may begin by explaining what Clause 2 does. It enables the Secretary of State to issue guidance about matters to be taken into account when determining whether an impairment has substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities. It is general guidance which must be taken into account by courts and tribunals where relevant. It is fair to point out that guidance, not being legislation, need only be taken into account by courts and tribunals. In that sense, it has a less determining effect than regulations. It will be of great benefit to those who need examples of what constitute 1690 substantial and long-term adverse effects. This is particularly so given the wide range of possible impairments and hence effects on day-to-day activities, and the fact that this is a new and untested area of law. My noble friend Lord Renton has an amendment before us which would have the effect of making the guidance—and any future revisions of it—subject to the affirmative procedure.
Let us first consider the issue of parliamentary scrutiny. The guidance in Clause 2 has a broadly similar function to the guidance, for example, in the code of practice under Clause 26, which would give practical guidance to employers on eliminating discrimination and on good employment practice. Obviously, I have listened to the argument on this point and I discussed—
§ Lord Renton
Perhaps my noble friend will allow me to intervene. I think he has made a mistake. It is not Clause 26, but Clause 24, to which he should be referring.
§ Lord Mackay of Ardbecknish
If my noble friend tells me I am wrong, I am probably wrong. However, my brief refers to codes of practice prepared by the Secretary of State under Clause 26, so I may be right. I do not think that it matters too much. Perhaps my noble friend will just bear with me for a moment as to the argument that I am about to make.
Having discussed the matter with my noble friend Lord Renton and having listened to this short debate, I see the case for making the guidance under Clause 2 subject to perhaps the same parliamentary scrutiny as we have in Clause 26. I say to the noble Lord, Lord Rix, that I am very conscious of the importance of the powers of this Parliament. Ministers are always wise, I trust.
We have discussed the matter at some length, and I fully understand that there have to be checks and balances. Sometimes I am concerned that we are throwing away some of our responsibilities to bodies and courts beyond these shores. That is perhaps a wider issue, but one upon which some noble Lords might reflect when they address the importance of parliamentary scrutiny on matters such as this.
Having reflected on this matter and listened to the debate, and having accepted that we should indeed consider some form of parliamentary scrutiny, we now come to the parliamentary scrutiny that should be used.
The provisions of the code of practice in Clause 26 come within the scope of Clause 27 in deciding on the method of scrutiny to be used. Such a code must be laid before both Houses for 40 days and cannot be issued if either House resolves not to approve it—that is, the negative procedure. We believe that this is the right procedure also for the guidance under Clause 2. As my noble friend Lord Campbell of Croy points out, almost all of the regulation-making powers in the Bill are subject to the negative procedure. The Select Committee on the Scrutiny of Delegated Powers regarded this procedure as appropriate for regulations made under these provisions.
Therefore, I accept my noble friend's argument, though not in its entirety. I believe that Parliament should have scrutiny of this guidance and that it should be done in the same way as other scrutiny is carried out in other parts of the Bill; namely, by the negative procedure. My noble friend said that he had moved a little from his starting 1691 point where he might have asked for all of this to be the subject of primary legislation to his amendment. I hope he accepts that I have come a little way towards him in saying that there should be parliamentary scrutiny but it should be by the negative procedure. If my noble friend agrees to withdraw his amendment, I will return at Report stage with one which will mean that the draft guidance will have to be laid before Parliament and may be negatived by resolution of either House. With that commitment, I hope that my noble friend will feel able to withdraw his amendment.
Lord Campbell of Croy
Perhaps I may comment before my noble friend rises to speak again. In my earlier contribution, I was going to say that if it had been thought that the contents of the guidance, about whose significance we were inquiring, required regulations to come before Parliament, in my view the negative procedure was appropriate. I was a little surprised that my noble friend's amendments proposed the affirmative procedure. I am happy with what my noble friend has stated. There are points in the Bill where the affirmative procedure is required, but that is in connection with the National Disability Council. The Select Committee, of which I am a Member, said in its report (which I have with me) that the use of the affirmative procedure was correct in that case, and that in other cases it should be the negative procedure. I agree with my noble friend that the negative procedure is appropriate in this case.
§ Lord Monkswell
I wonder whether the Minister has considered the two different aspects of the codes of guidance about which we have spoken today. He has referred to Clause 26. The noble Lord, Lord Renton, also referred to Clause 24. My understanding of those clauses is that they relate to codes of practice that are issued to the general public—that is, employers and those involved in the day-to-day business. The difference between that and the guidance referred to in Clause 2 is that the latter is guidance to the industrial tribunal, not the general public. I suggest that that guidance has greater force in legal terms because it is guidance to what is effectively a court rather than the general public. It may be pertinent for Parliament to consider guidance issued to a court that has an effect similar to legislation, and guidance issued to the general public, which is slightly different. We may wish to have the affirmative procedure for the guidance issued to a court and possibly the negative procedure for guidance issued to the general public. Perhaps the Minister can take those points on board.
§ Lord Mackay of Ardbrecknish
The guidance in Clause 2 will be guidance that everybody will take into account as well—both the disabled and employers—when looking at what they should do. As subsection (3) says, it will also be taken into account by a tribunal or court. Under Clause 24(4) a code is admissible in evidence in any proceedings under the Bill before an industrial tribunal, county court or sheriff court. The codes of practice under Clause 24 will also come into play in a court. Indeed, in Clause 26(5) one sees exactly the same words. While the noble Lord makes a nice point, I do not believe that it is a distinction that carries a great deal of weight when Clause 22 is compared with Clauses 24 and 25.
§ Lord Renton
I agree with what my noble friend has just said. However, I believe that we should be grateful to the noble Lord, Lord Monkswell, for raising a subtle point, which had not occurred to me. As my noble friend has said, all guidance given to all courts, tribunals or other public bodies is something of which the public from time to time in different ways needs to take note. I do not believe that there is here a real distinction of principle.
I owe an apology to my noble friend. Although Clause 24 comes into the picture, he is right to refer first and foremost to Clause 26 and Clause 27 that goes with it. That is the alternative he recommends to the suggestion that I have made that the affirmative procedure should be followed under Clause 37. I am very much influenced by what my noble friend Lord Campbell of Croy has said in advocating a negative procedure. He speaks with the experience of membership of the Scrutiny Committee, which does such valuable work.
I had hoped that the reasonable compromise that I had put forward would have had general appeal. But one must be realistic and sometimes accept the advice of the Government. I believe that on this occasion it is appropriate for me to do so. Therefore, it is with hope that I ask leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 15 to 17 not moved.]
§ Baroness O'Cathain moved Amendment No. 18:
§ Page 2, line 9, at end insert ("including appropriate organisations representative of employers and appropriate organisations representative of disabled persons").
§ The noble Baroness said: The purpose of this amendment is to ensure that employers and providers of business services have confidence in complete acceptance of the fact that consultation on an ongoing basis is necessary. Disability is a very complex subject. New forms of disability arise. Advances in medicine will help, but there are other matters around the corner. New conditions also emerge. For example, there are advances in computer technology. People who perhaps 10 years ago would not have been employable have available to them a whole raft of new opportunities because of advances in technology. I do not believe it is easy to draw fine distinctions. I should like to see this consultation on the face of the Bill. This legislation may last for 100 years. Who knows how a future Conservative administration will behave? I believe that employers, providers of business services and organisations for the disabled need the comfort that when changes take place, they have the right to be consulted on an ongoing basis. I feel that very strongly as does the CBI and everybody to whom I have spoken.
§ I should like to point out that, following a comment made earlier in the discussion on a previous amendment, when it seemed that we were dealing only with employers, I realised that the amendment was probably incorrectly drafted. It should include organisations representative of employers and businesses which provide services, because the Bill covers employment and services. However, I understand that this part of the Bill—this particular section—does not deal with employers; it deals with disability. If that is so, the amendment ought to include business providers as well. I can look again at this 1693 matter. I want to make sure that on the face of the Bill there is a commitment that the Government will consult. I beg to move
§ 6.30 p.m.
Lord Campbell of Croy
I should like to support the principle in this amendment described by my noble friend. I mentioned earlier that all the organisations concerned with this Bill hope for continuing consultations after the Bill is enacted.
With regard to my noble friend's other point, her amendment would need to be amended because this very important part of the Bill deals with the provision of goods and services and, as I read it, Clause 2 of the Bill covers this part as well. As I said at Second Reading, there are many more disabled people who will be involved in goods and services—for instance, all the people over retirement age, who represent a very large proportion of the disabled people in this country. Only people of employment age, who represent quite a small proportion of the total of disabled people, will be involved in the employment part of the Bill, though it is a very important part of it.
I agree that the provision would be improved if it could cover goods and services rather than remain with its present wording.
§ Baroness Seear
My name is also to this amendment. Certainly I support the general principle that, when any changes or developments are being made, there should be full consultation. However, on reflection, there is something defective about this amendment. There should be something in the nature of:employers, organisations of disabled people and trade unions".They surely have a very considerable interest in how people with disabilities are employed in places of employment. On the general principle, I want most certainly to continue my support.
§ Lord Murray of Epping Forest
Perhaps I may take up the point made by the noble Baroness, Lady Seear. I hope that the spirit and purpose of the amendment will be accepted, not only for what it explicitly states but for what is implied, which could with benefit be explicated.
The aim is to get the guidance right and to take account of the practicalities of the situation. The reason for including the concept of consultation with employees and their organisations is that discrimination by an employer often stems not only from the employer's negative attitude but also from what he thinks may be the reaction of some or all of his employees. On occasion, the employer may put forward that argument as camouflage for his own negative attitude. In either event, it makes a great deal of sense to involve employees through their organisations, so that it is made clear that employees favour non-discrimination and (or possibly or) to ensure that the organisations of employees put pressure on the employees themselves not to evince the negative attitudes which would make it more difficult for an employer to take a more positive attitude.
I hope that the noble Baroness will agree with the thrust of that argument. In accepting the general purport and drive of the amendment, the Minister will, I hope, 1694 recognise the importance of keeping employees firmly in the frame in the common purpose to which we are now addressing our minds.
§ Baroness Hollis of Heigham
We on these Benches very much support the amendment. Perhaps we could use the opportunity to ask the Minister, when he replies to the amendment, to comment on three matters. The first is the degree to which such consultation will be continuous and ongoing—not just an original set piece. Secondly, following the contributions made by many Members of the Committee, that consultation will indeed involve a breadth of organisation. As the noble Baroness said, this provision refers to goods and services and not just employment, as well as to trade unions.
The third point is one that has not been raised so far and this may be the opportunity for the Minister to address it. As originally conceived there is in the Bill one set of negotiating machinery—the employment section of the Bill—hich will go through the National Council for the Employment of Disabled People set up in 1944, and the response from that is to go on to the industrial tribunal. There is also a second set of responses under the Bill associated with goods and services, which go through the route of local advice and guidance machinery and then through to the courts. So there are two parallel jurisdictions. That is one of the problems about which we are most concerned. There is one for the employment section and one for goods and services; one ending up in industrial tribunals and the other ending up in courts.
Clearly, we need a framework and a network of guidance for both sections of the Bill. As the Government originally conceived the Bill in the other place, they led Members to believe that they were hoping that NACAB (the National Association of Citizens Advice Bureaux) would offer that guidance, advice and all the rest of it for the goods and services section en route to the courts. Since then, NACAB has made it very clear that it will not fulfil such a role. Nonetheless, the Government are pledged to introduce a local advice and guidance service in conjunction with national bodies. Could the Minister tell us how that is now to be achieved, given that NACAB will not do it and so far there has been no suggestion that anybody else will do it? Otherwise, we shall have an initial consultation but we will not have the ongoing consultation that we all wish to see.
§ Lord Rix
I wish to support the amendment from the Cross Benches, from whom the Committee has not yet heard. If the Government concede that it makes sense for regulations, albeit by negative instrument, to be looked at from time to time by Parliament, surely it would make sense too for all those concerned at the sharp end—employers, employees, trade unions, etc.—to be consulted on an ongoing basis as matters change.
§ Baroness O'Cathain
In my concern about the amendment not being properly drafted, I omitted to say that I also wanted to speak to Amendment No. 21. It comes within the same kind of problem area; namely, complexity and the situation which arises because of the complexity of the Bill and the complexity of the situation.
Again, it concerns employers, business providers, service providers and such organisations. They want to know their obligations and rights from the time that the 1695 Bill is enacted. It is essential that the supporting codes of practice, regulations and, most critically, the sources of information and advice are in place before the new provisions come into effect. I should like to hear the Minister's comments on that point too.
§ Lord Mackay of Ardbrecknish
As we have discussed already, Clause 2 of the Bill enables the Secretary of State to issue guidance about matters to be taken into account when determining whether an impairment:has a substantial and long-term adverse effect on [a person's] ability to carry out normal day-to-day activities".Clause 2(4) requires him to:consult such persons as he considers appropriatebefore issuing any guidance.
Amendment No. 18, my noble friend Lady O'Cathain's amendment, is intended to ensure that the Secretary of State consults in particular organisations representing employers and organisations representing disabled people before issuing guidance under Clause 2.
I understand that one of the aims of the amendment is to require ongoing consultation. Although, as I believe my noble friend realises, the amendment does not achieve that aim, I can assure her and other Members of the Committee that the Government have every intention of maintaining dialogue with all interested parties as they develop the guidance. I hope that that answers the point from my noble friend and from the noble Baroness, Lady Hollis.
It is our intention that discussions on developing what will inevitably be fairly detailed and perhaps technical guidance, should be with organisations which can offer appropriate expertise. We will therefore not only consult organisations representing employers and those representing disabled people, but we will involve organisations with relevant specialist knowledge. Many of these organisations with specialist knowledge do of course represent disabled people and their interests. Once the guidance has been developed we will ensure that there is wide-ranging consultation on it, including with other organisations which may have an interest. Perhaps that brings in the organisations of the type mentioned by the noble Lord, Lord Murray of Epping Forest.
I am not sure whether I understood the point made by the noble Baroness, Lady Hollis, about the advice and guidance service, which no doubt we shall come to later. There is a difference between the advice and guidance which we hope will be available to disabled people through this service run by whoever it is decided should run it, and the advice and guidance being sought by the Secretary of State while he is coming to conclusions about the guidance and the code of practice he wishes to send out. There is some difference between the two.
§ Baroness Seear
The noble Lord has said that it is the intention of the Government to continue to consult. Would it not be much more satisfactory if he allowed words to that effect to appear in the legislation? The noble Lord is giving that commitment and we accept that so long as he is here that will happen. We need to have a statutory 1696 commitment that that consultation will continue whoever is filling the position which the noble Lord now holds. A few words to that effect in the Bill would help greatly.
§ 6.45 p.m.
§ Lord Mackay of Ardbrecknish
I suspect that that is not really necessary, but I shall look at the point raised by the noble Baroness. I have made the point about continuing dialogue. I find that the Government do not normally have to ask people for their opinions. Many organisations are pretty quick in giving us and Members of the Committee their opinions, as they no doubt find from their post every morning, and as I do from mine. These things continue and become really important if the Government have decided, perhaps because of representations made, that they should make changes. At that point there has to be what I may describe as a more rigorous consultation exercise. I hope that that helps the noble Baroness.
I turn now to Amendment No. 21, which I understand is intended to seek assurance that the advice and support service and procedures needed for those who will be affected by the Bill, are in place before the Bill comes into force. I hope that the Committee will forgive me if I take this opportunity to explain our thoughts on how the Bill might be brought into force. The Committee might find that convenient at this time, perhaps not just in listening to it, but using it thereafter once it has appeared in Hansard.
I believe that the Committee will be aware that the Government intend to bring into force at the same time that part of the Bill which deals with employment rights and certain provisions of the part dealing with goods, facilities and services. We envisage that this will be some time towards the end of next year. It is also our intention to introduce some months before that the employment code of practice and any necessary regulations. We will, of course, consult widely on both with employers, employer organisations, disability organisations and other bodies.
In addition, advisory bodies and service providers such as the Employment Service and the Advisory, Conciliation and Arbitration Service (ACAS) will be available to offer appropriate help and advice on the new requirements under the Bill. The Employment Service will provide advice and support to people with disabilities and to employers through its mainstream Jobcentre services and specialist placing, assessment and counselling teams (PACTS). It will continue to provide help to people to get and keep jobs and to get access to training and services. In the case of ACAS, its officials will also be trained and available to provide assistance in the form of conciliation as required under Part II of the Bill. Industrial tribunals are already used by people with disabilities. Where there are access difficulties, alternative arrangements for hearings are made. Tribunals already have discretion to provide communication help for disabled people with hearing, speech and sight impairments. This discretion will be extended to provide some form of personal support for people with mental illnesses and learning disabilities, and we will be consulting appropriate disability organisations about how this might work in practice.
1697 We have made clear that we do not intend to introduce initially all the provisions in Part III of the Bill. In particular, we will be introducing over time those provisions which would be the most costly for service providers; those relating to auxiliary aids and to physical adaptations. This is because of potential effects on business and the need for business to have a realistic time to prepare for and to make the changes. We will therefore embark on wide-ranging consultations on issues such as the timing of the introduction of these provisions and on any limits to the expenditure that a business will have to incur in making a reasonable adjustment.
In the meantime, in time for those provisions that we will be implementing next year, we will be introducing a code of practice on the right of access. The code will offer guidance to service providers on the requirements of the legislation and sound, practical advice on how best to comply. We will ensure that the code is issued well before the first provisions of the right of access are brought into force, so that service providers can familiarise themselves with the right of access and plan any adjustments that will need to be made.
We will also be establishing a network of advice points to provide advice and assistance to disabled people on the right of access to goods, facilities and services. We are committed to ensuring that disabled people gain the benefit of their new rights quickly and efficiently. We intend the advice service to be readily accessible and locally available, so as to meet the particular needs of disabled people. We are currently exploring how that advice and support might best be provided. I can assure the Committee that disabled people will be able to obtain advice on their rights of access as each of the provisions of Part III are implemented.
Although the introduction of this Bill will be phased, we intend that the support structure will be fully in place to meet the requirements of the first provisions that come into force. Of course, codes of practice relating to provisions not yet to be implemented will not be in force. And arrangements for advice to disabled people on provisions not yet in force will not be brought into effect either, though they will be introduced and in place in good time for the implementation of those provisions.
I hope that my reassurances will have convinced my noble friend and those Members of the Committee who are interested, of our commitment to ensure that the proper support, whether provided for in the Bill or helpful to support the Bill's provisions, will not only be introduced in a timely and effective fashion, but introduced after proper consultations have taken place.
In the light of my commitment to consult and my reassurance on the support and guidance arrangements under the Bill, that they will be in place when the Bill comes into force, I hope that my noble friend will be able to withdraw the two amendments and perhaps forgive me for using her second amendment as a coathanger on which to say a few words about how we intend the Bill to come into force.
§ Baroness Hollis of Heigham
Before the noble Baroness, Lady 0' Cathain, decides what she proposes to do about her amendments, may I press the Minister a little 1698 on the additional material in his answer which had not been anticipated at this stage. First, on a mechanical point, is he going to allocate additional resources to PACTS and ACAS to deal with the responsibilities for advising under the Bill? Secondly—and we do not disagree with this—we want to see systems of guidance and advice in place so that as and when sections of the Bill come into force there is already in place an appropriate network. Obviously, we want that advice to be in place. We do not want the job of setting up those advice networks to be an excuse for deferring or delaying the implementation or phasing in of sections of the Bill. Can the Minister be more helpful to us? What sort of timescale does he envisage? We are more worried because the network of advice and guidance he expected to be in place already—that is to say, NACAB— is not. Therefore the Minister will have to build a network of advice, possibly from scratch, which could take several years. Given what the Minister has just said, that could mean very significant delays in the implementation of vitally important parts of this Bill. Can the Minister help us on all that?
§ Lord Mackay of Ardbrecknish
First, PACTS and ACAS have adequate resources to meet the obligations placed upon them. I cannot go much further. I have already laid out in some detail what we intend to do. We are committed, as I said, to ensuring that disabled people gain the benefit of their new rights quickly and efficiently, but we have to ensure that these things are done in the right order. There is no point in implementing a part of the Bill before the other parts upon which it depends are in place. We have to try to take this in some order.
Of course the arrangements for the advice to disabled people which the noble Baroness mentioned are not yet firmed. We have explained what we want to do. We are exploring how the locally provided services can be provided. We are sorry that NACAB has decided that it cannot help us in that regard. But we are sure that other people and other organisations will be willing to help us, especially when the Bill becomes law, when those organisations may be more content to try to make the Bill work and to ensure that the system works for disabled people, rather than at present when, perhaps understandably, they are still campaigning on a number of issues, and they do not want to appear to have given away those issues before they feel they absolutely have to.
§ Lord Swinfen
Before my noble friend sits down, he said that he hoped other organisations would help with the guidance, and the implementation of the Bill. What organisations does he have in mind that have the skills and expertise and enough branches throughout the UK to give all the advice that will be required?
§ Lord Mackay of Ardbrecknish
We may well come to this issue two or three days hence. One does not need to use the same organisation throughout the whole of the country. That is something we are considering. As I say, I believe that there are organisations which will be more than interested in providing the service once the Bill becomes law. Perhaps I may suggest to my noble friend that we cross those bridges when we come to them. Today is not the day to cross that bridge. I believe that there will be plenty of organisations which will be prepared to help and we shall be able to set up what I believe is important; 1699 that is, a locally based network. I am well aware of the undercurrent that exists in relation to this part of the questioning.
§ Baroness Hollis of Heigham
May I hope that the Minister will tell us, ideally in Committee, what organisations he has in mind? It is crucial. The Minister has just made that clear in an important statement. I do not object to what he is trying to do here. He has made it clear that he will not bring in crucial clauses of the Bill until the network is in place. So we need to know when that network will be in place. For that we need to know what organisations may be willing to provide that network and be in place. The Minister must tell us. As I understand it the reasons for the CAB—I have its statement here—refusing to play the role that the Government intended was not that it has some other agenda and prefers a different Bill, but that it thinks it is important to protect, as it says, its principles of independence and impartiality, which it fears might be compromised if it were to be seen as a government agent in this field. I understand that that is. the basis of its hesitation.
Given, as the noble Lord, Lord Swinfen, said, that to someone like myself only the CAB would appear to have the extensive local network in place—I cannot think of any other organisation that has—the Government must give us a little more help or tell us when they will give us some help, because otherwise the Minister will forgive us for believing that this will be an excuse for delay and delay and delay and delay of the crucial phasing in of rights for disabled people.
§ Lord Mackay of Ardbrecknish
I am not going to accept that from the noble Baroness, because I made it clear early in my remarks in response to my noble friend that we intend to bring into force at the same time that part of the Bill which deals with employment rights and certain provisions of the parts dealing with goods, facilities and services.
We envisage that that will be some time towards the end of next year. It is our intention—I apologise for repeating myself, but I clearly need to underline the point—to introduce some months before that the employment code of practice and any necessary regulations. I mentioned some other bodies which will be helping and dealing with those matters and which will need to be ready to be up and running when the powers in the Bill come into force.
I can understand the Baroness wishing to press me, but we will probably be returning to the point about advice services later in Committee. I shall then be happy to go into it in some detail. I shall underline that we want locally based sources which will be available locally for disabled people. That is an important aspect to which I have no doubt we will be returning. I do not have a crystal ball. I do not know who will be prepared to provide the service. All I know is that I am pretty certain that people will be prepared to do it. We will have to take steps to ensure that we deliver the service we want.
That is not an excuse for delay. I rebut that suggestion by the noble Baroness, Lady Hollis. We intend that the Bill will work as we intend it to work—efficiently and 1700 effectively for disabled people. We will bring it in as quickly as we can, consistent with the fact that it is a complicated area and we have to get it right.
§ Baroness Seear
Will not the Minister need a variety of different sources for giving advice? When it comes to what employers will have to do and the considerable and expensive adjustments they will have to make, surely that will be a different organisation. I should have thought that the HSE would be the organisation to give a great deal of advice to employers so as to make their premises such as they can be used by disabled people. They are different sources from the sources which will be needed for implementing other parts of the legislation. Is not that the position? A variety of different sources will be needed to give advice to employers and the people who will use the services.
§ Lord Renton
My noble friend is fully entitled to bear in mind that the bodies which will be suitable for consultation will vary from time to time. There may be amalgamations. I fully support what he said.
§ Baroness Masham of Ilton
I spoke on that very point on Second Reading, but the Minister was not in the Chamber. I have never received a reply to my questions. I feel strongly about this matter if there are to be different organisations. Many organisations throughout the country are short of money. Some of them have already gone to the wall. There needs to be a national body with bureaux throughout the country which are accessible to disabled people or there will be a mishmash of disorganisation which I am sure none of us wants. I hope the Minister takes the point seriously, otherwise the legislation will be a mess.
§ Lord Swinfen
My noble friend will realise that all Members of the Committee, and of this place generally, want to ensure that the Bill works properly for the sake of employers as well as for disabled employees. It would be helpful if at some stage in Committee my noble friend were to give an indication of what organisations he is considering to produce the advice, because the Committee will want to be satisfied that for the various types of advice that will be needed—there will be various types and not all one kind of advice—those organisations have the knowledge and organisation, and a wide enough spread, not necessarily throughout the whole country but in various parts, if my noble friend is going to break it up, to make them capable of doing the job that the Government will ask them to do.
§ Earl Russell
While the Minister was speaking I was looking at the wording of Clause 22(1) which states:The Secretary of State may make arrangements for the provision of advice and assistance … with a view to promoting the settlement of disputes … otherwise than by recourse to the courts".That looks as though we are considering several different sorts of advice. That sounds to me more like the sort of mediation or arbitration which this place has in the past discussed in relation to law centres, which is a very distinct point from assistance. Clearly the Minister is entitled to consider them separately. Equally clearly, we need to get them right.
1701 I hope that the Minister understands that our anxiety to get him to cross a bridge, and to understand the structure of that bridge, is because we want to see him safely reach the other side. He may congratulate himself on having brought forward a Bill which the Opposition are eager to see come into force sooner rather than later.
§ 7 p.m.
§ Lord Butterfield
Perhaps I may interject one quasi-medical point. For some time the Nuffield Provincial Hospitals Trust has supported the establishment of groups of people in different counties, in particular the West and the South-West, who are in a position to give good advice to disabled people in their neck of the woods. I am concerned that a subtle form of almost computerised service may be needed to provide names and addresses of the people who can give good advice on specific topics under different circumstances.
Will the Minister consider carrying out a survey of such groups? They have been in operation for some years and in some parts of the country are regarded as providing extremely good clinical services for disabled people.
§ Lord Rix
I hope that the Committee will forgive this commercial. The noble Lord, Lord Renton, will confirm that for a number of years MENCAP has used the Pathway Employment Service. It has been of inestimable value and use to people with learning disabilities. We now have 5,000 people with a learning disability in open employment. The Pathway Employment Service is most efficient and is able to give expert advice and support to people with a learning disability who are able and wish to be employed.
§ Baroness Lockwood
I have some sympathy with the Minister in the sense that we are straying towards later clauses. His statement on the amendment indicates the complicated system that must be put into operation in order to implement the provisions of the Bill. It underlines some of the points that many of us made on Second Reading; that we require a body with a strategic role which can look at the whole problem, deal with the various aspects of discrimination, establish its contacts and deal with the appropriate organisations in accordance with the problems that have arisen.
We must look most seriously at what the Minister has said tonight. We must bear it in mind when we discuss not only Clause 22 but those clauses relating to the National Disability Council.
§ Baroness O'Cathain
I thank the Minister for his comments on Amendments Nos. 18 and 21. The Committee has probably lost sight of them by now, with the minor bombshell—perhaps that is the wrong word— that the Minister threw into the middle of the debate. He said, rather elegantly, that he was using the amendment as a coathanger but I believe that it is a little more than that. I also thank the noble Baroness, Lady Seear, for supporting me.
We are trying to do our best for the disabled in every way. I refer not only to employment, because employment in particular in better and larger organisations is well catered for, but also to the provision of goods and 1702 services. If we want the Bill to work we must ensure that the people out there who will make it work—they are the employers, the providers of services and the disabled— know that they have the comfort of consultation on an ongoing basis.
Although I listened carefully, I cannot understand the mass of objection to putting that on the face of the Bill. However, I was grateful to the Minister for his detailed explanation of the Government's intention about the supporting codes of practice and I take comfort from that. I am also grateful to the Minister for saying that he wishes to maintain and to continue the dialogue. I do not wish to sound ungrateful but I should like to know why the provision cannot be on the face of the Bill.
As regards the Minister's statement attached to the coathanger of Amendment No. 21, it behoves all of us to read Hansard. We have heard a great deal of detail and I tried to scribble down some of the issues. The comments go a long way towards helping me with the remainder of the Bill and I thank the Minister for that. With the proviso that I should like the Minister to look again at putting Amendment No. 18 on the face of the Bill, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 19 not moved.]
§ Lord Renton moved Amendment No. 20:
§ Page 2, line 10, leave out subsection (5).
§ The noble Lord said: In view of his undertaking, my noble friend may wish me to move Amendment No. 20. If his undertaking is to be fulfilled subsection (5) must be removed in any event. Why should we wait to do so?
§ Lord Mackay of Ardbrecknish
My noble friend is being extremely helpful. However, I plead with him to let us leave the matter with my promise to return with suitable amendments. They will of course go a little wider than the first amendment that we discussed and will take in the consequential amendments, which may or may not include that which he has just mentioned.
I wish to study the matter a little more before my noble friend presses me too far. I hope that he, having made his point, will accept my assurance that we will put forward amendments which will do exactly as I have said and will mean that the negative procedure will come into play.
§ Lord Renton
I therefore trust that Members of the Committee will grant me leave to withdraw Amendment No. 20.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 21 not moved.]
§ Clause 2 agreed to.
§ Clause 3 [Discrimination against applicants and employees]:
§ Baroness Turner of Camden moved Amendment No. 22:
§ Page 2, line 38, at end insert ("and occupational pensions").
§ The noble Baroness said: In moving Amendment No. 221 shall speak also to Amendments Nos. 24 and 37. The purpose of these amendments is to write into the present legislation the requirement that there should be no discrimination in pension provision in regard to people suffering from disability. The wording of the amendments 1703 is adapted from Part IV of the Social Security Pensions Act 1975, which provides for equal access to occupational pension schemes for men and women. I hope that the Minister will not tell us that the amendment is unnecessary.
§ A 1988 Office of Population Censuses and Surveys report found that disabled pensioners had a lower average equivalent income—an average of £91.90 per week— than non-disabled pensioners who averaged £93.70 per week. The 1988 changes to the state earnings-related pension scheme encouraging people to opt out of SERPS—the Minister will know very well what we on this side of the Committee think about that—had a particularly negative effect on disabled people. Disabled workers are often at a disadvantage in occupational and personal pension schemes and therefore rely heavily on SERPS. They lost out in the changes that the Government then made to SERPS.
§ At that time the Government estimated that 80,000 disabled people and 30,000 dependants of disabled people would be adversely affected. However, I understand that the Disability Alliance put the figure much higher at more than 1 million.
§ We all know that the labour market is changing; employment is now much less secure. Even for those in employment there is insecurity because many people do riot know whether they will still be in employment next year or even next month. Part-time work is much more common and temporary and short-term contracts are replacing continuous employment.
§ I deplore those developments, although I know that the Government believe that they are somehow inevitable and even positive. However, they have an effect on pension entitlement. That means that the number of people who do not build up entitlement to a full national insurance retirement pension will grow. That is already happening. For example, in March 1984, 3.49 per cent. of male retirement pension claimants and 10.59 per cent. of female claimants received a pension at a reduced rate. Ten years later, that number had increased substantially. In fact, the number of claimants on a reduced rate of retirement pension grew by 221,000 to just under 1 million in that period.
§ Therefore, it is clear that occupational pensions will have to play a vital role in ensuring that people do not have to rely on means-tested benefits in old age. Occupational pensions are largely responsible for the fact that people of retirement age are less likely to be poor now than they were 15 years ago. Therefore, it is extremely important that employers should not be allowed to discriminate against persons regarded as disabled in relation to access to occupational schemes.
§ Where membership of a pension scheme is one of the prime non-pay benefits of a job, to discriminate against disabled people in terms of entry would surely run counter to the Government's intentions. Quite rightly, the Bill is designed to require employers to take reasonable steps to remove physical barriers or adjust their practices to enable disabled persons to be employed. That cannot be achieved if disabled people are debarred from participating in one of the chief non-pay benefits available in most good employments. I beg to move.1704
§ Lord Inglewood
I am grateful to the noble Baroness for raising this important matter and I trust that she will find my response helpful.
Perhaps I may deal first with Amendment No. 22. The purpose of this amendment is to include "occupational pensions" within the defined meaning of "benefits" in Clause 3. I can tell the noble Baroness that Clause 3 is drafted in the same terms as Section 4 of the Race Relations Act 1976. It has never been suggested that that Act has failed to cover entitlement to occupational pension benefits. It is easy to see why that is so. Clause 3 applies both to "terms of employment" and to "benefits", which is already widely defined. A person's entitlement to a pension from his employment will normally be a term of his contract, and even where it is not a term, it is so plainly a benefit that I cannot believe that courts or tribunals would have the slightest difficulty on the point. I cannot agree to the amendment as it would throw doubt on the existing wording of the Race Relations Act, but I hope that that assurance will enable the noble Baroness to withdraw her amendment.
I turn to Amendment No. 37, which seeks to disapply Clause 5(5) in the case of discrimination relating to benefits in employment. It also disapplies the subsection in relation to occupational payments. The Committee will be aware that Clause 5(5) enables regulations to be made to specify additional circumstances in which less favourable treatment is taken to be justified.
It may be that the noble Baroness intends that the question of justification of less favourable treatment in pensions should be dealt with separately by regulations made under the new regulation-making power which she is proposing in Amendment No. 24. However, we must take great care to understand the possible effect of this Bill upon occupational pensions, and we have to accept that there will be cases where less favourable treatment will occur for wholly justifiable reasons.
There might be two kinds of case in which the occupational pension benefits of a disabled person might justifiably be less than those for a non-disabled person working next to him. The first is that pensions are almost always linked to pay. If there is a justifiable difference in the pay received by the two workers—perhaps, for example, because the disability means the disabled person has to work fewer hours—it must be right that the pension can also reflect that difference. I cannot believe that Members of the Committee would wish to require the employer to have to arrange for a full pension in such circumstances.
The second reason is that the disability may create actuarial risks which the employer or the pension fund should not have to take. For example, depending on the circumstances, we believe that an employer who takes on an employee who is terminally ill can be justified in refusing such a person cover under any scheme he operates for death-in-service benefits. The removal of any justification in the case of these benefits and payments would place quite unwarranted burdens on employers. For that reason, the Government cannot accept this amendment.
I turn now to Amendment No. 24. This provides a power to make regulations to deal with the detailed issues which may arise regarding the application of Part II of the 1705 Bill to occupational pensions. I have already indicated that the Government accept that Part II applies to occupational pensions. Part III indicates that it applies to the provision of insurance services and enables the details to be set out in regulations. We agree that similar provision is required for Part II. We have received representations about the Bill's coverage of occupational pensions and the important issues that may be involved. We are considering this whole matter carefully including when occupational pension benefits of a disabled person might justifiably be less than those for a non-disabled person, in the context of both Part II and Part III, and will take account of the points that have been made by the noble Baroness in the debate today. It may well be that we need regulation-making powers to deal with the detail of such justifications along the lines I mentioned earlier. I cannot support this amendment but we shall consider this matter further and I shall come back to the House on the point at Report. I hope that that gives the noble Baroness the assurance she seeks.
§ 7.15 p.m.
§ Baroness Turner of Camden
I am obliged to the Minister for his response to the three amendments. I am not at all satisfied with some of the points that he made—in particular in regard to the points that he made about the possibility of paying a different pension because pensions would be linked to pay. In most pension schemes it is accepted that a pension is linked to the pay that one receives. Of course, a final salary scheme is designed quite specifically to ensure that it is linked to the final pay. I do not see any problem about that and nor would most people concerned with disability or disabled persons in employment.
We are concerned about a situation in which a person may be debarred altogether from participating in the occupational scheme that is available to other employees who are not disabled in the same employment. However, I note that the Minister is considering what has been said and is considering the submissions that have been made by organisations concerned with occupational pensions and with disabled people generally who are worried about whether or not they will have access to occupational pension schemes. Therefore, we shall await with interest to see what the Government propose to do on Report and whether they produce the kind of amendments which we believe will be necessary to protect the interests of disabled persons who will otherwise will not, in our view, be protected adequately and have adequate access to occupational schemes. Having said that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Addington moved Amendment No. 23:
Page 2, line 38, at end insert:
("( ) An employer shall not conduct or require a medical examination or make enquiries of an applicant for employment as to whether he is a disabled person or as to the nature or severity of any disability prior to an offer of employment unless—
§ The noble Lord said: This amendment is designed to try to remove one of the glass ceilings which is placed in the way of people with disabilities. Indeed, it is one of the more subtle ways in which discrimination can be applied—that is, by requiring on a job application form the applicant to disclose whether or not he is disabled.
§ The amendment provides two opt-outs. The first is in relation to physical requirements. For example, if the job involves lifting heavy objects, and so on. But, as we know, increasingly for most jobs you have to sit down and play with a computer. "Play" is probably the wrong word and I see that the noble Baroness, Lady O'Cathain, gave me rather a hard stare when I said that. Most jobs do not require specific physical activities. They merely require a person to be there, sit down and have an active mind. Indeed, the state of computer technology is such that you do not have to use a keyboard; you can speak into a microphone to operate a computer.
§ We are trying to prevent one form of discrimination which takes place. Scope carried out a study of two people who had exactly the same qualifications, one of whom had cerebral palsy. The person with cerebral palsy had one-sixth of a chance of reaching the interview stage.
§ Most types of discrimination are based on a misunderstanding of the nature of the disability. I believe that most of the time, the discrimination stems from ignorance rather than malice. If people reach the interview stage, their personality takes over and their disabilities recede. If the Government are prepared to accept an amendment of this nature, they would create a situation in which employers would not be able to hide behind their ignorance and would not be denied the opportunity of engaging extremely valuable employees. That, on top of the benefits, would undoubtedly be there for the person who actually has the disability. I hope that the Government will find it in their heart to accept the amendment, or something very similar to it. I beg to move.
§ Lord Swinfen
I support what the noble Lord is trying to do. However, as regards my own organisation, it is possible that what he proposes would cause chaos because we actually prefer to employ disabled people. Therefore, we would like to know, before interview, which applicants are disabled. Somehow one has to overcome that difficulty. It is possible that one would have to issue licences to exempt people from the provision. But, generally speaking, the noble Lord is quite right: one should advertise for people, see from the papers that they submit whether they are the type of people that one wants to employ and then interview them.
Most of the time, the fact that the person is disabled will come to light in any event at the interview without the question being asked. But in the case of a body which specifically prefers to employ disabled people—for example, there are some organisations which rather like to employ blind telephonists because they are extremely good—we would be putting a barrier in its way. I believe 1707 that the noble Lord should look again at the matter and come back from the rather different direction that he has taken to achieve his objective.
§ Lord Rix
From the same perspective as that outlined by the noble Lord, Lord Swinfen, I should like to say a few words about the difficulty of the proposed new subsection as regards the British Actors' Equity Association. Before they take part in a film or television programme, actors, especially if they are leading actors, have to acquire insurance. Therefore, they always have to undergo a medical examination before they are offered the job. If they do not pass that examination, they are not offered the job. Although I sympathise with the intention behind the proposed new subsection, I believe that it could, perhaps, cause some further difficulties in the already rather threadbare employment opportunities available for the artistic profession in the theatre.
§ Baroness Gardner of Parkes
I support the principle of the amendment. I believe that it is very desirable, as I said earlier on the HIV issue, that people should not have to undergo compulsory testing if it is unrelated to their occupation. However, there are other instances that I could cite. For example, if one wishes to be an airline pilot or something like that, it is most important to have a medical test because the lives of everyone else will be placed in one's hands.
However, I should like to see an amendment of the type which would cover the situation where a test was not specifically related to the employment in question. For example, I have in mind a case with which I dealt many years ago which concerned the health service. A man had been dismissed because of his health. However, when we were going through the appeal hearing it turned out—only because he never revealed the fact before—that he was a hepatitis carrier. He had been serving meals to very elderly, ill people and those coming into hospital for operations. Therefore he was totally unsuitable for that work. For such a job, it is necessary for him to be clear of all sorts of infections that could be passed on to patients.
Therefore, there are instances where a test can be required. But I should like to see the principle that the noble Lord has put forward expanded to cover any unnecessary tests. I also accept the statement made by the noble Lord that if the person puts on his application form the fact that he is disabled—and I believe that I said this on Second Reading—he will not be interviewed, while the very same people would offer that person a job if they did not know he was disabled.
§ Baroness Jay of Paddington
Like the noble Baroness who has just spoken, we on these Benches also support the principle behind the amendment, but are rather concerned about some of the points raised by the noble Lord, Lord Swinfen, and other speakers. If it is possible, we would like to see an arrangement which would allow for there to be information which is relevant to employment without there being any implication, as the noble Baroness, Lady Gardner, just said, that some irrelevant test may be regarded as a subtle form of discrimination. I do not know whether it is possible for the noble Lord to introduce another amendment, but the principle involved is certainly most important.
§ Earl Russell
It is possible that I may be able to help the noble Lord, Lord Swinfen, to whom I listened with great care. Paragraph (a) of the amendment allows employers,to ascertain the ability of the applicant to perform job related functions".In the occupation of the noble Lord, Lord Swinfen, understanding disabled people and being able to communicate and share things with them is surely a job-related function and, therefore, would fall within the terms of the amendment.
I agree with the point made by the noble Baroness, Lady Gardner of Parkes. The key question is: what is a job-related function? All the ambiguity in that respect is in a story that Lord Baden-Powell used to tell of a soldier turned down on an Army medical for having bad teeth. He came back from the medical complaining bitterly that one was expected not only to kill the enemy but also to eat him.
§ Lord Inglewood
We have had a most interesting debate on the amendment from a number of different perspectives. I should like to make one point clear before I begin my response. The clause under review relates to people who are already disabled.
I support the broad intention behind the amendment, which is clearly to prevent medical examinations being required, or questions being asked, where the information obtained might be used to discriminate unfairly against disabled people. I have serious concerns about how that would work in practice. I also do not believe that unnecessary rules and regulations should be imposed on employers. However, I doubt whether specific obligations of that sort are needed to achieve the objective.
The effect of the amendment would be to make unlawful medical examinations, or inquiries, of an applicant for employment as to whether he is a disabled person or as to the nature or severity of any disability prior to an offer of employment unless to ascertain the ability of the applicant to perform job-related functions, or to conduct equal opportunities monitoring.
To forbid medical examinations in the manner contemplated by the amendment would be an inappropriate interference, going well beyond the protection of disabled people. The restrictions on questioning are even more far reaching. Almost any inquiry could touch either directly or indirectly on possible effects of a disability, so, if the amendment were accepted, there may be few lines of questioning open to an employer when recruiting that would not carry the risk of a complaint of discrimination being brought against him. I do not accept for a moment that the only questions an employer should ever ask at an interview should be those directly related to essential job activities.
Moreover, the amendment would often work to the detriment of an applicant with a disability. For example, a prospective employer would not be able to ask questions about whether an applicant needed special arrangements to attend an interview; about the travel arrangements if appointed; or about his ability to use ancillary facilities such as car-parks and rest rooms. Perhaps more seriously, in some industries, the amendment would prevent an employer operating compulsory medical examinations 1709 for employees doing work involving exposure to a health risk—the kind of point raised by my noble friend Lady Gardner. Moreover, not all tests and questions are for the employer's benefit. Some are necessary to consider how a person with a disability could best be accommodated in matters that might not be directly related to the job functions. The restrictions imposed by the amendment would not result in good employment practices.
I see further difficulties with the confidentiality provision. The requirement might conflict with what is best to ensure that steps are taken to safeguard an employee's health and safety. It may be necessary to inform close colleagues who are working alongside a disabled person of the nature of the disability, for example, so that the employer could ensure that in an emergency special assistance can be provided for a disabled person, if that is necessary.
There are adequate safeguards in the Bill for disabled people. A disabled employee or applicant would be able to pursue a complaint to an industrial tribunal if an employer unjustifiably used information from a medical examination to discriminate against him. That seems to be a most crucial point in the context of the current debate. In the light of the various points that I have made, I hope that the noble Lord will consider withdrawing his amendment.
§ Lord Addington
I believe that many of the problems that were raised are dealt with, as my noble friend pointed out, by paragraph (a) of the amendment; namely, the words,to perform job-related functions".I believe that the point is covered in many of the grounds already stated.
The Minister gave a full and interesting reply. It is a matter about which we have great sentiment at this stage. Indeed, we actually believe that the idea is sound. However, whether or not the amendment proposed happens to be the right vehicle does not matter very much because we are only in Committee and can look at it again. I wish to read what the Minister has said, take the opinion of experts in this field and possibly return to this subject. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 24 not moved.]
§ 7.30 p.m.
§ Lord Swinfen moved Amendment No. 25:
Page 2, line 41, at end insert:
("() In the case of an act which constitutes discrimination by virtue of section (Discrimination: genetic predisposition), this section also applies to discrimination against a person who, at the time, is not disabled.").
§ The noble Lord said: In moving Amendment No. 25 I wish to speak at the same time to Amendments Nos. 67 and 130. In introducing a right for disabled people not to be discriminated against in employment and in access to goods and services the Bill will extend protection to many who have suffered greatly as a result of institutionalised discriminatory practices endemic in society. However, in putting right a wrong, care should be taken that measures 1710 proposed are inclusive rather than exclusive and do not themselves create the possibility of discriminatory practices.
§ Recent developments in the understanding of the genetic base for a range of conditions means that it is increasingly possible to determine whether or not an individual will develop a disorder before he or she shows symptoms of the disorder; in other words, pre-symptomatic testing can increasingly inform healthy people that at some time in the future they will either become, or run the risk of becoming, disabled. The advent of such testing means that those at risk are able to make informed choices concerning major life events such as the decision whether or not to have children. It also creates the opportunity for those making decisions about those at risk to use the information in a way that disadvantages them unfairly.
§ The Bill as it stands will make it possible for a healthy person whose genetic make-up means that he or she will one day have a disability to be treated in a way that would be illegal if he had begun to manifest symptoms. Indeed the wording of paragraph 7 to Schedule 1 to the Bill, whilst recognising the progressive nature of many conditions, and bringing them within the scope of the Bill, specifically excludes those who have not yet begun to show symptoms but who will do so because of their genetic make-up. This is blatantly discriminatory and is surely contrary to the intention of the legislation. Furthermore, it will also increase the numbers of those who find it more difficult to enter the labour market and make adequate provision for themselves and their dependants, with a consequent increase in the likelihood of other problems developing that will need intervention or support from statutory services. Such people are also highly likely to become dependent on benefits for financial support.
§ If healthy people who are at risk from genetic conditions feel that they will be discriminated against if they put themselves forward for a diagnostic test which turns out to be positive, then they will be less likely to have the test. This could have severe consequences for their health and that of any dependants who may be born as a result. For example, about half a million people are thought to be at risk from—I shall have difficulty expressing this medical term—familial hypercholesterolaemia. However, only about 10 per cent. have availed themselves of specific diagnostic tests. If detected early enough, a dietary and exercise regime can be introduced that will result in the individual being able to lead a virtually normal life. Without this the individual will almost certainly experience early onset of severe heart disease with consequent severe incapacity and premature death, yet those detected frequently experience significant difficulty in getting work. Their occupational choices are curtailed and they either cannot get insurance or can only do so if they are able and willing to pay significantly raised premiums, or accept greatly reduced cover. It is clearly unreasonable that health decisions should be adversely influenced by people's fear of their possible consequences in other areas of life. If the Bill is to produce the hoped for improvement in the lives of those whose disability is due to a genetic cause, then the position of 1711 those in the pre-symptomatic state must be protected, otherwise all that will happen is that the problem will be brought forward and they will be worse not better off.
§ Can the Minister clarify the Government's position and make clear that those who are in the pre-symptomatic phase cannot be treated any less favourably than they would be if their condition had advanced to the point whereby it had begun to show external manifestations? As an example, there is a family in Dumbartonshire who I understand are buying a house with an endowment mortgage. It is not clear whether the endowment insurance carries a loaded premium or not. The current total outgoings on the endowment mortgage are some £400 a month. As they were worried about the possibility of the payment of mortgage interest being changed in the income support regulations, they asked their building society to arrange a quotation for insurance cover to pay the mortgage in the event of sickness or unemployment. The monthly premium quoted was £104 which is beyond their capacity to pay. They are worried about the possibility of losing their house as they have adapted it to meet the needs of the husband and daughter who both have epidermolysis bullosa. There are few council houses in the area and none are already adapted. This is a problem that we ought to face in this Bill. I beg to move.
§ Lord Addington
I rise to support this amendment to which my name is added. There are few certainties as regards inherited genetic conditions but the likelihood or the certainty of their being inherited should not be used as a means of discriminating against someone. An amendment of this kind is totally in character with the aim of this Bill of preventing discrimination. I hope that it receives the support of the Committee.
§ Lord Ashley of Stoke
I wish to support the amendment moved by the noble Lord, Lord Swinfen. I am delighted he did so because it is an extremely important amendment. A little while ago I attended a meeting of the all-party disablement group and I heard a bunch of experts speaking about the problems of those with genetic disorders. I found that discussion very disturbing because people with those disorders are not only facing the probability of developing a serious illness later in life but they are also facing serious discrimination.
Knowing that the noble Lord himself is a great expert on all aspects of disability, I assumed that he and his colleagues would have made provision for these people. I read through the various debates on this matter and I found to my amazement that the Government are opposing these amendments. I cannot quite make out why they are opposing them. I have read their words but I am still looking for the meaning. Possibly when the noble Lord replies to the debate he will try to convince the Committee on this matter, but I can see no substantial reason why we should not make special provision for people with a genetic disorder.
I think it is absolutely undeniable that some, although not all, employers, and some insurance companies, will discriminate against people with a genetic predisposition. From their own extremely narrow self-interest some of them are bound to do that, and these are the people who we must prepare ourselves for and for whom we must legislate. This amendment is of crucial importance. I think in the future there will be—
§ Lord Vinson
In the case of epilepsy if, thanks to the advances of medical science, it was shown that someone was going to be prone to epileptic attack but had, fortunately, up to that point not had an epileptic attack, would it be regarded as discriminatory if the insurance company refused to insure that person, if it was aware of the condition, because the person might suffer his first epileptic attack while driving a motor car? Would the noble Lord regard that as discriminatory or non-discriminatory? I am afraid it is cases like that which are likely to arise. I would be grateful to hear the noble Lord's views on that.
§ Lord Ashley of Stoke
I would certainly regard that as discriminatory. Epileptics have been discussing this issue, as the noble Lord probably knows, for some time. The question is whether the Minister will so regard it. Perhaps, having overheard the noble Lord's question to me, he will address himself to it.
The problem is that when there is a predisposition people are not designated as disabled, but clearly they will be and they are faced with the problem of discrimination. I do not know what the Minister is muttering about, but if he wants to intervene he is more than welcome to do so. When employers and insurance companies discriminate against people on those grounds I believe that we have to take action in this House.
I was about to say that in future the struggle will be between those who are at risk trying to avoid tests because they are worried that if the results of the tests are known they will suffer discrimination, and on the other hand employers and insurance companies demanding that there should be tests. That is the real problem. They would want the results of the tests to be considered for job evaluation and insurance purposes. Whatever the outcome, those people have no protection if the Minister sets his face against the amendment.
I know that the Government have tried to justify their stand by saying that it is psychologically damaging to treat such people as disabled. I believe that it is more damaging, both psychologically and practically, to deny those people a job or insurance.
As scientific knowledge advances, as it is very quickly, this will become a major problem throughout Britain and the world. Many more people will be able to have tests and many more of these problems will be discovered. Therefore, we need to establish a framework for the future. The Government say that this Bill is not the right place to do that. On the contrary, I believe that this is exactly the right place for such a provision because this Bill is concerned with discrimination. The noble Lord shakes his head. It is. The Bill is called the Disability Discrimination Bill. I never knew that one could split hairs like that. This Bill is concerned with discrimination against disabled people. This is an opportunity to make special provision for those people because they suffer criminal discrimination. They are very vulnerable people; they are waiting for an illness, which is a further blow. There is no excuse for the Government refusing them protection.
§ Baroness Jay of Paddington
My Lords, I wish to support the amendment for the reasons that have been given so eloquently by the noble Lord, Lord Swinfen, and my noble friend Lord Ashley of Stoke.
I have one additional concern relating to the impact of discrimination in this field; namely, the area of parental genetic counselling in order to achieve the prospect of a healthy child for parents who have a genetic predisposition. It may sound rather far-fetched, but it is already the case that identifying the gene for cystic fibrosis and replacing it through in vitro fertilisation techniques has meant that healthy babies have been born to parents who might previously have been at risk of producing a child with that particular condition. We should resolutely turn our faces against anything which leads the parents of children who might be healthy to refrain from the kind of genetic counselling and testing which might lead them to produce another generation of more advantaged children.
The paradox which is possible in the present situation is that where genetic counselling, genetic testing and identifying genetic markers is potentially one of the most exciting and liberating developments in medical science at the end of the 20th century, if it becomes the case that people feel that identifying those markers in their own personal situation will lead to discrimination, they will be less likely to take advantage of those extraordinary scientific advances which may help their own condition and in which medical science may be able to help future generations of children.
It is sometimes argued that, theoretically, the whole population has the potential for some kind of genetic problem. The issue now is that we are in a situation where science has developed so far that we can talk about specific developments in genetic markers which means that it is not sensible to talk about the whole population being at risk. It is possible to identify people who are at risk. We are beginning to see the results of work now on Alzheimer's disease as well as on other diseases such as Huntington's chorea and cystic fibrosis. It seems to me that it would be very foolish if at this stage we exacerbated the potential paradox of allowing people who may be helped in this way to feel that they will be discriminated against. I support the amendment.
§ 7.45 p.m.
§ Earl Russell
I am grateful to the noble Lord, Lord Swinfen, for introducing an amendment which is not only important but also likely to be a great deal more important in 20 years' time than it is now.
In supporting the amendment, I must declare an interest. In doing so I should say that the issue of genetic counselling is perhaps slightly more complicated than the noble Baroness, Lady Jay of Paddington, suggested. When my father was in his twenties, which is now about 100 years ago, he was earnestly advised by several doctors that because there was a history of mental illness in the family he should never allow himself to have children. I declare an interest in the view that it is a good thing that he did not take that advice.
I say to the noble Lord, Lord Vinson, that my grandfather was an epileptic. It never occurred to me for a moment that that was a reason why I should not have a 1714 driving licence. I believe that the correct reaction to the noble Lord's point is that if there is any risk of accident sufficient to appear to the authorities a good ground for denying a licence, then the person should not drive. However, if the person is medically fit for a licence, then we should accept that the basic principle of insurance is spreading the risk.
§ Lord Inglewood
We have had an extremely interesting and very wide debate. At the risk of being slightly narrow minded, I draw the attention of the Committee to the fact that we are debating Part 2 of the Bill which relates to employment matters.
The debate echoed a number of points which were raised earlier. I should like to echo a point raised on a number of occasions by my noble friend Lord Mackay; namely, that this is a disability discrimination Bill. It is designed to cover people who would commonly be understood to be disabled. That is someone who has an impairment which has a long-term and substantial adverse effect on normal day-to-day activities. We think that these are the people everyone generally takes to be disabled. We have already included in the Bill the people who would be commonly understood to be disabled: people with severe disfigurements; people with a progressive condition which is in its early stages; and people with recurring substantial effects. However, we have to draw the line somewhere, and we must draw it where there is not and never has been a disability as it is commonly understood.
The noble Lord argued that people with genetic predispositions suffer discrimination. However, a person with a genetic predisposition is not disabled and therefore that argument is not relevant to the Bill, although it may be relevant to other matters.
I should like to touch on a point made by my noble friend Lord Swinfen in relation to house insurance premiums. I can tell him that the Government have powers in the Bill to prevent insurance companies discriminating unjustifiably against disabled people. Refusing to insure a disabled person or charging a higher premium than normal where there is no actuarial or other good reason for doing so will be prohibited. However, I have to tell my noble friend that the Government will not require insurance companies to charge lower premiums than the risk insured requires simply because the risk is based on the customer's disability. I am aware of no legislation in the world which would require insurance companies to do that.
As the debate has shown, there are serious ethical questions surrounding the whole topic of genetic testing. The rapid advance in scientific understanding of our genetic structure opens up a number of possibilities. It seems likely that in the relatively near future it will be possible to identify genetic predispositions in all of us. Does that mean that all of us will be disabled and covered by the Bill? Of course not. It means that scientists will be able to see in advance what conditions we are most prone to should we have the good fortune to live to old age.
I do not deny that the whole field of genetics needs to be looked at in its entirety. The Select Committee in another place is due to publish a report on the subject shortly. It would be a mistake to pre-empt that debate by accepting 1715 these amendments now. We believe that the effect would be counter-productive for people with genetic predispositions and it would serve to undermine the effectiveness of a Bill intended to protect people who have or have had a disability. It is for that reason—I hope that noble Lords understand it—that I must ask the noble Lord to consider withdrawing the amendment in line with what I said.
§ Lord Eatwell
Before the noble Lord sits down, perhaps I may ask him to reconsider the proposition that he made about insurance. It is not true that no insurance companies in the world would consider the generality of insurance to be separate from the risk of individuals. For example, in Germany, motor insurance does not consider the specific characteristics of individual drivers. The standard fee is related to the size of vehicle; and that is all. The structure is quite different from that of insurance in the UK. As a result, insurance is more widely held. There is less evasion. The settlement of insurance claims is more rapid; and the cost per driver on average is less because the risk is more widely spread.
It is an example by which insurance, by not discriminating between individuals, proves to be more efficient. The statement that the noble Lord made about the nature of insurance companies is not true.
§ Lord Inglewood
Perhaps I may answer the point made by the noble Lord. We are at cross-purposes. The proposition that I made, and I stick by it, is that I am aware of no legislation in the world that requires insurance companies to make such provision. The noble Lord described a situation in Germany. I have no reason to suppose that what he says is not 100 per cent. accurate. We are talking about legislation, not the commercial practice of insurance companies.
§ Baroness Jay of Paddington
At the risk of prolonging this interesting debate, perhaps I may say this. I believe the noble Lord has the point slightly wrong about the whole population being at genetic risk. Specific conditions have been identified in the Bill as being required to be on the face of the Bill as special cases. We debated whether HIV should be added to cancer and the other conditions which are described.
We can all hope for the day when a genetic marker will tell us whether or not we shall be more intelligent, or will live to 104 years. However, we have already identified genetic markers about specific genetic disabilities which could be included in the Bill.
§ Lord Inglewood
I am grateful to the noble Baroness. Undoubtedly in her own right she is a great deal more knowledgeable on these matters than I am. However, the point to which I return is that in the Bill we are talking about when the disability manifests itself. That is the focus on which we have debated the matter.
§ Baroness Hollis of Heigham
We have been talking about when the disability manifests itself, or gives rise to discrimination. The Minister repeats a problem that we encountered at the beginning of the debate this afternoon. By focusing exclusively on disability, discrimination will be generated against which other people in similar circumstances will have no protection.
§ Baroness Farrington of Ribbleton
In reply to the first amendments debated today, the Minister stated that it was not possible to accept the amendment because the Bill had to deal with matters of fact and not the perception in the minds of employers. It was stated that it was totally unreasonable to legislate on whether the perception of the employer was that the person suffered from a disability so that the employer did not wish to employ that individual.
The amendment does not refer to a perception but to a specific act: asking for information which will be taken into account. There is no point in asking for the information unless it will be of value. Therefore perhaps I may press the Minister to state whether he considers it unlawful for employers to ask for such information. Will he state quite clearly whether there would be some point along that road at which such unlawfulness would become a risk? The Government state that there are categoric groups of people who can be discriminated against on grounds of their disability.
In the circumstances debated, we refer to a disability in the future, if there is a genetic predisposition. It is a question of degree, and when. We have referred to illnesses which involve serious disability. The Minister cannot argue both ways. He cannot argue that we cannot legislate for perceptions and then refuse to accept an amendment which deals with a concrete and quite visible situation.
§ Lord Addington
Having listened to the debate on the amendment, I believe that both sides are going a long way round the argument. We are referring to information which defines a strong likelihood of developing a certain type of condition. Does the Minister accept that a level of certainty about a condition can be reached where such a condition becomes a factor? That is all we are talking about. We can go round the houses about genetic testing and whether genetic science will change rapidly. We can only deal with the situation which exists at this point in time. Certain tests can take place now which can indicate that there is a strong possibility that in 30 years' time a condition will occur. Does the Minister accept that such an issue sits squarely with the provisions of the Bill?
§ Earl Russell
The Minister argued that a genetic defect is not a disability. I have looked at the wording of Clause 1. As a point of law, one could not pronounce on the matter until it had been before a court. But I am not sure that the Minister is right.
Clause 1 includes the words "physical or mental impairment". Our gene base is physical. If our gene base is impaired, surely within the meaning of the Act (and for once I use the phrase literally) one has a physical impairment.
I then read the qualification,which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities".Parenthood is a normal activity. How far it is exactly to be described as a day-to-day activity, I am not entirely clear. However, I should have thought that within the meaning of the Act, arguing that case in court I might have had a sporting chance.
1717 I should have thought that the Minister might be wise to take a little further legal advice on the question. If the Bill is not the right place to make such provision, perhaps he will tell us what is.
§ Lord Inglewood
We come back again to the point that I made. I understand exactly why noble Lords feel that the basis upon which the Bill is predicated may be wrong. However, it is the basis on which the Government bring the Bill forward; namely, that for this Bill to apply, there must be a disability in place. We have debated genetic screening and genetic predisposition to certain changes taking place in people at some time in the future. However, so far as involves the here and now, we come back to the point that I mentioned earlier: there is not a disability on which the Bill can bite.
I wish now to move to the point made by the noble Earl, Lord Russell. We are talking about day-to-day activities now. That factor relates to the point that he made and to the point that I make. I am no geneticist. I do not wish to go down that road. If the genetic condition which the person may have does not have an impact on his day-to-day activities now, it will be outside the scope of Clause 1 of the Bill.
Perhaps I may conclude by referring to some remarks which the noble Earl made in a previous contribution: we very much like you the way you are.
§ Lord Swinfen
Before I make up my mind what to do about the amendment, my noble friend Lord Inglewood advised the Committee that a Select Committee in another place was considering genetic predisposition. It would be extremely useful to the Committee for the Select Committee to report before we finish with the Bill. If he is aware of it, can my noble friend give any indication as to when the committee is likely to complete its work and to report, so that those of us who are interested in the subject will have an opportunity of reading the report?
§ Lord Inglewood
The best reply I can give to my noble friend's question is: some time in the autumn.
§ Lord Swinfen
I thank my noble friend for that, but it is not helpful. I appreciate that the matter is outside his control. If there is a possibility of asking, through the usual channels, whether an interim report could be produced, I am sure that everyone who has taken part in the debate would find it welcome and useful.
The point made by the noble Baroness, Lady Farrington, was useful. She said that it might be unlawful for employers to ask whether someone had a genetic predisposition to any disabling condition. I was not sure that we received a satisfactory answer from my noble friend. He has probably not had time to think of it. The whole question of genetics and genetic predisposition is moving so fast that, like me, he will not have had time to catch up with the latest situation. However, I understand that with one of the disabling illnesses to which people can be genetically predisposed—Huntington's Chorea—there is 99 per cent. certainty of a test accurately showing whether or not a person is likely to have the disease. As my noble friend probably knows, it is a hideous disease which produces both a physical and a mental disability which will probably come out in one's mid-forties, 1718 sometimes earlier, sometimes later. By that time, the next generation have probably already been born. We do not wish to put people in the position of refusing to have tests to ensure that they do not produce other people who are likely to suffer from the hideous disabling disease.
The matter of insurance is important. In some respects, I know that the subject terrifies the insurance market. Most genetically predisposed diseases will come on slowly and gradually and there is warning. Very few come on with no warning whatever, so I am sure that provision can be made in some way or another.
It is getting late; I did not intend to divide the Committee on the matter and I thank all those who have taken part. However, I warn my noble friend that I do not believe that I can let the matter drop. I am liable to come back either with the same amendment or a revised one at Report stage. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 3 agreed to.
I beg to move that the House be resumed. In moving the Motion, may I suggest that the Committee stage begin again not before 8.50 p.m.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.