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Baroness Gardner of Parkes: I enjoyed listening to the noble Baroness, Lady Hollis, but I cannot support this amendment because I believe that it is almost an impossibility to legislate on the basis of perceptions. I believe that is totally unrealistic. People have amazing perceptions about themselves and about everyone else. It is impossible to know what one means by perception. If one is to try to prove that someone had a perception, one has to prove that they had a certain thought. This Bill should be realistic. The way to deal with perceptions about HIV is to educate people on that matter and to show them how unreasonable their perceptions are. One cannot say that one perceives a problem because in the case of someone who had HIV but who showed no symptoms of that, other people would not even know that person had HIV and therefore they would not perceive that. One could not perceive that condition if one was not aware that a person had it. A person who feels that he or she is different in any way may be self-conscious of that. I remember years ago talking to a beautiful girl who told me that she felt her whole appearance was marred by a terrible fault that she had and that she intended to undergo plastic surgery. When I asked her what was wrong she told me that her little fingernail was deformed. People have extraordinary ideas about themselves and other people can have unusual perceptions too. I cannot support the amendment because I think it is too unrealistic.

Lord Renton: Although I do not doubt the sincerity of the noble Baroness, Lady Hollis, or of the two noble Lords who have supported her, I hope that they will not doubt my sincerity either because my interest in the disabled is pretty well known as the father of a severely handicapped daughter. But I am afraid this really is a misconceived amendment. These cases, if they come to court, are going to be decided in the light of the evidence that is presented. What matters is not whether the discriminating person who will be the defendant in these proceedings has perceived something; what will matter is whether the disabled person has got the disability. It is just as simple as that. I am sorry to have to say that although well intended, this amendment, if made to the Bill, could only cause great confusion in the courts and elsewhere.

Lord Ashley of Stoke: Before the noble Lord sits down, will he kindly tell us whether in a court of law the question would not be whether the person has a disability but, when this Bill is an Act, whether the person has been discriminated against; has he suffered discrimination? The object of this Bill is to end discrimination. Would that not be the question before the court?

Lord Renton: I am afraid the answer to the noble Lord is that whereas the Bill as it stands enables an objective test to be made in the light of the evidence, the noble Lord

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is suggesting that there should be a subjective test in the mind of the person who is the alleged discriminator. It would not be in the interests of disabled people for the court to have to decide the matter in that light. Disabled people will not be helped merely by an examination of the minds of those who discriminate against them. They will be helped only by the evidence as to the nature of their disability. That is what will matter. Quite frankly, this amendment is contrary to the interests of disabled people.

Baroness Hollis of Heigham: Before the noble Lord sits down I hope that he can help us. How does he understand his remarks in the light of Clause 5(1) (b)—where the test will not, alas! be the objective test that the noble Lord has described to us; I wish it were and we shall be putting forward an amendment to that clause later—which refers to a situation where it is reasonable for the employer to hold a particular opinion? In other words, in the courts the test is not objective but subjective, in that it refers to the mind of the employer. It is that that worries us. I hope that the noble Lord can help us by giving us his views on that.

Lord Renton: With great respect to the noble Baroness, I am sorry to say that she does not have that right because it will be for the court to decide what is reasonable in all the circumstances, and that must continue to be an objective test.

Lord Renfrew of Kaimsthorn: I have the greatest sympathy with the point made by Members of the Committee opposite. It clearly is most unjust if persons who are, for instance, affected by the HIV virus but do not show symptoms of that, are discriminated against. That is unjust. I very much take the point made by the noble Lord opposite that if someone is shown to have a genetic defect simply through genetic testing, or is shown to have a potential genetic defect—for example, a shortened life expectancy or something of that kind—it is quite clearly unjust that that person should be discriminated against. I would be very much in favour of appropriate legislation to protect his or her position. The Title of the Bill reads:


    "An Act to make it unlawful to discriminate against disabled persons".

I very much doubt that it is an appropriate procedure to fulfil the objective which Members of the Committee have expressed, and with which I sympathise, to enlarge the definition of "disabled persons" to a degree which goes beyond sense. As the noble Lord himself said, someone who is, for instance, HIV positive may live happily for many years without incurring any symptoms, and until that time he is not properly regarded as disabled, in my view, and should not be regarded as disabled. In some senses it would be counter-productive to regard such persons as disabled, would it not? It would be against their own interests to regard them as disabled. It may well be that one could consider legislation which would make it illegal to discriminate against persons on the grounds that they have a genetic factor or an acquired factor which might subsequently lead them to become disabled. While I have the greatest sympathy with the objectives which Members of the Committee express, I doubt whether it is in the interests of those persons that they should be defined as disabled before they have an actual disability.

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For that reason it seems to me that the amendment is not an appropriate one in this context, or is not appropriately framed, even though I would warmly support a Bill, a Motion or an amendment which, in a more appropriate manner, would protect the position of those persons.

3.30 p.m.

Baroness Farrington of Ribbleton: Before the noble Lord sits down perhaps I may take forward some of his points and raise the question as to whether this legislation is based on determining in a court of law that discrimination has occurred on the part of the employer because the employer believes or decides that a person, due to disability, is unable to carry out a job. In those circumstances I find it difficult to conceive of a situation in which it is acceptable to discriminate. This legislation is against discrimination on grounds of disability. Discrimination on grounds of disability has to be proved in a court of law. That has to be proved to be the motivation behind the decision of the employer.

Therefore, how can we logically argue in a piece of legislation that a minor form of disability or potential disability forms an acceptable basis for such a perception in the mind of the employer and for such action on the part of the employer, and that serious discrimination cannot be taken up if the disability is minor or potential? Discrimination on the grounds of disability, as perceived by the employer, is surely the basis of this legislation.

Lord Renfrew of Kaimsthorn: As I have not sat down perhaps I may try to answer the noble Baroness. There is a great distinction between the two points which she made. If there is a minor disability, I entirely agree that it is appropriate for it to fall within the scope of the Bill. We then have a disabled person, and the Bill is framed in such a way that it will be unlawful to discriminate against that person. If that person has the disfigured fingernail that we have heard about it would be grossly improper to discriminate on those grounds. That is the situation as regards a disabled person.

However, there is a separate issue, although I agree that it is a serious issue and I have expressed every sympathy. If someone has a potential disability, for example, a genetic defect which may shorten his or her lifespan or have other unfortunate consequences, but at the time in question that person is not disabled, it is against logic and, as my noble friend said, will lead to many difficulties to define such a person as disabled. It would be something of a nonsense.

I feel, therefore, that the amendment is not well framed although, as I say, I have every sympathy with persons who can be medically recognised as having a potential disability. However, it is a different case.

Baroness O'Cathain: I have great sympathy with the thought behind the amendment, but one also has to consider the matter from the point of view of the employer. It is not only disabled people who are discriminated against; a situation could arise in which the employer is discriminated against.

The amendment would alter the Bill to read:


    "if he has or is perceived to have a physical or mental impairment".

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Perceived by whom? Is it the disabled person himself or the employer? Individuals could believe that they had a physical impairment or disability which they had built up in their own minds. They might feel that they do not look right, or have a disfigured fingernail or a club foot. If they do not get a job they might well think that the employer was discriminating against them because of their perceived disability, whereas the employer might have no perception of the disability. I should like some clarification on that point.


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