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Baroness Gardner of Parkes moved Amendment No. 10:

Page 30, line 5, after ("cancer") insert ("HIV infection,").

The noble Baroness said: I rise to move Amendment No. 10 and speak also to Amendments Nos. 11 and 12. This group of amendments is concerned with the scope of the Bill as it affects progressive conditions such as multiple sclerosis and muscular dystrophy which are already referred to in paragraph 7(1) to Schedule 1; and HIV and cystic fibrosis, which are not.

I shall begin by explaining briefly the effect of the amendments. Amendment No. 10 simply adds HIV infection to the short list of progressive conditions which the Bill explicitly indicates as giving rise to disability in the terms of the Bill. Amendments Nos. 11 and 12 are slightly more radical. They change the sense of the Bill to provide that protection will be given to a person with a progressive condition on diagnosis if that condition is expected to give rise to a substantial and long-term effect on his ability to carry out normal day-to-day activities.

We have debated that aspect to a considerable extent this afternoon and therefore I do not intend to speak in great detail on Amendments Nos. 11 or 12 because from what the Minister said earlier this afternoon it is quite clear that he considers it essential that there should be a symptomatic HIV condition rather than one which has been diagnosed but which has no symptoms at that stage. I would like the Minister to consider Amendments Nos. 11 and 12. Amendment No. 11 seeks to delete Clause 7(1) (b) which states,

In view of all that was said earlier this afternoon I cannot believe for one moment that the Minister will find that acceptable.

Amendment No. 12 seeks to alter Clause 7(1) (c) to make it state,

    "he shall be taken to have an impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities".

I claim that from the moment of diagnosis HIV has an effect that will be long term. I believe it is not disputed that HIV is a progressive condition. The length of time that it takes for the condition to progress from HIV to AIDS varies in individual cases, but there is a progression and medical opinion states that although one or two cases in the world have not been progressive no one has yet established that the condition is not progressive. The experience in this country is that the condition is progressive.

I remind the Committee that the Bill already makes adequate provision—which I am pleased about—for circumstances where less favourable treatment of the disabled is justified. It is clear in the Bill that no one should have to employ a disabled person to do a job

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which, because of his disability, he cannot do. The Bill also has to draw a line beyond which it is unlawful for someone to discriminate on the basis of the likely prognosis of a person's future condition. The point of the Bill is to ensure that the disabled can continue to be useful members of society in all the many ways that they can, for as long as they can.

I would say to my noble friend that I understand why the Bill has this common-sense definition of disability which lies at its heart, and which I support. However, I would suggest that in this particular instance there is a common-sense solution and that my suggestion is one such solution. It replaces uncertainty with certainty. Instead of arguing about whether someone with a progressive condition has an impairment which will develop into a substantial impairment—which is rather a subjective judgment—it allows for diagnosis to be sufficient. I believe that would create a situation where disabled people would feel protected. They want clear statements and in that context I should tell the Committee that I have received support for these amendments from the Multiple Sclerosis Society and the cystic fibrosis society.

The case for protecting those with HIV infection in this way is even stronger; hence the need for Amendment No. 10. I believe that Amendment No. 10 is simple and straightforward and should be accepted by the Minister.

Those with HIV, even though they are perfectly healthy, fall under the shadow of the irrational yet understandable public fear of AIDS. If they cannot work they will become a public liability in the sense that the social security system will have to support them. That point should not be taken lightly. Since HIV and AIDS seem to be linked to stress and worry, it is likely that sufferers will become ill earlier than they might otherwise have done. It has to be appreciated that death often occurs due to HIV-related diseases long before AIDS develops. I also believe that there will be an advantage in terms of the Bill as a whole if the words "HIV infection" are included as an example of a progressive condition.

I need hardly stress that HIV is probably at present the medical condition which gives rise to the most obvious prejudice. If the Bill explicitly states that those with HIV-related disability are protected, it will be clear that the Bill covers all disabled people. It would also be significant for all the organisations working in this field to know that the Government recognise HIV as a special case.

I noted the undertaking given by my noble friend at Second Reading that those with symptomatic HIV are covered. On that point he and I are one, and I am grateful to him. I want to help those disabled in this way to feel protected. We agree on policy. Let us make it more explicit on the face of the Bill by adding the words "HIV infection" to the examples of a progressive condition. I beg to move.

5.30 p.m.

Lord Kilmarnock: I wish to support the noble Baroness, Lady Gardner, particularly in her Amendment No. 10, which is the one on which she concentrated.

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As I understand the Bill, it is intended to prevent discrimination at work. People with HIV are undoubtedly discriminated against, despite the excellent guidelines for employers issued by the Department of Employment. As the noble Baroness stated, such people are undoubtedly suffering from a progressive condition. I have a letter which I received today from Professor Anthony Pinching who is Professor of Immunology at the Medical College at St. Bartholomew's Hospital, stating categorically:

    "Once HIV disease supervenes, progression has already started and will progress further, for practical purposes in all cases. Current therapies may slow this slightly but will not reverse it nor will they prevent progression indefinitely ... HIV disease would be more analogous to fully developed cancer, although obviously some cancers/leukaemias are now curable, which HIV disease is not".

As we know, most sufferers are young, often in their 'twenties. Owing to the long-term nature of the progression of the disease, they are able to work for long periods. As the noble Baroness said, if they are discriminated against they become a burden on the state. Therefore, adding HIV as she suggests is a cost-free exercise, unlike most in the social security and disability field.

At present I am slightly confused by the Government's position. However, I have no doubt that the Minister, with his customary lucidity, will clarify everything when he comes to reply to the debate. In Committee in another place his honourable friend Mr. Hague said:

    "We have drafted schedule 1.7 so as to avoid difficulties that might arise should courts or tribunals find it difficult to define the point at which someone with a condition such as multiple sclerosis becomes disabled."

He also said:

    "I believe that our definition—although it may need to be clarified in regulations in due course—would cover, for instance, people with AIDS and symptomatic HIV, but would not cover people without symptoms of HIV".—[Official Report, Commons, Standing Committee E, 7/2/95; col. 85.]

We are all agreed on that. However, it is not certain to my mind that the Bill as drafted covers symptomatic HIV without any further mention on the face of the Bill.

If paragraph 7(1) (a) of Schedule 1 is intended to be indicative—which I believe is the term of art for such lists—it is strongly indicative in the main of genetic conditions, with the possible exception of viral cancers, and not of other progressive viral conditions such as HIV. Therefore, it could well be construed against HIV as drafted.

Later, in paragraph 7(2) of the same schedule, we read:

    "Regulations may make provision ... for conditions of a prescribed description to be treated as being progressive".

No indication is given as to who is to make that prescription or on what criteria.

Turning to what the Minister said at Second Reading, which has been quoted by the noble Baroness, he said:

    "we have also ensured that people with progressive conditions are covered from the point at which they develop effects on day-to-day activities, however slight, and that people are covered who have impairments where the effects fluctuate or recur".—[Official Report, 22/5/95; col. 801.]

We were very glad to hear that from him at Second Reading. I am sorry that I was not able to be present, but I read that with some relief. However, I do not see it reflected on the face of the Bill.

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Putting HIV on the face of the Bill is simply to put beyond legislative doubt that HIV is a progressive condition, as certified by Professor Pinching, but will not trigger any application under the Bill until such time as a disability is recognised under regulations against criteria which the Government have full power to dictate after taking the appropriate advice. I find it very hard to understand any objection to that. I hope that the Minister will indicate that he will accept the amendment of the noble Baroness.

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