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Baroness Masham of Ilton: Perhaps I may raise this point with the Minister. Surely having a killer virus within one's system must cause a serious psychological disability. I cannot believe that it does not.

Lord Mackay of Ardbrecknish: That is quite a difficult question to answer; it depends on how the person reacts. I cannot believe that it is pleasant to find that one has the disease, but I do not feel that it comes within what we all intend the Bill to do—that is, to help people who are clearly disabled. Therefore, I am afraid that I cannot agree with the noble Baroness.

My noble friend wishes to ensure that HIV is counted as a progressive condition by including it in the list of examples. There are only three: cancer, multiple sclerosis and muscular dystrophy. I do not wish to extend the list because inevitably it will mean that many other groups may want conditions listed. There will be a risk of the list being seen as all-inclusive instead of exemplary. However, I agree that current medical opinion recognises HIV as a progressive condition and that, like people with other progressive conditions—not only the three mentioned in the Bill—people with HIV will therefore be covered by the Bill once the condition begins to have an effect—not necessarily amounting to a substantial adverse effect—on their day-to-day activities. I can assure my noble friend that if, nevertheless, it develops over time that courts or tribunals do not follow current medical opinion, then we will be able to make the matter absolutely clear in regulations. I hope that that helps the noble Baroness, Lady Masham. The regulation power is there if the worst comes to the worst.

I hope that my explanation of how we view HIV under the Bill will reassure not only my noble friend but other Members of the Committee. To sum up, when a person

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moves from the asymptomatic to the symptomatic stage, he will come within the compass of the Bill. However, like other diseases which I suspect we will find we can diagnose long before they become apparent, we ought to keep the dividing line at where the disease moves from its asymptomatic to its symptomatic stage.

Baroness Gardner of Parkes: I thank Members of the Committee who have taken part in the debate and I wish to reply to some of the points raised. What has not been mentioned is that whole families are affected by HIV. In those cases, it is usually because of blood products. We have a number of such cases under treatment in the hospital with which I am involved.

I did not press Amendment No.11 because I realised that the Minister could not accept it—it would bring in the asymptomatic conditions. However, I believe that he is wrong in not including HIV as an example in the list. Only three conditions are listed, and no Member of the Committee has brought forward any other condition that he wishes to have listed. There has been support from all parts of the Chamber today for HIV to be included.

Earlier I said to the Minister that it was a probing amendment and therefore it would not be fair to divide the Committee on it. I do not intend to do so, although people are encouraging me to do so. I hope that before the next stage I shall be able to persuade the Minister that it is right to include it. I am glad that he agreed that it is a progressive condition. I was grateful to the noble Lord, Lord Kilmarnock, for reading out the professor's comment on the subject.

The contribution of the noble Lord, Lord Monson, was interesting and important. It brought out the lack of understanding that people have and their genuine anxiety about how contagious or infectious HIV is in normal day-to-day life. His attitude is the usual one for people to have. I am sure that the Committee will remember the occasion when the Princess of Wales kissed the person with HIV in order to show that she had no anxiety about infection through the normal course of events. That was a significant breakthrough in public attitudes towards the disease.

As a dentist, I found it interesting that a patient whom I might have had for years would say: "I am HIV-positive. Can you treat me?" It would not have mattered what the dentist said, it was the other patients who were terrified of it, it was the public reaction. At the time I was in practice, there was an HIV-infected dentist who took all such cases himself and treated them at the time when the UCL dental hospital was open. But it was a surprise to me to see that people treated a diagnosis of HIV-positive as being a full-blown AIDS case which required full nursing. People have become alarmed by what is in the newspapers. It is a terrible condition, but this year the Association of British Insurers confirmed that the increase in cases is far below what was anticipated. That has been due to good health education.

The noble Baroness, Lady O'Cathain, mentioned the danger of limiting examples and that other conditions might arise in a few years' time. They might, but we cannot possibly write into the Bill conditions which do not exist today. With the Ebola virus, and the suspected case recently in this country nursed at my hospital, there was

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tremendous alarm—much greater than with AIDS or HIV. No one was allowed to approach the patients; nurses had to work through large plastic hands and gloves. It was terrifying for the public. Fortunately, it was not a case of the Ebola virus, merely a suspected case that proved to be unfounded. However, people should realise that HIV is not in the same category. There have been instances of needle stick injuries where a blood-infected syringe has pierced someone's skin while working on a case. Such examples have proved that one can transmit the virus in that way. But on the whole, one cannot transmit it by ordinary day-to-day contact, giving meals and caring for people. Another fact that is not realised is that there are false positives and false negatives which cause people great anxiety.

I shall not speak any longer about AIDS, but the HIV infection is at present a unique condition. The point was made by the noble Baroness, Lady Jay, that we hope cancer will be cured. Who knows? Cancer may be cured sooner than HIV. These are important and significant issues and to add the words "HIV infection" under the progressive conditions would not be asking too much of the Minister. I know that Members would like me to divide the Committee. I shall not do so, but I intend to harry the Minister between now and the next stage of the Bill. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 11 and 12 not moved.]

Schedule 1, as amended, agreed to.

Lord Mackay of Ardbrecknish moved Amendment No. 13:


After Schedule 1, insert the following new schedule:

("SCHEDULE 1A
Past Disabilities

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]:

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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

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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

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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.


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