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Lord Inglewood: I understand that the position which the noble Lord described is correct. However, we are talking here about a system where discretion is to be exercised by an authority. In exercising that discretion, the authority will take into account the policy aspirations that may be found in society. The kind of problem which the noble Lord describes is one which people face all the time. In planning matters there is an appeal and the policy behind the Bill is an important matter to be taken into account. I myself conducted a planning appeal—successfully, I am glad to say—about a listed building and trying to provide WCs for disabled people.

Lord Carter: I am extremely grateful to the Minister for giving way. Incidentally, did he win?

Lord Inglewood: Yes, I did.

Lord Carter: If he had not won, I bet that he would not have mentioned it. I am grateful to the Minister. I shall write to him with a particular example. It is an interesting illustration of the sort of problems that might arise. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 127 had been withdrawn from the Marshalled List.]

Lord Carter moved Amendment No. 128:

After Clause 27, insert the following new clause:

("Unlawful advertising

.—(1) It is unlawful to publish or to cause to be published an advertisement which indicates, or might reasonably be understood as indicating, an intention by a person to do any act which is, or might be, unlawful by virtue of Part II or III.
(2) Subsection (1) does not apply if the intended act would not in fact be unlawful.
(3) The publisher of an advertisement made unlawful by subsection (1) shall not be subject to any liability under that subsection in respect of the publication of the advertisement if he proves—

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(a) that the advertisement was published in reliance on a statement by the person who caused it to be published to the effect that, by reason of the operation of subsection (2), the publication would not be unlawful; and
(b) that it was reasonable for him to rely on the statement.
(4) It is unlawful for a person knowingly or recklessly to make a statement such as is referred to in subsection (3) which in a material respect is false or misleading.").

The noble Lord said: In moving this amendment, I shall also speak to Amendment No. 128A which is grouped with it. The amendment relates to unlawful advertising and the enforcement of the advertisement provision.

The issue of discriminatory advertisements is addressed in the Bill. However, we feel that the current approach is too weak. Clause 11 provides that where a discriminatory job advertisement has been placed, a disabled individual has applied for the job, has been rejected for that job, and challenges that decision as discriminatory, then that fact can be used in evidence in proceedings.

The corresponding provision in the sex and race legislation makes discriminatory advertisements illegal per se and allows the commissions in those cases to take proceedings. These amendments mirror that approach. The approach to discriminatory advertisements currently contained in the Bill is unsatisfactory and is unlikely to lead to individuals attempting to use the Act to bring challenges. The burden of enforcement placed on the individual is too high. Very few people apply if an advertisement indicates that they will be unwelcome. After that it is extremely unlikely that they will take additional legal action. This illustrates the important role that a commission could play, if it had the power, in lifting the burden of enforcement from individuals.

Although few prosecutions are brought under the relevant sections of the sex and race discrimination Acts, the commissions in those cases are regularly contacted by people who seek advice before they place advertisements because they wish to ensure that they comply with the law in those two respects. I believe that we are all now familiar with the types of blatantly discriminatory advertisements that were common before the passage of the race and sex legislation and which have been stamped out. I was given an example by RADAR of the sort of advertisements that discriminate against disabled people. I am afraid that it relates to a local authority which intended to place an advertisement for a car park attendant that included the statement:

    "An essential criterion for the post is being physically fit as there is a lot of walking involved".

On closer examination it was accepted that this was not correct. Indeed, the post of car park attendant is one of the occupations reserved for registered disabled people under the Disabled Persons (Employment) Act.

I am sure that the Minister will understand the drift of the amendments and what we seek to achieve. As I say, it is extremely unlikely that the individual will wish to go through all the hoops that are in the Bill in order to prevent discrimination in advertising. The two new clauses in the amendments are intended to prevent that happening. I beg to move.

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Lord Inglewood: I can fully understand the noble Lord's concern that it should not be lawful to publish advertisements that are suggestive of discrimination. That is why we made the provisions in Clause 11 to which the noble Lord referred in relation to the publication of advertisements by employers.

The Committee may remember that when we discussed Clause 11 I explained that we do not believe that a total ban applying to employment advertisements is the best approach. As I explained, there may be perfectly good reasons why certain particular physical attributes are necessary to carry out a particular job. In the case of a disabled person applying for that job, we then had to measure by the test of what would be an appropriate and reasonable adjustment in the particular circumstances. We believe that it would be wrong to prevent an employer mentioning health requirements or occupational skills requirements in advertisements. Instead, as already touched on, the Bill provides for tribunals to take into account the publication of an advertisement that suggests an intention to discriminate in considering an employer's reason for refusing employment to a disabled person. We shall also provide guidance for employers on ways to avoid unacceptable advertising.

As to advertisements for goods and services, which I believe would be covered by this particular proposal, I must say that I have difficulty in thinking of examples of cases of advertisements that might be discriminatory in the way that the amendment suggests. Apparently, there was an evangelist who recently advertised a rally that he was holding. It was suggested that all those who were disabled would somehow or other walk away from it with their illnesses put right. That is the only case that we could think of where people might positively advertise in a discriminatory manner, in the way suggested, as we understand it, in these particular provisions so far as Part III of the Bill is concerned. I am sure that the main focus of the new clause is advertisements for employment. Indeed, while the Sex Discrimination Act covers advertisements for employment and goods and services, the examples given in that Act concern only employment advertisements. In any case, I believe that the concerns expressed are already addressed by the provisions of Part III. Clause 15 puts a duty on service providers to change any policy, practice or procedure which makes it impossible or unreasonably difficult for a disabled person to make use of their services. Given the need to adjust such policies, it seems most unlikely that a trader, determined to evade this requirement, would advertise his or her failure to comply with the law. Essentially, I believe that Amendment No. 128 is unnecessary.

There is no equivalent of Clause 15 of this Bill in the Sex Discrimination Act and thus no need to follow the lead on advertising set by that Act in relation to goods and services. It is interesting that the Americans with Disabilities Act, which does have similar provisions to Clause 15, has no general ban on discriminatory advertising of goods and services.

Amendment No. 128A seeks to place a responsibility on the National Disability Council to police and enforce the provisions of the new clause proposed on unlawful

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advertisements. Again, it seeks to mirror the provisions in the Sex Discrimination Act without regard to whether they are necessary or constitute the best approach. The amendment provides for the NDC to monitor advertisements, apply to either an industrial tribunal or a court for a decision as to whether an advertisement is unlawful, and apply for an injunction if it considers that the person who issued the advertisement is likely to do so again.

My noble friend Lord Mackay went to some lengths in earlier debates to explain that the NDC is not intended to be an investigative or policing body. It will be an advisory body, charged with providing high level policy advice and guidance. The role proposed in the amendment, which I fully understand is one that noble Lords opposite would like to see the NDC have, is totally at odds with the remit that we propose for the council.

I turn to the noble Lord's other point about trying to prevent advertisements of this kind. It seems to be generally accepted that, where there is legislation of this kind on the statute book, backed by policy guidance, it has the effect of reducing very considerably the number of offending advertisements.

Of course, the NDC will be able to consider advertisements as part of its wider duty to study the operation of the Act. Should it identify a problem, it will bring that to the attention of the Secretary of State and advise on ways in which the problem could be tackled. However, as I mentioned, we believe that the provisions already in the Bill will be sufficient to deter such advertisements.

I hope very much that I have been able to allay and mitigate the noble Lord's concerns about advertising. I hope he considers that he will be able to think again.

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