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Lord Rea: My Lords, I personally, wearing my medical hat, strongly support this amendment. I hope very much that the Minister will be able to agree to it.

Lord Kilmarnock: My Lords, I, too, support the amendment, to which my name is attached. I hope very much that it will be acceptable to the Minister, especially as it excludes what the noble Lord described in Committee on 13th June as a latent condition with no symptoms as yet. That is what I believe caused him the most concern on the last occasion. The noble Baroness's new wording solves that difficulty. Also, as the noble Baroness mentioned, the amendment is in the spirit of the commitment made by the Government at the Paris AIDS Summit on 1st December 1994, at which all signatories solemnly declared,


as well as,


    "our determination to fight against poverty, stigmatization and discrimination"—

the last being particularly the subject of this Bill. All signatories also undertook in their national policies to,


    "protect and promote the rights of individuals, in particular those living with or most vulnerable to HIV/AIDS, through the legal and social environment".

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Those are the undertakings that the Government accepted. They may not like the style of that type of continental declaration, but that is what they put their name to, in the person of Mrs. Bottomley.

There is also an important domestic point. I did not realise that this would be the first amendment discussed, the previous batch of amendments not being moved. Therefore I am afraid that I did not hear the noble Baroness's opening remarks. She may have made this point. If the Government want to police this Bill merely through an advisory council rather than through a commission with teeth, it is even more important that it should be made clear on the face of the Bill, both to those likely to be affected and to their advisers, what rights and remedies are available to them in the normal courts and tribunals of the land.

There are in addition important employment points to be considered. They were made notably by the noble Baroness, Lady Jay, and to some extent by me in Committee. Although, as the noble Lord said on 13th June, this is not a general anti-discrimination Bill, it is certainly an employment discrimination Bill, at any rate in this part. We do not want young people to be thrown on to benefits when it is quite unnecessary for long periods during the progression of their disease. On all those grounds, I find it hard to see how the noble Lord can resist the noble Baroness's redraft of her amendment. I look forward very much to hearing his reply.

3.15 p.m.

Baroness Masham of Ilton: My Lords, I was meant to have my name added to this amendment. I support it. There are many progressive conditions, such as Parkinson's disease and motor neurone disease, which are other good examples. But HIV is different.

Last Sunday in church, in the bidding prayers, was one that asked for special understanding and compassion for those who had HIV and AIDS. There seems to be something that encourages discrimination against those who have HIV. One of my fellow health authority members on the FHSA, for instance, just cannot understand what HIV means, and the devastation and loneliness that it can bring if the needs of those who have HIV are not understood. I hope that the Government will include this amendment on the face of the Bill. We should continue to do all that we can to make society understand the continuing need for education in respect of these most complicated and life threatening viruses. When this matter is not heard about, people—especially the young—think that the problem has gone away. It is very dangerous. I hope that the Government will understand this.

Lord Addington: My Lords, briefly, we on these Benches support this amendment. It is sensible and most appropriate.

The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, like other noble Lords who have spoken, I come to this amendment quickly, and with some surprise. The debate was much shorter than I expected.

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I think my noble friend knows that I have some sympathy with the need to reassure people who have symptomatic HIV that their condition is covered by the definition in the Bill. I hoped that I had made it clear in Committee that we agree that current medical opinion recognises that HIV is a progressive condition. I said then that if courts or tribunals took a view contrary to medical opinion, then we would put the position beyond doubt through regulations. I believe that at the time my noble friend expressed some disquiet about that and indicated to me that she did not think that I was going far enough—indeed, she has done so on a number of occasions since the Committee stage.

I had intended to offer reassurance to my noble friend and other noble Lords who have spoken that we would make regulations to make clear that HIV is a progressive condition, that we would consult to see just how the regulations should be framed and that we should bring forward those regulations from the beginning. But I know from conversations that I have had with my noble friend and the speeches that I have just heard that some noble Lords would not feel that that was a sufficiently certain course of action and would prefer something on the face of the Bill where, in paragraph 8 we indicate three examples of a progressive condition; namely, cancer, multiple sclerosis or muscular dystrophy.

I have listened with some care to that argument over the past few weeks and to the speeches this afternoon. I am not entirely sure whether or not it was their brevity which helped to convince me, but I think that I now accept the argument that it would perhaps be right to put this matter on the face of the Bill in the place that I have just mentioned—paragraph 8—as one example of a progressive condition. I should underline the fact that the list is a list of examples. It is not meant in any way to be a complete list. There are other conditions, some mentioned by the noble Baroness, Lady Masham, which would also come under the heading of "progressive condition" and will be dealt with.

There is a fairly marginal difference between putting something on the face of the Bill and making the same provision in regulations, but I appreciate that that marginal difference is very important to those people who have HIV and those who work with those who have it. I am not entirely certain whether I can accept the words "HIV disease" as defining clearly the change from simply having HIV in the bloodstream diagnosed by a medical test and in fact beginning to see some symptoms.

I should like to consider further with the draftsman exactly what the best form of words might be in order to indicate this crossover position. When I have done so and he has come up with an exact term so that we mean what we all want to say, I shall bring forward a suitable amendment on Third Reading. Third Reading of the Bill will not take place until the spillover, so there is time for it. It is the speed with which we reached this amendment that slightly threw me off balance. I am still trying to work out the consequence of such speedy action. I do not suppose that it will allow me to get home early this evening!

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I come back to the serious point that I am making to my noble friend. I hope that she will feel that my assurance to come forward at Third Reading with an amendment properly worded, in order to do exactly what she and other noble Lords have asked, will enable her to withdraw her amendment. I hope that she will accept that I have agreed to her argument in its entirety and that I can completely satisfy her when we come to Third Reading.

Baroness Gardner of Parkes: My Lords, I am absolutely delighted to hear that. I shall wait with interest to see what emerges. Some years ago when, on a similar occasion, the amendment came forward, the draftsman had simply altered a capital "T" to a small "t" or vice versa. I shall wait to see what happens.

The Bill makes quite clear that one must have one's day-to-day activities affected. It cannot simply be that one has had a positive test. My noble friend need not be concerned on that point. I am very grateful to him. The point made by the noble Lord, Lord Kilmarnock, who is chairman of the All-Party Aids Group, that ordinary people will use this Act if there is no commission—I support the noble Lord in that view—makes it particularly important to have it. I am most grateful to my noble friend. I shall not delay the House any longer. I thank him and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 [Past disabilities]:

[Amendment No. 9 not moved.]

Schedule 2 [Past Disabilities]:

The Minister of State, Department for Education and Employment (Lord Henley) moved Amendment No. 10:


Page 47, line 32, leave out paragraphs 3 and 4.

The noble Lord said: My Lords, in moving this amendment I shall also speak to government Amendments Nos. 11, 21 to 23, 34, 39, 65 to 67, 69, 71, 75 to 77 and 80. I shall also speak to a number of other amendments tabled in the name of the noble Baroness, Lady Hollis, and other noble Lords.

Clause 6 as presently drafted has come under criticism for allowing too much discretion to employers to treat disabled people less favourably and for being too complex, particularly in the formulation of its relationship to Clauses 5 and 7. Noble Lords and Members in another place have themselves raised concerns. The fact that the justifications would be subject to an employer's opinion, albeit one which must be shown to have been reasonably held, has caused concern. The use of the undefined and perhaps vague word "unsuitable" has also led to adverse comment.

We listened carefully to the points raised by Members in another place and noble Lords on all sides of the House. It has become clear that Clause 6 as presently drafted does not meet the requirements for which it is intended. To address those issues, Clauses 5 and 6 have been redrafted to reduce the complexity and provide a simpler and clearer test for reasons which would justify less favourable treatment. The amendments considerably simplify this part of the Bill, including removing an entire clause. Amendments to Part III are

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not so substantial. Because of the importance of those clauses, I feel that I must be clear about the implications of the changes. I beg the indulgence of the House while I explain the position at some little length.

Amendment No. 23 substitutes for a fixed list of specific justifications a principle that can be applied much more easily in the wide and varied range of circumstances that can arise in the field of employment. Less favourable treatment of a disabled person would thus be justified if the reason for it were both material to the circumstances and substantial. It is clear that the set of conditions in Clause 6(4) is too limited to cope with every set of employment circumstances. For example, issues may depend on the type of job, the type of disability and its effects, the nature of the position being taken and many other factors. For that reason we have found it immensely difficult to draft a satisfactory, exhaustive list. The new provisions will be easier to understand and operate.

We are keen to take a consistent approach in Part III of the Bill. Therefore, we have brought forward amendments to improve the wording of Clauses 14, 15 and 16 in relation to goods and services and Clauses 19 and 20 relating to premises. The approach that we now propose for the right of access differs from that proposed for the employment right.

Amendments Nos. 67, for goods and services, and 78, for premises, retain the concept of a reasonably held opinion and fixed list of justifications. We are satisfied that this continues to be right and relevant in the very different context.

Service providers often have to take very quick and perhaps less informed decisions when serving someone. So an opinion-based approach remains appropriate. Nevertheless, the proper degree of objectivity is imposed because the opinion must be shown to be reasonably held. We also propose to retain the key circumstances in which less favourable treatment is justified. We believe that it is possible under Part III to identify the key reasons which might justify less favourable treatment by service providers due to the more limited relationship between a customer and a service provider. Those are set out in Amendments Nos. 67 and 78, and are essentially the same as those presently contained in Clauses 15(3) and 20(2), although we have tightened the wording of subsection (4) (c) to refer to where treatment is "necessary" in order for the service provider to provide the service to members of the public rather than "reasonably necessary". We have taken account of the views of those who are concerned that service providers might be able unfairly to pass on the extra cost of service provision to disabled clients and customers. Let me be clear that service providers will not be able to pass on to disabled people the costs of complying with their duties.

Subsection (5) of Amendment No. 67 ensures that any increase in the costs of the goods or services resulting from compliance with a Clause 16 duty should be disregarded for the purposes of subsection (4) (e). With both approaches, there are regulation-making powers which could be used to clarify areas of difficulty that might arise.

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Amendment No. 21 deals with the comparator for assessing whether treatment is "less favourable". In the Bill, discrimination occurs against a disabled person if, for a reason which relates to his disability, he is treated less favourably and the employer cannot justify the treatment. If an individual cannot demonstrate that he has been less favourably treated in some way, then there will have been no discrimination. However, it is important to define the test correctly to avoid confusion and unnecessary litigation.

Currently the comparison is with the treatment of a person who does not have the disability in question. For example, there may be two employees who cannot type—one because of arthritis and one (who is not disabled) because he has never been taught. Both would argue that he is not treating the disabled person less favourably than someone without that disability. He is treating all people who cannot type in the same way. That argument may well succeed and the person with arthritis would have no ground for complaint, even though the employment was refused for a reason relating to disability.

Amendment No. 21 would ensure that the comparison is made with people to whom the reason in question does not apply. It correctly reflects the need to show that the treatment was for a reason relating to the disability and not necessarily the mere fact of disability. Thus, if the employer is rejecting people who cannot type he will be treating more favourably those who can. The person with arthritis who did not get the job can show that he or she was treated less favourably than the person with typing abilities who did. The employer may well be able to justify that treatment—for example, if a disabled person was not adequately able to do the job, even taking account of any reasonable adjustment. But at least the disabled person would have to be given the consideration due under the Bill.

With regard to the right of access, Amendment No. 65 mirrors Amendment No. 21 in providing that the comparison in the definition of discrimination should be with,


    "people to whom that reason does not apply".

The wording of Amendment No. 65 will provide a more objective definition of discrimination than the provision as presently drafted, which refers to,


    "other members of the public".

The revised wording will make it clear that if a disabled person is refused service—for example, in a cafe—for a reason connected with his disability, where non-disabled people are happily served, that will be a prima facie case of discrimination unless the service provider can prove that the less favourable treatment was justified under subsection (4) of Amendment No. 67. The service provider could only refuse service if, for example, the presence of the disabled person effectively meant that other customers were not receiving the service that they had paid for. Service could be refused in that case under subsection (4) (c). Amendments Nos. 75 and 76 re-word in a similar manner the definition of discrimination in relation to premises.

Amendments Nos. 22 and 34 are consequential as a result of the re-draft of Clauses 5 and 6. Amendment No. 22 deletes the words, "under section 6". They would

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no longer be appropriate because Amendment No. 34 deletes Clause 6 as the issues of adjustment have been incorporated into the new Clause 5 resulting from Amendment No. 23. Amendments Nos. 66 and 69 mirror those for the purposes of the right of access to goods and services, as do Amendments Nos. 77 and 80 in relation to premises.

Amendment No. 39 is a consequential amendment which makes clear that the duty on employers to make adjustments is not self-standing. It is only relevant to determine whether an employer has discriminated against a disabled person. It transfers what is currently in Clause 5(3) to Clause 7. Amendment No. 71 replicates that change for the right of access. Amendments Nos. 10 and 11 are consequential and are needed because the provision to which they refer has been deleted by Amendments Nos. 21 and 23.

I believe that these amendments considerably improve and clarify the provisions of Parts II and III and I hope that I have the support of the House in moving them. I shall not address the other amendments of the noble Baroness, Lady Hollis, at this time. If she wishes to speak to them, when I wind up I shall address the various points that she and others raise. In the meantime, I beg to move.

3.30 p.m.

Baroness Turner of Camden: My Lords, I thank the Minister for his explanation of this long group of amendments and also thank the Government for what they have done. They have taken on board the arguments that we made in Committee and have thoroughly redrafted the sections of the Bill in order to meet our criticisms.

The only point arising in the three amendments standing in my name and that of my noble friend, to which the Minister referred, arises in Amendment No. 24 where we suggest that the employer should take advice as indicated in the code of practice as a basis for his opinion. Apart from that, the Government appear to have encompassed all the arguments we made in Committee and we are grateful that they have done so.


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