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Lord Addington: My Lords, this great layer of government amendments has effectively dealt with the problems I raised in Amendments Nos. 26 and 28. I can only thank the Government and say that I hope that this atmosphere of co-operation will continue throughout the passage of the Bill.

Lord Henley: My Lords, as someone who came to this Bill rather late, I find it strange to be among such sweetness and light. I hope that I shall enjoy this stage and the later stage. I am also grateful to noble Lords for sparing my voice, which I fear may not last the evening.

Perhaps I can briefly address the point raised by the noble Baroness, Lady Turner, in her Amendment No. 24, which seeks to place a duty on the employer to take advice, as indicated in the code of practice, as a basis for his opinion. The effect would be that the employer would have to seek advice every time he made a decision which might or could result in less favourable treatment of a disabled person.

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We agree that employers ought to seek help and assistance, if they need to do so, when making a decision which may affect a disabled person. The duty under this clause may not be fulfilled unless the employer is knowledgeable, follows the code or seeks advice from a knowledgeable source on disability. However, where we differ is in regard to the need to make it compulsory in every case to seek advice, regardless of the necessity, before he can lawfully make that decision. That would be a bureaucratic requirement which takes no account of the many different avenues of advice that are available to employers through a number of different groups. For example, in some situations there may be no need to take specific advice, whether or not the code of practice suggests doing so, because the employer has adequate information available from another source. In any event, the code will not be an exhaustive manual on when to seek advice, on what and from whom, in all the various possible cases. Its job is to provide practical guidance. We are sure that it will prove helpful but it cannot cover every single circumstance. It would be wrong, therefore, to place such a requirement on the face of the Bill.

I hope the noble Baroness accepts that explanation and I commend the amendment to the House.

On Question, amendment agreed to.

Lord Henley moved Amendment No. 11:


Page 47, line 38, leave out paragraphs 7 and 8.

On Question, amendment agreed to.

Clause 3 [Guidance]:

[Amendments Nos. 12 and 13 not moved.]

Lord Mackay of Ardbrecknish moved Amendment No. 14:


Page 2, line 21, leave out ("issued under this section").

The noble Lord said: My Lords, in moving Amendment No. 14, with the leave of the House I shall speak also to my Amendment No. 15. Clause 3 enables the Secretary of State to issue guidance about matters to be taken into account when determining whether an impairment has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities. The guidance which Clause 3 introduces is already subject to consultation before being issued by the Secretary of State. The consultations must be with people whom the Secretary of State considers appropriate.

Your Lordships will recall that some anxiety was expressed in this House by the noble Lord, Lord Lester, and my noble friend Lord Renton about the question of parliamentary scrutiny. As I said in Committee, the Government accept that there is a strong case for making the guidance under Clause 3 subject to the same parliamentary scrutiny as we have in Clause 38, which deals with the codes of practice on employment. I repeat what I said on that occasion: I am very conscious of the importance of the powers of Parliament, as are all Ministers; and we accept the point that Parliament must be given adequate opportunity to scrutinise the guidance.

We have chosen to apply the negative procedure. This is in line with the code of practice and the majority of the regulation-making powers. Noble Lords will recall

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that the Delegated Powers Scrutiny Committee regarded this procedure as appropriate for these regulation-making powers and I do not believe it is any less appropriate for the guidance under Clause 3. I very much hope that the amendments will be welcomed.

Noble Lords will notice that subsection (4) of Amendment No. 15 states:


    "In preparing a draft of any guidance, the Secretary of State shall consult such persons as he considers appropriate".

I see that my amendment is grouped with an amendment in the name of the noble Baroness, Lady Hollis, which tries to set out the people whom the Secretary of State might consult. That amendment comes up on all occasions and at all times. I am not sure whether it will help the speed of proceedings if I indicate that my answer to this attempt to put on the face of the Bill a list of the people the Secretary of State might consult is the same as it has been to other attempts in other Bills to include such a requirement. Perhaps I may make it clear that when we go out to consultation we shall ensure that we take account of all the sectors which will be affected. We shall be consulting all those whom we believe have an interest. Where appropriate, that will include the CBI, business organisations, the TUC and others. Interestingly enough, over the past few days I have seen the beginnings of some of the consultation documents arising from the Pensions Act. I recall some of the discussions we had previously about who should be consulted. I can assure the noble Baroness that we seem to be consulting as wide a range of people as she requested me to consult on a number of occasions when she asked me to put such a requirement on the face of the Bill.

Baroness Hollis of Heigham: My Lords, why did not the noble Lord accept our amendment?

Lord Mackay of Ardbrecknish: My Lords, the point I make, and have made before, is that I believe it is unnecessary to start listing the organisations. On various occasions consultation may be on a different angle, and a different group of people or organisations may require to be consulted. It is much more important that the Secretary of State should be under a general obligation to consult those he thinks appropriate and whom he thinks are interested. There is the further point that the consultations are usually accompanied by some form of press release and anyone who has missed out is well able to come in and give us their views. In my years in government I have never found that people were, so to speak, backwards in coming forwards.

I hope that I have explained not only why I commend my amendment to the House but why on this occasion, as on every other occasion when this attempt is made, I do not think it wise to add to the Bill what the noble Baroness wishes to add.

The Deputy Speaker (Lord Ampthill): My Lords, I should remind the House that, as the noble Lord has spoken to Amendment No. 15, if it should be agreed to I shall be unable to call Amendment No. 16.

Lord McCarthy: My Lords, that is the problem, is it not? The noble Lord said that he likes it when we have brevity and that he likes it when we spring surprises.

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When we do that he is apt to agree with us. We agree with him that his amendments seem to be a significant advance on the previous position. We accept and welcome them. All I want to say about Amendment No. 16 is that it arose out of previous amendments moved in Committee and there are subsequent amendments which cover this ground. We shall be raising them then. Therefore, in that context, I shall not be moving Amendment No. 16.

3.45 p.m.

Lord Renton: My Lords, perhaps I may speak briefly to what my noble friend Lord Mackay of Ardbrecknish has said. First, we ought to feel indebted to him for having strengthened and clarified the position of Parliament in this matter. I expect it has dawned on noble Lords that in recent years we have entered a new phase in our legislation. For centuries we thought of primary and secondary legislation. We also knew that in the background there were departmental directives which did not require the consent of Parliament, or consultation with Parliament, or parliamentary approval of any kind, and did not have the force of law. Now we have entered this new and third phase of parliamentary consent. We have to give guidance. One wonders to what extent the guidance is more than just casual advice to those concerned and to what extent it is binding upon them. One has to read Amendment No. 15 in order to the best of one's capability to find out the answer to that vital question. The answer is contained, first, in subsection (7). I shall refer to subsection (9) in a moment.

Subsection (7) states:


    "If, within the 40-day period, either House resolves not to approve the draft, the Secretary of State shall take no further steps in relation to the proposed guidance".

That gives Parliament a negative function—to disapprove the guidance if it does not think it is right. But it does not mean, from the positive point of view, that parliamentary approval is necessary in advance. It is a fine distinction, I know. Then we come to subsection (9), which states:


    "The guidance shall come into force on such date as the Secretary of State may appoint by order".

The words "come into force" seem to suggest that the guidance has the force of law and that if the guidance is not obeyed those who fail to obey it will incur some kind of penalty, not necessarily a criminal penalty but will find themselves at a disadvantage of some kind. However, that does not seem to be the case.

I wonder whether my noble friend can clarify that point because I think it is constitutionally quite important. The subsection states:


    "The guidance shall come into force".

That seems to give it something approaching the force of law and yet it cannot have the force of law unless there is a sanction to enforce it. We are entitled to be enlightened on that point.


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