Previous Section Back to Table of Contents Lords Hansard Home Page


Baroness Turner of Camden: My Lords, I thank the Minister for that explanation, although I do not entirely accept it. He may have a point as regards the first amendment. However, I would point out that under the Government's own legislation it is no longer possible to make the membership of a pension scheme a contractual obligation; it is wholly voluntary. We are talking about the right of access to pension schemes.

As regards the second amendment, I note what the Minister says about actuarial considerations and he may have a point. However, I do not believe that he has much of a point in regard to the disabled person who does not work the same number of hours or who receives a different amount of pay. We are not talking about people receiving exactly the same pension. Usually people who belong to pension schemes have a pension that is related to their pay. If they are receiving less pay because they do not work so many hours that is normally reflected in the pension. I see no difficulty with that.

That is why, as regards the actuarial point, we specified in our amendment that there should be regulation-making provision. If regulations were made it would be possible to deal with some of the points that were raised by the Minister in opposition to the amendments.

I am by no means satisfied that there should not be provision written into the Bill to cover access to occupational pension schemes. I believe that it is important that it should be clearly evident that disabled people may have access to occupational schemes. We suggested that regulations should be made in order to make provision for that. However, I do not intend to press the issue to a Division at this time. I shall think most carefully about what the Minister said. There may be an opportunity to raise the matter again on Third Reading when we resume after the Recess. I beg leave to withdraw the amendment.

Baroness Seear: My Lords, perhaps I may clarify a point that the Minister made. He said that it would be obvious that one would not give a pension to anyone who was terminally ill. What does he mean by "terminally ill"? If he means anyone who has a

18 Jul 1995 : Column 171

progressive illness that will ultimately lead to death he is including someone who may be ill for a very long time. Unless it is a short terminal illness I do not believe that we should have on the record of Hansard that it is taken absolutely for granted that because someone is terminally ill he will not be considered for a pension. HIV is a case in point. One could say that a person suffering from HIV is likely to die—of course, we are all more than likely to die—but such a person could be ill for a long time. Given that widows' pensions are connected to occupational pensions it is important that we should not write people off because they can be loosely described as "terminally ill".

Lord Mackay of Ardbrecknish: My Lords, this is the Report stage and I am not sure whether I am entitled to come back. However, I can understand the point which the noble Baroness makes. The simple fact is that if an employer is faced with someone who has a terminal illness and he is prepared to employ him there may be a difficulty in admitting him to a pension scheme which has death-in-service benefits. The reasons are obvious. The actuarial calculations would be extremely adverse in those cases. Here we are talking about cases in which there may be justification for what, on the face of it, looks like discrimination. I do not wish to become involved in arguments as regards death in five, 10 or 15 years. As the noble Baroness says, there is in any event an inevitability about it. If, when a person is taken on, he has a clear terminal illness which means that he will die before he reaches retirement age and will therefore trigger off death in-service benefits and the occupational pension scheme decides that that person cannot be accepted, that should be a reasonable defence against discrimination. That is the point that I was trying to make.

Baroness Seear: My Lords, I still think that it would be helpful if the record in Hansard could leave at least some doubt about the matter because death may take 15 or 20 years.

Baroness Turner of Camden: My Lords, as I said, I shall not press the amendment to a Division, although the noble Baroness, Lady Seear, has raised an extremely important matter. We have said that there should be regulations and I believe that account could be taken of actuarial considerations in those regulations. But in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn. [Amendment No. 19 not moved.]

6.45 p.m.

Lord McCarthy moved Amendment No. 20:


Page 3, line 10, at end insert:
("(4A) It is unlawful for an employer to advertise employment in such a way that the advertisement indicates, or might reasonably be understood to indicate, that an application would, or might be determined to any extent by reference to—
(a) the successful applicant not having any disability within the meaning of the Act; or
(b) the employer's reluctance to take any action of a kind mentioned in section 7.

18 Jul 1995 : Column 172


(4B) For the purpose of securing compliance with the provisions of sub-section (4A) above and the restriction of difficulties arising out of those provisions the National Disability Council shall be empowered under the terms of section 34(3) below to establish Local Conciliation Committees as and when required.
(4C) It shall be the duty of every such committee—
(a) to receive and consider any complaints of advertisements in contravention of subsection (4A) above;
(b) to make such inquiries as they think necessary with respect to the facts alleged in any such complaint; and
(c) where appropriate, to use their best endeavours by communication with the parties concerned or otherwise to secure the settlement of any difference between them, including, where appropriate, the withdrawal or reformulation of any advertisements which the committee considers is in breach of subsection (4A) above.
(4D) Proceedings in respect of any contraventions of this section shall be limited to those set out in this section.").

The noble Lord said: My Lords, this amendment aims to attack in a more effective way than is done on the face of the Bill the practice of discriminatory advertising. There is no doubt that that practice is as much a problem in the area of disability as it is in the area of race or sex. Discriminatory advertising—for example, statements such as, "only the fit need apply", or "candidates must not have a record of physical or mental instability", or "above average health is an advantage"—are all too common. That is accepted on the face of the Bill because Clause 12 introduces a remedy of a kind in order to try to deal with the practice of discriminatory advertising. We are saying that the method adopted to deal with that matter is weak and almost non-existent.

It is weak and it is difficult to improve it beyond a certain degree in the absence of an effective commission. We are not debating that this evening, but we shall debate it on Thursday. However, in a sense the amendment assumes that we shall be unsuccessful; it is a pessimistic amendment. If there is no commission to parallel the way in which discriminatory advertising is swept up in relation to race or sex, we ask whether anything more can be done in the Bill as it stands. The amendment suggests that something can be done. It draws on the example of other kinds of non-discriminatory legislation; for example, the race relations legislation of 1965 and 1968. In a sense, this amendment is a model of what was done to deal with discriminatory advertising at that time.

Therefore, the Bill admits that there is a discrimination problem. Clause 12 provides that where a complainant is seeking to show before a tribunal that he has been discriminated against, he can advert to an advertisement. He can say, "I have an advertisement here", and he can use that in presenting his case. It would be fair to say that that means that if a person can show an advertisement which is germane to the non-appointment of a disabled person, then that becomes a particularly coercive piece of evidence which changes the onus of proof. From that point, it is up to the employer to demonstrate that there is no discrimination, given the fact that there is that discriminatory advertisement.

That is very limited. A case would have to be established which connected the person to that advertisement before it would have any effect at all in

18 Jul 1995 : Column 173

any kind of tribunal activity. This amendment seeks to try to find a way to make that situation more effective. For example, the Sex Discrimination Act lists specific examples of the words which cannot be used in advertisements—salesgirl, postman, stewardess. The 1976 race relations legislation provides that you cannot say in an advertisement that you wish to appoint persons of a given race, colour, ethnic or national origin. There is nothing of that kind in this Bill.

I suppose that there is nothing of that kind because there is no commission. If phrases of that kind are used and there is a body like the EOC or the CRE which may take a wide variety of action—formal investigation, non-discrimination notices—then one can do something about discriminatory advertising.

Nevertheless, we believe that something could be done—that is the point of the amendment—if the approach adopted in race relations legislation of 1965 and 1966 is followed. At that time local conciliation committees were established which could investigate both specific and general complaints. They could bring together the parties and attempt to reach agreement or procure the withdrawal of an offending advertisement. Success or failure would be reported to the appropriate commission. It is thought generally that that procedure, although it lacked coercive force—it certainly lacked the coercive force of more recent legislation—went a long way towards cleaning up the problem of discriminatory advertising. It was rarely necessary to invoke the limited powers available in that period.

Therefore, this amendment builds on that model. It begins with a definition of what is a discriminatory advertisement, and we take that from Clause 12 of the Bill. Secondly, it gives the consultative council established under the Bill the power to set up conciliation committees to deal with allegations of discrimination. It makes it clear that although there can be conciliation, as there was in relation to the old race relations board, there is no coercive power as there was not in the 1965 Act. Therefore, we are asking for a provision which goes some way beyond the present Clause 12 in the absence of a commission. I beg to move.


Next Section Back to Table of Contents Lords Hansard Home Page