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Lord Henley: My Lords, if the noble Lord has evidence of that kind I should be more than happy to look at it and consider it in due course. However, I do not think that there is a case for extending Clause 12 to

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firms of fewer than 20 employees, for the very reasons that we gave for exempting such firms from Part II generally. As I said, if the noble Lord wishes to put evidence to me I am always prepared to consider these matters. However, I have not seen any great evidence of abuse in this field and a vast number of discriminatory advertisements of that kind.

I believe that our approach is about the right one. I believe that it provides the right balance between the need to prevent employers from discouraging disabled people in a discriminatory manner and the need to ensure that employers are able to advise potential applicants of the genuine physical and mental requirements of a specific job. On that basis, I hope that the noble Lord will feel able to withdraw his amendment on this occasion.

7 p.m.

Lord McCarthy: My Lords, the noble Lord says that he has no evidence of this being a problem. With the best will in the world, and without wishing to be personal, I remind the noble Lord that he has come to this Bill rather late and somewhat recently. If the noble Lord had read almost any of the considered evidence submitted by the various interested bodies which have made representations to us on this side of the House, and I am sure to noble Lords on that side of the House, he would know that their correspondence is full of examples of discriminatory advertising. It is standard form, just as it was standard form in relation to sex and race before the legislation in those areas. To come here today and say that there is no evidence of it and no concern about it frankly will not do.

I turn first to the remarks of the noble Lord, Lord Monson. As I understand it, under Clause 56(7) the armed services are specifically excluded from the Bill. As I recall, in Committee we on this side of the House sought to have them included. Therefore, the noble Lord's arguments do not have a great deal of force. Anyway, even if they were included, as we said at the time, there are always the provisions in Clause 6 of the Bill which set out the circumstances in which less favourable treatment is justified. Clause 6(4) sets out the kind of circumstances in which an employer requires people who are not disabled, such as the armed services. Those exceptions mean that there would have been no difficulties from the point of view of the armed services if we had been successful in Committee in having the armed services included in the Bill. Therefore, I do not believe that we need to bother with those arguments.

I turn to what the Minister said. As the Minister said, most of what he said has been said before. That is quite true. This is a consultative committee. It has no power. That is what we are trying to change. He said that the Government do not like quangos. We know that, but they have set one up. All we are trying to do is to add a little to the functions of that quango.

The Minister said that he did not like my definition of what should be contained in an advertisement for it to be unfair and discriminatory. I lifted the definition from Clause 12(1) (e) (i) and (ii) of the Bill, because I thought that if I had a different definition of

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discriminatory advertising I might be in trouble. Therefore, I have used the Government's own definition.

Therefore, the only argument which the Government have, which was answered by the noble Baroness, Lady Seear, from her past experience, is that if this were done nobody would go to the conciliation committees. The Government say that British employers who discriminate through their advertisements would not go. Most employers discriminate because they do not know that they cannot discriminate, and when it is pointed out to them they say, "I am terribly sorry, I did not realise we could not say that". The Government say that they would not listen to the wise words of the conciliation committee. I have to tell the noble Lord again that that is exactly what was said in 1965. It was said, "They won't go". But they did go. Very rarely did employers not go to the conciliation committees of the Race Relations Board and refuse to consider what was suggested. I would not go so far as to say that the whole problem of discriminatory advertising was settled. That was one of the reasons why we had to have another race relations Bill. However, it made a considerable impact.

Some people would not go to the conciliation committees, but some would. Some people would listen. They would listen more than this Government will listen. We may think about the matter again and bring it back at Third Reading but, in view of the time of night, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 [Meaning of "discrimination"]:

Lord Henley moved Amendments Nos. 21 to 23:


Page 3, line 20, leave out from beginning to ("cannot"), in line 21 and insert ("to whom that reason does not or would not apply; and
(b) he").
Page 3, line 22, leave out ("under section 6").
Page 3, line 23, leave out subsections (2) and (3) and insert:
("(2) For the purposes of this Part, an employer also discriminates against a disabled person if—
(a) he fails to comply with a section 7 duty imposed on him in relation to the disabled person; and
(b) he cannot show that his failure to comply with that duty is justified.
(3) Subject to subsection (5), for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.
(4) For the purposes of subsection (2), failure to comply with a section 7 duty is justified if, but only if, the reason for the failure is both material to the circumstances of the particular case and substantial.
(5) If, in a case falling within subsection (1), the employer is under a section 7 duty in relation to the disabled person but fails to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with the section 7 duty.
(6) Regulations may make provision, for purposes of this section, as to circumstances in which—
(a) treatment is to be taken to be justified;
(b) failure to comply with a section 7 duty is to be taken to be justified;
(c) treatment is to be taken not to be justified;
(d) failure to comply with a section 7 duty is to be taken not to be justified.
(7) In this section "section 7 duty" means any duty imposed by or under section 7.").

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The noble Lord said: My Lords, I spoke to Amendments Nos. 21 to 23 with Amendment No. 10. I beg to move the amendments en bloc.

On Question, amendments agreed to.

Clause 6 [Circumstances in which less favourable treatment is justified]:

[Amendments Nos. 24 to 32 not moved.]

Baroness O'Cathain moved Amendment No. 33:


Page 4, line 21, at end insert:
("( ) In preparing a draft of any regulations under this section, the Secretary of State shall consult such organisations representing the interests of employers and of disabled persons and such other persons as he considers appropriate.
( ) Where the Secretary of State proposes to issue regulations, he shall publish a draft of them, consider any representations that are made to him about the draft and, if he thinks it appropriate, modify his proposals in the light of any of those representations.").

The noble Baroness said: My Lords, Amendment No. 33 is grouped with Amendments Nos. 40, 68, 72 and 79. All the amendments follow the same pattern. They all seek to achieve consultation on a consistent basis.

The Government now recognise specific consultation on three areas in the Bill, namely, in Clause 52 regarding fees for public service vehicles, in Clause 3 on guidance, and in Clause 38 concerning the issue of codes of practice. However, there are five areas where there is no such commitment. That results in inconsistency.

There is no commitment to consultation in Part II relating to employment. That is dealt with in Amendment No. 33, which relates to circumstances in which less favourable treatment is justified. The amendment, proposed by the CBI, seeks a specific requirement for consultation when the Secretary of State drafts and issues regulations which amplify or change the circumstances in which less favourable treatment may be justified.

Similarly, Amendment No. 40 also relates to Part II concerning employment. The pattern is the same. The amendment seeks a requirement for the Secretary of State to consult organisations representative of employers and of disabled persons when making regulations.

Amendment No. 68 relates to the regulation-making powers under existing Clause 15(4) which outlines the circumstances in which less favourable treatment may be justified. Amendment No. 72 is concerned with consultation, particularly in view of the fact that the main impact of the legislation will be through secondary legislation and additional burdens will fall on employers and business.

Finally, Amendment No. 79 relates to the regulation-making power in Clause 20(3) and amplifies the circumstances in which less favourable treatment may be justified in discrimination in other areas. That relates to Part III of the Bill. It relates specifically to discrimination in relation to premises.

Any attempt to diminish this demand for consistency of approach to consultation could be reinforced by the failure to afford proper consultation in the new government amendments. I beg to move.


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