Lord Henley: My Lords, the noble Lord asked for a definition of a trade organisation. It may be that the noble Lord did get up late because subsection (4) provides an explanation of what is meant by a trade organisation. It means:
"an organisation of workers, an organisation of employers or any other organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists".
Of course, if the noble Lord would prefer to have a more detailed definition I should be happy to write to him about that.
Secondly, he asked whether, under the provisions of this Bill, someone who was not disabled and not qualified to be a member of a union for a particular reason might find a disabled person who was similarly not qualified somehow being able to be a member of the union. That could not be the case. If a legitimate disqualification affected X who was not disabled, it would presumably also affect Y who was disabled.
Thirdly, the noble Lord asked whether trade unions would be liable if groups of members committed the union to expenditure by making a reasonable adjustment when the union was unaware of what was being done. I find it odd that the noble Lord seeks to restrict the duty on trade unions to make reasonable adjustment if local members are expected to offer union services; for example, holding meetings and distributing literature. Unions must ensure that the duty on them is given adequate effect by the members according to the rules of the union. Financial control is obviously an internal matter for the union.
If the noble Lord requires an enlargement of subsection (4) of Amendment No. 51, I should be more than happy to write to him about that.
Lord McCarthy: My Lords, I had noticed that but I regard it as a tautology. Therefore, I should be extremely pleased if the noble Lord would write to me about that.
On Question, amendment agreed to.
Lord Henley moved Amendments Nos. 52 and 53:
Meaning of "discrimination" in relation to trade organisations
After Clause 12, insert the following new clause:
(".(1) For the purposes of this Part, a trade organisation discriminates against a disabled person if
(a) for a reason which relates to the disabled person's disability, it treats him less favourably than it treats or would treat others to whom that reason does not or would not apply; and
(b) it cannot show that the treatment in question is justified.
(2) For the purposes of this Part, a trade organisation also discriminates against a disabled person if
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(a) it fails to comply with a section (Duty of trade organisation to make adjustments) duty imposed on it in relation to the disabled person; and
(b) it cannot show that its 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 (Duty of trade organisation to make adjustments) 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 trade organisation is under a section (Duty of trade organisation to make adjustments) duty in relation to the disabled person concerned but fails to comply with that duty, its treatment of that person cannot be justified under subsection (3) unless the treatment would have been justified even if the organisation had complied with the section (Duty of trade organisation to make adjustments) 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 (Duty of trade organisation to make adjustments) 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 (Duty of trade organisation to make adjustments) duty is to be taken not to be justified.
(7) In this section "section (Duty of trade organisation to make adjustments) duty" means any duty imposed by or under section (Duty of trade organisation to make adjustments).").
After Clause 12, insert the following new clause:
Duty of trade organisation to make adjustments
(a) any arrangements made by or on behalf of a trade organisation, or
(b) any physical feature of premises occupied by the organisation,
place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the organisation to take such steps as it is reasonable, in all the circumstances of the case, for it to have to take in order to prevent the arrangements or feature having that effect.
(2) Subsection (1) (a) applies only in relation to
(a) arrangements for determining who should become or remain a member of the organisation;
(b) any term, condition or other arrangements on which membership or any benefit is offered or afforded.
(3) In determining whether it is reasonable for a trade organisation to have to take a particular step in order to comply with subsection (1), regard shall be had, in particular, to
(a) the extent to which taking the step would prevent the effect in question;
(b) the extent to which it is practicable for the organisation to take the step;
(c) the financial and other costs which would be incurred by the organisation in taking the step and the extent to which taking it would disrupt any of its activities;
(d) the extent of the organisation's financial and other resources;
(e) the availability to the organisation of financial or other assistance with respect to taking the step.
This subsection is subject to any provision of regulations made under subsection (7).
(4) In this section "the disabled person concerned" means
(a) in the case of arrangements for determining to whom membership should be offered, any disabled person who is, or has notified the organisation that he may be, an applicant for membership;
(b) in any other case, a disabled person who is
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(i) an applicant for membership; or
(ii) a member of the organisation.
(5) Nothing in this section imposes any duty on an organisation in relation to a disabled person if the organisation does not know, and could not reasonably be expected to know that the disabled person concerned
(a) is, or may be, an applicant for membership; or
(b) has a disability and is likely to be affected in the way mentioned in subsection (1).
(6) Subject to the provisions of this section, nothing in this Part is to be taken to require a trade organisation to treat a disabled person more favourably than it treats or would treat others.
(7) Regulations may make provision for the purposes of subsection (1) as to any of the matters mentioned in paragraphs (a) to (h) of section 7(7) (the references in those paragraphs to an employer being read for these purposes as references to a trade organisation).
(8) Subsection (8) of section 7 applies in relation to such regulations as it applies in relation to regulations made under section 7(7).
(9) Regulations may make provision adding to the duty imposed on trade organisations by this section, including provision of a kind which may be made under subsection (7).
(10) This section imposes duties only for the purpose of determining whether a trade organisation has discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such.").
The noble Lord said: My Lords, I spoke to these amendments with Amendment No. 51. I beg to move.
On Question, amendments agreed to.
("Discrimination in Employment: Genetic Predisposition
Lord Swinfen moved Amendment No. 54:
After Clause 12, insert the following new clause:
.(1) The Secretary of State may, by order, extend the provisions of Part II of this Act to make it unlawful to discriminate against a person who is not disabled in circumstances where, by reason of a person's family history, or by virtue of the result of a medical test which has indicated that a person has a genetic disorder, it is known that a person will or may have a disability in the future.
(2) An order made under this section may make such consequential amendments to the provisions of this Act as the Secretary of State considers necessary.").
The noble Lord said: My Lords, in moving this amendment I shall speak to Amendment No. 82 and also to Amendment No. 168, which is consequential on the other two amendments.
The purpose of the amendments is to facilitate at some later date the introduction of appropriate legislation to protect from discrimination those people who are currently healthy but who are at risk of a disability on account of a genetic problem.
The need for the amendment arises from the rapid growth of interest shown in genetic information by non-medical partiesspecifically, insurance companies and employers. The growth of that interest is evident from the literature on the subject in both specialist and non-specialist journals. It is also evident from phone calls to the Genetic Interest Group's office. Those calls also reveal that genetic information is sometimes used to discriminate unfairly against people with a predisposition to a genetic disorder.
The continuing and rapid advance of scientists' understanding of the role of genes in the more common diseases, such as cancers, means that third parties will soon be interested in acquiring genetic information
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about large numbers of people. It is essential that a framework is established to control access to and use of such information.
It is appropriate to raise these issues on this Bill because the danger of the discriminatory use of genetic information is connected directly with the fact that genetic information may show that a person will or may become disabled at some point in the future.
The advantage of an enabling amendmentand it is only an enabling amendmentis that it will allow more thought to be given to how to tackle genetic issues and disability prior to the introduction of legislation. At the same time it will allow legislation to be introduced rapidly once a consensus has emerged on the way forward. For example, it is clear that issues relating to the appropriate use of genetic information are raised in the report of the House of Commons Science and Technology Committee on human genetics which was published today.
The introduction of this enabling amendment into the Bill would make it possible to turn some of the recommendations in the report into law much faster than would otherwise be possible. I do not anticipate that my noble friend has read that report; it is some 2 inches thick and runs to about four volumes. I trust that this amendment will satisfy the concerns of all the parties with an interest in the issue: affected individuals, employers, providers of goods and services and government. Its acceptance into the Bill would give hope and confidence to those individuals at risk of developing a disability. It would not impose immediate burdens on employers and providers of goods and services. However, it will create a framework within which codes of good practice for employers and providers of goods and services can be developed and turned into legal obligations.
The Association of British Insurers was kind enough to send me a copy of a letter which it had written to a number of Peers inviting them to reject this amendment. The letter states,
"As there is at present no satisfactory definition of what constitutes a genetic predisposition and as, without such a definition, it would certainly be inappropriate for immediate implementation of this amendment".
I am not seeking immediate implementation of the amendment. As I have said, the amendment can be implemented when the knowledge is available here and the Government have had the opportunity of studying it. It will then be up to the Secretary of State at the time to implement the amendment. The letter continues,
"The ABI has an interest in this area because there may come a time when genetic information forms part of an individual's medical record and is accordingly used in assessing applications for insurance".
The House will probably know that there is already a test that is 99 per cent. accurate in showing whether someone has Huntington's Chorea, which is a genetically inherited, extremely serious disease which is both mentally and physically disabling.
I am sure that a number of noble Lords have had to undergo medical examinations. If one's heart is being examined, it is quite common for a medical practitioner to ask one to tell him if there is any history in previous
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generations of one's family of any form of heart disease. Although I am not medically qualified, I should have thought that the conditions of our hearts have something to do with our genetic inheritance.
I have not had an opportunity of studying in detail the report of the Science and Technology Committee from the other place, Human Genetics: The Science and Its Consequences, but I wish to quote from some of its conclusions and recommendations. The report states, with regard to employment, on page xcvii,
"We wish to stress that, at present we know of no genetic diagnosis sufficiently robust to make a case for insisting that it be revealed to an employer.
We recommend that legislation to protect the privacy of genetic information should be so drafted as to forbid employers from testing for genetic traits other than those which might put the public at direct and substantial risk. There should be a mechanism by which such conditions could be defined. Any genetic testing conducted for employment purposes should be strictly limited to the specific conditions relevant to the particular employment and genetic material supplied for such tests should not be examined for evidence of other conditions.
We recommend that genetic screening for employment purposes should be contemplated only where:
(i) there is strong evidence of a clear connection between the working environment and the development of the condition for which the screening is conducted;
(ii) the condition in question is one which seriously endangers the health of the employee;
(iii) the condition is one for which the dangers cannot be eliminated or significantly reduced by reasonable measures taken by the employer to modify or respond to the environmental risks".
If the Committee in the other place makes recommendations on genetic screening in employment, that must mean that some genetic screening is taking place somewhere or that there is a fear of it.
With regard to insurance, on the same page of the report the committee writes:
"The evidence given to us by Professor Arrow and Dr Barr suggests that it would be possible to find ways to regulate the use of genetic information in insurance which would both protect the interests of society in enabling as many people as possible to obtain insurance and protect the insurance companies themselves".
The committee recommended that the insurance industry should be allowed one year in which to propose a solution acceptable to Parliament and that, if it fails to do so, a solution should be sought by legislation if necessary.
The report continues:
"We believe that one effect of genetic information may well be to limit the scope of medical insurance in the medium to long term".
I do not know of plans for any other Bill in which this subject could be dealt with. Therefore, I believe that we should include this group of amendments in this Bill at this time. I beg to move.
Lord Addington: My Lords, I very much sympathise with the aims behind the noble Lord's amendments. We should guard against discrimination on the basis that someone has a disposition to develop a particular disease. However, Amendment No. 54 states:
"An order made under this section may make such consequential amendments to the provisions of this Act as the Secretary of State considers necessary".
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That is repeated in another amendment in the group. I am not very comfortable with that proposal. We do not know what any Secretary of State at any given point in time may consider necessary or on what criteria or grounds.
Having said that, however, the aim of the amendment to try to prevent the use of information concerning a disorder which may not become apparent for some time as an excuse for denying certain services or employment is one with which I agree wholeheartedly. I hope that when the Minister responds he will be able to address both areas of concern.