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The Earl of Northesk: My Lords, my noble friend's amendments are seductive. Indeed at a whole variety of levels, they also appear both worthy and worthwhile. However, I am uncertain that the National Disability Council, strengthened in the way that my noble friend envisages, would necessarily act in the best interests of either the disabled or of the Bill itself.

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To my mind, what lies at the heart of the Bill is "consensual reasonableness"; as it were, a contract of best practice between those who are disabled and the rest of society. What will define whether it achieves its objectives is its capacity to persuade rather than to prescribe, to coax rather than to coerce. If the Bill is to become an enforceable and effective Act, it has to carry the whole of society with its spirit as well as its actual words. My own view, perhaps rather simplistic, is that the NDC espoused by the amendments threatens that.

I believe that it would be a tragedy to inveigle the enforcement and investigative powers implicit in my noble friend's amendments upon the NDC thereby serving to undermine this concept of consensual reasonableness and ultimately alienate an opinion within society that has been so hard fought for and hard won. In effect, it would be nonsensical to have won the battle of changing attitudes only to sacrifice the war by imposing upon those attitudes in an overbearing way.

Much has also been made of the fact that commissions with enforcement and investigative powers exist in the fields of gender and ethnic discrimination. The fundamental differences between their character and that of discrimination of the disabled, as addressed by my noble friend Lord Campbell of Croy, is an issue here and an important one. I shall not dwell on that. Suffice it to say that the issues that the NDC, whatever its ultimate form, will have to consider will not be able to be contained by any general, universal or central set of rules or judgments.

A more important issue needs to be considered. Such an argument presupposes that the CRE and EOC as constituted, and with their wide-ranging powers, are the correct structures in this day and age to defend and obtain the redress and rights to which those discriminated against are rightfully entitled. I question that.

That is not to say in any way that their work over the years has been anything other than extremely valuable. It is to say that we have moved on since their formulation. For example, Herman Ouseley, in his introduction to the 1994 annual report from the CRE, stresses, in my view quite rightly, the imperative for persuasion as the best means to achieve the statutory duties of the commission. He wrote thus:


    "Our priority goal is to use our power to conduct formal investigations as 'a weapon of last resort', and to persuade more employers and organisations instead to enter into voluntary agreements to take action for equality".

That should inform us that the prevailing circumstances are better served by a "carrot" rather than a "stick" approach, the more so if we reflect that the Bill will impose upon society the requirement to implement what my noble friend the Minister defined at Committee as "additional arrangements".

We all want the Bill to work, and to work effectively. We all acknowledge that the injustice of discrimination of the disabled has endured for far too long. But now that we have the mechanism of redress before us, we should guard against our enthusiasm seducing us into what I believe would be an overcompensation. I am convinced that if we accept the amendments of my noble friend, we shall be stating our desire to prescribe

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rather than to persuade, to coerce rather than to coax, and that would not serve the interests of either the disabled or of society at large.

Baroness Hollis of Heigham: My Lords, the Bill is a good Bill. It is a Bill of which Government have every right and every reason to be proud. Since it is a good Bill, what is the problem? I believe that the problem is that the Bill has a hole at the heart of it. In the words of the CBI, used frequently throughout its briefing, the Bill lacks, but needs, a central authoritative body in order to make it work.

I am confident that every Member of your Lordships' House wants the Bill to work. But those who know most about it—employers on the one hand and disabled people on the other—do not believe it will work without a central authoritative body. That is what the amendment will provide. It does not expand the scope of the Bill or alter its content. It makes the Bill work.

All that the Government have proposed so far is an advisory committee which advises only and exclusively the Secretary of State, no one else. Is that sensible? As everyone admits, it is a complicated Bill. British employers have a sound and fine record of complying with legislation in the field. They do not seek to circumvent or avoid it. They seek and wish to act lawfully. But they will need help, precisely because the Bill is so complicated about what the law means and requires. What does "reasonable" mean? What does "severe disability" mean? Where will the employer go to find that out? That is why employers want a central authoritative body. But so do disabled people.

As my noble friend Lord Ashley said, if you are disabled you are not tough, not very well and not confident; you are somewhat isolated and probably rather poor. You cannot afford a solicitor and you have no access to legal aid. Yet you are expected to plough your lonely way through the courts and the industrial tribunal system. You do not know whether your complaint is reasonable or frivolous; or whether other people have complained in that way before. Behind you, you need a strong friend to advise you, to discourage frivolous claims, to filter out what is unreasonable and to conciliate, where possible. The noble Earl, Lord Northesk, was absolutely right about the need to conciliate and persuade where possible. At the end of the day, you need help to enforce your rights if there is nothing else you can do. I suggest that disabled people are entitled to that.

At the moment, there is nowhere for employers or disabled people to turn to because there is no body at the centre, nothing. As a result, the same points and the same issues will be revisited time and again all round the country. The consequence will be incoherent, inconsistent and fragmented judgments by courts and tribunals so that employers and disabled people will not know where they stand.

Why are the Government so resistant to the proposal? After all, under the proposals of the noble Lord, Lord Swinfen, the Secretary of State would appoint all the members and staff, and control the resources. The noble Lord, Lord Skelmersdale, was right to raise the issue; such a body will in no sense be an EOC or CRE. It will

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not have that range of powers. If the amendment were accepted today, the National Disability Council would not have the power to go into companies and investigate their practices. It will not have the authority to take cases to the European courts. As the noble Lord, Lord Campbell, said, the amendment recognises precisely that disability is not the same as race and gender, it is much more complicated. It is precisely because it is complicated that individual employers, organisations and disabled people will want a central authoritative body to interpret the law for them. Would the council, as the noble Lord, Lord Renton, feared, displace the existing framework of tribunals and courts? No. Instead, it will filter out the frivolous and unreasonable and ensure that the judgments of tribunals and courts are shared widely so that future cases do not need continually and repetitively to be tested in courts and tribunals. Would the council add bureaucracy? No. It would simply add additional functions to the existing body which the Secretary of State proposes to set up, but make it outward-looking rather than introspective.

The Government may argue that all the functions are already in place. Then why are the CBI and disability organisations so worried that the Bill, which they want, will not work? Will it produce a backlash? I suggest that the backlash will come not because there is a central authoritative body in place but because there is no central authoritative body in place. Employers are faced with the nightmare of lawmaking by litigation—frivolous complaints based on a host of test cases, judgments and verdicts, often contradictory, ad hoc and fragmented. They will not know where they stand.

The reason for the amendment by the noble Lord, Lord Swinfen, and why we hope your Lordships will support it tonight, is simple. The central authoritative body will produce firm ground on which employers and disabled people alike will stand. With its help they will know what the law means and how it affects them. Without the amendment, they will not. The ground will shift underneath them.

This could be a landmark Bill. It will only deliver what it promises if tonight your Lordships support the amendment which will place at the heart of the Bill a central authoritative body to make it work. We support it.

Lord Mackay of Ardbrecknish: My Lords, before I turn to the substantive issue before us, on behalf of the whole House I express our pleasure at seeing the noble Lord, Lord Houghton of Sowerby, back in his place. When the Chairman of Committees was dealing with the portrait that is to be painted, I thought of demanding, on behalf of the noble Baroness, Lady Hollis, and myself, the right to be painted at the Dispatch Box. It is where we seem to spend most of our time!

Indeed, we have already spent a considerable time on the amendment or one like it. My noble friend introduced a similar amendment at Committee stage and, if my recollection is right, after a debate lasting about two-and-a-half hours he withdrew it. Today, we have been over largely the same ground. The arguments directed at me are much the same as then. No doubt in a little while I shall be accused of advancing exactly the

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same arguments as I did on that occasion. I do not believe that the position has changed much since we argued the matter in Committee.

I wish to take up one point made by the noble Baroness, Lady Hollis, when she prayed the CBI in aid. I am sure she did not mean to do so, but it is wrong to pray the CBI in aid on all aspects of my noble friend's clause. The CBI may be asking for an authoritative body to give advice and assistance, but so far as I can see it is not asking for an authoritative body with the policing and legal powers called for in the amendment. So the noble Baroness has attempted to pray in aid the CBI today in exactly the same way as she attempted to pray in aid the Employers Forum on Disability and the views of all its members at the Committee stage. Noble Lords who were there will recall the debate. The Employers Forum has now made clear that it was not speaking on behalf of all those public sector organisations like the Benefits Agency, as was implied at the Committee stage.

However, we should remember that we are all trying to achieve the same ends in the matter. We are all trying to achieve the elimination of discrimination against disabled people. It is on that one aspect of the commission—which my opponents want and which I think would be wrong—that we differ. I was grateful to the noble Baroness, Lady Darcy (de Knayth), the right reverend Prelate and my noble friend Lord Zouche for the points they made about the way the Government have listened and moved. My noble friend Lord Henley or I myself have moved, for example, on education. We have imported into the Bill a great deal of new material on transport which has been widely welcomed. As recently as Tuesday I was happy to accept an argument from my noble friend Lady Gardner on the subject of HIV. When I hear myself being beaten about the head this afternoon, I wonder whether all my kindness over the past few days has simply gone unnoticed.

Amendment No. 86A seeks to replace the National Disability Council's duties as drafted in the Bill with two very similar duties, drawn from the Sex Discrimination Act. Together with consequential Amendment No. 89, it would create a commission by another name. As is usual with my noble friend's amendments—I have chided him about this before—he does not indicate what price tab may be carried by the proposal, and how costly such a commission would be to the taxpayer and to business.

I apologise if I have to repeat some of the arguments that I stated in Committee. I said then that there were three principal reasons why we oppose a commission. First, we do not believe that it would work. Disability anti-discrimination legislation differs markedly from sex and race legislation, as the noble Baroness, Lady Masham, indicated. It is the duty of the existing commissions to promote equality of opportunity between men and women, and to promote equality of opportunity, and good relations, between persons of different racial groups generally. The amendments do not attempt to reflect this requirement. These amendments would not set up a body to look after everyone's interest equally. They seek to create a powerful executive body charged with the explicit duty

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to act in the interest of disabled people, without a statutory responsibility to have regard to the effect its advice and actions would have on the rest of society.

A council with the duties proposed in these amendments would not be capable of bringing about the changes that we all seek. Government, business and voluntary organisations need to work together to achieve these aims. In this new and sensitive area we need an independent body to give balanced and practical advice on the wide range of issues relating to discrimination. The National Disability Council we propose would be positioned to give this advice and to influence change. I have already said that we expect it to take an active role in persuading business to take account of the needs of disabled people in areas which cannot be dealt with through rights-based legislation—for example, as we discussed earlier in the week, in the area of the design and manufacturing of products. It will provide advice to business and disabled people through its codes of practice. It will be consulted on our plans to publicise the rights and responsibilities created by this Bill and indeed on our plans to publicise the codes of practice prepared by the NDC. And my right honourable friend the Prime Minister has already made clear that the NDC would not only be providing us with independent advice on how the Act and the advice and support services are operating once the provisions come into force, but will be advising us on the setting up of the service in the first place. It would be a powerful voice for disabled people and have the respect of business. It will be the lead body in pursuing the aims of the legislation. It would provide advice to the Secretary of State which, once accepted, would be implemented with the full backing of government.

As my noble friends Lord Campbell of Croy and Lord Peyton of Yeovil said, the Government do not intend to wash their hands of the Bill once it receives Royal Assent. Ministers and their departments have come together to produce this Bill and they will want to see it implemented in line with the policy intention. The Bill itself, which spans the responsibilities of a number of departments, is a very clear example of the way in which government can work in a co-ordinated way. This will continue. I know my honourable friend the Minister for Disabled People, Mr. Alistair Burt, backed up by the disability unit, will be taking an active role in co-ordinating the Bill's implementation and operation.

The second reason why I do not agree with the idea of a commission is that it would run the risk of causing a backlash. Those noble Lords who wait just a little while this afternoon and into the evening will hear the problems that are being raised, because we wish to bring forward minimum access standards for taxis, and how much resentment there can be to the imposition of new duties. Indeed, there are already ominous signs of this in the United States of America, where the Americans with Disabilities Act is losing political support.

As I have said on a number of occasions, the provisions needed to overcome discrimination against disabled people must go much further than the sex and race legislation. The sex and race legislation requires essentially that the same service is extended to people without regard to their sex or racial origin. But this legislation requires service providers and employers not

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only to stop discriminating in the sense of the sex and race legislation, but also to change the way in which they offer services or organise jobs, to overcome the problems that disabled people encounter. This sets the boundaries for eliminating discrimination against disabled people much wider than those for sex and race.

A centralised bureaucracy would not be well placed to provide advice and support on individual cases. It would be distant and therefore unfamiliar with the local environment; for example, with the layout of a restaurant, the nature of an employer's business, or the nature of a town or village itself. Without this local knowledge it would be difficult for a person trying to provide advice to take a view on what was appropriate in the circumstances of a particular case. Well meaning, but inappropriate advice, mixed with the inevitable dose of political correctness and bureaucracy will do little to change attitudes and actions that affect disabled people. But it could create a backlash.

My third argument against a commission is that there is a huge difference between the world of the 1970s, when the two commissions were set up, and the world of the 1990s. Many conceptions and ideas that were worshipped, if I may so describe it, in the 1970s have now been discarded. During the 1980s the Government, under my noble friend Lady Thatcher, slayed many of the dragons that haunted the land in the 1970s. Indeed, perhaps we see the Labour Party attempting to distance itself from those beliefs. The world has moved on very significantly since the 1970s. The solutions of the 1970s are not appropriate for the end of the century.

This proposal also ignores completely the hundreds of voluntary groups and other organisations, including many bodies set up by the Government, which work very actively to promote the interests of disabled people and which simply did not exist in the 1970s on the sex and race front.

I spoke on a number of occasions during the Committee and Report stages of our shared recognition of the need for conciliation, advice and support services. We intend setting up advice and support services on the goods and services provisions which would be available locally. We shall also look to ACAS to provide conciliation on the new employment rights in that Bill. Our intention is that the organisations providing these services will receive support from government in the way of detailed information about the provisions of the Act and comprehensive training packages. They will also have recourse to expertise. This will ensure that a consistent approach to the giving of advice is maintained across the country and that instances where a disabled person does not have a realistic legal case can be filtered out at an early stage.

I am confident that the majority of cases where there appears to be a genuine grievance can be settled short of legal action. But in a situation where both parties believe they have right on their side, they will have recourse to an arbitration hearing in the local small claims court under the right of access to goods and services, and access to ACAS under employment rights.

We are proposing to put the means to obtain redress into the hands of the people concerned, not a centralised bureaucracy. We are convinced this will be successful.

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Some 90 per cent. of cases under the sex discrimination and equal pay legislation are taken to tribunals without the aid of the EOC. It is therefore wrong to assume that people cannot secure their rights without the aid of a commission with investigative powers as was proposed in Amendment No. 86A.

I will talk about test cases in detail later when we debate Amendment No. 92. Suffice it to say, at present we do not believe that they would have the wide application they can have in sex discrimination cases because disability has its own individual characteristics and therefore requires individual solutions. My argument on this was made far better than I could possibly make it by my noble friend Lord Campbell of Croy, with all the personal experience that he has had over 50 years—50 years during which he has shown that disabled people can go right to the top in the profession of politics. We also believe that if the policy intention needs to be clarified and the boundaries of the law changed, it should be for the Government and Parliament to make these decisions, based on the advice of the NDC. The sex and race relations Acts, simply do not have the regulation-making powers which this Bill contains. They allow for fine tuning. From debates on other Bills I know the whole House agrees that the law should be made here in Parliament. I was slightly surprised to hear the noble and learned Lord, Lord Ackner, supporting a commission that might take some of the responsibilities away from Parliament, where they should properly be.

The Government's approach is to work with the grain of existing provisions—to build on their valuable work and secure for disabled people their rights under this anti-discrimination legislation. That makes a lot more sense than placing all the duties on a new and untried commission.

These amendments also propose that the NDC should be able to undertake or commission research and educational activities. I can assure your Lordships that the NDC will have access to research undertaken independently. I shall be speaking further to that matter when we debate Amendment No. 88. As I said previously, the Department for Education and Employment and my own department are planning a major publicity campaign to support the implementation of the provisions in the Bill. We have set aside more than £3 million to do this. We are also considering setting up a national telephone helpline for businesses and disabled people to ensure that everyone knows where to go for help and advice. It is for all those reasons that I cannot accept my noble friend's Amendments Nos. 86A and 89.


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