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Baroness Masham of Ilton: My Lords, I support Amendment No. 166. I hope that the Minister will consider these sensitive issues. Disability brings all kinds of problems which relate not only to the disabled person but also to his family. They can relate not only to HIV and AIDS and mental illness but to genetic disabilities in particular. I hope that the Minister will merge the two amendments and will bring forward a proposal on Third Reading.

Lord Mackay of Ardbrecknish: My Lords, we debated these issues in Committee—late at night, if my memory serves me correctly. The amendments before the House today are slightly less sweeping than those

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then tabled. I have reflected on the discussion that we had and I hope that I shall be able to offer words of reassurance to your Lordships.

In response to the noble Baroness, Lady Masham, I have a great deal of sympathy with the problems that she presented and the intentions behind the amendment. However, I wish to remind your Lordships that it is fundamental to our system of jurisprudence that judicial proceedings should be open, except in the most exceptional circumstances. That ensures that justice is not only done but that it is seen to be done.

This principle is reflected in Article 6 of the European Convention on Human Rights, which provides that:


    "in the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing".

This principle is closely adhered to by the Council on Tribunals in its Model Rules of Procedure for Tribunals.

Perhaps I may deal with the courts first. As I pointed out in Committee, it is already open to parties to proceedings to request that their case be heard in camera. Subject to the judge's discretion, this would mean the case being heard in private and details of the case and documents used in the evidence would not be in the public domain.

The onus has always been on those who are seeking an exception to the principle of an open and public hearing of a case to demonstrate that it is in the interests of justice for a case to be heard in private on the grounds, for example, of national security, public order, decency, safety or the protection of minors. It is then for the discretion of the relevant judicial authority to decide upon the facts presented to it. I do not believe that Amendment No. 166 is necessary as far as the courts are concerned.

Moreover, we are confident that the majority of cases brought under Part III of the Bill can be settled short of legal action. But in a situation where both parties believe that they have right on their side they will have recourse to an arbitration hearing in the local small claims court. As your Lordships are aware, the arbitration procedure is informal and is usually conducted in private. The Government's decision to set a financial limit on claims for injury to feelings will ensure that the small claims procedure will almost always be appropriate. I believe that as regards court proceedings, there is no need for any changes to the current position.

I now turn to tribunals. In Committee and today I listened carefully to the points made about the need for a degree of confidentiality for disabled people bringing cases to tribunals under this legislation. As I have indicated, I understand and share some of that concern. In Committee the noble Lord, Lord Kilmarnock, drew my attention in particular to those suffering from HIV, and the noble Baroness, Lady Masham, referred to people suffering from mental or genetic problems.

I have said already, and I repeat it, that restrictions on the freedom of the press should be avoided wherever possible. We certainly could not support the introduction of a power for such hearings to be in private. However, I understand the desire at least to make possible confidentiality in cases which are brought

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to tribunals under this legislation. As under the small claims procedure, tribunal proceedings are also designed to be informal, but, as I have said, I appreciate that someone who brings an action because he feels that he has been discriminated against on the grounds that he was HIV positive may not be quite so keen to do that if he believes that it will receive a lot of publicity in the local press. Similarly, an employer may not wish it to be widely known that he is employing somebody with HIV. I could have used other examples but that was the example that was used in Committee.

I should like to take away the question of reporting restrictions in tribunals in order to consult interested parties and the Council on Tribunals as regards the scope for a discretionary power in that area with a view to bringing forward an amendment on Third Reading if I reach the conclusion that that is appropriate. I know that the noble Lord, Lord McCarthy, homed in on tribunals, and I hope that he will feel that I am making a helpful suggestion.

I hope that I have explained satisfactorily that the courts already have those powers. I shall consult interested parties and the Council on Tribunals to see whether something needs to be done at Third Reading. I hope that, with that undertaking, the noble Lord will withdraw the amendment.

Lord McCarthy: My Lords, yes, of course—delightful and delicious. I hope that the noble Lord will read the debates as regards the introduction of Sections 40 and 41 into the Trade Union Reform and Employment Rights Act. I simply remind the Minister that the Government said that under the existing rules, which covered national security and so on, cases of sexual misconduct were not covered. Therefore, the Government asked the House to introduce that additional provision. If that is the case, I suggest that discrimination is also not covered and the same arguments apply. But certainly, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 37 [Codes of practice prepared by the Secretary of State]:

Lord Henley moved Amendments Nos. 98 and 99:


Page 29, line 2, leave out ("an employer") and insert ("a person").
Page 29, line 18, at end insert:
("(8) In subsection (1) (a), "discrimination in the field of employment" includes discrimination of a kind mentioned in section (Discrimination against contract workers) or (Discrimination by trade organisations).
(9) In subsection (1) (b), "employment" includes contract work (as defined by section (Discrimination against contract workers) (6).").

The noble Lord said: My Lords, I spoke to these amendments with Amendment No. 51. I beg to move.

On Question, amendments agreed to.

[Amendment No. 100 not moved.]

Clause 38 [Further provision about codes issued under section 37]:

[Amendment No. 101 not moved.]

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Clause 41 [Aiding unlawful acts]:

Lord Mackay of Ardbrecknish moved Amendment No. 102:


Page 31, line 35, leave out ("commits") and insert ("is guilty of").

On Question, amendment agreed to.

6.45 p.m.

Baroness Dean of Thornton-le-Fylde moved Amendment No. 103:


After Clause 44, insert the following new clause:

("Disabled persons: monitoring of numbers employed

.—(1) It shall be the duty of local authorities, health authorities, government departments and government agencies to keep such records regarding the numbers of disabled persons employed by them as the Secretary of State shall by Regulation prescribe.
(2) Regulations may prescribe:
(a) the definition of disabled person to be used for recording purposes;
(b) what particulars shall be recorded;
(c) the manner in which such particulars shall be collected and published.
(3) Regulations made under subsection (2) (b) may, in particular, make provision for particulars to be collected separately with respect to different categories of employee.
(4) Regulations made under subsection (2) (c) may, in particular, make provision for the confidentiality of information collected about individual employees.
(5) In preparing such Regulations the Secretary of State shall consult—
(a) The National Advisory Council on the Employment of People with Disabilities; and
(b) such organisations representing the interests of disabled persons or employers or employees as he considers appropriate.").

The noble Baroness said: My Lords, this is a very similar amendment to one which was moved in Committee. At that stage, the Minister gave a detailed reply. However, it was not at all reassuring and that is why we have returned to the matter.

The amendment will require all public sector bodies to monitor the numbers of disabled people that they employ. It will also respect the confidentiality of those individuals where that is sought.

In Committee the Minister said that the Government want to monitor the position of disabled people in the labour market after the implementation of the Bill. He went on to say that the Cabinet Office already takes positive steps to achieve equal opportunities for government employees in the Civil Service and that government departments and agencies are required to carry out monitoring. Will that policy remain when this Bill becomes law? It is obviously helpful. The Government must feel that it is helpful and that there is a reason for doing it. We support that and we think that they are right. But we say that that should be extended and provided for in regulations.

As with all employers employing more than 20 people, local authorities keep registers of disabled employees. Therefore, there will be no extra work if the amendment is accepted. Indeed, taking that one stage further, the Employment Service believes that it is worth while keeping statistics and carrying out surveys because it awards a symbol to employers which denotes that an employer is carrying out good practice by

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surveying the workforce for both registered and non-registered disabled employees. What are the plans for that scheme if the Bill goes through without this amendment? Will the Employment Service continue to award that symbol where the employers operate good practice and survey their workforce?

The report from the Employment Select Committee of another place on the operation of the Disabled Persons (Employment) Act, which was published in April this year, stated that the maintenance of accurate statistics on the position of disabled people in employment was essential. I agree with that. We should develop that policy, monitor the progress or otherwise and assess whether the Act is working and, if it is not, why it is not. It is absolutely essential to have complete and accurate statistics.

The view of the Select Committee, of the Employers Forum on Disability and of this side of the House is that it is essential that we have proper statistics. This amendment will require the public sector to keep those statistics. Indeed, the amendment supports the Government's policy of requiring that to happen. There will be no added burden on resources because the public sector already does that.

The intentions behind the Bill are indeed creditable. It is essential to monitor the effects of the Bill on the workplace so that we can assess how it is or is not succeeding. I suggest that without those accurate statistics, that will not be possible. We should not have to rely on ad hoc research or this piece of work or that piece of work. Those figures should be continuously to hand and, if they are not, that will act to the great detriment of the Bill. I beg to move.


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