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Lord Mackay of Ardbrecknish moved Amendment No. 63:


Page 49, line 6, leave out ("it") and insert ("the illness").

The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 64, 65, 66, 67, 68, 69, 70 and 71. These are all amendments to Schedule 1.

As your Lordships will know, Schedule 1 makes provisions which supplement Clause 1 of the Bill, which relates to the definition of disability. Those of your Lordships who were present at Report stage will remember that I undertook to put HIV on the face of the Bill as an example of a progressive condition in response to speeches made by my noble friend Lady Gardner of Parkes and other noble Lords. I now return to the House with Amendment No. 70, which fulfils that commitment. It refers to:


The effect of the amendment is to make clear on the face of the Bill that HIV infection is a progressive condition. The way in which paragraph 8 operates is that a person with a progressive condition will be regarded as a disabled person under the Bill from the time when the condition first has an effect (even if it is not substantial) provided that substantial effects are likely in the future—as, indeed, unfortunately is normal with such conditions. As with other progressive conditions, a person with HIV would be a disabled person under the Bill when the infection reaches the symptomatic stage. We have always made clear that people with asymptomatic conditions, including those with asymptomatic HIV, will not be regarded as disabled under the Bill.

In addition to that amendment, which responds to an undertaking that I gave earlier, there are a number of very minor amendments in this group relating to the definition which clarify the position. Amendment No. 63 corrects a minor ambiguity by making clear in paragraph 1(1) that the term "mental impairment" includes a mental illness only if that mental illness is one which is clinically well recognised.

Schedule 1, paragraphs 2 and 8 require that a judgment be made about the future course of an impairment. Amendments Nos. 64, 65 and 71 will standardise the drafting in each case.

Amendments Nos. 66 and 67 are designed to simplify the rule that people with a condition where the substantial effects are masked by treatment are to be regarded for the purposes of the definition as having those substantial effects. For example, a person with diabetes which has been stabilised with insulin injections or people who are hearing-impaired whose hearing is enhanced by a hearing aid will still be covered by the Bill. Amendments Nos. 68 and 69 provide

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clarification that people who were on the register on 12th January 1995 and the date when the employment provisions take effect will continue to be deemed to have been disabled during the initial period, even after that period is over.

Together this group of amendments serves to clarify the Government's position and fulfil our commitments. I beg to move.

Baroness Gardner of Parkes: My Lords, I welcome these amendments, particularly Amendment No. 70, and thank my noble friend for bringing them forward.

Baroness Masham of Ilton: My Lords, I thank the Minister on behalf of the all-party parliamentary group on HIV and AIDS for including infection by the human immuno-deficiency virus. The Government listened and we are all very grateful.

Baroness Hollis of Heigham: My Lords, it gives us unexpected but nonetheless real pleasure to welcome these amendments from the Government. We are delighted that at least on this one issue the Government's open-mindedness has been so well exhibited.

Lord Addington: My Lords, from all corners of the House we are glad to see these amendments.

On Question, amendment agreed to.

Lord Mackay of Ardbrecknish moved Amendments Nos. 64 to 71:


Page 49, line 17, leave out ("can reasonably be expected") and insert ("is likely").
Page 49, line 19, leave out ("can reasonably be expected") and insert ("is likely").
Page 50, line 23, leave out from ("which") to end of line 28 and insert ("would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.
(2) In sub-paragraph (1) "measures" includes, in particular, medical treatment and the use of a prosthesis or other aid.").
Page 50, line 29, leave out ("(1)(b)") and insert ("(l)").
Page 50, line 36, at beginning insert ("Sub-paragraph (2) applies to").
Page 50, leave out lines 39 to 41 and insert—
("(2) That person is to be deemed—
(a) during the initial period, to have a disability, and hence to be a disabled person; and
(b) afterwards, to have had a disability and hence to have been a disabled person during that period.").
Page 51, line 16, after ("dystrophy") insert ("or infection by the human immunodeficiency virus").
Page 51, line 21, leave out ("expected") and insert ("likely").

The noble Lord said: My Lords, I have spoken to these amendments already. I beg to move.

On Question, amendments agreed to.

Schedule 3 [Enforcement and Procedure]:

Lord Mackay of Ardbrecknish moved Amendments Nos. 72 and 73:


Page 53, line 7, leave out ("arrangements or conditions") and insert ("conditions or requirements").
Page 53, line 8, leave out ("made, approved or").

The noble Lord said: My Lords, I have already spoken to Amendments Nos. 72 and 73. I beg to move.

24 Oct 1995 : Column 1063

On Question, amendments agreed to.

[Amendment No. 74 not moved.]

Lord Carter moved Amendment No. 75:


Page 54, leave out lines 1 to 3.

The noble Lord said: My Lords, the purpose of Amendment No. 75 is to remove the limit on the damages available for the injury to the feelings of disabled people caused by discrimination on the part of providers of goods and services. Although this may seem to be a technical issue, it is likely to be extremely important in determining how successful this law is in tackling discrimination in this area.

The element of damages which produces really large awards is compensation for financial loss; that will rarely apply to service providers. The compensation awarded in these cases is likely to be almost entirely made up of damages for the pain caused by discrimination—the knowledge that one has been held up to, "hatred, ridicule or contempt", as one judge expressed it.

Damages serve two purposes. First, it is compensation to the individual; secondly, it is a deterrent to potential discriminators. Damages awards which are too low will serve neither function. Judges have recognised that damages for injury to feelings, humiliation and insult due to discrimination should not be minimal since that would tend to trivialise or diminish respect for public policy and may leave the complainant feeling that a legal insult had been added to the initial injury.

The absence of a commission with powers, which we would like, and the lack of legal aid for claims under £1,000 means that individuals will have to pay for the cases themselves. It will mean that even fewer people will feel able to contest the issue if the level of compensation is low.

In other areas of equality legislation the trend is in the opposite direction, with the limits which previously applied to damages for sex and race discrimination having been removed over the past few years. We ask the Government to explain why disabled people should be treated differently in this one specific area. Discrimination in areas of social life can be just as wounding and humiliating as in someone's working life and yet there is no limit on the damages available for injury to feelings in the employment provisions of this Bill.

The Bill as drafted is not a sufficient deterrent against discrimination in this area. It devalues the process compared with damages for sex and racial discrimination, the limits which previously applied having been removed. We urge the Government to accept the argument that, as drafted, the Bill does not give sufficient weight to the necessary deterrent effect. I beg to move.

8.45 p.m.

Lord Swinfen: My Lords, in responding to the amendment, perhaps my noble friend would indicate what the prescribed amount is likely to be.

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Lord Monson: My Lords, I hope that the Government will not accept the amendment. There may be a case for awarding modest damages to victims of discrimination over and above the damages awarded under other headings, but there is no case whatever for the preposterously high damages awarded by some politically correct industrial tribunals in certain race relations and sex discrimination cases. One thinks of the £15,000 additional damages awarded for injury to feelings to an ex-servicewoman who became pregnant despite the fact that she knew perfectly well what the rules of the game were when she enlisted; worse still, the £29,000 damages awarded to someone who had been called an "Irish prat" on a handful of occasions by his workmates.

Those of us who were at boarding school in the harsher climate of 40 or more years ago will have been the butt of far more vigorous insults month after month, possibly even week after week, unless one happened to be as powerfully built as the noble Lord, Lord Addington. If we had been awarded tens of thousands of pounds every time our feelings were hurt, we would all be multi-billionaires.

I agree that there is a case in logic and equity for damages for injury to feelings being harmonised across the range of discrimination legislation, but the convergence should be in the direction of the upper limit provided in this Bill rather than the other way round.


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