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Baroness Gould of Potternewton: I should like to support this amendment. I agree very much with the point which the noble Lord, Lord Swinfen, has made. It is a question not only of whether a disabled person can actually afford it but a question of the distress and the very long time that it takes for these cases to be heard in court. There are some very complex cases and I wonder, both in terms of money and of people who have the ability to sit through long cases and those who cannot, whether the Act in itself is not being discriminatory, since it is discriminating between those people who can afford it and those who cannot, and those who have the ability to take a long case and those who have not.
If there are many people involved in a case, why should one name have to be picked out as the person who actually takes that case? I feel that is very wrong indeed. Surely it is just common sense and, as my noble friend Lord Ashley said, much better and more cost-effective for a joint case to be taken. There may also be instances where a case should be taken but the person concerned does not have the ability to take that case, either because he or she has learning disabilities or communication disabilities, and has nobody to look to for support. I feel that this matter really does deserve serious examination.
Nor is the concept new. I remember many years ago being involved in the case of Sikh men who wished to wear turbans in order to travel on Leeds city buses, which is where I was involved. It seemed to me then that it was necessary for them to take a case jointly in order to succeed. They did that and they actually got the law changed. So this is not new and it should be something which we are prepared to accept. As I understand it, the noble and learned Lord the Lord Chancellor is already considering the question of class actions, and if he were to decide in favour of allowing them, provision would still be needed in the Act to allow the commission to proceed. I hope that the Minister will be able to give us an assurance that that is the case and that this will be built into the Act.
Lord Morris of Manchester: This is a deeply important amendment. When your Lordships gave the Bill a Second Reading on 17th December last, I paid warm tribute to Sir Peter Large who, as long ago as 1982, spelt out the case for a disability rights commission in the report of the committee of inquiry he chaired into hurtful discrimination against disabled people. His thoughts have again been most helpful to me in relation to this amendment and others we are debating today. I am most grateful to him, as I am also to Agnes Fletcher of the All-Party Disablement Group, Alun Thomas of the RNIB, Rowena Daw of the RNID and Hadas Altwarg of Scope for all their work on the amendments and the briefing in which they have documented the cases.
Giving the commission power to initiate proceedings in its own name would greatly increase its ability to perform its agreed basic functions, which are set down in Clause 2(1). It might be argued that such powers are unnecessary as the commission is already empowered to undertake formal investigations and issue non-discrimination notices. Some may think that these powers are sufficient. In this respect, Sir Peter Large says in a letter to me:
That unjustified discrimination against disabled people is still alive and well is clear to everyone who knows the realities of life for disabled people seeking equal opportunities at work. Many noble Lords will have seen the disturbing report today which shows that disabled people emerged as the biggest losers in the Government's performance pay system, which it is hoped to extend to millions of people in the public sector. Only 1 per cent. of disabled staff at the Department of the Environment, Transport and the Regions received a grade "A", which compared with 5.8 per cent. of able bodied employees. That, like so much other evidence, points to the importance of this Bill and the urgency of the need to make it as strong and effective as we can. I know that my noble friend the Minister will again want to respond as helpfully as she can to the debate.
Baroness Darcy de Knayth: The noble Lord, Lord Ashley, said that this was a very important amendment and stressed that we feel most strongly about it. Indeed, I have attached my name to it. I should like to say briefly that I think that it is extremely important. The noble Lord, Lord Ashley, mentioned that it is a useful power because it would enable swift action to be brought to avoid, for example, a bus station being made inaccessible. I have in mind Oxford Station a few years ago, which was made inaccessible and cost a tremendous amount of money. I see the noble Lord, Lord Hunt, nodding his head in agreement. It was a disaster and such a power would perhaps have been most useful at that time. The power will also be useful for bringing test cases to clarify the law. It would also be a cheap and cost-effective way to develop law; and there is a dearth of this in the disability field.
Baroness Blatch: I have one brief question for the Minister. My understanding is that the Lord Chancellor is already considering the whole issue of bringing class actions before the courts. I just wonder what progress that work has achieved. If the noble and learned Lord were to bring forward an amendment to the law specifying that class actions could be brought by organisations, can the Minister say that that would include the commission?
Lord Addington: Most of what I had intended to say has already been said by other speakers. However, I ask the Government to bear in mind one very simple fact. If we managed to insert such a power in the Bill, we could
Surely these are very laudable aims and we should do something to bring them about. If the amendment is not acceptable, perhaps the Government can bring something forward at the next stage. Indeed the noble Baroness, Lady Blatch, just put forward a suggestion which may well be the answer. I hope that the Minister can give us a positive answer.
Baroness Blackstone: At the outset, I have to emphasise that, while in appearance the amendment seems quite simple and may well save money and lead to some of the other benefits that have been mentioned, it is in fact a very radical and legally complex proposal. In explaining the great difficulties associated with it, I am afraid that I shall have to draw heavily upon the legal advice that I have received. I am sorry that the noble Lord, Lord Renton, is no longer in the Chamber, because I believe that he might well be able to support me in what I am saying. Therefore, I hope that the Committee will forgive me if I set out in some detail the legal points which may seem a little arcane in places. In effect, it means that I have to say to my noble friend Lord Ashley that I shall not be able to agree with him as he requested. It is not that I want to dismiss in any way what I think lies behind the proposal; it is just that it is legally not possible.
First, it seems to me that there is some kind of misunderstanding involved. Contrary to what my noble friend said, neither the Commission for Racial Equality nor the Equal Opportunities Commission has any comparable power to that which the amendment seeks to give to the disability rights commission. The reason they do not, and the reason the Bill as drafted gives the DRC no such power, lies in the way in which our courts necessarily--I emphasise the word "necessarily"--approach litigation of the kind arising under Part II and Part III of the Disability Discrimination Act, and the respect which must be given to the right of the individual disabled person to be able to decide when and if he or she wishes litigation to be initiated which concerns him or her personally.
It is fundamental to proceedings under the Disability Discrimination Act that a person must: first, establish that he or she is entitled to come before the court or tribunal; secondly, establish by evidence that the actions of the other party damages him or her; and, thirdly, establish that the court or tribunal can give some form of relief to alleviate that damage. By giving the DRC an entitlement to initiate proceedings and so come before the court or tribunal, this amendment addresses only the first of those matters. In order to have any effect it would have to address both of the other requirements.
In addressing those requirements the starting point is, of course, that the DRC could never itself establish a cause of action under Part II or Part III of the 1995 Act. Quite simply, the DRC is not itself a disabled person--that, I believe, is fairly obvious--and cannot be discriminated against as such. Rather the intention of the amendment is for the DRC to be able to show by evidence that one or more specific disabled persons have been discriminated against and have suffered damage. Then, the DRC will not ask the court or tribunal to award compensation to itself but rather to award compensation or give other relief to those disabled persons. It would not suffice in such a case for the DRC to ask the court to speculate that some unknown disabled person might have suffered discrimination, nor to try to demonstrate by argument rather than evidence that all disabled persons must of necessity have suffered or be about to suffer damage. To establish that such an unlawful act has occurred or is about to occur under Part II or Part III of the 1995 Act, it is a necessity for the court to be satisfied by evidence that a particular disabled person has suffered unlawful discrimination or will suffer it and has been or will be damaged by it.
That brings me to the main point. If the DRC is able to call before the court or tribunal willing evidence from one or more disabled persons who themselves have a cause of action under the 1995 Act, why can it not do the simple thing; namely, provide assistance to that disabled person to bring his or her own case? That is exactly what the provision in Clause 6(1)(a) of the Bill allows the DRC to do. The only case where the act of discrimination could not be brought before the court or tribunal in that perfectly straightforward way is when the disabled person concerned did not himself or herself want to initiate legal proceedings.
We have to ask whether it can really be right for the DRC--the very body which a disabled person can perhaps most expect to give respect to his or her views and dignity--to be in a position to act in such a way. We have to ask ourselves whether it can be right for the DRC to have the power to initiate proceedings which could end up dragging disabled persons unwillingly before courts or tribunals to give evidence which they themselves do not wish to advance and to have unwanted redress forced upon them.
I must add a secondary point. My comments are addressed only to legal proceedings of the kind referred to in the amendment; that is, proceedings which focus on individual redress for wrongs suffered by particular individuals. I indicated at the outset that neither the CRE nor the EOC enjoy any comparable power to that which the amendment gives. But I stress that both those bodies can perfectly well initiate applications to the High Court when they wish to challenge decisions made by any of the bodies amenable to judicial review where the decisions concerned lie within their proper frame of reference. Likewise, this Bill as drafted allows the DRC to initiate applications for judicial review. It is important that I make it clear that the DRC is able to initiate proceedings of that kind.
But, over and above that, the contrast between the nature of applications for judicial review and the nature of the proceedings addressed by the amendment may assist your Lordships in considering the legal points which I have made. Judical review proceeds on affidavit evidence about matters in which the bodies concerned can and do have direct knowledge and the remedies sought can perfectly well--indeed usually do--have a wide application, benefiting a class rather than an individual. No individual disabled person need be involved in a judicial review; in other words, the same objection as exists to the power given by this amendment does not exist and there is no question of dragging any disabled person unwillingly before the court to deal with matters personal to them.
I turn now to the question of the DRC intervening in litigation. There is nothing in the Bill as drafted which prevents the DRC from making an application to any court whose procedures allow such applications to be entertained. That certainly includes appellate courts such as the Court of Appeal and the Judicial Committee of this House. The Committee may recall that in the recent consideration of Mr. Pinochet's case Amnesty International and later the Government of Chile made successful applications to be heard. It is usually only at the appellate stage, when issues of fact have been decided, that it is possible to see that a question of principle has arisen so as to make representation to the court by a body such as the DRC appropriate. I repeat that the DRC is fully entitled under the powers it is given in this Bill as drafted to make application to be heard in such circumstances. On this point there is no need for the amendment.
Perhaps I may refer to the point raised by my noble friend Lady Gould and the noble Baroness, Lady Blatch, who raised the issue of class actions. This issue is raised in Amendment No. 14 and perhaps we could therefore deal with it when we reach that amendment. My noble friend Lady Gould raised issues that are covered by Clause 6, which allows the DRC to give all the necessary help, financial and otherwise, for bringing cases. If a group of disabled people, rather than a single disabled person, want to bring a case, they can certainly do so as long as they have all suffered the same unlawful discrimination.
I hope that, with that rather long and complicated legal explanation, I have clarified the position. If my noble friend obtains different legal advice between now and Report, perhaps he would let me know.
Lord Morris of Manchester: Before my noble friend sits down, she said that neither the Equal Opportunities Commission nor the Commission for Racial Equality have the powers sought by this amendment. But am I not right in thinking that, on the basis of their long experience, both bodies have recommended that they should have similar powers to those that we are seeking?
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