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Lord Swinfen: My Lords, it is a pleasure to have an amendment accepted by the Government when I am on this side of the House. It is the first time that this has happened to me on this side of the House although it occasionally happened when I was on the other side of the House. More often than not I had to fight hard and force it through in the Division Lobby with the support of noble Lords opposite, for which I was always grateful. I apologise to my noble friend for not mentioning that her amendment was grouped with mine.

On Question, amendment agreed to.

Baroness Blatch had given notice of her intention to move Amendment No. 24:

Page 7, line 3, at end insert--
("(10) An order under subsection (6)(c) shall be made by statutory instrument; and no such statutory instrument shall be made until it has been laid in draft before, and approved by resolution of, each House of Parliament."").

The noble Baroness said: My Lords, I have been worn down by my noble friend on a number of occasions so I know the feeling when one concedes an argument. I congratulate my noble friend and warmly accept what the Government have done in response to his amendment.

I am sorry that the noble Lord does not feel able to continue that largesse to include Amendment No. 24.

The Deputy Speaker (Lord Strabolgi): My Lords, I am sorry to interrupt the noble Baroness. If she wishes to speak to this amendment, which she is perfectly entitled to do, she must move it first.

Baroness Blatch: My Lords, I spoke to this amendment because it was grouped with Amendment No. 23.

The Deputy Speaker: My Lords, it has not yet been moved.

Baroness Blatch: My Lords, in that case I beg to move Amendment No. 24. I am suitably chastened and deeply apologetic for falling foul of the procedures.

The Minister actually strengthened the case for affirmative resolution. First, he said that it would be a rare occasion when it happened; he also cited some dramatic reason as an example of how it could happen. The noble Lord also talked about representing a new

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code of practice. I believe that in both the revocation and the reinstatement of the code of practice, this House should automatically use the affirmative resolution procedure and not the negative resolution procedure which relies rather on chance.

I have to say with some feeling that I now receive little notice of regulations coming from the Department for Education; I cease to receive regular information from the department and find that I have to be almost a walking detective on a daily basis to find out what is happening. That is what happens with the negative procedure. I would say to the noble Lord that the affirmative procedure guarantees that it comes before both Houses; that both Houses have an opportunity to understand what the Secretary of State is doing and the reason why he is doing it in such dramatic circumstances as having to withdraw a code of practice and possibly at some later stage to reinstate it or reinstate a new one.

I will return to this matter at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Speaker: My Lords, If Amendment No. 25 is agreed to, I cannot call Amendment No. 26.

Clause 10 [Procedure for amending s. 7(1) of the 1995 Act]:

Lord Ashley of Stoke moved Amendment No. 25:

Page 8, leave out lines 9 to 17 and insert--
("(a) such organisations representing employers as he considers appropriate;
(b) such organisations representing disabled persons as he considers appropriate; and
(c) once it has been established, the Disability Rights Commission.
(4) A consultation under subsection (3) shall be commenced on or before 1st January 2000.
(5) In the event that the Secretary of State decides to make an order under subsection (2) the order shall be made within six months of the completion of the consultation process under subsection (3)."").

The noble Lord said: My Lords, the purpose of Amendment No. 25 is to enable the Government to move as quickly as they can to include practically all employers in the provisions of the Disability Discrimination Act.

The Government recently lowered the small employer exemption as regards the DDA from 20 to 15 employees. That sounds as though it was an advance. In fact there was a lamentable failure to take advantage of an opportunity to include all employers bar those with two or less workers, as demanded by the Act. I can see no valid reason why any firm should be exempt from an Act which merely requires employers to do what is reasonable to avoid discrimination against disabled people. There was never a more honest or reasonable proposition put before Parliament.

What is "reasonable" will vary according to the size and the resource of the employer. So there is no possibility at all, according to the Act, of any "unreasonable" burdens being imposed on small employers. Any claims to the contrary would be

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standing the law on its head and the equivalent of saying black is white; tall is short; fat is thin; or "reasonable" is "unreasonable". It does not make sense. No matter how one twists, distorts or interprets the dictionary, "reasonable" is "reasonable" and no employer can have "unreasonable" demands forced on him.

At Committee stage there was an unholy alliance between my noble friend Lady Blackstone and the noble Baroness, Lady Blatch. My noble friend used the alleged fears of small employers about costs to justify the exemption and was supported by the noble Baroness, Lady Blatch. Perhaps my noble friend could give us evidence of those fears about excessive costs on the poor, small employers, bearing in mind the categorical statement about "reasonable provision".

The noble Baroness, Lady Blatch, spoke about the survival of small firms being at risk. Despite our political differences, we are used to expecting eloquence and reasonable arguments from the noble Baroness, but on that day she must have got out of bed on the wrong side or just had a bad day to make claims like that. How could she say that all those small firms would be at risk from "reasonable" accommodation. I hope that the noble Baroness will take part in this debate and justify that nonsensical proposition. I do not see how she can do it.

Many employers are already covered by the service provision duties of the DDA, and bringing them all into the DDA poses no problems at all. In fact--I hope the noble Baroness will agree with this--it will help to avoid confusion. With some in, some out and some not knowing whether they are in or out, nobody knows whether they are coming or going; they will all be confused about the provisions of the Act, what their duties are, how they avoid falling foul of the law, how they discriminate and what it means. But if they are all included in the Act, they will know exactly what they have to do: "Do not discriminate against disabled people".

I hope that this reasonable proposition to ask employers to stop discriminating against disabled people will have no opposition in the House today. I beg to move.

Lord Addington: My Lords, this is an amendment and an aim which I wholeheartedly supported throughout the history of the legislation of the DDA. Basically, if somebody is going to be discriminated against, they can be discriminated against as efficiently in a firm of 23 as in one of 13. When it comes down to the basic right that one should not be discriminated against, that should be an absolute.

The defence of reasonableness has been put forward, as the noble Lord, Lord Ashley, said. We are not asking for severe dyslexics to become proof-readers for publishing houses; for somebody who is profoundly blind to work in a hardware store choosing colour patterns or paint. We are saying that when one is discriminated against purely on the grounds that one has a disability--not that one is incompetent to do the job because of that disability--then that should not be grounds for denying one employment. It is incredibly simple. It is a matter of principle.

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I make clear from the start that I will not be moving the amendment that stands in my name, Amendment No. 26. However, I expect the Government to try to give us some further encouragement at this point. They have accepted that the arbitrary line can be moved down, so why not move it down the whole way?

The amendment provides for a definite date. Employers are worried about that. Indeed, if they know when it will happen, that will remove much of the worry and allow them to prepare for it. That, too, should be borne in mind. Stating when something will happen is a great way of allowing people to prepare for it. Surely that must count when considering the peace of mind of small employers. I say again: this is most important. Indeed, it is a fundamental issue in the Bill. It is an issue that we should embrace now rather than later.

7.30 p.m.

Baroness Blatch: My Lords, how can I resist the temptation to respond to the invitation extended to me by the noble Lord, Lord Ashley of Stoke, to come back on this issue? I have immense sympathy with the points made by the noble Lord, and am especially supportive of the test of "reasonableness". I believe that the latter would be very important in such a situation.

However, the point I sought to make at the last stage of the Bill related to the very real difficulty of quantifying the problem. I am not sure that there has been a sufficient survey of very small employers--indeed, we are now talking about employers with 13 or fewer employees--regarding the degree to which this issue is a problem. Moreover, there is the test of getting the commission up and running, working closely with small employers, and thus helping them meet their obligations under the Act.

However, the particular point that I made--and this is something about which we should be most cautious--related to a situation where the requirements on an employer to meet its obligations under the Act necessitated the kind of expenditure which put the company's very survival into question. I have in mind the kind of expenditure that could not be afforded by the employer. Therefore, it would be a question of the company going to the wall and the employees, one or more of whom may be disabled, losing their jobs. I am not sure whether the test of reasonableness would come into play in those circumstances. Indeed, there may be some replication of the effects of another piece of legislation which was passed by Parliament some years ago--the Environmental Pollution Act. It introduced the notion of BATNEEC (best available technology not exceeding excessive costs). The idea was that people should put in place measures to produce cleaner processes in manufacturing companies. However, if the cost of compliance proved to be so great that jobs were put at risk, those companies were given time and sometimes their obligations under the Act were waived so as to allow them to survive. Those are the sort of issues that I expect the Government to address.

Finally, I turn to the question of whether the number should be 14 or whether, as the amendment suggests, it should go down to 2. I see no logic whatever in bringing

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the arbitrary line for compliance with the obligations under the Act down to a company employing only one other person; that is to say, a single employer employing only one member of staff. If an employer who employs two people is caught by the legislation and can be found guilty of not complying with its provisions, it seems to me to be perfectly logical that it should apply to an employer employing only one person. Of course, if the person is self-employed, it goes without saying that it must be for that person to produce the kind of conditions under which he wishes to work. Therefore, I see no logic in stopping at two. If one is to go below 14, it seems to me that the logical place to stop would be with the self-employed, thus leaving the latter free to determine their own conditions of work.

I have enormous sympathy with the proposals, but I am not sure how far the test of reasonableness would work in practice. I believe that it would be a good idea to speak more with employers, employers' organisations and trade unions in order to gain some quantification of the problem. It would be helpful to give this as an early task to the commission to see how in a practical way it could help small employers to comply with their obligations under the legislation.

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