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Baroness Masham of Ilton: My Lords, I wish to speak to the manuscript amendment. I very much hope that the first chairman of the commission will be a lawyer. There are some very good disabled lawyers. But disability is so complicated and varied. As one is dealing with so many different issues, particularly in relation to employment, I believe it would be advisable to appoint a lawyer.

Baroness Blackstone: My Lords, perhaps I may begin by commending my Amendment No. 30, which provides for either the chairman or deputy chairman to be a disabled person or a person who has had a disability. I shall address that amendment first and speak subsequently to the manuscript amendment moved by my noble friend Lord Ashley and the amendments tabled by the noble Baroness, Lady Blatch. I welcome the opportunity to explain the Government's position.

We had a useful debate in Committee on the appointment of commissioners. We recognised the concerns expressed by my noble friend Lord Ashley of Stoke and others. The amendments that have been tabled to provide for the appointment of disabled persons to the post of chairman and deputy chairman and the obvious strength of feeling with which they have been advocated have given us cause for serious reflection.

I sought to assure noble Lords in Committee that the Government's concern was that all appointments should be made in accordance with the guidance issued by the Office of the Commissioner for Public Appointments and that the appointments process should be seen to be open and transparent. I also said that it seems inconceivable that disabled persons would not present themselves as the best people for the job of chairman or deputy chairman, or possibly both. That is still the Government's position. I wish to reiterate that.

That said, we understand the desire to secure beyond doubt that someone who has practical experience of disability should occupy a position of influence in the commission as either chairman or deputy chairman. Noble Lords will be aware that we have already provided for the majority of commissioners to be disabled people or people who have had experience of disability. The same phrase is used in that context. We have sought to do so in order to ensure that the commission, as a body, has sufficient breadth of experience and expertise to represent the interests of all disabled people, while at the same time maintaining a balance with the interests of the commission's other key stakeholders.

The noble Lord, Lord Swinfen, was concerned about the definition of someone who had had a disability. It is someone who has been disabled within the definitions of the 1995 Act. They would need to have been disabled for at least 12 months and then recovered. So the example of a skiing accident with someone in a wheelchair for a week would not apply. After much consideration, we concluded that the best way forward

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was to provide for that balance to be reflected in the senior posts for all time, but we also wanted to provide a degree of flexibility.

Lord Addington: My Lords, perhaps I may follow that up. The idea that someone has experienced a disability for a year does not concur with my idea of the definition of a disability. That could be a severe illness and there is a distinct difference between the two conditions. Will the Government try to give more guidance as to where the boundary is? There will need to be new terms of reference for millions who have been living with a disability because it was assumed, at least initially, to be a permanent condition.

Lord Swinfen: My Lords, with the leave of the House, perhaps the Minister will allow me to take up the point made by the noble Lord, Lord Addington. The Minister spoke of someone who had been disabled for a year. It is possible that most of the year would have been spent in hospital as a result of the cause of the disability. Therefore, that individual does not have experience of being disabled outside hospital in the working world.

8.15 p.m.

Baroness Blackstone: My Lords, I shall first respond to the noble Lord, Lord Addington. As I pointed out, the definition is in the 1995 Act, so it is clear.

On the issue of whether someone who had been in hospital for a whole year with a disability was eligible, presumably if they were in hospital for a whole year the disability would be serious. I cannot believe that they would simply jump out of their hospital bed and go into the community without continuing to experience some of the difficulties to which a disability can lead. Perhaps we are worrying unduly about the definition.

I return to what I was saying when the noble Lord, Lord Addington, intervened. We have decided that the best way forward is to provide for a balanced view reflected in the senior posts for all time but with a degree of flexibility. Amendment No. 30 is very similar to that tabled by the noble Lords, Lord Addington and Lord Rix, in Committee. I accept that it is not identical, but it is similar. My amendment differs from that of my noble friend Lord Ashley and certainly from the one that he originally put down in that it provides for either the chairman or the deputy chairman always to be a disabled person or a person who has had a disability.

Since then, my noble friend has decided not to move the first amendment and instead he put down a manuscript amendment. While I understand his wish that the chairman should be a disabled person, I believe that the amendment tabled in my name presents the best way forward. I hope that noble Lords will accept that the Government have listened and responded to the issue and that noble Lords will support the Government's amendment.

Amendment No. 29 from the noble Baroness, Lady Blatch, seeks to ensure that no commissioner, as a result of being re-appointed, serves longer than 10 years

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continuously. Amendment No. 31 seeks to ensure that the persons appointed as chairman and deputy chairman hold office for a fixed term of five years.

I referred earlier to the OCPA guidance. This guidance has been taken into account in drafting Schedule 1. It makes clear that commissioners should expect overall to be in post for no longer than six to 10 years if they have been re-appointed. Clearly, those who are not re-appointed will serve a shorter term. So no one under the schedule as drafted would be expected to serve for longer than 10 years. The vast majority of commissioners would serve for less than that time. I hope that noble Lords will accept my assurance that our intention is to comply fully with the OCPA guidance and that it is not envisaged that any commissioner will ever serve longer than 10 years continuously. There need to be new ideas and new blood on the commission. I hope that the explanation will mean that the noble Baroness will not want to press the two amendments.

In following the guidance of the OCPA, we are providing flexibility for appointments to be made for between two and five years, rather than being constrained to a strict five years as the amendment would require.

The Bill already allows for all the DRC's commissioners, including those who are appointed as chairman and deputy chairman, to be appointed for up to five years. In addition, they may be re-appointed. That is consistent with our determination to create a commission which is not only independent but is also able to operate flexibly. To appoint a chairman and deputy chairman rigidly for a strict five-year period would be inflexible and would not be in the best interests of either the commission or its key stakeholders.

My noble friend Lord Hunt of Kings Heath explained in Committee why, for practical reasons, the Government wish to avoid a situation where the chairman and deputy chairman are forced to stand down at around the same time during the same year for no other reason than that the Secretary of State had to appoint them for a fixed term, as required by the amendment. I am also conscious that the circumstances of some candidates for commissioner posts might preclude them from accepting an appointment or re-appointment were it to run, as this amendment would require, for a strict five-year period. The commission and its stakeholders would suffer, therefore, by losing the services of people who would otherwise be able to make a valuable contribution. While the Government's intention will be to make the appointments for more than two years in the first instance, we wish to be able to exercise a degree of flexibility where circumstances require it. I hope that noble Lords will agree that to appoint the chairman and deputy chairman for a strict five-year period would not be in everyone's best interests.

The noble Baroness also tabled an amendment which seeks to remove the provision to allow the Secretary of State to appoint the first chief executive of the commission. I stress that the provision is for the appointment of the first chief executive. It would be for

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the commission to appoint the subsequent chief executives. Such practice is the convention in non-departmental public bodies.

It is important that the first chief executive has a role in shaping the commission before it opens for business. He or she must also be appointed early enough to take part in that process. The commission will hardly be in a position to undertake that function at that early stage, but to delay such an appointment until many or perhaps all of the commissioners are in place and sufficiently settled in to run an appointments exercise means that the chief executive cannot make a contribution, certainly not a full one, to the establishment of the commission. It is likely that the absence of a chief executive will also delay its establishment, which no one who has taken part in this debates wants. To allow the Secretary of State to make this appointment will overcome these practical difficulties. I reassure the noble Lord that the Secretary of State will consult fully the newly-appointed chairman on the appointment of the chief executive. I hope that in those circumstances the noble Lord will agree to withdraw his amendment.

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