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Lord Lester of Herne Hill: I am grateful to both the noble Baroness, Lady Wilkins, and the noble Lord, Lord Ashley of Stoke. I am particularly grateful to the noble Baroness, Lady Wilkins, for the very clear and comprehensive way that she explained the object and purpose of the amendments.

One further point was raised in the very helpful briefing provided by MIND, to which I am also grateful. A comparative survey of 11 countries with disability discrimination laws showed that the United Kingdom Disability Discrimination Act is the most disadvantageous for people with mental health problems. It appears that the Irish and Australian federal laws, for example, specify a condition, illness or disease which affects a person's thought process, perception or reality, emotions or judgment, or which results in disturbed behaviour. The Americans with Disabilities Act 1990, upon which the UK Act was based, has apparently been amplified in regulations and guidance to ensure that mental health problems are fully covered.

On careful reflection and on listening to the speeches that have been made today, I have no doubt that the definitions in the Bill are too narrow. Therefore, from our perspective, the amendments are most welcome.

Baroness Wilkins: I am most grateful to the noble Lord.

On Question, amendment agreed to.

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Baroness Wilkins moved Amendments Nos. 6 and 7:

    Page 68, line 17, at end insert "; or

(d) it is a mental impairment consisting of, or resulting from, depression and it has lasted, or is likely to last, at least 3 months."
Page 69, line 8, at end insert—

"(i) ability to care for oneself;
(j) ability to communicate and interact with other people;
(k) ability to perceive reality."

On Question, amendments agreed to.

Schedule 1, as amended, agreed to.

Schedule 2 [Protected areas of activity]:

[Amendment No. 8 not moved.]

Schedule 2 agreed to.

Schedule 3 agreed to.

Schedule 4 [The Equality Commission]:

Lord Ashley of Stoke moved Amendment No. 9:

    Page 103, line 27, at end insert—

"(4) One of the commissioners is to be appointed as disability rights commissioner, and that person is to be chairman of the Commission's disability rights committee."

On Question, amendment agreed to.

Lord Borrie moved Amendment No. 10:

    Page 104, line 10, leave out paragraph (d) and insert—

"(d) that he suffers from incapacity or has engaged in misbehaviour."

The noble Lord said: Last year the chairman of the Commission for Racial Equality, having pleaded guilty to a charge of threatening behaviour, resigned his post and was given a £120,000 pay-off. That caused some controversy, but he could not have been dismissed from his post because, unusually for legislation providing for public appointments, there was no provision in the Race Relations Act 1976 for dismissal for misbehaviour.

Paragraph 2(7) in Schedule 4 to the Bill promoted by the noble Lord, Lord Lester, provides for any member of the equality commission to be removed from office if he has been convicted of a criminal offence or is,

    "unable or unfit to carry out his functions".

My amendment is a probing amendment to ask the noble Lord, Lord Lester, why he has chosen that form of words, instead of the words "incapacity or misbehaviour" which for years have been used, as he will know, for circuit judges in the Courts Act 1971, and appears again and again in more recent legislation; for example, the Utilities Act 2000 and the Enterprise Act 2002.

In July 1994 the then Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern, said that in this context misbehaviour could include a conviction for drink/driving, any offence involving violence, dishonesty or moral turpitude, behaviour likely to cause offence on religious or racial grounds or that amounts to sexual

14 Mar 2003 : Column 1648

harassment. "Incapacity or misbehaviour" is a well tried, well used legislative basis for dismissal. Is the choice of words of the noble Lord better? I beg to move.

Lord Lester of Herne Hill: I am grateful to the noble Lord, Lord Borrie, for raising this issue. Perhaps I may explain the position. There is nothing between us in terms of what we seek to achieve. It is purely a choice of language. As the noble Lord has said, as it stands the Schedule 4 power to remove commissioners includes a number of justifications for removing a commissioner that one hopes will not arise in reality. One is that,

    "the commissioner has without reasonable excuse failed to discharge his functions for a continuous period of three months",

secondly, that,

    "he has been convicted of a criminal offence",

thirdly, that he has been made bankrupt and, fourthly, that,

    "he is unable or unfit to carry out his functions".

The relevant provisions of the Sex Discrimination Act 1975 and the Race Relations Act 1976 allow the Secretary of State to terminate the appointment of a commissioner if he is satisfied that the commissioner,

    "is by reason of physical or mental illness, or for any other reason, incapable of carrying out his duties".

The provision in the Disability Rights Commission Act 1999 is wider than that. It allows the Secretary of State to terminate the appointment of a commissioner if satisfied that,

    "he is otherwise unable or unfit to carry out his functions as a commissioner".

We have decided to mirror the wider power of removal from the disability rights legislation rather than the narrower powers in the race and sex discrimination legislation. The amendment of the noble Lord would substitute the words,

    "suffers from incapacity or has engaged in misbehaviour".

We say that the amendment is unnecessary because the word "unfit" would plainly encompass misbehaviour. Incapacity has a specific legal meaning that is narrower than "unable or unfit". We therefore believe that the matters with which the amendment is intended to deal are already covered and that there is a precedent for that in the Disability Discrimination Act 1995, which we have followed.

There is no difference of policy or principle between us, it is purely a matter of semantics and how we go about it, so I hope that the noble Lord will not feel it necessary to press his amendment.

4.15 p.m.

Lord Borrie: I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Schedule 4 agreed to.

Schedules 5 to 8 agreed to.

House resumed: Bill reported with amendments.

        House adjourned at seventeen minutes past four o'clock.

14 Mar 2003 : Column 1647

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