Clause 14
Equality Bill
6:15 pm
Evan Harris (Oxford West and Abingdon, Liberal Democrat)
This covers the Malcolm case and there is much that could be said but, in view of the time, I am going to restrict my remarks to a description of what my amendment does, rather than consider the analyses and critiques that have been made of the clause. I want it recognised that there is concern about the wording of the clause, particularly in relation to clause 14(1)(b) and its meaning. Even if I am brief, I hope that the Minister is as full as she can be in her response, in order that people are satisfied that the Government understand the concerns raised around this matter. It is clear that most organisations that support the amendment, or the thinking behind it, recognise that it is the Government’s intention to reverse that part of the Malcolm case that had the effect in our law of depriving some disabled people of protection that they thought they had. It is not a question of motive; it is one of drafting.
After some consideration and discussion with interested bodies and outside experts—because I am not an expert in the history of discrimination law—we have put together one long amendment and withdrawn others that were smaller in order to assist the Committee in looking at the provision. If we compare the amendment to the clause as written, the first thing the amendment does is change 14(1)(b). It gets rid of this difficult-to-interpret provision:
“A person (A) discriminates against a disabled person (B) if....(b) because of B’s disability, the treatment amounts to a detriment”
and changes it to
“(b) the treatment amounts to a detriment,”
and then goes on to qualify that stem subsection. I will be asking the Minister to explain in her response what is meant by clause 14(1)(b). I am not going into the various interpretations that have been put on that. Suffice it to say that my inbox is full of people confused about the intention behind it.
The part of the amendment that introduces new subsection (1A) is intended to capture what I think the Minister is seeking to do in subsection (1)(b) but in clearer terms by saying that the detriment may arise from A treating B
“in a particular way for a reason arising from B’s disability,”
or a
“reason arising from a manifestation of or behaviour connected with B’s disability (but not by reason of B’s disability itself)”.
To save time I will not read out the view of the Equality and Human Rights Commission but it thinks that there is merit in the construction I have made. I do not claim ownership; I have had considerable help and advice on it.
Proposed new subsection (1B) specifies that A should be considered as treating B
“in a particular way for a reason arising from B’s disability even if A treats or would treat another person without a disability in the same way as B where that other person’s circumstances are otherwise the same as those of A.”
The Minister will understand that that includes within it an important concept for disability discrimination, which goes to the heart of the issues raised by the Malcolm case.
Proposed new subsection (1C) specifies:
“For the purposes of this section, the circumstances in which A shall be taken to be reasonably expected to know about B’s disability include where A has failed to ask B if he has a disability.”
I am conscious of the fact that new subsection (1C) is a little premature in its drafting, because it comes before subsection (2). It probably belongs after and I recognise that flaw in the drafting.
Nevertheless, it is important to recognise that the combination of measures in the amendment delivers what the Government are seeking to do. I think that there is no difference between most of the disability organisations and the Government, the Liberal Democrats and, I believe, the other Opposition parties with regard to what is being aimed at here.
I do not think that one should go as far as amendment 8. There has to be some ability for people—