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My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Disability Discrimination Bill, has consented to place her Prerogative and Interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
My Lords, in moving Amendment No. 1, I shall address also Amendments Nos. 2, 3 and 21. The amendments fulfil the promise which I made on Report to ensure that our policy intention is fully realised in respect of public office holders. Debate in the House about public office holders prompted me to revisit the exact drafting of Clause 2. In the process, I realised that although the clause covered appointments, it did not necessarily provide full coverage of duties.
We had intended to protect public office holders not already covered by the DDA, or elsewhere in the Bill, through the provisions in Clause 2 relating to public functions. However, as I have said, the Bill covered only the function of appointing an office holder. The treatment of an office holder once in post was not covered, nor were the arrangements of a public authority for holding elections for some office holders such as parent governors of schools. The amendment would put those omissions right.
New Section 21B(8) of the 1995 Act will be amended to ensure that a public authority's acts vis-à-vis an office holder in post are covered. The amendment will achieve that by ensuring that posts not already covered under Sections 4C to 4F of the DDA will come under new Section 21B through Clause 2. The intended subsection (9) resolves the issue of protection of office holders who are elected.
I repeat that the inserted subsection (9) will ensure that a public authority cannot discriminate against an elected disabled office holder once he or she is in post. The process of election remains not covered. MPs, Peers, MSPs and Members of the Welsh Assembly are excluded. Our revised or supplementary approach to public office holders is warmly supported by the DRC. I am confident that it will have the full support of your Lordships. I beg to move.
My Lords, the House will be extremely grateful to the Minister for following up the rather thorny question of who in public office will be protected from discrimination under the DDA. As drafted, the Bill did not make that at all clear. As the Minister told us on Report, she concluded that public office holders would not be covered as comprehensively as the Government had intended, as the Bill did not cover a person holding a post, only the appointment to that post.
The amendments will correct the oversight and are yet another example, should one be needed, of how your Lordships' House, in reviewing the legislation presented to it, corrects a flaw and moves on. Long may it continue to do so, and long may it be allowed to continue to do so.
moved Amendments Nos. 2 and 3:
Page 4, line 26, after "to" insert ", and in relation to a public authority's functions with respect to a person as holder of,"
Page 4, line 30, at end insert—
"(9) Subsection (1) does apply in relation to a public authority's functions with respect to a person as candidate or prospective candidate for election to, and in relation to a public authority's functions with respect to a person as elected holder of, an office or post if—
(b) none of the conditions specified in section 4C(3) is satisfied in relation to the office or post; and
(c) sections 4D and 4E would apply in relation to an appointment to the office or post if—
(i) any of those conditions was satisfied, and
(ii) section 4F(1) (but not section 4C(5)) was omitted.
(10) Subsections (8) and (9)—
(a) shall not be taken to prejudice the generality of subsection (1), but
(b) are subject to section 21C(5)."
On Question, amendments agreed to.
Clause 3 [Duties of public authorities]:
My Lords, the amendment follows on from a recent exchange of letters between the Minister and me. It is an opportunity for her to put on the record the Government's desire to tackle the inequalities faced by people with a learning disability when trying to get access to healthcare. The Minister will know that research shows that preventable mortality for people with a learning disability is four times that of the population at large.
In my recent letter to the Minister, I summarised the case of Victoria, who has severe and profound learning disabilities. Victoria is one of many people who featured in Mencap's Treat me right! report, which highlighted the often appalling treatment faced by many people with a learning disability when trying to access healthcare services. Victoria's mother overheard a doctor saying about her daughter, "That's not coming into my room. It will destroy the equipment". For so many people with a learning disability, that is the terrible and shocking reality.
There is no doubt that the NHS systematically fails people with a learning disability. The Disability Rights Commission is, of course, listening carefully to this short debate. I hope that the Minister's response will give it as clear a steer as possible, as it writes its healthcare codes of practice. The issue must be an urgent priority. The current inequalities in healthcare outcomes for people with a learning disability must be tackled. I beg to move.
My Lords, the noble Lord, Lord Rix, has made an important point, in highlighting this problem. In this area, I take his words—I think that we all do—as gospel.
With regard to the duty of public authorities, there is a clear need for employees to be trained to recognise and work with those with learning difficulties and to have the care, consideration and patience to do so. Clearly, that was not the case in the example that the noble Lord just gave.
I question the amendment on a technical point: the definition of "learning disability". One wonders whether it includes those with mild dyslexia or only those at the Asperger's end of the scale.
Be that as it may, the noble Baroness may well tell us that the necessity for a public authority to pay particular attention to the need to eliminate discrimination in its health service provision to those with a learning disability is already covered. The original Disability Discrimination Act contained provisions to ensure that adequate safeguards were in place to prevent discrimination against disabled people in the provision of hospital services, and I hope that the Minister will assure us that health services provided by public authorities are also covered by Clause 3. As I understand it, the powers to impose a duty regarding local health services and learning disabilities is covered by new Section 49D, although that duty is not spelt out in the Bill.
Will the noble Baroness assure us that the power in new Section 49D will be used to ensure that public authorities will, in running their health services, social services and other services, take into account not only those with learning disabilities but also all disabilities to be covered by this Bill?
My Lords, I speak briefly to emphasise the point made by the noble Lord, Lord Skelmersdale. I hope that the Minister will be able to tell us that such things are already covered. If any group is excluded because it is deemed to be slightly too difficult or inconvenient, that will reveal a hole in the Bill that I had not thought to be there. We need an assurance from the Minister that the amendment is not needed.
If groups of people with a different aspect of disability come into play and there is no wheelchair to be seen, people panic. I hope that the Government are sure that they have mended this potential hole in the road.
My Lords, I hope that I am able to give the assurances asked of me and that, therefore, the noble Lord, Lord Rix—I will call him my noble friend— will withdraw his amendment. We all pay tribute to his work and I think he was anxious to have a government statement in Hansard today, so that the situation is unambiguous.
I fully agree with your Lordships that the purpose of the Bill and of this duty are to make a difference to the lives of disabled people, whether they have a learning disability or any other impairment. It is a sad fact of life that learning disabled people still experience institutional discrimination when they interact with public services. The health sector is no different.
For example, one study that I was reading over the weekend has found that learning disabled people are 58 times more likely to die before the age of 50 than non-disabled people. The statistic is due not to their impairments but to their access to suitable health care. It also gave the example that although 75 per cent of non-learning disabled women take up mammography, only about 25 per cent of learning disabled people do so.
Such figures illustrate why it is so important that the duty to promote equality is implemented effectively in the health sector as in other parts of public life. It is precisely this type of discrimination that the Bill seeks to address.
The Government will be working closely with the DRC to ensure that the duty is implemented effectively. As your Lordships will be aware, we published draft regulations recently that could be made under powers granted by Clause 3. Our consultation document, Delivering Equality for Disabled People, made it clear that the duties will be applied widely across the health sector.
The DRC has already published its draft code of practice on the duty. I am glad that the consultation on the code will include events particularly focused on health issues. I am also sure that the DRC's formal investigation into the health inequalities experienced by learning disabled people and people experiencing mental distress will also be fruitful in informing the development of guidance and best practice.
I hope therefore that your Lordships will accept that we are meeting the spirit of what the noble Lord, Lord Rix, asks for and that he will withdraw his amendment.
My Lords, I thank the opposition Benches for joining this short debate and, in effect, supporting me. Obviously I am not going to press this amendment to further debate or to a Division. I am exceedingly grateful to the Minister for her warm-hearted and fully fleshed-out response. It is exactly what I was hoping for. We now have a statement in Hansard, which the Disability Rights Commission will be able to consult when they issue their codes of practice.
I also thank the Minister. I have had occasions to thank her on many occasions in this House. The first time was over the question of SERPS, but that is going back rather a long time. I think SERPS is coming up again later today—but there we are. I shall not be here to hear what goes on.
I welcome this truly excellent Bill and the manner in which the Minister has listened to the advice, which all sides of the House have offered, and considerably improved what is already an extremely good Bill. I beg leave to withdraw the amendment.
moved Amendment No. 5:
After Clause 5, insert the following new clause—
In the 1995 Act, after section 47 there is inserted—
"47N SCHOOL BUSES
The provision of this Act and the regulations made under them shall apply equally to school buses regardless of whether they are provided by local authorities or privately.""
My Lords, this amendment stands in my name and that of my noble friend Lord Skelmersdale. The provisions of the Bill and regulations made under it should apply equally to school buses, regardless of whether they are provided by local authorities or privately.
We raised this matter at earlier stages. The noble Lord, Lord Davies of Oldham, kindly wrote to me following those debates and dealing with this matter. There are still one or two points that seem to be remarkably obscure. Perhaps the noble Baroness, Lady Hollis, could clarify the position for us.
In his letter, the noble Lord said that the Disability Discrimination Act 1995 allows for accessibility regulations to be made for other services and for smaller vehicles—22 passengers or fewer—but such regulations have not yet been introduced. It is of course 10 years since the passage of the Act. Is it the Government's intention to do anything about that?
The remainder of my remarks will be confined to those buses that carry more than 22 people. If it is operated by a local authority and providing no one pays, it would seem that it is exempt. I am not clear to what extent such local authority buses, while exempt, will meet the provisions of the Bill.
The other matter that I am still uncertain about is the situation for school buses provided by parents. Again, the noble Lord said in his letter that a group of parents using a minibus that they own or have leased or chartered to carry, provided that the cost is divided, would probably not be within the scope of the Bill. That is certainly so, because he has introduced the question of a minibus again, but I am not clear what the position is for a bus operated by a group of parents who have clubbed together for their children. The crucial issue would seem to be whether it is operated for hire or reward; that is the point we are not clear about. If they club together and, presumably, contribute equally to chartering the bus, is it obliged to provide adequate facilities for disabled children going to school? Perhaps the Minister could clarify that, since there seems to be some uncertainty in the letter. I beg to move.
My Lords, I apologise for my noble friend Lord Davies, who would wish to be here, but is at the moment handling the Railways Bill.
My Lords, my noble friend might also commiserate with me, because in his absence I am taking on the transport amendments of this Bill, which previously I have been able to depend on my noble friend to deliver for me.
As the noble Lord, Lord Higgins, acknowledged, my noble friend Lord Davies wrote to him. Let me be clear: school buses are already required to comply with accessibility regulations under the DDA 1995 if they are operated as public service vehicles, regardless of whether they are operated by local authorities or privately.
The noble Lord was right about what a public service vehicle is. It is defined in the Public Passenger Vehicles Act 1981 by whether it is carrying passengers in return for payment. The term used in the Act, as the noble Lord identified, is "hire or reward". Accessibility regulations can be made to apply to PSVs—public service vehicles—of a prescribed description and used in prescribed circumstances.
The existing public service vehicle accessibility regulations apply to new vehicles used on local or scheduled services on or after
The first question of the noble Lord, Lord Higgins, was about when regulations would be made for smaller vehicles. The first point is that a vehicle comes within the framework of accessibility is if it has more than 22 seats. If the answer to that is no, the accessibility requirements do not apply; if there are over 22 seats, they do. We have no timetable in place, but we have said that we would consult further on any future extension of the regulations before we did so. Although that was done 10 years ago, we do not believe that it has yet been deemed appropriate to proceed with extending the regulations to vehicles with fewer than 22 seats.
The first question to ask about school buses and the degree to which the requirements apply to them is, "Are there more than 22 seats?". If there are not, they are exempt; if there are, we go to the next question, which is, "Is the vehicle operated for hire and reward?". The operators of such vehicles will normally require some form of operating licence or permit. On a bus provided by the local authority or bus operator, provided that a fare is paid, even if only by some of the students, when others are entitled to free transport, the vehicle would be a PSV.
We then go on to the third question, which is "What happens when the bus is provided by parents?" The situation is then more complex. A bus with a driver which was chartered by a group of parents from a third party would be a PSV, because the bus has been chartered for the hire and reward of the bus driver and bus company. However—and this may be the situation that the noble Lord had in mind—a group of parents who use a vehicle owned, leased or chartered by them jointly to carry their own children would probably not be regarded as a PSV, provided that the cost is divided equally among them, and one of the parents drives, because no hire or reward is taking place. In practice, in my experience, many of those vehicles have fewer than 22 or even 16 seats and would be exempt in any case. The situation would be different, however—subject to the size of the vehicle—if one parent owned the bus and other parents paid for their children to be carried. In those circumstances, the vehicle would clearly be operated for hire or reward and would be a PSV.
For buses provided by a state school, provided that the passengers made no contribution to the cost of travel and no contribution was made on their behalf, no hire or reward is taking place and the vehicle is not a PSV. When contributions are made for travel, it is a PSV. Since private schools charge pupils fees for the whole of the education service that they provide, they would probably be regarded always as operating buses for hire or reward, because the transport service is part of the overall service by which the fees are charged.
My Lords, the problem is in defining what is covered by the fees for the education service. On the assumption that a private school will do nothing for free, because everything is part of the fee paid by the parents and included in its fees package, either explicitly or generally, it would be covered by the regulations. The closer a school bus arrangement in either the private or state sector comes to the equivalent of car share, the more likely it is to be exempt. The clearer it comes to the convention of PSV, which states that some parties are paying for some passengers, either directly or indirectly, it is on the PSV side. But behind all that lies the dividing line of whether the vehicle has 22 seats or more.
The first question is size and the second is, "Is it a PSV, and what are the tests for a PSV?". The test is hire or reward; if there is hire or reward, it does not matter whether the provider is a local authority, a state school or a private school as long as people are paying. The closer the situation is to a car share, the less likely it is that the vehicle qualifies as a PSV; the more it is clear that some or all are paying, the likely it is that it will be a PSV, subject to there being more than 22 seats.
I do not know whether that helps the noble Lord. I am slightly departing from my brief, but I am confident that my explanation is accurate. I hope that with my comments, the noble Lord will feel able to withdraw his amendment.
moved Amendment No. 6:
Page 13, line 2, after "regulations)," insert "before subsection (5) there is inserted—
(4A) The Secretary of State shall exercise the power to make rail vehicle accessibility regulations so as to secure that on and after 1st January 2020 every rail vehicle is a regulated rail vehicle, but this does not affect the powers conferred by subsection (5) or section 47(1) or 67(2)."
( ) In that section,"
My Lords, these amendments have been divided into two sets on a major concern, not so much for the Government but for noble Lords on the Opposition Benches. I do not believe that I need to discuss in any great detail two of the government amendments, unless your Lordships wish me to. I have a speech of 15 or 20 pages, but I do not propose to repeat what I believe is agreed by all sides—first, that there should be a cut-off point for rail vehicles of 2020 and, secondly, that there should be annual reports on the workings of the procedure. I take it that that is common ground between us.
As far as I can judge, having been a spectator at previous debates, we have built agreement around those two items. The area on which there was disagreement was whether the Government's case that they will need power to make exemptions beyond 2020 is legitimate. If your Lordships agree, I shall concentrate on that area alone, but I shall try to answer wider questions if they arise. But it seems silly to repeat arguments that noble Lords have already discussed, far more expeditiously, with my noble friend Lord Davies of Oldham at previous stages.
My Lords, the group is very much wider than the Minister suggests, since it includes the proposals for affirmative resolution and annual reports. It is an unfortunate grouping, but that is how the Government grouped it.
My Lords, again I shall depart from my brief. I had thought that there was consent around the notion of the annual report, which is why I assumed that that was accepted. I was assuming, too, that we all accepted that there should be a terminal date of 2020 for rail vehicles.
Perhaps I should enlarge on the process that we are suggesting before 2020. First, there will be a set of framework regulations for the period before 2020 which would lay out what exemptions before 2020 needed to come to your Lordships' House under the affirmative procedure and what could be handled under the negative procedure. We have given assurances that those draft regulations setting out the framework would be affirmative. I am very happy to circulate those in advance, so that we can consider the provisions, whether on issues of cost or time or whatever.
What I judged to be the main concern, however, was whether 2020 should be absolute as a line that we draw and therefore whether exemptions should be tolerated or permitted beyond that time. If the noble Lord would like me to expand any further on the period before 2020, I am happy to do so. We have set up by agreement a two-step process, which will I hope satisfy your Lordships. The core of our disagreement is found in the question, "Why do the Government believe that we need a power to make exemptions beyond 2020?". That is the core issue to address today.
There are four questions that noble Lords may wish to put to me, and I shall try to answer. First, why are any exemptions needed at all? Some of the ground will be familiar but, if we do not have exemptions, vehicles used on systems such as the London and Glasgow undergrounds are unlikely ever to be able to meet the full requirements of the accessibility regulations by virtue of their infrastructure—for example, the tunnels and so on. There is general agreement that in the case of Glasgow, it would be impossible for the vehicles to meet the requirements of the regulations in relation to wheelchair accommodation.
Similarly, with regard to the London Underground, the size of the tunnels on the Victoria Line restricts the use of vehicles. In turn, that means that if the vehicles used on that line were to be fitted with RVAR-compliant handrails in the doorway area, they would pose a serious head-strike hazard to many passengers. We are trying to balance one requirement against the other. So the first point is why the exemptions are needed at all. There will be some situations, such as with the London and Glasgow undergrounds, in which we judge that the vehicles can never be fully compliant. It is necessary to provide exemptions for those systems, in the event that they remain legally operational beyond 2020.
The second question is, "Why not list those exemptions?". I believe that was proposed at an earlier stage. Exemptions may be listed in primary legislation—why should we not do that? Well, we would not want to exempt the rail vehicles used on such systems from all the requirements of the rail vehicle accessibility regulations. While the Glasgow underground may not be able to meet all of the requirements for wheelchair access, there is no reason why it should be exempt from all of the other requirements, for example, on colour and tonal contrast. On London Underground, while on vehicles used on certain lines, such as the Victoria Line, there may be difficulty in meeting the regulations in full, there will be other lines, such as the District Line, where the vehicles could be made fully compliant. We could not accept a broad exemption in the Bill, for the reasons that I have outlined. We must be much more discriminating than that to ensure that disabled people enjoy the fullest possible rights.
My Lords, I am grateful to the noble Baroness for giving way. We discussed this issue at considerable length with officials and with her noble friend Lord Davies. I am pleased to hear that the lines are the Glasgow underground and possibly one line of the London Underground. Is it possible to list an exemption and say from which elements they are exempt? I understand her point that we would not want a blanket exemption, but why not focus that now? We are talking about 15 years ahead. Would that not meet our point?
My Lords, I genuinely do not know. Others here have expertise on transport that I do not have. For example, with some of the proposed lines for London, I do not know whether the infrastructure proposed will in the future permit the sort of regulations, and the degree of exemptions, that we may wish to see. I cannot foresee that; I do not know. I am talking here largely about infrastructure issues where it would not be reasonable to seek to impose things that would effectively close those lines down. Given that none of us can foresee what the underground systems may look like by 2020, I certainly do not know the infrastructure constraints that may operate.
That is one explanation that was given to me about why it is better to do what your Lordships wish by exempting, in detail if need be, rather than having it in the Bill and having to qualify in regulations which parts continue to be included under the accessibility regulations and which do not. That must be a more clumsy way of doing it than the way proposed by the Government. It has the same effect; but the solution offered by the noble Lords, Lord Oakeshott and Lord Higgins, seems to be clumsier, and were it to be pursued it could be manipulated to the disadvantage of disabled people.
Exemption orders could be used to impose conditions on the operator to assist disabled people by negating some of the problems arising from non-compliance. For example, vehicles fitted with a flexible table, which at its lowest point is non-compliant with the RVAR, are exempted only on the condition that a member of staff is available to adjust the table. Blanket exemptions in the primary legislation would prevent the imposition of such conditions and would lessen the quality of services for disabled people. We cannot predict what will happen with future designs for wheelchairs, or what other systems may fall foul of those regulatory requirements. We have tried to future-proof as much as we can, but it is not possible.
Again, I look to my noble friends Lady Wilkins and Lady Masham. It is not inconceivable that wheelchairs will continue to develop. I hope that they will—for the very few months that I was in a wheelchair, I could never manage stairs or kerbs, because I could not get the tilt right without falling over. It may well be that wheelchair designs will become much more effective in dealing with that hazard. That may in turn have physical space constraints that we have not anticipated, and if necessary we would like to be able to revisit that. Take for example the proposed ULTra system for Cardiff Bay. The vehicles used on that system would be subject to the RVAR, but as each vehicle can carry only four people it would require a number of exemptions to enable it to operate. We cannot foresee where we may be four years, or even 15 years, down the line.
It is not only for systems that I would regret trying to scrap the exemption power. Experience of working with the RVAR since 1998 has shown that because of the rapid and ongoing advance in rail vehicle technology it is not possible to produce regulations at any time that will cater for all future developments in vehicles. I was given an example of where we may grant an exemption for two years to allow a new system using LED displays to be used to demarcate the floor between the vestibule and the passenger saloon. A two-year exemption period would provide sufficient time for it to be tested and for appropriate research to be carried out. If the first question that I am seeking to address is, do we need them at all? The answer is yes, for the Glasgow and London undergrounds, and for all I know maybe for Crossrail, and maybe for Cardiff ULTra.
Secondly, why can we not list them in the Bill? Because we need to be much more discriminating, specific and detailed. We get the same effect, but with greater coverage for disabled people by doing it through the exemption procedure. Thirdly, why not simply change the regulations, rather than doing it through exemptions? Does that give greater control over the process? No, because if you have regulations they must apply across the board.
The two big issues with rail transport accessibility are wheelchair access and public information services. Some 90 per cent of trains will be compliant with wheelchair regulations; public information services are harder. What blind or visually impaired people may wish for is not always what those people with hearing difficulties may need. Therefore, you must have a multiplicity of systems. We are proposing, as part of the regulations, that there be visual displays in carriages showing where you are. They must be 35 millimetres in height. It is conceivable that some way down the line an operator might wish to do what Virgin has done with its planes and put those screens on the back of seats so that you are much closer to them and you are better able to read them. We would not know whether that represented an improvement in service until after the experiment, the consultation and the feedback had taken place. It might not be regarded as an improvement to the service. If we were to operate through regulations, all vehicle services would come within the remit of regulations, whereas we would be seeking through exemptions to tie it only to the experimental vehicles. That is my third argument.
Finally, there is a fear, which was forcefully expressed by the noble Lord, Lord Addington, that without this proposal 2020 would not be 2020, and the rail operators would drive a coach and horses through the legislation—to use an old phrase—or take disabled people for a ride—to use a more contemporary phrase—and as a result disabled people would continue to find that 2020 is not a real date, but that companies are forever edging us beyond that to suit their commercial convenience. That is the fourth argument that was put in Committee and on Report. I put it to noble Lords that, given what I have said, up until 2020 any exemptions would come within the framework of either affirmative or negative regulations according to the import of those regulations. After 2020, the government amendment proposes that any exemptions would come by affirmative regulations; any and every request for exemption would come by affirmative regulations.
Which railway manufacturing company—most of which as I understand it are either financed or owned by banks—would take the risk of an investment of maybe hundreds and hundreds of thousands of pounds on guaranteeing that they would get parliamentary support under the affirmative resolution procedure? It would be commercially daft to do that. We have already had cases where banks have insisted that companies withdraw some of their manufacturing components and retool and respecify at high cost, to be absolutely sure that they meet the accessibility regulations. No company will take a lottery on an investment of half a million pounds or more on whether this House or the other House agrees that they may have an exemption a month or two before they are due to come into service. It is mind-boggling to think that they would. It defies everything that we know about how commercial considerations work. That would not be a lottery; it would be Russian roulette. No one would play that with that kind of money. We are proposing here that for any exemptions up to 2020, there would be a two-stage framework of draft regulations, framework regulations, which will determine which come under negative and which come under affirmative resolution. I hope that your Lordships will be content with that.
The Government will need a degree of flexibility for those situations after 2020 dealing with infrastructure. I am talking about being able to specify detailed problems that might not yet have been foreseen, and on which it is reasonable and possible to encourage experimentation, without allowing that to go across the whole system before we know whether it offers a useful improvement in service to disabled people. It is a modest degree of exemptions; we do not expect many of them. The Disability Rights Commission has welcomed the Government's approach.
The consultation and the affirmative regulation procedure were built into the Government's approach. Future Houses of Commons or Lords will not thank your Lordships if in 2019 or 2020 they have a situation in which emergency primary legislation is needed to avoid the possibility of a rail line being taken out of service because of a last minute failure to comply on a modest matter that could be handled by exemption. That would be batty. None of your Lordships would want to see that situation.
We have to give that modest degree of headspace. I believe that, with the assurances that I have given about affirmative regulations and the like, there can be no exploitation of the situation. This is recognition that we cannot safeguard against future contingencies that we cannot foresee. I hope that, with that, noble Lords will accept the Government's amendments and not seek to move their own.
My Lords, I am always troubled by false starts. Nowadays, one gets disqualified after just one.
The Minister was too modest: this group of amendments is very large and groups together three somewhat separate issues. The first is the question of whether exemption orders between now and 2020 should be made by affirmative resolution. Those noble Lords who have been involved in the Bill from the beginning will know that we have made a great deal of progress. When we started, they could be dealt with by diktat, effectively. The Scrutiny Committee and the Merits Committee came down against that, and it was agreed that exemption orders should be made by negative resolution. Then the Minister, in her usual flexible way, agreed that, in some cases, it would be more appropriate for orders to be made by affirmative resolution, because we all know that there are many negative resolutions and they are unlikely to get the attention that they deserve on matters such as this.
The Minister has now come up with Amendment No. 9, which proposes a two-stage procedure. As she said, an order that sets out the conditions in which one method will apply rather than the other will be made by affirmative resolution. We had a great deal of discussion on that, together with the Liberal Democrat Party. I am grateful to officials and to the Minister for those discussions. At one stage, we thought that the right answer was to have affirmative resolutions if the exemptions are important. That was the purpose of my Amendment No. 10. But I think that I am now persuaded that the procedure that the Government are proposing is a great deal better than that in the original Bill and, indeed, than that in the Bill at earlier stages. That is something about which we can all be satisfied. I thank the Minister for producing the amendment with regard to the procedures in your Lordships' House and the other place.
The other subject which arose was annual reports. That is dealt with in Amendment No. 11 and we—and, I think, the Liberal Democrat Party—are glad that those proposals are made.
We then come to the more difficult issue, which the Minister spent most of her time dealing with. We all agree that the Bill must not be endangered in any way by the proceedings in either House and that it should receive Royal Assent as soon as possible, consistent with us looking at the detail in the right way. This is the main outstanding item on the transport agenda.
The amendments are a little complicated. The Minister tabled the government amendments after we had tabled ours because we were not sure what was going to happen. I feel bound to say that, on reflection, we came to the view that the Government's Amendment No. 6 is not satisfactory because it will effectively create a situation after 2020 that is the same as that before 2020. Therefore, 2020 does not become, in any realistic sense, a deadline. We—and, I think, the Liberal Democrat Party—are anxious to have a genuine deadline so the rail industry knows that that is it and that further exemptions will not be granted. The problem is that, as it stands, the Government's amendment enables them to go on making exemptions exactly as before 2020. Given the considerable air of suspicion that has been generated outside about the way in which the rail industry has complied in the past, it seems to us that that is a dangerous way of proceeding.
The Minister put forward two arguments about why it would be necessary to continue to have exemptions after 2020. One of them is a very strange argument although, as she said, the Disability Rights Commission and some other organisations appear to have accepted it. It is the strange argument that it is necessary to have exemptions in case technology for making provision for the disabled improves. I asked for specific examples and the only one that they could come up with was the example of the Gatwick Express where exemption was granted for two years so that the company could discover whether a better system of enabling the disabled to see various steps and so on could be devised. But that was based on the fact that the situation was not already compliant. It was necessary to make an exemption so that the experiment could be carried out. But if the situation is already compliant, there is nothing stopping the industry or organisations for the disabled putting forward new proposals. An exemption is not necessary to do that.
My Lords, I gave the example of a company seeking to have back-of-seat displays instead of a common denominator board, electrically illuminated with a 35mm display, in each carriage. It would not be compliant if it did not do that. A company cannot be asked to have the common denominator board and back-of-seat displays when it is introducing new vehicles to see whether that is an improvement in service. Therefore, the company would not already be compliant. It is not just a question of upgrading compliance; it is that the company would not be compliant without an exemption. If the pilot scheme is successful, it might improve facilities for disabled people across the board and be adopted for future new vehicles.
My Lords, an exemption is not necessary. If there is a situation where, for example, the Jubilee Line annunciator system is in existence and is compliant and the company then wants to introduce a system in the back of seats, there is no reason why it should no do so. It does not need an exemption in order to do so. That is the situation.
While some outside bodies seem to be persuaded, it seems to me that this is a dud argument. I do not know why the department is going on about it. In all events, it is dangerous to say that after 2020 the Government can go on with the same powers to make exemptions as they have, or will have after the Bill goes through. In that context, incidentally, the Minister said that, if the Government procedures went forward, any exemptions after 2020 would be by affirmative resolution. I cannot find that anywhere in the amendments she mentions but, if the Government's view prevails, no doubt she can clarify that—although I hope their view does not prevail.
The only other argument is that the exemptions may be needed after 2020 because some of the railway tunnels are too small to enable compliance. If that is so, because this is what might be called a permanent exemption, I see no reason why the regulations that decide what compliance means should not be adjusted. The Minister says that is a "clumsy" way of doing it, but it is no clumsier than any other system. In fact, it is to avoid any "clumsiness" that the Government will retain the right to make exemptions after 2020.
We have said all along in the course of these debates that either we can settle for an early date such as 2017 and then have exemptions, or we can set the date of 2020 as a genuine deadline. We do not find—nor, I think, so the Liberal Democrats—that we can support the Government's arguments for maintaining exemptions after 2020. Maintaining them has considerable dangers. The industry, as the time gets nearer, will say, "Don't worry. We don't need primary legislation to make any difference here. We will be able to do this by exemption, because look what they passed back in 2005—they gave the Government just the same power to make exemptions after 2020 as before. Why won't they go and make some changes?".
That being so, there are two sets of amendments that would bring out what I believe ought to be done: Amendment No. 7, which leaves out the tail end of the government amendment, and Amendment No. 12. On balance, if we come to a vote—unless the Minister suddenly produces some new argument by which we are all astonished—Amendment No. 7 is probably the better of the two. I beg to move.
My Lords, we have gone through a long process on transport exemptions. It started when we were hacking through the 1995 Bill. Although it took a brave step forward, the Bill failed because long lead-in times meant inactivity, which meant nothing, which meant concessions could then be got from the government in the form of a negative resolution.
I ran headlong into this as a member of the Merits Committee. It was then, because of my interest in the field, and with the encouragement of that committee that I brought forward the idea that concessions should not be granted in that way. It was the first time I had been challenged in a long while. To put it bluntly, it was like being the forlorn hope in an infantry charge. I ran into the government, who did not want to play, and a train lobby that did not want anything to do with the idea.
The Minister has said a lot about the fact that Parliament would be able to give force to the legislation. In 15 years' time it is probable that no one who is involved in this issue, or who is interested, will be in Parliament. This entire Chamber, we are told, awaits the axe. We have to get a whole new group of people interested, excited and prepared to stand their ground on this matter. After a great period of comparative silence, we will run into this issue again. The regulations will be there to be picked off. The lobby outside will have moved on. It is just not going to happen—or at least I am not prepared to take a chance on it happening.
We are really in trouble here if we continue like this, because we are creating something that is not strong enough to stand up. I must thank the Government for Amendments Nos. 9 and 11, which help. However, we would not even have got them without the attention and political heat we have generated. The clauses they amend would just have gone through. A degree of interest has to be created, and we will almost certainly not have that in a few years' time.
I have a nagging suspicion that many train operating companies and banks will reckon that if they get a few good lawyers involved, and if they have a good track record of getting exemptions, they will be able to do so—and they probably will. That will not be as easy as it has been, but after the first two or three exemptions we will find that it just carries on. That is one of my principal objections to the idea that this practice can be extended. I know from practical experience that trying to get enough interest in Parliament to ensure you can stop something that has government and lobby group backing is a "big ask", as all those who have been involved know.
The Government have 15 years to get secondary legislation right. That might be clumsy, but at least it will work. There are no points for elegance in this game. I suggest that the Government get something firm on the ground. If there have to be one or two exemptions, let them be made separately. Anything that will upset the idea of the firm target, however, will not work.
Let us face it—2020 was not the first date chosen or desired by those of us who were involved. We thought it was too far away, while the Government were proposing 2025. Given their track record of putting this issue off for someone else's Budget, I suggest that the amendment spoken to by the noble Lord, Lord Higgins, is essential.
My Lords, this has been an interesting debate. I thank the noble Lord, Lord Addington, for observing that the Government have 15 years to get this right. I am delighted he thinks a Labour government will still be in power in 2020.
We have had a series of debates in Committee and on Report. Your Lordships will remember that the Joint Select Committee that I chair recommended that the consultation on the setting of the end-date was begun immediately. There was no justification for further delay. That has happened, because we now have the Government's acceptance of 2020. The report said,
"The Committee's analysis of the evidence we have received, together with the Department of Transport's own data, leads us to suggest an end-date of the end of 2017. We conclude that this, together with a limited exemption system which would itself expire in 2025, would be an appropriate compromise between the needs of disabled people and the industry's current replacement programme".
Your Lordships will note that we have moved on since then, and I think we all accepted that what we wanted was 2020 on the face of the Bill, which we have, and a robust exemption procedure when we get to 2020, but an exemption procedure implies that there will be exemptions. It seems the whole argument is turning on the robustness or otherwise of the exemption procedure that will be available in 2020. We now have the annual report, which is a good step forward, and the need for any change after 2020 to be dealt with through the affirmative procedure.
Let me remind your Lordships that in the Joint Committee report, the figures we had from the Department for Transport indicated that, under the procedure as it was then, in 2020 there would be 2,080 rail vehicles not regulated. That number has changed slightly since then, as the numbers have been updated. The government amendment clearly states:
"The Secretary of State shall exercise the power to make rail vehicle accessibility regulations so as to secure that on or after 1st January 2020 every rail vehicle is a regulated rail vehicle".
If I read that correctly, it means that the 2,080 vehicles that would otherwise have been exempt will not be, except for the robust exemptions procedure. The argument simply turns on whether there should be any exemptions after 2020.
The Minister referred to the Disability Rights Commission, which understands the situation. We have all seen its briefing, but it is worth reminding ourselves of what it says. Under a heading about amendments to prevent any exemptions from RVAR after 2020, the commission says that it cannot support them, as it accepts that there may need to be some exemptions after 2020 in exceptional circumstances. In particular, the DRC is concerned that such amendments could inadvertently prevent short-term exemptions geared towards testing important innovations in rail vehicle access, with a view to later amendments of the RVAR to incorporate innovations which work well for disabled people. That is a clearly expressed view of the Disability Rights Commission, which I am sure has discussed it with the DPTAC. In any event, the DRC would expect the Government to use provisional procedures to ensure that exemptions which are not considered beyond 2020 are dealt with by the affirmative procedure.
We have gone a long way and persuaded the Government to accept a number of substantial changes. The matter turns on whether you feel that in 2020 there will be very limited and robust exemption procedures—from all that we have heard, it seems that there will be. There will also be the double lock. We will not have to wait until 2020 to find out whether the rail companies have expensive lawyers to gain themselves exemptions, as an annual report will tell us what is happening every year. It will be presented to Parliament and I am sure can be debated, which will show how well everyone is performing.
If I understand matters correctly, the Government have moved towards accepting 2020 as a firm end-date in the Bill. By doing so, they are substantially reducing the number of exempt vehicles that would otherwise have been there in 2020. The question turns on whether you feel that the exemption procedure in 2020 will be robust enough to ensure—through the affirmative procedure and the annual report—that for a couple of years things will work. The operating companies will be taking a very big chance if they go in for expensive changes without knowing whether they can get an exemption after 2020. The Minister made that point.
We have achieved a great deal from the Government and made progress. I take their word and argument on the exemptions procedure. If it comes to a vote, we should reject Amendment No. 7, which suggests that the exemption procedure in 2020 will not work, and accept the Government's amendment.
My Lords, I have been as critical of the Government throughout the progress of the Bill as anyone, and certainly have been critical of the Bill. I have also been very suspicious of the railway industry. On Report, the noble Lord, Lord Davies, disagreed with me about the industry, indicating in no uncertain manner that I was too cynical about and critical of it. He defended it.
Having said that, and although the argument has been finely balanced and well argued on both sides tonight, I must say that my noble friend Lady Hollis wins the argument hands down. I do not say that in a debating sense, but my impression from the words spoken, the facts adduced and the arguments put forward is that we are in danger of overlooking the fact that we have 2020 in the Bill. That is a considerable step forward. It sends two key messages. One is to disabled people that the Bill lays down the law in no uncertain manner for progress at that time. The second is to the railway industry to get on with things, which it has not done so far.
In a very well argued speech, the noble Lord, Lord Higgins, was concerned about the exemption procedure. Frankly, at first I was against all exemptions, because I was suspicious of them. The danger is that they could be exploited. The Minister has given the explanation that the exemption procedure is very strictly limited. There is no possibility of the railway industry sticking its neck out and campaigning ardently for such a procedure. It is unrealistic.
My next point is about realism. Both sides have done very well. At this stage of the Bill, we will not get major changes. We need to accept what we have achieved so far and what the Government have given; the Government have given a very great deal.
My last word is that the noble Baroness, Lady Hollis, has been marvellous on the Bill. She has accredited herself greatly, and I congratulate her on her work.
My Lords, I am delighted to respond to that. I thank your Lordships for a well informed, good tempered and interesting debate. I am delighted that my noble friend Lord Ashley, who has so much experience in these matters, is very clearly behind the Government's case.
My noble friend was right to say that the real question was whether the proposals for any exemptions for 2020 were sufficiently robust to be in the best interests of disabled people. Is there adequate scrutiny to ensure that any exemptions are robust? Yes. As he said, 2020 is not only in the Bill, but the procedure is affirmative. Government may propose; Parliament will determine—Parliament, not government. The noble Lord, Lord Higgins, kept talking about government, but it is Parliament which will determine by the affirmative procedure.
The second question is whether the matter can be handled in any other way, so that we do not stifle innovation, close down heritage lines or have problems with charter services—they will be eliminated if the opposition amendments go through. No, it cannot.
Thirdly, do the Government have consent for what we are doing? I have certainly not been lobbied by any railway company, but by the DRC—cited extensively by my noble friend Lord Carter—the Disability Charities Commission, and the members and supporters of the New Spirit Coalition. That coalition comprises some 30 organisations, ranging from the Black Disabled People's Foundation, John Grooms, Arthritis Care, Habinteg, the Stroke Association, the Muscular Dystrophy Campaign, the National Centre for Independent Living, the Guide Dogs for the Blind Association, the Disability Alliance, Mencap—I could go on and on, listing dozens of organisations which support the Government's position.
I invite Members of the Opposition to name one organisation of or for disabled people which supports the opposition amendments. One will do. I wait. I do not doubt that there has been telephoning around, so are the Opposition saying that no disability organisation supports their case? I can list almost every major player in the area as supporting the Government's position, as described by my noble friend.
My Lords, the simple reason is that I had thought we had decided this. Experience tells me that the organisations have accepted a deal from outside. I thought the basis on which they bought the deal was wrong.
My Lords, the noble Lord is pitting his judgment against the accumulated experience of all the disability organisations. As my noble friend said, they feel happy with 2020 in the Bill and a robust exemption procedure to deal with unforeseen situations—as well as those that are foreseen, such as the London Underground, the Glasgow underground, the heritage lines and the charter service. All that will be imperilled if the opposition amendments go through.
Surely Opposition Peers cannot be so confident in their judgment that they would risk closing down all those lines, risk challenging access to the Underground and the like because we will not be able to specify it, and risk what they would do to charter services. They would do that flying absolutely in the face of what the disability world wants, knowing that as parliamentarians they not only have an annual report, as my noble friend said, but have a second bite every time a proposed exemption comes before them.
Why are the Opposition so afraid to trust our judgment or that of those who succeed us in five, 10 or 15 years on whether an exemption is robust? Why are they saying, "We know best what they may or may not be called on to judge in 2020"? That is an extraordinary statement to make about future parliamentarians. I certainly do not agree with it. Given that the disability world is behind us on the matter, that this is the appropriate way to go forward, and that Parliament will have full opportunities for scrutiny, I hope that noble Lords will accept the Government's position and not pursue that advanced by the Opposition.
My Lords, I have moved an amendment to the government amendment which effectively means that there will not be powers to create exemptions after 2020. I spelt out in considerable detail why I believed that it was the right way to proceed. I stress again that, if this amendment is not carried, the situation with regard to the Government having powers to make exemptions will, after 2020, be precisely the same as before then.
My Lords, I repeat that the Government will not have the power to make exemptions: Parliament will.
Fine, my Lords, Parliament will. Yet the government of the day in Parliament will still have the power to make exemptions—in exactly the same way as the Government themselves can, at present, put proposals to Parliament for making exemptions. The effect is quite clearly that 2020 is not a deadline on which we can rely.
The Minister referred to various outside organisations which have, throughout these proceedings, been immensely helpful. I agree entirely with the points made from the Liberal Democrat Benches. We have made huge progress in improving the Bill. However, there is also a strong feeling that this is probably the most important individual issue in the Bill. We need to be certain of having a deadline which will be a real one. Otherwise, as 2020 approaches, Parliament will be told that while there are, of course, powers in the Bill to make these exemptions, there are one or two things which need to be sorted out and that those will take a bit longer to sort out, and so on. While powers remain to put the case for exemptions to Parliament—and, of course, I was not for one moment suggesting that the Government are absolute—that may be the case.
With great respect to the outside organisations, they have not fully understood the implications of having no real and effective deadline. It means that, as the noble Lord, Lord Addington, has pointed out, the situation will continue to drift—whereas, if there is to be certainty on these matters, it is important that we should establish it. There is no reason at all not to do so. No doubt, in 2020, further views will prevail. However, at all events, we will have set a firm framework, which the various interests will know cannot be altered merely by a statutory instrument. Therefore, I with to test the opinion of the House.
moved Amendment No. 9:
Page 13, line 24, at end insert—
"(2A) In the 1995 Act, after section 67 there is inserted—
"67A EXERCISE OF DISCRETION UNDER SECTION 67(5A)
(1) Before the Secretary of State decides which of the parliamentary procedures available under section 67(5A) is to be adopted in connection with the making of any particular order under section 47(1), he must consult the Disabled Persons Transport Advisory Committee.
(2) An order under section 47(1) may be made without a draft of the instrument that contains it having been laid before, and approved by a resolution of, each House of Parliament only if—
(a) regulations under subsection (3) are in force, and
(b) the making of the order without such laying and approval is in accordance with the regulations.
(3) Regulations may set out the basis on which the Secretary of State, when he comes to make an order under section 47(1), will decide which of the parliamentary procedures available under section 67(5A) is to be adopted in connection with the making of the order.
(4) Before making regulations under subsection (3), the Secretary of State must consult—
(a) the Disabled Persons Transport Advisory Committee, and
(b) such other persons as he considers appropriate.""
[Amendment No. 10, as an amendment to Amendment No. 9, not moved.]
On Question, amendment agreed to.
moved Amendment No. 11:
Page 13, line 24, at end insert—
"( ) In the 1995 Act, after section 67A (which is inserted by subsection (2A)) there is inserted—
"67B ANNUAL REPORT ON RAIL VEHICLE EXEMPTION ORDERS
(1) The Secretary of State must after each 31st December prepare, in respect of the year that ended with that day, a report on—
(a) the exercise in that year of the power to make orders under section 47(1); and
(b) the exercise in that year of the discretion under section 67(5A).
(2) A report under subsection (1) must (in particular) contain—
(a) details of each order made under section 47(1) in the year in respect of which the report is made; and
(b) details of consultation carried out under sections 47(3) and 67A(1) in connection with orders made in that year under section 47(1).
On Question, amendment agreed to.
moved Amendment No. 12:
Page 13, line 24, at end insert—
"(1B) All orders made under subsection (1)(a) or (b) shall expire on 1st January 2020.
(1C) No order shall be made under subsection (1)(a) or (b) after 1st January 2020.
(1D) This section does not apply to heritage rail.""
My Lords, in moving this amendment, it will also be convenient to discuss Amendment No. 13. There is uncertainty now that the government amendment has been carried because the latter part gives the Government continued powers to make exemptions after 2020 so the deadline is nowhere near as firm as we would have liked to have seen it. However, of course we accept the opinion of the House in that respect.
I move this amendment to ask the Government two questions. First, as far as concerns the situation after 2020, is it the Government's intention that exemptions made before 2020—which are in operation when that date arrives—all have a limit of
It would be helpful to know whether the Government intend—no doubt the Minister can assure us—that all exemptions shall not run beyond 2020, in the sense that they may have been granted in 2019 for a five-year period, or something of that sort. Am I right in assuming that it is the Government's intention that they should not do so?
The second part of this amendment is concerned, as indeed is Amendment No. 13, with the position of heritage railways. In the light of the Government's amendment having been carried, I presume that it is their intention to continue seeking exemptions for heritage railways. To that extent, my Amendment No. 13 would not be necessary. However, as far as concerns what one might call "running exemptions", it is important to establish whether they will stop in 2020 or whether they could be granted before 2020 for a period that expires after that time. I beg to move.
My Lords, I would like to ask a few questions while information is being obtained. Amendment No. 6 states:
"The Secretary of State shall exercise the power to make rail vehicle accessibility regulations so as to secure that on and after 1st January 2020 every rail vehicle is a regulated rail vehicle".
That is quite clear:
"every rail vehicle is a regulated rail vehicle", except—obviously—for those that are exempt. The noble Lord has a point. He wants the matter to be clarified. How long do the exemptions that are granted in 2018 or 2019 run for?
It is a fair point to ask, but the intention of Amendment No. 6 is that every vehicle will be regulated except those that are exempt. The House has now accepted the Government's argument that the exemption procedure will be very limited, but the noble Lord has asked a fair point to which I believe my noble friend the Minister now has an answer, so I can sit down.
Not quite my Lords; I am still pursuing the answer. The noble Lord, Lord Higgins, has indeed wrong-footed me on his first question. I agree that it is an entirely proper one and criticise myself for not having pursued the matter.
To go back a step, we certainly all agree that heritage railways should be exempt—that is the Government's intention—so that they will continue to be exempt from the RVAR and the power to do that already exists. By not moving Amendment No. 13, I think that the noble Lord recognises that.
The noble Baroness, Lady Masham, asked what exemptions we are talking about. They are a combination of things. Obviously, I do not want to repeat the previous discussion that we had and I am sure that the noble Baroness would not want me to, but exemptions would include heritage vehicles, or where vehicles on the Glasgow underground or the Victoria Line could not be made fully compliant because of the infrastructure.
There could also be issues of possible innovation; for example, you want to pilot something and the vehicle involved may temporarily not be covered, and so forth. Perhaps a handrail is a millimetre out—a fault that can be corrected but only over a period of time. The carriages would be called in and an exemption order would be needed to allow the correction to be made. I was making the point that all such exemptions beyond 2020 would have to have the affirmative approval of the House. If the House thought they were not reasonable, it would not agree to them.
As for the regulations after 2020, the Government would propose that any exemptions which start before 2020 and which would run beyond 2020 would be subject to the affirmative procedure by virtue of the regulations we would make under Amendment No. 9. If, for example, one introduced regulations for an exemption in 2018, it would, in my judgment, have to specify an end date if it were to run beyond 2020, such that Parliament would decide whether it was acceptable. Otherwise, a fresh set of regulations would have to be introduced.
My Lords, I am worried about heritage because English Heritage has been most unhelpful towards disabled people. They have made this an excuse on many things, making various places inaccessible. I know that churches have had to pay out millions because of English Heritage.
My Lords, obviously there is an issue for English Heritage because making a building fully accessible undermines, contradicts or subverts some of the heritage planning laws of this country. There is a tension there, and I think we are all aware of it.
We are not dealing with English Heritage here, however. We are dealing with Cairngorm lines, north Wales lines and so on. They may be narrow lines. They could include the "Orient Express". They are not modern InterCity or service lines which are part of the normal operating arrangements. They are heritage lines in the sense that they have a tourist appeal, or an additional premium because they are in a particular part of the country and use old stock which is attractive to its users. It would clearly be inappropriate to try to make the "Orient Express", for example, fully compliant for wheelchair access because, by virtue of its physical structure, you might no longer have the "Orient Express".
"Heritage railways" has a very specific meaning. There are about 300 of them, which is why they are not listed on the face of the Bill or in a schedule. I am very happy to send a copy of the list to the noble Baroness, Lady Masham of Ilton, if she thinks it would be helpful.
My Lords, one is never quite sure what is going to happen next in your Lordships' House. I was somewhat surprised at the answer the Minister has given. The Government have succeeded in retaining the power to make exemptions beyond 2020, with the consequences which I set out in my previous speech. It now emerges that they are also proposing to create—indeed, have created—a situation in which they can make exemptions in 2018 which could go on until 2222 or 2225, or whenever.
My Lords, it is no different from making those same exemptions in 2020. If they were that significant, they would have to have affirmative approval and Parliament would therefore decide. It is not a different issue from the one on which the House has already judged.
My Lords, it is a very different issue. It turns on whether there will be exemptions after 2020—it is increasingly apparent that there are likely to be. At any rate, the Government will have the power to achieve that objective, rather than having anything on the face of the Bill to prevent them.
moved Amendment No. 14:
Page 31, line 15, leave out "which would involve" and insert "consisting of, or including,"
My Lords, we now return to the issue of making alterations to demised premises. This group of amendments fulfils the commitment I made on Report to improve the way the law works.
I think everybody would accept the complexity of landlord and tenant law. I would like to throw bouquets at the officials and parliamentary counsel for working so expeditiously to meet the very clear views of the House in Committee and on Report. Given that complexity, in which the officials have been trying build upon the 1927 Act and the 1980 and 1985 Acts, they have done a splendid job. I hope that your Lordships will warmly welcome what we are seeking to do.
We were concerned throughout our discussion to ensure that the need of a disabled person to live in suitable accommodation is protected while, on the other hand, the landlord's investment in his property is protected. As our debates have shown, this is not an easy task. We have now got that balance right.
These new provisions will do more to ensure that, where a lease entitles a tenant to make improvements with a landlord's consent, landlords cannot unreasonably refuse consent if a tenant wants to make a disability-related alteration to residential premises. They apply to premises that are occupied by a disabled person as their only or principal home, and to disability-related alterations to the let premises themselves, not the common parts. They do this by building upon existing rights provided in landlord and tenant and housing legislation, making them more responsive to the needs of disabled people.
As I have explained in previous debates, non-disabled tenants are able to make improvements to rented premises where the lease allows them to do so. Where the lease says that the landlord's consent is required, the Landlord and Tenant Act 1927 ensures that that consent cannot be withheld unreasonably. We had believed that that Act was sufficient to give disabled tenants the same right to make adaptations as non-disabled tenants apparently have. It was clear from the concerns in your Lordships' House, however, that it was felt that either it was not being exercised properly or that those rights were hard to achieve. Although subsequent legislation has improved on the 1927 Act, in the form of the Housing Acts of 1980 and 1985; those Acts are somewhat limited in the tenancies to which they apply—tenants of local authorities and Rent Act tenants.
We are doing three things with these amendments. First, we are ensuring that the right of a disabled tenant to make adaptations which the landlord may not unreasonably refuse is analogous to the rights that non-disabled tenants currently have. Secondly, we are extending those to the tenants of all landlords, not just socially rented housing and Rent Act tenants—in other words, to assured shorthold tenancies. Thirdly, we are bringing the Disability Rights Commission into play. At the moment, the DRC cannot provide help or guidance to tenants or landlords. We believe this is necessary.
In future, the DRC will be able to provide a conciliation service in relation to disputes about disability-related improvements, whether they arise under new Section 49(g) or in any other context—for example, under existing housing and landlord tenant legislation. They will issue a code of practice. They will assist tenants in any legal proceedings where the issue is whether it was unreasonable for a landlord to withhold consent to a tenant carrying out a disability-related improvement, or similar matters. The situation is not overridden in any sense by the concerns of the noble Lord, Lord Skelmersdale, about what happens to private homes. That is still protected under a different section of the Bill.
Where alterations are permitted, the Government expect the scale of the landlord's operation to be a relevant factor. For example, 40 per cent of private landlords have only one rental property. Others may have many more. That would be a question of what is reasonable. The DRC's code of practice should give guidance on that.
There is also the situation where the lease itself does not confer any right to make alterations at all. For example, assured shorthold tenancies, which are now the majority of tenancies in the private sector, generally contain a prohibition against the tenants making improvements of any sort, whether they are disabled or not. A tenant who wishes to make a disability-related alteration to those premises must get over this hurdle before he can rely on the provisions of Section 49(g). We think they should be able to do this by invoking the reasonable adjustment duties already contained in Clause 13 of the Bill, as slightly amended by Amendment No. 14.
Subject to meeting the various conditions in new Sections 24A to 24F, in particular that the prohibition on making alterations makes it impossible or unreasonably difficult for a disabled person to enjoy the rented premises, the tenant will be able to use the new reasonable adjustment provisions to seek a change in the terms of the letting, and then go on to make the physical adaptations to the property. In turn, the landlord can make conditions about improving the specification for works, reinstatement and so on.
We shall be bringing forward regulations under the powers in Section 24L to assist landlords and tenants in using the new duties in this way. The regulations will, for example, set out the circumstances in which it is always reasonable for a landlord to have to modify or waive a term in a lease prohibiting the making of any alterations where that term makes it impossible or unreasonably difficult for a disabled person to enjoy the premises or to make use of an associated benefit. We shall need to discuss those proposals with representative bodies. I believe I have covered the point raised by the noble Lord, Lord Skelmersdale, about someone's own home.
Finally, what counts as reasonableness? This is an objective and not a subjective test. What might be considered reasonable in relation to rented premises? What, for example, would happen if the landlord thought that an improvement might make it more difficult to rent out a property in future? That is the "minor niggle/major consideration" issue that we discussed before.
That would be relevant when deciding the reasonableness of giving consent. But, of course, the landlord would have to be sure and be able to demonstrate that the improvement would genuinely make it more difficult to rent out the property again. Many improvements for disabled people—double-glazing, better lighting, central heating—might actually improve the property and the landlord would have absolutely no ground for refusing consent under those circumstances, I would guess.
A landlord might make it a condition of giving his consent that the tenant has to reinstate the premises when he leaves and the landlord might ask for a security deposit to cover reinstatement costs. But we know that many people using disabled facilities grants to make alterations are elderly and on low incomes. If the tenant is unable to pay a reasonable deposit that the landlord requests, or is unable to provide realistic guarantees that the improvements will be reinstated, where it is legitimate for the landlord to believe that the property has become less attractive for the rental market, then it may not be unreasonable for the landlord to refuse his consent to the improvements. So the reinstatement issue becomes part of the test of reasonableness, which I believe applies across the employment area and the like.
As I said earlier, the DRC will be preparing guidance in a statutory code of practice on reasonableness, which will have to be taken into account in court cases where relevant. The DRC is aware of that and will consult fully. The code will also have to be approved by the Secretary of State and laid before Parliament.
I have cut down my explanation a little but I am happy to write to noble Lords. We are dealing with possibly the most complex area of legislation, which is trying to address landlord and tenant law, reflected in three previous pieces of legislation, and make that apply to disabled tenants by bringing the law of discrimination into housing legislation. I believe that the officials and parliamentary counsel have done it. The test of reasonableness will still apply, thus protecting the landlord's financial investment in his property, but that, in turn, will be shaped by the DRC's capacity to issue statutory codes of guidance which, of course, can be prayed in aid in court and, in turn, to assist tenants, if necessary, in any court action that follows.
I hope your Lordships will agree that on individual premises—not common parts—we have met the wishes and aspirations of your Lordships' House. I beg to move.
My Lords, I am extremely grateful to the Government for tabling this amendment. My noble friend will remember that at an earlier stage of the Bill I said that I was keeping score of the number of recommendations of the Joint Committee that were turned down in the government response but which were later introduced into the Bill. This is another one.
My Lords, I am extremely grateful to my noble friend for having responded so comprehensively to our concerns about the needs of disabled tenants who require adaptations to their homes. I warmly endorse her congratulations on the very expeditious work carried out by the officials and by parliamentary counsel. As she has made clear, this is an extremely complex issue.
I also add the thanks of the noble Baroness, Lady Darcy, who, unfortunately was unable to stay for this debate. She wanted me to add her thanks for the amendment and to add the hope that the committee set up to come up with a solution to the communal areas will also come to a similarly satisfactory conclusion. This was a key commitment from the Disability Rights Task Force which will do much to increase the independent living of disabled people. I extend my grateful thanks to the Minister for all her hard work on this issue.
My Lords, I too welcome this group of amendments. The noble Baroness, Lady Wilkins, has just mentioned independent living. As the House may know, I have been pressing very strongly for this new clause on independent living. These amendments go a long way towards helping independent living for disabled people. I particularly welcome the amendments, especially Amendment No. 16, because it would have been incredible that any landlord could unreasonably refuse alterations to premises for a disabled person. There is no argument for that. By any stretch of the imagination that would be quite incredible. These amendments correct that gross injustice. I regard them as some of the most important parts of the Bill. I congratulate the Government.
My Lords, I can tell the Minister that this is a far, far better thing that she does now than she has done before.
My Lords, we shall forgive the little dispute when we were so close to agreeing and when we had to settle the matter with a Division. On this point, we thank the Government.
My Lords, I want to add my thanks. It is practical to have more suitable accommodation because we have a growing elderly population, many of whom are disabled. As my noble friend has said, if severely disabled people are to survive in the community, we need more help in the community.
moved Amendments Nos. 15 and 16:
Page 33, line 39, leave out "which would involve" and insert "consisting of, or including,"
After Clause 15, insert the following new clause—
(1) In the 1995 Act, after Part 5A (which is inserted by section 3 of this Act) there is inserted—
IMPROVEMENTS TO DWELLING HOUSES
49G IMPROVEMENTS TO LET DWELLING HOUSES
(1) This section applies in relation to a lease of a dwelling house if—
(a) the tenancy is not a protected tenancy, a statutory tenancy or a secure tenancy,
(b) the tenant or any other person who lawfully occupies or is intended lawfully to occupy the premises is a disabled person,
(c) the person mentioned in paragraph (b) occupies or is intended to occupy the premises as his only or principal home,
(d) the tenant is entitled under the lease to make improvements to the premises with the consent of the landlord, and
(e) the tenant applies to the landlord for his consent to make a relevant improvement.
(2) If the consent of the landlord is unreasonably withheld it must be taken to have been given.
(3) Where the tenant applies in writing for the consent—
(a) if the landlord refuses to give consent, he must give the tenant a written statement of the reason why the consent was withheld;
(b) if the landlord neither gives nor refuses to give consent within a reasonable time, consent must be taken to have been withheld.
(4) If the landlord gives consent to the making of an improvement subject to a condition which is unreasonable, the consent must be taken to have been unreasonably withheld.
(5) In any question as to whether—
(a) the consent of the landlord was unreasonably withheld, or
(b) a condition imposed by the landlord is unreasonable, it is for the landlord to show that it was not.
(6) If the tenant fails to comply with a reasonable condition imposed by the landlord on the making of a relevant improvement, the failure is to be treated as a breach by the tenant of an obligation of his tenancy.
(7) An improvement to premises is a relevant improvement if, having regard to the disability which the disabled person mentioned in subsection (1)(b) has, it is likely to facilitate his enjoyment of the premises.
(8) Subsections (2) to (6) apply to a lease only to the extent that provision of a like nature is not made by the lease.
(9) In this section—
"improvement" means any alteration in or addition to premises and includes—
(a) any addition to or alteration in landlord's fittings and fixtures,
(b) any addition or alteration connected with the provision of services to the premises,
(c) the erection of a wireless or television aerial, and
(d) the carrying out of external decoration;
"lease" includes a sub-lease or other tenancy, and "landlord" and "tenant" must be construed accordingly;
"protected tenancy" has the same meaning as in section 1 of the Rent Act 1977;
"statutory tenancy" must be construed in accordance with section 2 of that Act;
"secure tenancy" has the same meaning as in section 79 of the Housing Act 1985.
49H CONCILIATION OF DISPUTES
(1) The Disability Rights Commission may make arrangements with any other person for the provision of conciliation services by, or by persons appointed by, that person in relation to a dispute of any description concerning the question whether it is unreasonable for a landlord to withhold consent to the making of a relevant improvement to a dwelling house.
(2) Subsections (2) to (8) of section 28 apply for the purposes of this section as they apply for the purposes of that section and for that purpose a reference in that section to—
(a) a dispute arising under Part 3 must be construed as a reference to a dispute mentioned in subsection (1) above;
(b) arrangements under that section must be construed as a reference to arrangements under this section.
(3) "Relevant improvement" has the same meaning as in section 49G."
(2) In section 53A of the 1995 Act (codes of practice), after subsection (1C) there is inserted—
"(1D) The Commission may prepare and issue codes of practice giving practical guidance to landlords and tenants as to—
(a) circumstances in which a tenant requires the consent of his landlord for making a relevant improvement to a dwelling house;
(b) circumstances in which it is unreasonable to withhold such consent;
(c) the application of the improvement provisions in relation to relevant improvements to dwelling houses.
(1E) In subsection (1D) the improvement provisions are—
(a) section 19(2) of the Landlord and Tenant Act 1927;
(b) sections 81 to 85 of the Housing Act 1980;
(c) sections 97 to 99 of the Housing Act 1985;
(d) section 49G above."
(3) In section 7 of the Disability Rights Commission Act 1999 (provision of assistance in relation to proceedings)—
(a) in subsection (1), after paragraph (a) there is inserted—
"(aa) proceedings of any description to the extent that the question whether it is unreasonable for a landlord to withhold consent to the making of a relevant improvement to a dwelling house falls to be considered in the proceedings;", and.
(b) after subsection (4) there is inserted—
"(4A) A relevant improvement is an improvement (within the meaning of section 49G(9) of the 1995 Act) to premises which, having regard to the disability which a disabled person who lawfully occupies or is intended lawfully to occupy the premises has, is likely to facilitate his enjoyment of the premises.""
On Question, amendments agreed to.
Clause 17 [Meaning of "disability"]:
moved Amendment No. 17:
Page 42, line 43, leave out "sub-paragraph (2)" and insert "sub-paragraphs (2) and (4)"
My Lords, Amendment No. 17 is a paving amendment to part of Amendment No. 19. A vast proportion of your Lordships and all the disability groups to which I have spoken during the passage of this Bill through your Lordships' House have welcomed the Government's intention to include cancer among the diseases that are deemed to be disabling. As the Bill puts it,
"a person who has cancer . . . is to be deemed to have a disability".
"In my experience, people still are as terrified of cancer, and it is still as much of a bombshell of a word that stops all thought, all arguments, and raises fear and apprehension among anyone who is told".—[Hansard, 8/2/05; col. 684.]
I most certainly agree, adding that it is not only—perhaps even not so much—a fear for oneself, but also a fear for one's loved ones and relatives, which is not necessarily the same thing. It is, after all, this country's largest single cause of death, accounting for just over a quarter of all deaths in 2003.
New paragraph 6A(1) of Schedule 1, in Clause 17, is therefore a good thing. Major worries have been expressed regarding sub-paragraph (2) which allows the Government to exclude cancers. Again, I quote from the Bill:
"in the case of a person who has cancer if he has cancer of a prescribed description".
Both in Committee and on Report attempts were made to persuade the Minister that that was the wrong thing to do. However, she was adamant that there are cancers that are non-invasive, resulting in one-off interventions, which are not disabling, and therefore ought not to be included as causes of disability.
It is, however, somewhat of an anachronism that a Bill which is anti-discriminatory, itself discriminates between different types of cancer. That gave rise in my mind to the question of whether it is right to discriminate in this area—in other words, when is a cancer basically not a cancer?
The answer was given partly by the Disability Rights Task Force, which talked in paragraph 11 of its report about benign cancers and some skin cancers that require minor treatment, and partly by the noble Lord, Lord Walton of Detchant—to whom I am extremely grateful—who, with all his experience, pointed out that there are cancers which do not metastasise. He gave as an example rodent ulcers.
I accept that on balance it is right to exclude minor cancers where disability does not arise, though others are not as sanguine as I am in that regard. We know that the Government are currently consulting on which cancers to exclude.
I hope that the Government will take careful note of the words of the Macmillan skin cancer specialist nurse who was reported as saying in a briefing that many of us received last week:
"Unfortunately patients and the general public hear only the word cancer, and opinions form from there. Cancer is often the only word a patient will remember in a consultation, it's often the only word a relative will hear. The word cancer is frightening, confusing and opinions are drawn".
I would underline this last sentence:
"This should be remembered when making exclusions to something as important as the Disability Discrimination Bill".
That nurse had it spot on. That is exactly why many Members of your Lordships' House have been pressing the noble Baroness on this ever since the Bill arrived here.
I believe that, as a result of our discussions on Report, it is the general feeling of the House that, first, cancers should only be put on an excluded list by affirmative instrument—and I am delighted that the Government have conceded that point—and, secondly, that there should be wide consultation before such an instrument is prepared.
I shall not repeat the various arguments I adduced on Report about why such a need for consultation should go on the face of the Bill. At this time of night I think that it would be an error to repeat them, so I beg to move.
My Lords, although many things have changed, the public's perception of cancer has not. That is why it is so important to make these advances spelled out in the amendments. The word "cancer" is a bombshell. It stops all rational thought. Therefore, people with any kind of cancer suffer discrimination. It is almost automatic discrimination.
I welcome the steps forward by the Government: first, the affirmative procedure already referred to; and, secondly, the regulations that restrict coverage. I am pleased that the Government have moved on this issue. We all favour the regulations to some extent. This means that any attempt to bring in new regulations will be debated in Parliament, which is our safeguard against any kind of distortion. So I welcome the amendments.
My Lords, I make it clear from these Benches—as I did on Report, so I do not propose to repeat my remarks—that we agree with the Government's approach of saying that not all cancers should automatically result in a person who suffers from them being deemed to be disabled. Again, giving my own experience of rodent ulcers, it does not feel right that I—for example—should be treated as disabled for the purposes of the Bill, shortly to become the Act.
We would none the less support Amendment No. 19. It seems to me, as the noble Lord, Lord Skelmersdale, made clear, that the widest possible consultation would be appropriate before deciding which cancers to include or exclude. But, in general, as I said, we think that the Government are taking a reasonable and balanced approach on this.
My Lords, we covered the subject at length at a previous stage so there is no need to go into it in great detail. To pick up on a word we used on earlier amendments, we are debating the "robustness" of the prescription procedure—whether there will be sufficient consultation. We now have Amendment No. 25, which means that the prescription must be done by affirmative order.
I had an earlier amendment which required the Government to be satisfied in prescribing any cancer that there was no chance of it producing discrimination. I was advised that that would not work because the words I used were much too tight and would have made every prescription subject to judicial review, which of course was not the intention.
It would perhaps have been easier if Amendments Nos. 17, 18, 19 and 25 had been in the same group. We could then have had a single debate. I am not sure what the noble Lord, Lord Skelmersdale, intends to do with Amendment No. 18, which removes the prescriptive procedure altogether.
I think that I am correct in saying this. Suppose my noble friend the Minister gives sufficient assurance in the House in Hansard that there will be full consultation and she sets out what would happen if there were a prescription for cancer. If it could be shown that the consultation did not meet the requirements that my noble friend sets for the Government in her reply, that would be subject to judicial review.
My Lords, I was one of those who spoke in favour of the amendment on a previous occasion. Obviously, there has been some movement and clearly people are very grateful for that. I also feel that if an assurance can be given as far as concerns Amendment No. 19, perhaps that would meet the test. I would prefer it to be on the face of the Bill.
My Lords, I am very glad that the extent to which the Government have moved, which I think has been considerable, has been welcomed all round the House. We have reached a position in which most people feel that if there is a case for excluding those cancers we will have that evidence. If there is a case for including those cancers in the coverage of the DDA then we will be able to examine that evidence. That seems to me to be a sound and proper basis on which to proceed.
I shall not rehearse all the arguments that we explored at great length in Committee and on Report any more than your Lordships have done, but I will deal with the specific points. First, the amendments ask for full and fair consultation involving outside organisations such as the DRC. We are doing that. I gave an undertaking about that. That review is under way. We had a preliminary meeting on
Our aim is to complete the review in time for the results to be considered with the results of the main consultation which is currently under way and ends on
So the substance of what the noble Lord, Lord Skelmersdale, is asking for has already begun to take place. The only problem with using the word "formal" consultation is that you have to meet Cabinet requirements about three months' consultation, timetables and so on, which might result in delay. But I can promise him that the spirit of what he is asking for has already been met as a statement of good faith. We are having full and fairer consultation involving outside organisations, including Macmillan's and any other organisation that it and others feels are appropriate.
Secondly, the affirmative procedure will apply to any regulations subsequently before your Lordships. Again, that is a check on the Government's position. If there is evidence that these cancers should be excluded, as is the view of the noble Lord, Lord Oakeshott, that view obviously would weigh with the Government. However, if new evidence emerges, either from the organisations or in the future, those cancers can come within the coverage of the DDA.
The DRC has welcomed our proposal for a further review of the evidence. It has welcomed our amendment to subject these regulations to the affirmative procedure. Its view is that this matter can now be resolved without further amendment to the Bill. That is also the view of the Disability Charities Consortium and the noble Baroness, Lady Darcy de Knayth, empowered me to say that, subject to my comments on consultation, that would now also be her view. She apologised for not being able to give it in person.
In the light of those assurances, which I genuinely believe meet the spirit of the concern of the noble Lord, Lord Skelmersdale, I hope that he will feel able to withdraw his amendments, knowing that the Government are making progress on the consultation issues that he raised and that we will have the backstop of affirmative regulation for your Lordships' House.
My Lords, the noble Baroness has made it perfectly clear, and I accept that the Government are currently consulting. That is beyond doubt. However, the problem is that that consultation is about only a small list. I have no doubt that with advances in medical science, which occur fairly regularly, that list will have to be changed from time to time. When that happens, there is nothing in the Bill to keep a future government up to the mark on consultation. Unless we make it beyond peradventure that consultation will always happen in such circumstances, we will be failing in our duty.
My Lords, to be clear, if there are to be affirmative regulations, there will be consultation on the draft regulations, so the noble Lord's apprehensions are possibly not well founded.
My Lords, I am grateful for that, but it rather worries me. Of course the Government can commit themselves, as they just have, and one assumes that the draft regulations will be issued by the government of the day after the election. Those draft regulations will almost certainly be consulted on. What worries me is, if any further regulations are necessary, whether the commitment to consultation will cover those as well.
My Lords, the noble Baroness says that it will. I am still extremely unhappy but, given what we heard from the noble Lord, Lord Oakeshott, and the noble Lord, Lord Ashley of Stoke, I am not inclined to press the amendment tonight.
I think that the noble Lord, Lord Carter, was referring to what would happen under judicial review. Judicial review is sparked, to a great extent, by application for it, which is a rather uncertain procedure and may well be turned down. Nor, as I said previously, do I believe that Pepper v Hart would come into play. None the less, it would not now be proper for me to test the opinion of the House and I therefore beg leave to withdraw the amendment.
moved Amendments Nos. 21 to 24:
Page 45, line 31, at end insert—
"In section 4C(2) (provisions whose application to an office or post prevents sections 4D and 4E applying), for "and section 14C" there is substituted ", section 14C and section 15B(3)(b)"."
Page 52, line 36, after "5A" insert ", or any proceedings relating to a relevant improvement,"
Page 52, line 36, at end insert—
"( ) In subsection (9), after the definition of "40 day period" there is inserted—
""relevant improvement" means an improvement (within the meaning of section 49G(9) above) to premises which, having regard to the disability which a disabled person who lawfully occupies or is intended lawfully to occupy the premises has, is likely to facilitate his enjoyment of the premises.""
Page 54, line 29, at end insert—
"(g) regulations under section 67A(3)."
On Question, amendments agreed to.
My Lords, this amendment does what I have just promised the House that we will do: it adds regulations made under paragraph 6A(2) to the list of regulations that are subject under the Act to affirmative resolution. I beg to move.
My Lords, I said in passing in my modified diatribe on Amendment No. 17 that I welcomed this amendment. While I am on my feet, I very much welcome the attitude with which the noble Baroness has conducted proceedings on this Bill. It has been an exemplary performance.
moved Amendments Nos. 27 to 30:
Page 55, line 17, after "3(9)," insert "47(1),"
Page 55, line 20, at end insert—
"(5A) A statutory instrument that contains an order under section 47(1), if made without a draft having been laid before, and approved by a resolution of, each House of Parliament, shall be subject to annulment in pursuance of a resolution of either House, but the exercise of the discretion conferred by this subsection is subject to section 67A."
Page 56, line 32, at end insert—
"In section 70(5A) (certain provisions extend to England and Wales only), for "and 7B" there is substituted "7B, 49G, 49H and 53A(1D) and (1E)"."
Page 65, line 2, at end insert—
"( ) In section 16 (short title, commencement and extent), after subsection (3) there is inserted—
"(3A) Section 7(1)(aa) and (4A) extend only to England and Wales.""
On Question, amendments agreed to.
An Amendment (privilege) made.
My Lords, I beg to move that this Bill do now pass. We have established a convention that there are no final speeches, but I endorse what the noble Lord, Lord Skelmersdale, said about the scrutiny of the House and the extent to which, as a result, in most respects—perhaps bar one—the Bill has been substantially improved in ways that persuaded the Government, as opposed to by simple votes in the House. If I may put it this way, the amendments are therefore more likely to have staying power and robustness. I thank your Lordships and, especially, officials, who have worked very expeditiously to produce amendments to meet the spirit of your Lordships' concern at Report.
Moved, That the Bill do now pass.—(Baroness Hollis of Heigham.)
On Question, Bill passed and sent to the Commons.