Second Reading (Continued)

Part of Equality Bill – in the House of Lords at 7:47 pm on 15th December 2009.

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Photo of Lord Low of Dalston Lord Low of Dalston Crossbench 7:47 pm, 15th December 2009

My Lords, I, too, very much welcome this Bill. Having grown up piecemeal over 45 years and more, equality law has become an overgrown and impenetrable jungle spread over more than 100 pieces of primary and secondary legislation and thousands of pages of guidance and statutory codes of practice. It is inaccessible to rightsholders, employers and service providers alike and is overdue for consolidation, rationalisation and simplification. Some wish that it could have been even more streamlined than it is and consisted of something much more like a framework Bill setting out the purpose and principles of the legislation in a manner that would have been easier for the general reader to grasp, leaving much to regulations and guidance, along the lines of the Bill introduced by the noble Lord, Lord Lester of Herne Hill, in this House a few years ago. But we have the Bill that we have. However you look at it, it is clear that it will deliver a legal regime that is a great improvement on what we have.

The Government have made clear their commitment to ensure that the Bill provides at least the same level of protection as current law and that, in the jargon, there is no regression. They have largely done a good job. They have listened to concerns expressed by colleagues in another place and have made further welcome changes. But that does not mean that the Bill is incapable of improvement. Without wishing to be unduly parochial, but simply because it is what I know most about, let me say that aspects of the Bill remain of concern to disabled people. Having said that, I should add that the Disability Charities Consortium, which represents the larger disability charities-I declare my interest as a vice-president of RNIB and an officeholder in a number of other disability charities, all of which are declared in the Register of Interests-is clear that it wants the Bill and is not phased by the bureaucratic burdens that have been alleged. I shall therefore be anxious to facilitate the Bill's passage into law. However, that does not absolve us from our duty to subject it to proper scrutiny and I shall be seeking further changes designed to address the concerns to which I have alluded and which I will outline further. I feel sure that, with reasonable give and take, we can arrive at a solution that we can all live with. For today, I will content myself with simply touching on a few of the disability community's priorities for improvement.

Before I do that, it is only fair to mention some of the things in the Bill that are particularly welcome to disabled people. I particularly instance here: the provision that makes it clear that, where a defensive justification is available to claims of discrimination, that defence must be objectively grounded; the establishment of a single threshold for the point at which the duty to make reasonable adjustments is triggered, though some slight tweaking of the wording may still be required here; the elimination of confusing variations in the definition of discrimination as it relates to disability; and, perhaps most welcome of all, the reversal of the Malcolm decision which threatened to wreak so much havoc with the concept of disability-related discrimination.

As for the points where I feel that changes are still necessary, I will just mention half a dozen or so. The noble Baroness, Lady Campbell, has already mentioned three of them so I shall be very brief. First, there is a need to ensure that the public sector equality duty reflects the distinctive nature of disability discrimination as fully as current legislation does. In its desire to establish a common conception of discrimination that goes across all strands, the Bill does not adequately reflect the asymmetrical nature of rights and duties as between disabled and non-disabled people. If we fail to get this right, we risk regression.

Secondly, there is the public sector duty itself. As the noble Baroness, Lady Campbell, pointed out, this does not yet have the precision that the disability equality duty has had for disabled people, which has been such a welcome feature of the Disability Discrimination Act 2005 and has been welcomed by service providers as well since it gave them much more clarity as to what they needed to do to address systemic discrimination against disabled people.

Thirdly, as a frequent flyer, I am particularly concerned about the regression in the Bill's failure to retain the provision in Section 20(5) of the DDA that the cost of reasonable adjustments may not be charged to the disabled person. The definition of "reasonable adjustment" takes account of the service provider's ability to bear the cost, so there is no hardship to service providers in retaining this provision. I hope that we will be able to see it back in the Bill.

Fourthly, the Minister will be aware of the uncomfortable history in which qualifications bodies have misguidedly chosen to demonstrate their commitment to standards that we all share by taking measures that disadvantage disabled people. They have lost the confidence of many disabled people by doing so. Clause 96 of the Bill explicitly authorises an exam system that disadvantages disabled candidates and says in terms that minimising this is merely desirable, not necessary. The wording does not sit comfortably in an Equality Bill. The Government is usually such a champion of the life chances of disabled people and their foundation on basic qualifications that I hope very much that we will be able to move this issue forward through a process of discussion.

Fifthly, there is an unfortunate gap in the duties between the DDA and the special educational needs framework. That needs to be addressed. I feel a bit guilty about this as, when we considered this matter on the Disability Rights Task Force, which prefigured the creation of the Disability Rights Commission back at the end of the 1990s, I was concerned to preserve a clear dividing line between the two systems so that they should not get confused with each other. I have to confess that it has not worked out in practice. Schools' current duty is to use their best endeavours to secure provision and they are exempted from the duty to provide auxiliary aids and services as part of the reasonable adjustment duty under the DDA. This has given rise to a gap in provision as a result of the way in which the rights framework and the SEN framework do not mesh with each other. Removing schools' exemption from the duty to provide auxiliary aids and services would mean that the rights framework placed on schools a clear responsibility to ensure that all their pupils could access the curriculum and fill the gaps that have grown up in meeting the practical needs of disabled children.

Finally, there is one omission from disability legislation that must now be corrected. What ramps are to wheelchair users, large print and other forms of accessible information are to blind and partially sighted people. There are 2 million of us and, with an ageing population, that number is increasing year on year. Large print is easy to produce now, yet even eye hospitals fail to provide it for appointment letters and even intimate matters like test results. Older people are resigning themselves to simply stopping reading. This is neither necessary nor acceptable. It is also a perfect example of where the law should be judged against the outcomes that it produces and not merely against its procedures. I will therefore be tabling an amendment in Committee to introduce an explicit duty to provide accessible information.

I welcome the Bill and look forward to constructive discussions in Committee designed to resolve the few important issues that remain.