Committee (2nd Day)

Equality Bill – in the House of Lords at 3:55 pm on 13th January 2010.

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Clause 10: Religion or belief

Amendment 20

Moved by Baroness Warsi

20: Clause 10, page 6, line 11, leave out "or philosophical"

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government 4:10 pm, 13th January 2010

My Lords, this amendment effectively leaves out the words "or philosophical" from the definition of religion or belief. We have tabled this amendment in order to probe what exactly will be included in religion or belief as is used in this Bill. Part of the reason for the great welcome which this Bill received when it entered your Lordships' House was that it consolidates and helps to simplify a very complicated area of legislation.

In keeping with this theme, it is therefore necessary to maintain the utmost clarity when defining the terms of what is included under a protected characteristic. The Explanatory Notes are very helpful in this area. They explain that this is a very

"broad definition in line with the freedom of thought, conscience and religion guaranteed by Article 9 of the European Convention on Human Rights".

This means that the "main limitation" is that

"the religion of belief must have a clear structure and belief system", and that this will include denominations or sects within a particular religion, and those beliefs such as humanism or atheism.

This appears simple and to provide an adequate description for the purposes of the Bill. The examples show that while such belief systems as Rastafarianism, Sikhism, Christianity and atheism would all be included under the definition, adherence to a particular football team, for example, would not. However, fears have been expressed that there are unintended consequences stemming from this definition. It would be very useful if the Minister could inform the House whether this would be the case.

As the law stands, places of worship are eligible for complete exemption from business rates, and ministers of religion can get significant discounts or even possible exemptions from council tax. Sects such as scientology, which was defined as a philosophical belief rather than the worship of a deity, were, however, ruled not to be included in this bracket. This judgment was passed in the 1970 Court of Appeal case, where because of its definition as a philosophical rather than a religious belief, scientology was deemed not eligible for the same tax breaks.

Since that case there have been many Parliamentary Questions which have allowed this particular ruling to be stated again and again. On 28 October 2009 in another place, Robert Neill asked the Government about the application of non-domestic rates to religious buildings used for public religious faith worship. Barbara Follett, who answered for the Government, included in her reply that the exemption does not extend to organisations which practise a philosophy.

Perhaps the Minister can correct me if I am wrong, but it does appear at the moment that the Bill would undermine this court ruling, and set us in a situation whereby philosophical beliefs in fact would also be included under that exemption. The Bill and the Explanatory Notes state clearly that a philosophical belief is also included. Furthermore, the Bill imposes a duty on public authorities which prohibits discrimination, harassment or victimisation by people who supply services or perform public functions. The Explanatory Notes state that this also applies to revenue raising and collection. Can the Minister therefore clarify whether this will mean that those premises used for scientology meetings would undermine the 1970 definition so far that this would mean that the Church of England and the Church of Scientology would have to be treated in the same way for tax purposes? Does she agree that this sends out a difficult message to the public, because, at a time when families and local businesses are really struggling, as bills rocket, scientologists will soon be eligible for more tax breaks? Most people are in favour of freedom of expression, but it is difficult to maintain this when, at such a difficult time, it seems also to extend to tax breaks.

I look forward to the Minister's response and hope very much that we will receive greater clarity about exactly what the inclusion of "philosophical belief" will mean in practice. I beg to move.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour 4:15 pm, 13th January 2010

My Lords, I hope that my noble friend will not agree to this amendment. I am a member of the British Humanist Association. I gather that it believes that the exclusion of philosophy from the Bill would be damaging to it. The association thinks that it is necessary to protect its existence, in the same way that it is willing to agree to the protection of people from a number of religious beliefs. Does my noble friend accept that including "philosophical" would enable the Humanist Association to regard itself as protected? "Philosophical" would also protect people who have no belief at all. The association to which I belong has a certain set of beliefs, and believes that it would be protected by including "philosophy" in the Bill.

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

The amendment concerns matters of religion or belief and would prevent beliefs of a philosophical nature being protected under domestic legislation. There are several reasons why we would resist this amendment, which, I realise was a probing amendment.

First, matters of philosophical belief have been protected under domestic legislation since the first definition of religion or belief introduced by the Employment Equality (Religion or Belief) Regulations 2003. Since its introduction, this form of protection has never been a cause for concern in either the extensive consultation leading up to the introduction of the Bill or its scrutiny. Since its parliamentary introduction, no opinion has been expressed that appropriate philosophical beliefs should not be protected.

Secondly, removing protection for philosophical beliefs would mean that acceptable and long-recognised belief systems such as humanism would no longer be protected under law. I am sure that many here in this House would not wish for that-not only those who have humanist beliefs, but those who recognise and appreciate the right of others to be protected for holding that belief. I declare an interest as a member of the All-Party Humanist Group.

It is true that our European legal obligations that relate to matters of religion or belief, such as the employment framework directive-Council Directive 2000/78/EC-do not attempt to define specifically what the terms religion or belief mean. However, European case law has determined that among the relevant factors that need to be taken into consideration as to whether something can be considered to be a valid religion or belief is that such beliefs must attain a certain level of cogency, seriousness, cohesion and importance, provided that the beliefs are worthy of respect in a democratic society, are not incompatible with human dignity and do not conflict with the fundamental rights of others. They must also be beliefs as to a weighty and substantial aspect of human life and behaviour and not an opinion based on the present state of information available.

As regards the issue of scientology and the question about building ratings-the noble Baroness asked a legitimate question-the Bill does not change the current situation. There is a statutory authority exception in relation to public functions which would cover tax relief on religious buildings. I hope that that satisfies the noble Baroness on that particular question.

Ultimately, whether or not something can be considered to be a valid religion or belief for protection under domestic legislation is a matter for the courts. Therefore, irrespective of the immediate effects of the amendment, our domestic courts would be obliged to take European case law into account. This is likely to mean that philosophical beliefs such as humanism would almost inevitably be considered to be worthy of protection by the law and thus negate the effect of the amendment. I ask the noble Baroness to withdraw it.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

For the past 30 years at least, the Church of Scientology has not been accepted as a church. I did not understand from the Minister's answer whether the way in which Clause 10 is set out will change that situation.

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

No. I thought I made it clear in my remarks to the noble and learned Baroness that this does not change the situation.

Photo of The Bishop of Chichester The Bishop of Chichester Bishop

I, too, would like to resist this amendment. The inclusion of the word "philosophy" is really rather important-for religious people as well. The distinction between religion and philosophy could be too sharply drawn. In the Explanatory Notes, paragraph 71 talks about religion or belief having,

"a clear structure and belief system".

It then uses some rather general, catch-all descriptions like "Catholics" and "Protestants". Belief systems are much more complex than are reducible to simple denominational or institutional forms. "Philosophy" here introduces into the scope of the law that degree of freedom for recognising that people actually occupy a number of different positions in relation to the wider belief system in which they find themselves. I therefore wish to resist this amendment.

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government

I thank the Minister for her reply. I am heartened to hear the position in relation to exemptions for tax purposes and am thankful to the noble and learned Baroness, Lady Butler-Sloss, for requesting clarification on the Church of Scientology. With that, I beg leave to withdraw the amendment.

Amendment 20 withdrawn.

Clause 10 agreed.

Clauses 11 and 12 agreed.

Clause 13 : Direct discrimination

Amendment 21

Moved by Baroness Warsi

21: Clause 13, page 7, line 5, leave out "because" and insert "on the grounds"

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government

In Amendment 21 we want to replace "because" with "on the grounds of", which we think is better because it is consistent with all existing and European equalities legislation. We want to keep this wording because if it is changes we fear that it will open the door to legal wrangling and debate. If something is changed which is well established, it may give rise to suspicion that the meaning has also changed, whatever the intention.

The Discrimination Law Association has stated that,

"the phrase 'on the grounds of' has, over time and with judicial interpretation, come to have a settled meaning understood by courts and tribunals, practitioners and the public".

It is nervous that a change in phraseology may mean that courts and others have been intended also to change the meaning. We have tabled Amendment 21 and welcome the rest of the amendments in this group tabled by the noble Lord, Lord Ouseley, which also address this issue.

The Explanatory Notes state that,

"this change in wording does not change the legal meaning of the definition, but rather is designed to make it more accessible to the ordinary user of the Bill".

This is commendable but is not where the helpful Explanatory Notes should come into play. We agree that clarity and understanding are important but surely the highest priority is precision of legal language so that lawyers can understand it. The meaning can then be conveyed to the lay user in the Explanatory Notes if it is not already clear from the Bill itself.

Furthermore, the DLA has cited a recent example whereby even if Parliament thinks it has not changed the meaning, that just the language has changed, this does not actually translate into the courts. For example, Parliament removed "similar" from the definition of "philosophical belief" in the Employment Equality (Religion or Belief) Regulations of 2003. It was clearly stated that the meaning would remain the same, yet that led to extensive amounts of litigation relating to the extended scope of philosophical belief. A statement of intent therefore may not be enough-it was not in that particular case.

There is a more obvious semantic concern. The word "because" sounds as though the person who discriminated had to make a conscious decision to treat someone less favourably because of one of the protected characteristics. As we are all aware, at the moment the legal position is that there is no need to prove intention. There is a real worry that this change in wording may not only confuse people by changing a well established legal phrase but that it may also cause damage by raising the bar for cases of discrimination.

The Minister in another place tried to assure the Committee that there was no such requirement and that, according to the Oxford English Dictionary, the meanings were synonymous. However, as the most important point for the Government appears to be to make this Bill easily accessible to the lay user, does the Minister not acknowledge that the definition in the Oxford English Dictionary is not as important as people's natural understanding of the word? The phrase "because of" is commonly understood by most people to imply deliberate and conscious intention or motivation. In this context, it looks as though proof will be required about the intention to discriminate. The phrase "on the grounds of" retains the idea that there could have been evil or good motives for discriminating.

Also, at the moment it is clear that any less favourable treatment-even something only partly attributable to the protected characteristic-would come under the heading of discrimination. So the Government are potentially altering the grounds of intent and how much the protective characteristic must be the sole cause. Therefore, we are concerned about the changes here, which we think may have the effect of creating confusion and narrowing the law where there is no intention to do so.

In another place, this amendment was supported by the Liberal Democrat Benches. The Government's response was that they wanted to write the Bill in "plain English" and that in everyday usage people would be more likely to say "because" than "on the grounds of". That may well be true but surely, while it is useful for people to be able to understand a legal document completely, the most necessary thing is that it functions legally. As we have said, the Explanatory Notes can set out the issues in "plain English". Furthermore, while "on the grounds of" may not be colloquial, most people will understand what the phrase means. Surely the Minister does not doubt that. The real difficulty lies not in the meaning of "on the grounds of" but in assessing what kind of evidence will be needed to prove direct discrimination. The change of phraseology does not help here.

The Government also argued that there was absolutely no change in the meaning and that the two terms were synonymous. They said that, even if it could be argued that the wording should be changed, its meaning would not alter for the purposes of the law because of the ruling of the noble and learned Lord, Lord Woolf, in 2005 in the case of Regina v Z in the House of Lords, Here, he said that,

"there is no reason to think that the difference in style means that it should be interpreted in any different way from its predecessor in the 1973 Act".

However, surely the point is that the Government are trying to introduce clarity but here they are bringing in confusion. They seem to admit this by saying that the terms are synonymous but they then back that up by saying that, even if they were not synonymous, the interpretation would not have to be different. Indeed, it might not be, but this would give rise to legal controversy, which is not what is wanted.

The Government claim that the two terms are synonymous, but they have very definitely changed the phrase that is used across legislation and have therefore removed the certainty that went with it. They think that the terms are synonymous, but what if those who have to interpret them agree with us that they are not? That would mean that the Government had changed the law, albeit inadvertently, and that they would do damage in narrowing the scope of the provisions relating to direct discrimination. I beg to move.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

My Lords, the Opposition are perfectly right to raise this point, just as my colleagues in the Commons were perfectly right to do so. However, the fact that they were right does not mean that the issue that they raised needs to be dealt with in the way suggested.

I have a professional interest in all this because-I am not boasting; it is just a fact-I was in the cases that established that the words "on the grounds of" mean what they do. I refer to the Birmingham education case and the case of James v Eastleigh Borough Council. In the recent Jewish Free School case, in the main judgments led by the noble and learned Lords, Lord Phillips and Lord Mance, and the noble and learned Baroness, Lady Hale, those judgments were all affirmed, interpreting the words "on the grounds of", as the noble Baroness, Lady Warsi, has rightly indicated, to mean objective discrimination. You do not need to show that there is a discriminatory motive or a discriminatory intention. You need to show that the reason for the less favourable treatment complained of, whether it is gender or colour, or anything else, is a forbidden reason.

Lawyers would say that the words "on the grounds of" are words of causation. They seek to answer the question, "But for his sex, would Anthony Lester have been paid as much as he has compared with Lindsay Northover?". The "but for" question is the question asked when you ask what are the grounds-what are the reasons? Exactly the same arises with the words "because of". It is not a question of motive or intent. The question is, "Was it just because of his sex that Anthony Lester was overpaid compared with his female counterpart?". There is no difficulty about this because the words "on the grounds of" themselves have been held to be ambiguous in the past. That has now been resolved.

I have sympathy with what the Government are doing because ordinary men and women should be able to understand the law as far as possible. I think that the words "because of" are easier for ordinary people to understand-not just lawyers-than "on the grounds of". I would have been perfectly happy if the language had been left as it was. However, provided that we get a very clear assurance from the Government that what I have just said is the case and there is no conceivable change-the objective test remains, and the fears of the Discrimination Law Association, of which I am a member, and the fears of my party colleagues in the Commons, are not well founded in terms of intent-I would treat that as a Pepper v Hart statement and not put the Government to the problem of having to re-amend the whole of this legislation at this stage in its history. If I am not given that assurance then I would of course support the Opposition in seeking to keep the old words as they were.

Photo of Lord Ouseley Lord Ouseley Crossbench 4:30 pm, 13th January 2010

I am putting forward the amendments to make what I consider to be a very simple amendment to replace the words "because" or "because of" wherever they arise in Clauses 13 and 14 with the words "on the grounds of". I support the arguments of the noble Baroness, Lady Warsi, in moving Amendment 21. While accepting the logic that has been put forward by the noble Lord, Lord Lester of Herne Hill, that if the interpretation is to be in effect the same, I shall not spend a great deal of time in going over ground that has been covered already.

However, I certainly want to reaffirm the reasons for putting forward these amendments, especially in so far as the definition of direct discrimination-which includes the "on the grounds of" formulation-is common to all the domestic equality enactments. Having seen this introduced from 1965 with the first Race Relations Act, I know that it is a well established and understood concept. Indeed the relevant European directives, which domestic anti-discrimination law must implement, also use the phrase "on the grounds of".

I think that we are in danger of creating confusion by changing the wording at this stage. There is a well established and legally understood legislative wording. It should not be changed unless the intention is to introduce substantive change in the meaning. If the intention is, as here, to retain exactly the same meaning and effect, the risks of changing the wording vastly outweigh any benefit to be derived from the use of plain English.

In support of that I would refer to the conclusions of the Joint Committee on Human Rights in its legislative scrutiny of the Equality Bill during the 2008-09 Session. It stated:

"We consider that the previously used test in direct discrimination of 'on the grounds of' has acquired a clear and definite interpretation through case-law. The Government is to be applauded for its concern for attempting to ensure the definition of direct discrimination is phrased in accessible terms. However, little is gained by replacing 'on the grounds of' with 'because of'. 'On grounds of' is both readily comprehensible and has the advantage of being a well-established term of art. Replacing this phrase with 'because of' risks the emergence of alternative interpretations and may undermine a clear and well-established legal position which ensures rigorous and clear protection against direct discrimination. We consider that it is strongly arguable that the definition should be amended accordingly".

I would conclude that there is an array of decisions in which the courts have interpreted "because of" more narrowly than "on the grounds of".

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

Can the noble Lord give an example? I am not aware of any case in which the words "because of" have been given a narrower interpretation than "on the grounds of"? It is quite important, if that is the case.

Photo of Lord Ouseley Lord Ouseley Crossbench

I do not have an example to hand but I shall certainly try to let the noble Lord have that before the conclusion of today's debate.

The Government have stated repeatedly that the term "because of" in the Bill has the same meaning as "on the grounds of" in existing law. If there is no evidence that the phrase "because of" will make the definition of direct discrimination or combined discrimination any clearer for an ordinary user of the Bill, then in consolidating the existing legislation there would appear to be little gain, and a risk of significant loss to protection, by introducing new words that carry the same meaning as words which are, after nearly 45 years, familiar and accessible.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

My Lords, I also support the amendment, and particularly the speech of the noble Lord, Lord Ouseley. It is sad that there appears to be change in the wording for the sake of change rather than for any good reason. The words "on the grounds of" are already well established, as has been said, and are perfectly easily understood. In my view "because of" is rather poor drafting.

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

The amendments in this group share a common purpose. However, I shall begin with Amendment 21, which has been proposed by the noble Baroness, Lady Warsi, and is much the same as one tabled by the Conservatives and debated in Committee in the other place. That earlier amendment differed from Amendment 21 only in that it would have replaced "because of" in the definition of direct discrimination in Clause 13(1) with the words "on grounds of" rather than "on the grounds of".

The other amendments in this group-Amendments 23, 27, 28 and 31 to 33-are all proposed by the noble Lord, Lord Ouseley, and would also replace "because" where it appears elsewhere in Clause 13 and Clause 14, which introduces protection from what we describe as dual discrimination, with "on grounds" or "on grounds that", as the case may be. The Government resist these amendments for the same reason as we resisted the earlier one. We maintain that there is no difference in meaning between the two expressions but that the plain English formulation "because of" is a more natural and more frequently used means of achieving the same result. So I beg to differ with the noble and learned Baroness, Lady Butler-Sloss. It will therefore make the legislation more accessible, which I suggest to her is important and in keeping with a key objective of the Bill.

As the law stands, the basic question in a direct discrimination case is: what is or are the "ground" or "grounds" for the treatment complained of? That is the language of the separate definitions of direct discrimination in current legislation. It is also the terminology used in the underlying European directives, as ably described by the noble Lord, Lord Lester. There is, however, no difference between that formulation and asking for the reason why the act complained of was done. Some of the authorities, including the recent judgment of the Supreme Court in the Jewish Free School case, use the third formulation, asking whether the treatment in question was "because of" the protected characteristic. That is of course the formulation that we have adopted in the definition of direct discrimination in Clause 13 and dual discrimination in Clause 14. According to the president of the Employment Appeal Tribunal:

"There can be no objection to this as a synonym for the statutory language".

The president made that remark when giving the judgment of the EAT in the case of Amnesty International v Ahmed, handed down in August last year. We therefore agree with the noble Lord, Lord Lester, that "on grounds of", or "on the grounds of", and "because of" are indeed synonymous, as my right honourable friend the Solicitor-General said in the other place.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

Can the Minister confirm one thing? It is really important. She mentioned European equality law. I realise that she is not a lawyer, but would I be right in saying that if the words "because of" have the narrower meaning that the noble Baroness, Lady Warsi, is concerned about, it would violate EU equality legislation and therefore be invalid? In other words, the objective test, irrespective of motive or intent, is part of European equality law; and therefore the words "because of" must be interpreted, like the words "on the grounds of", in the way that they have been recently by our Supreme Court.

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

I thank the noble Lord for that question, which is very helpful. I am assured that we have checked this and that he is completely correct.

Therefore, whatever formulation is used, the discriminator's motive is, of course, irrelevant. A benign motive does not excuse direct discrimination.

Some have expressed concern that the change of language may cause unnecessary confusion and undermine existing law. It has even been said that this could lead to more litigation. I sincerely hope that this will not be the case. As the Solicitor-General also said in another place, quoting from the judgment of the noble and learned Lord, Lord Woolf, in the 2005 case of R v Z, the courts are now rejecting suggestions that a change of language necessarily implies a change of meaning. We will be reinforcing this message in guidance and training for judges in the period leading up to commencement and beyond.

On the specific issue raised by the noble Baroness, Lady Warsi, which was that the statement of intent in the Explanatory Notes was not sufficient, given litigation over the removal of "similar" in the definition of religion or belief, here the change is between two synonymous expressions. In the other case, the word "similar" was removed. This therefore led to litigation being more likely; however, the courts concluded that the change made no difference, as the Government had indeed explained. I therefore hope that the noble Baroness will withdraw the amendment and that the Committee will support the use of plain English for these key concepts.

Photo of Lord Elton Lord Elton Conservative

Since we are considering the comprehension of the supposed reader of the Bill, if the person reading the Bill does not know the meaning of the words "on the grounds of", I do not think he has the slightest hope of understanding most of the rest of the Bill.

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

I was not sure whether I was being asked a question or told something-I beg the pardon of the noble Lord. I think that the point is that of my last remark, which is that we are seeking to make the important parts of the Bill accessible and we believe that this is one of the ways in which we can do that.

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government

I am still concerned, my Lords. I hear the Minister's detailed explanation and I appreciate her detail. Some of the issues she raised, I raised in my own concerns, and I hear what was said in the other place. It still worries me that, in the interests of plain English, we may be causing more confusion. But at this stage, I am content and beg leave to withdraw the amendment.

Amendment 21 withdrawn.

Amendment 22

Moved by Baroness Warsi

22: Clause 13, page 7, line 6, at end insert-

"( ) Discrimination does not include marketing or promoting activities targeted at a particular group of people whether or not they share a protected characteristic."

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government 4:45 pm, 13th January 2010

I shall speak also to the other amendments tabled in my name in this group. We have tabled these amendments to question the Government about their policies regarding exceptions to the provisions surrounding age discrimination. I shall begin with a short description of the amendments.

Amendment 22 prevents marketing or promotions targeted at a particular group of people being defined as direct discrimination. In the same vein, Amendment 57ZA means that age discrimination would be included under the provisions for a "defence of material factor" as long as the differences on the grounds of sex or age in the provision of goods or services was,

"because of a material factor which is a proportionate means of achieving a legitimate aim".

Amendment 126 is similar to Amendment 129, which was tabled by the noble Baroness, Lady Knight, and inserts a new clause stating that it is not a breach of the Equality Bill for holiday companies to place age limits on holidays, for financial products to be qualified by special age brackets or for insurance programmes to be based on age factors. We have also given notice that we intend to debate whether Clause 195 should stand part of the Bill in order to question the Minister more fully on this area.

We fully appreciate that this issue has been debated extensively in another place and at Second Reading, where many concerns were raised. In all these areas, the Government have been more than helpful and, indeed, have tried to be very reassuring, and for that, I am thankful.

The Solicitor-General assured the Committee in another place that there would be extensive consultation in this area and that there would be regulations to protect certain goods and services, such as those provided by Saga. She said that,

"we shall exercise the power so that exemptions from age discrimination are in place from the moment that the ban is in place".-[Official Report, Commons, Equality Bill Committee, 2/7/09; col. 675.]

We welcome that reassurance. However, on Report, she seemed to renege on that promise by stating that there would be secondary legislation or guidance. At Second Reading in your Lordships' House, the Minister, in response to concerns raised by my noble friend Lord Ferrers, was clear that,

"there will be a specific exception for age-related holidays, such as those offered by Saga".-[Hansard, 15/12/09; col. 1510.]

She then confirmed that the exception would definitely be in regulations, not guidance.

We welcome the Government's response to our worries in this area. It is most reassuring to see that the Government have taken on board our concerns and those of many noble Lords and have agreed to put the exception into regulations rather than guidance. I hope the Minister will be able once again to confirm that that is the case. That will be appreciated by businesses such as Saga, which is grateful to learn that its holiday business, which caters to the over-50s, will be allowed to continue. I do not need to declare an interest, as I have not, as yet, taken advantage of that holiday company. Nevertheless, when can we hope to see the draft regulations for this section? The Minister in another place stated that regulations would be in place as soon as the Bill is passed to allow these age-defined holidays to continue so that,

"things that are good can carry on happening without interruption".-[Official Report, Commons, Equality Bill Committee, 2/9/09; col. 675.]

It is important that businesses are made aware of these regulations as soon as they are available. Businesses cannot and should not be asked to operate in a climate of uncertainty, where it appears that a statutory provision will prohibit their entire market model. This is true at all times, but is even more true given the current economic climate.

Saga is grateful for the assurances given by the Government in response to concerns expressed by many on these Benches. However, it remains concerned about the possible restrictions on financial services that it supplies to the over-50s. Amendment 129A was suggested by the Association of British Insurers in order to address this issue. The amendment would mean that insurance companies would use age as a factor of differentiation, as long as there was no demonstration of,

"significant detriment to the elderly or another age group", and that if differentiation were not allowed there would be an adverse impact on other age groups. We have raised this concern because many insurance companies are worried that they have not had the same reassurance as the holiday sector. That is despite the fact that, when the Government released their Green Paper on discrimination, they said that they "probably" wanted to allow insurance companies to,

"continue to design and provide products for specific market segments".

Is this still the Government's intention, and will insurance companies expect to see similar regulations relating to them too?

Insurance companies are worried because they fear that, if they are forced to offer premiums to all age groups, they will become much less competitive in the specific age sector in which they are currently operating. Saga, for example, would not be able to offer its favourable rates to over-50s because it would also have to design packages for those under 50. These would have to reflect different needs and desires, so Saga would risk losing its reputation for specialism and expertise in the older market.

Furthermore, much research has been undertaken to show that, even though many insurance companies may specialise in a particular gender or age bracket,

"there are no significant age-related segments of the market that are currently unserved".

Moreover, the ABI is developing a signposting system, which would mean that older people would be directed toward travel and motor insurance products that are suitable for their group. Saga has spoken very much in favour of this system as it would mean that companies that were unable to provide insurance for a particular set of people would be able to refer them on to an independently accredited service, which would be able to provide them with a list of companies that would be able to serve their particular needs.

Will regulations also be brought forward to exclude insurance companies and other related services from breaching this Act? If so, when might companies reasonably expect to see these regulations? I also look forward to hearing the Minister's comments on Amendment 128, which was tabled by the noble Baroness, Lady Coussins. This is just one example of many where there will be an appropriate case for making regulations to provide an exemption to this Act. How many regulations does the Government estimate will be needed to allow legitimate differentiation to continue? Do they expect to have all those in place for the moment the Bill becomes law? We argue that this is necessary for the stability of business and security of the many market models.

I hope that the Minister will be able to provide some reassurance on all these matters. I beg to move.

Photo of Lord Davies of Coity Lord Davies of Coity Labour

My Lords, I wish to make a contribution on this amendment. However, I will not say what my stance will be until I have had a response from the Minister. During Second Reading, I made two points. One was my concern about the marginalisation of the Christian church. The second was on the provision for the elderly. Unlike the noble Baroness, Lady Warsi, I take advantage of Saga holidays because I like going on holidays with people of a similar age.

On Second Reading, I argued for the holiday sector provided by Saga. The Leader of the House responded and said that the exemption would be provided for them in the Bill on the same day that the Bill was passed. What we did not do at that time-at least, I did not-was to address the financial services that Saga also provides. As the noble Baroness, Lady Warsi, has said, Saga is quite concerned about this and quite rightly so. I would like to hear a response to this amendment that the Government will put in regulations, not in guidance, the provision of financial services for the elderly by Saga. If it is in regulations, it would only confirm what the Government currently do in respect of providing the elderly with winter fuel allowance and a free television licence, with which later this year I will be provided, as is any 75-year-old. Consequently, I support the spirit of this group of amendments. At Second Reading, I was told clearly that this measure would not be in the Bill, but that it would be in regulations. Saga makes a legitimate provision for the over-50s. I would like it to have an exemption for financial services, as we have been told that it will have for its holiday provision.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

My Lords, I hope that it is appropriate for me to make a declaration of interest on behalf of all Members of this House who are over the age of 60 so that we do not have to do it one by one. Of course, for that reason, all of us support allowing Saga to discriminate in our favour and we very much hope that the regulations will continue to benefit old people like myself in perpetuity until the reaper comes.

However, the problem with this amendment, and those related to it, is that it is far too broad. Some time ago, I was lobbied by the insurance industry and I pointed out the danger of its seeking to water down the position that the Government have now got themselves into on the Bill, which is the right position. When I began at the Bar, I used to teach insurance law at night school. One day, a person came to me having stolen the underwriting guide for a major insurance company. It said that the underwriters recommended in the motor insurance industry charging more for black people than for white. So, in 1974 to 1976, when I was doing the Race Relations Bill and the Board of Trade and the insurance industry tried to adopt a hands-off approach to discrimination law, I argued extremely strongly that that should not be the case. We gave in to some extent, but not in the way in which they wanted.

It is extremely important that we do not take out of the Bill in the key definition sections an escape clause that would allow the insurance industry in general to discriminate on the basis of race or any other protected ground. I know that that is something with which the noble Baroness, Lady Warsi, would agree. Therefore, I hope that the Minister will confirm that the Government will be rock-like and steadfast in standing up to any pressure from the insurance industry that would allow widespread discrimination to leak into these other areas, for whatever reason. I agree with the noble Lord, Lord Davies, that I am as self-interested as he is.

Photo of Baroness Knight of Collingtree Baroness Knight of Collingtree Conservative

My Lords, the Government made a rod for their own back by having such an immensely complicated Bill face such a short amount of possible debate in the other place. To have a Bill of this length would have been bad enough, but, bearing in the mind the effect it could have on so many groups of people, it is even worse that the House of Commons was not permitted because of the guillotine to debate all these matters in sufficient depth. There are many points, apart from the amendments in this group, which should have been investigated very thoroughly.

I quite understand why my noble friend Lady Warsi has not so far sampled the joys and delights of a Saga holiday, but I am delighted that the noble Lord, Lord Davies of Coity, has done so, and I look forward with unbridled delight at the thought that I may meet him on some future joint cruise. I should say that I have some interest in Saga, albeit that I have no pecuniary interest of any kind, but there was a time when I did some lecturing aboard Saga ships. Having learnt what a good job it does, since then I have been on several of those cruises, which have been self-fund.

The trouble with what we are discussing is that we are asked to take so much on trust. Those of us who have experienced Saga will know that it does an exceptionally good job for the over-50s. The cruises are extremely well organised and I have never met anyone yet who has not enjoyed them. I draw the House's attention to the last words said by Mr Michael Howard when the matter was debated in the House of Commons. He had also been pleading to have it made absolutely clear that these concessions would be allowed to continue. He said:

"The Solicitor-General says that she understands the problem, but the problem will not be met by guidance. The law in this land is not determined by the Government's guidance; it is determined by legislation".-[Hansard, Commons, 2/12/09; col. 1203.]

That is exactly the problem we face now. We would be failing in our duty if we did not press the Government on precisely what they mean by the kind words and gentle attitude they have expressed. Saga says that it is pleased that the Government probably-it underlines the word probably-want to be allowed to continue aged-based concessions and age limits on group holidays. I wish I could join Saga in the happy notion that this is actually what is going to happen.

I was interested to see the introductory speaking note on these amendments. Hearing that it was from the noble Baroness, Lady Royall, I immediately became very drawn to it because I trust her utterly in what she says, as I think we all do because we all share a great regard for her. I read the note very carefully and I cannot say that it gave me the assurance I am sure she means me to have. She means to make a positive, written-in and clarified point about this very complicated Bill. The note says:

"I am happy to confirm that marketing goods, facilities or services specifically to people who share a protected characteristic is lawful now and nothing in the Bill will prevent service providers from continuing to do it".

Three cheers, although as I go along I am bound to feel that perhaps only one and a half can be accorded.

I cannot see any firm and clear statement that the law is going to say what will protect these holidays, and that is the crux of the matter. I trust the noble Baroness to the end. Perhaps she is not totally able to influence precisely the wording of the Bill, but I do not think businesses can function if there is a doubt. If there is a possibility that what they propose to do is not going to be within the law, they cannot make those offers. They can act only in accordance with the law, and what the law will say, if we pass it as it is clearly written before us, is that there is going to be a doubt as to whether these services will be able to continue.

Apparently, consultation is still going on and the Government do not doubt that the case is a good one. If so, why not make it clear beyond peradventure that these holidays and services will still be available when the legislation goes through? It is that which moves me to get to my feet. I do not want to prolong my speech because much of what I would have said, particularly about insurance, has already been said by my noble friend Lady Warsi. However, it is extremely important for us to give clear assurance to these people that their services may continue.

Photo of Baroness Coussins Baroness Coussins Crossbench 5:00 pm, 13th January 2010

My Lords, as the noble Baroness, Lady Warsi, referred a couple of times to an amendment in my name, I should tell noble Lords that I have informed the Public Bill Office of my wish to withdraw it. However, it is clear that that information did not make it to the Marshalled List.

Photo of Baroness Greengross Baroness Greengross Crossbench

My Lords, I declare an interest in that the founder of Saga and his son were both very good friends of mine and I worked closely with them. Having run Age Concern's insurance and travel services, I am jealous of the advertising that Saga has had this afternoon in your Lordships' House. We, too, had specialist services for people over 50, which still go on.

The purpose of the Bill is to make it illegal to discriminate in a harmful way against people in the protected categories or because of protected characteristics; it is not to get rid of the benefits. It we took the Bill to its logical conclusion, we could not have boy scouts, girl guides or youth holidays. We could not do all sorts of things that we take for granted and that are of benefit to our society, and bring together groups of people who have common interests. I think not only of state benefits but of all sorts of other activities which people enjoy and which are beneficial to society. The Bill is obviously not just about older people, although we all have a tremendous interest in making sure that older people do not lose out because of it. However, I feel strongly that that is not its intention. As a member of the Equality and Human Rights Commission, I would be very worried if it was going to try to enforce something which harmed older or younger people.

We have to distinguish between legitimate exceptions. An exception is legitimate if there are higher actuarial risks in a form of insurance. For example, if you are over 80 and go on holiday to the United States for over a month, the actuarial risks are demonstrated to be greater for certain categories of people than for others, and it is quite justifiable to charge more because of them. That is not the same as saying, "We will not insure you at all, because you have had a certain number of birthdays", or, "We will not allow you to have credit from a bank", or "We will not allow you, however good a driver you are, to hire a car". That is harmful discrimination. We are talking here about getting rid of that but keeping legitimate exceptions which mean that risk has to be paid for. Insurance and holiday companies are not charities but businesses, and they are legitimately able to charge to recover their costs and to cover their risks. We have to get that absolutely right in our minds, but make sure that benefits such as the Freedom Pass, cheaper hairdressing for older people on a certain day and TV licence benefits are not caught by the Bill.

I am really worried that people will need to be reassured, and I hope the Minister will reassure me that the guidance and the regulations will clarify the position so that we will not worry that older people, or indeed younger people, are to be less well catered for because of this Bill and that we will be certain that this Bill will improve their quality of life, because that is what we all want. I hope very much the Minister can reassure us completely so that the noble Baroness, Lady Knight, who always makes such a good case for older people, can be as reassured as I am that this Bill is going to do good things, not harmful things, to older people.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, I support the amendment in the name of the noble Baroness, Lady Knight, for very many of the reasons that she and the noble Baronesses, Lady Warsi, spelled out. I am sorry but I have to declare an interest, not just because I have been on a Saga holiday but because I went there as a complete parasite, as the wife of a lecturer. I thoroughly enjoyed it and was able fully to appreciate just how superb the facilities are. I spoke about it a lot afterwards and was quite a good advertising agent for it.

It is very important that we get this clear in the right places. As my noble friend has said, the intentions of the Bill are one thing, but we need to make clear what is to happen. Club 18-30, Saga Holidays and others are concerned about this, and insurance companies do not want to have to quote for particular ages when other companies are more than happy to do so. Only a very few people experience any form of trouble in getting insurance cover, as we know from research that Oxera has done. If you are of a certain age and you apply for car insurance, you may be charged rather more not just if you are 18 but if you have got into trouble because of your driving. There are all sorts of areas such as this.

It is very important, however we make this clear-this is very much the point that has come out in speeches-that it is in regulations, and it must be somewhere where you can see quite clearly that it is possible to find the sort of insurance that is needed. I was talking to somebody of a very elderly age, way beyond even my ancient age, who told me they had been covered to drive to the particular place by Saga Holidays itself-by package insurance. When you think that it is possible to do that, no doubt on the basis of a good clean driving record, it shows how well this area is covered. But it must be made clear in regulations. I would prefer to have it in the Bill-if that cannot happen, it must be covered in regulations-that this is not just what is intended, but what will happen.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

My Lords, perhaps to address the balance and to comfort the noble Baroness, Lady Warsi, I should say that there are all these holidays for people between 18 and 30 and between 18 and possibly slightly older, and that not only Saga and Age Concern offer this. But that is not why I got to my feet. If one reads Clause 13(1) with more care, as I did earlier, I think almost everything is potentially illegal.

The clause says:

"A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others".

Technically, that would include the Boy Scouts, for instance. What worries me about the suggestion of regulations, which is clearly infinitely preferable to guidance, is whether the regulation will derogate from the primary legislation. Would the regulation be ultra vires the Act? Does one have to have some degree of exceptions in the primary legislation? I do not know the answer to this, and I am not sure that the noble Lord, Lord Lester, necessarily has the answer either-even if he thinks that he has.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality 5:15 pm, 13th January 2010

I am sure that I do not have the answer to satisfy the noble Baroness. The problem is that if she reads only Clause 13, she does not read what is really important here-the detailed exceptions that come within the schedules and which are ample, dealing with legitimate concerns. Providing that there is a power in the Bill to do this by regulations, even the most narrow-minded and legalistic court would not find that beyond the powers of Parliament or Ministers.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

I have not yet found the power to do this by regulation in the Bill, although I am sure that it is there. The trouble is that it is such a long Bill that I have not found it. However, if it does require, among other things, to have the power to make regulations, I should be a great deal comforted about the ultra vires issue.

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government

Perhaps before the Minister speaks, I should clarify that I referred to Amendment 80 in my notes, which now appears as Amendment 57ZA.

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

I thank the noble Baroness-that is very helpful. I am sure that the whole House is looking forward to the holiday snaps of the noble Baroness, Lady Knight, and my noble friend Lord Davies, as a result of this debate. In responding to Amendment 22, I shall also respond to Amendments 126, 129 and 129A. I shall refer to Clause 195, but I know that we will discuss the powers in it when we reach that point in the Bill. I hope that I can also reassure all noble Lords who have spoken in this debate about the Government's intention and that the Bill gives us the powers and exceptions to do what I think will make everybody content.

Amendment 22 is about targeted marketing. I am happy to confirm that marketing goods, facilities or services specifically to people who share a protected characteristic is lawful now, and nothing in the Bill will prevent service providers from continuing to do it. Amendment 126, in the name of the noble Baronesses, Lady Warsi and Lady Morris, would write into the Bill exceptions from the ban on age discrimination for age-based holidays, financial services products for particular age groups and, where evidence-based, insurance. This issue was raised by the noble Earl, Lord Ferrers, and my noble friend Lord Davies, and I know that the noble Baroness, Lady Knight, is concerned about it too. My noble friend Lady Royall was then able to offer some reassurance, including saying that the future of Saga holidays was secure. I am grateful for the opportunity to expand on that here today. I hope that sharing some of my thoughts with the noble Baroness, Lady Knight, will reassure her. I am adding to my note so I hope that I can give her further reassurance that we are absolutely clear that we will deal with her concerns and with others that have been expressed.

Outlawing age discrimination has always been about eliminating inferior treatment and exclusion from services open to the majority, simply because age. The legitimate use of age for the provision of benefits and activities for particular age groups is not the target. I pay tribute here to the noble Baroness, Lady Greengross; there is no doubt that she is responsible, through her work over many years, for the progress that has been made against age discrimination. I welcome her remarks. We have consulted on the issue of the legitimate use of age for the provision of benefits and activities. I am pleased to inform noble Lords that respondents generally supported both our aims and our proposals, and to confirm that we are in general strongly minded to proceed on the lines of what respondents told us.

On a start date, this would mean that the ban on age discrimination outside the workplace would come into force in 2012 across the board. It is our intention that the exceptions-which will be in an order, which I will come back to-will come into force on the same date. I will expand on that in a moment. We proposed this for financial and other services and were waiting for the National Review of Age Discrimination in Health and Social Care to report on a sensible implementation date for those sectors. The report of that review recommended 2012 for those services too, and in launching it my right honourable friend Andy Burnham indicated that he was minded to accept our recommendation on this.

On exceptions, too, the responses favoured proceeding along the lines set out in the consultation paper. On financial services, people accepted that age was a legitimate factor that influenced risks and costs and agreed that access was a problem for some groups. People generally favoured a tailored exception allowing age to be used in financial services where it is fair and reasonable. This would mean that financial services should not be excluded wholesale from the ban on age discrimination on the one hand, and, on the other, that firms should not have to objectively justify every of use of age.

There was also a lot of support for two other measures: first, requiring firms to help consumers find a quote through signposting or referring them to another provider; and, secondly, as happens already for gender, requiring publication of some data about how age is used in some products in a form that the non-expert can understand.

People also told us clearly that banning age discrimination should not affect services, benefits and activities enjoyed by particular age groups. This means exceptions to cover concessions, benefits and holidays for specific age groups. I appreciate why there is an appetite for these exceptions to be written into the Bill. We have consulted and we will consult again later this year on the draft secondary legislation itself. It is vital that we create exceptions for the right practices and that we frame them carefully and precisely to avoid unintended consequences for valuable services or inadvertently allowing unjustified discrimination to go on. This consultation will also include Saga and all the other organisations involved in providing these services.

With Amendment 129, in the name of the noble Baroness, Lady Knight, we return to the exceptions from the ban on age discrimination on the face of the Bill. As well as the matters covered earlier, it would cater for financial products for people over 50 at preferential or concessionary rates and make the same provision for goods and services for the over-50s. There is certainly nothing between us on the principle here. Most public sector age-based concessions will be lawful under statutory authority exception or positive action provisions, as referred to by the noble Lord, Lord Lester, in other parts of the Bill. For private sector concessions, including preferential rates, a specific exception is likely to be needed, which would potentially cover all types of goods and services. I say again that we are strongly minded to proceed along the lines set out in the consultation paper with the development of exceptions allowing these activities to continue.

Amendment 129A, in the name of the noble Baronesses, Lady Warsi and Lady Morris, is also intended to put an exception from the ban on age discrimination for insurance on the face of the Bill. Our approach to the use of age in financial services will allow legitimate use of age and improve access and transparency.

I turn to the particular issues raised by the noble and learned Baroness, Lady Butler-Sloss. She asked whether secondary legislation would be ultra vires. The answer is no, because Clause 195, which we will discuss later, expressly provides powers to make exceptions in secondary legislation. The noble Baronesses, Lady Knight and Lady Howe, and the noble and learned Baroness, Lady Butler-Sloss, asked about guidance. I would like to make it absolutely clear that exceptions for Saga holidays and other practices will be made in an order under the power in Clause 195. Businesses will have that certainty.

In reply to the noble Baroness, Lady Warsi, there will be only one order covering all exceptions for holidays, financial services et cetera. We have made it clear that the order will come into force on the same day as the ban itself in 2012. To be absolutely clear: the ban on age discrimination in services will be commenced on the same day as the exceptions from it come into effect. As for whether Saga will have to sell financial services to the under-50s, our proposals would indeed allow financial services companies to design and supply products especially for the over-50s. That is because the exception we propose would not rule out the use of maximum/minimum age limits. We see signposting and referral as the way to improve access to financial services.

I turn to what is now Amendment 57ZA. Briefly, we believe that its intention is to probe the circumstances in which the provision of services or goods targeted at, or specifically intended for, particular age groups or people of a particular sex can be justified. The amendment seeks to provide a material factor defence for the case of discrimination,

"on the grounds of sex or age in the provision of goods or services".

So, for example, where a business seeks to offer services only to people over 50, the amendment says that it would be able to do so if that was due to,

"a material factor which is a proportionate means of meeting a legitimate aim".

We do not think that a material factor defence is needed on sex because specific exceptions already allow for the provision of separate and single services for different sexes. Those may be needed due to practicality or for reasons of privacy-for example, separate changing rooms in swimming pools. These exceptions ensure that this continues to be lawful.

When we commence the provisions in respect of age, Clause 13(2) will provide an objective justification test. In addition, specific exceptions will be provided to ensure that beneficial and justifiable age-based practices, products and services can continue-for example, free bus passes for the over-65s, targeted holidays and, indeed, my noble friend's television licence. I therefore ask the noble Baroness to withdraw the amendment.

Photo of Baroness Knight of Collingtree Baroness Knight of Collingtree Conservative

My Lords, I express my thanks for what has just been said. It will be read outside this House, as well as inside it, with enormous care because it will be a matter of reassurance. I hope that all will go as the noble Baroness clearly wishes it to and that the happy situation which has faced us in the past will continue.

Photo of Lord Elton Lord Elton Conservative

My Lords, the noble Baroness has given many examples from the commercial world. Declaring an interest as somebody who has been a member of a particular club since 1953, and is therefore exempt from paying any but a minimal subscription, will this law touch that sort of activity, and will that sort of discrimination be protected in the same way as the Saga-type discrimination?

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

I am getting a nod from the Box, so I think that the answer is yes.

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government

My Lords, I thank the Minister for her very detailed response. She has clearly provided the Committee with much clarity, and the security and stability that her words will give to business will also be gratefully received. I thank all noble Lords who have supported this amendment. The noble and learned Baroness, Lady Butler-Sloss, referred specifically to the 18 to 30 holiday. I declare that I have not been on one of those either-I seem to be falling between the gaps at the moment. The noble Baroness, Lady Howe of Idlicote, also referred to a Saga holiday that she was apparently attending as the wife of a lecturer. Saga has had much publicity in your Lordships' House this afternoon. I am interested in whether, if I cannot attend a Saga holiday, I might attend as a lecturer and take advantage of those great facilities. I thank the noble Lord, Lord Davies of Coity, for his support on this amendment. I also add that he does not look 75. In the light of the comments and reassurances made by the Minister, I beg leave to withdraw the amendment.

Amendment 22 withdrawn.

Amendments 23 to 27 not moved.

Clause 13 agreed.

Clause 14 : Combined discrimination: dual characteristics

Amendments 28 to 33 not moved.

Amendment 34

Moved by Baroness Warsi

34: Clause 14, page 8, line 9, leave out subsection (6)

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government 5:30 pm, 13th January 2010

My Lords, this amendment is designed to probe further the nature of the dual discrimination provisions. We have tabled it in order to discuss our concerns about the clarity regarding the dual discrimination provisions in the Bill. The Government produced a document entitled Equality Bill: Assessing the Impact of a Multiple Discrimination Provision. This document shows that there was a clear need for a "multiple discrimination provision" of some form as there was evidence of a real problem which needed addressing. The approach to this seems very sensible. The Government expressed a desire to assess how they could allow multiple discrimination cases to be brought forward without making the law overly complex and therefore placing undue burden on those responsibilities under the law.

At the end of their consultation they found that such a provision was indeed necessary and so the new clause has been added which appears to comply with these principles. Citizens Advice recently carried out some qualitative research into clients' experiences of combined discrimination and gaps in protection. It discovered that there was strong evidence of combined discrimination such as, for example, an older and disabled worker experiencing unfair and unjustified scrutiny of their capability. Citizens Advice gave evidence to the Government Equalities Office which showed that out of 13,000 clients who visited it between April and December 2008, 8 per cent presented with two grounds of discrimination-that was more than 1,000 individuals, of which 119 presented with more than two grounds. This demonstrates that there is a real and relevant problem, albeit on a rather limited scale. We therefore welcome this new clause.

The Government have also taken the concerns of businesses on board, and as the figures mentioned before show, this new clause should be able to close the gap in the law but also will not place too much of a burden on businesses. The Government have further underlined this in their impact assessment. They have stated firmly that to increase to more than two characteristics would be unnecessarily burdensome and would add too much complexity for business. They estimate that in the first year around 7.5 per cent of discrimination cases will come under this provision. They anticipate that awareness of the provision will also mean that the next year the number of cases will fall to 6 per cent and then settle at about 4 per cent thereafter. This is when they expect the success rate to remain at about 2 per cent.

It would appear that this is a sensible way of making sure that the gap is closed and that the burden on business remains low. However we do have one major concern which has been raised by the British Chamber of Commerce. Here we would be very interested to hear the Minister's response and to gain some clarity on how this provision will work in practice. The costs as laid out in the impact assessment seem manageable. However this is dependent on businesses being absolutely clear about exactly what their responsibilities are and their status as regard complaints. If not, there is a risk that they will spend a great deal more money on how to ensure that they do not suffer from a large number of new complaints. This would mean that, despite the assurances of the impact assessment, the burden on businesses would be much greater. The British Chamber of Commerce is very worried about the impact on businesses and the fact that this will be disproportionate to the number of successful claims per year. Can the Minister therefore offer any reassurances here?

In another place it was mentioned that the guidance produced by the Equality and Human Rights Commission would be sufficient to ward off any potential gold-plating. Can the Minister give us any further reassurances to this end, and is there any greater detail as to what will be contained in this guidance? When can we expect to see some draft guidance on this provision? Furthermore, what will be the status of putting forward a single-strand discrimination claim at the same time as a dual discrimination claim, and can she inform the Committee as to how this will work?

I look forward to hearing the Minister's response to the amendments tabled by the noble Baroness, Lady Howe. They raise an interesting point. Evidence has shown that there was some case for an extension to a provision for dual discrimination in terms of direct discrimination, albeit on a limited scale. The evidence, however, shows that there would be very little need, if any at all, to extend this further to indirect discrimination and harassment. It would also risk increasing complications for business.

The Equality Bill: Assessing the Impact of a Multiple Discrimination Provision stated:

"Extending the provision to include indirect discrimination or harassment could be unwieldy for businesses and organisations trying to ensure they comply with a multiple discrimination provision".

It also stated,

"there was little evidence presented through the consultation that there was a need for such protection".

We, too, would be concerned to ensure that the burden on business was not unduly onerous and that the potential complexities of protection on the basis of dual characteristics should not be extended unnecessarily. Can the Minister inform the Committee about some of the research undertaken which illustrated that there was little need to extend this provision? I beg to move.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, I shall speak to Amendments 42 and 46 in my name and that of my noble friend Lord Ouseley. I support the Government's provision to address combined direct discrimination-a provision which, as I understand it, was introduced towards the end of the Committee stage in the other place. As the Solicitor-General noted during the Bill's Report stage, the provision enjoys cross-party-indeed, non-party-support and, as many colleagues will know, introduces protection against direct discrimination relating to any two protected characteristics.

Substantial evidence of the need for such a provision has been gathered by organisations such as Citizens Advice, the Equality and Diversity Forum and the Discrimination Law Association. There is also as strong support from this House, as stated in several contributions at Second Reading. I echo the point made by my noble friend Lord Adebowale at Second Reading that the combined discrimination provision is important in order to recognise and accept the many facets of an individual's identity. The current proposal offers protection to, for example, older disabled employees experiencing increased and unfair scrutiny of their capabilities or being singled out for redundancy, or to black men being subjected to specific stereotypes of prejudices relating, for example, to sexual prowess or aggression-again resulting in discrimination.

However, unlike the noble Baroness, Lady Warsi, I would argue that the provision as it stands does not go far enough. I should say that my briefing is very much based on evidence from the CAB, which has, as everyone knows, played an enormously important part in advising citizens throughout the UK. If ever there was experience to go on, we would find it there-we may have to question the CAB in more detail later.

The provision as it stands does not go far enough. Not including combined indirect discrimination and combined harassment leaves a significant gap in the law-I have always been in favour of including indirect discrimination because it played such an important part in the Sex Discrimination Act, albeit in limited areas. This would also make it harder for some people to seek the justice they deserve and would make the law more complicated.

While the Government's provision would mean that a claimant could in future bring one case with just one claim relating to a combination of two characteristics if they had experienced direct discrimination, this will not apply if they have experienced indirect discrimination or harassment. Instead, they will have to bring any indirect discrimination or harassment as separate claims relating to the single characteristics. This can prove impossible. For example, a Pakistani Muslim client of a citizens advice bureau was harassed by a colleague saying, "I hate you and your people". At tribunal she would have had to prove whether the hated "you and your people" were either Pakistanis or Muslims, which in her case could not be done. As one CAB case worker put it,

"In trying to separate out the grounds to prove the treatment ... you dilute both the issues ... with the consequence that you may end up presenting two weak cases and losing both".

Consequently, solely on technical grounds, it can be impossible to prove that indirect discrimination or harassment has taken place.

This is made worse by the requirement to use comparators under the separate characteristics, which enable an employer to deny indirect discrimination or harassment irrespective of how badly they may have treated their employee. Organisations such as Citizens Advice and the Discrimination Law Association have provided significant evidence to show that this is a real problem in people's lives and needs to be addressed, not least because many people who experience direct discrimination also experience harassment or indirect discrimination within the ill-treatment they face.

For example, on combined indirect discrimination as in Amendment 42, Citizens Advice evidence indicates that not being able to bring a combined indirect discrimination claim may be a particular issue for women. In one case, a CAB client, a disabled woman, requested flexible working due to both her disability and her childcare responsibility. Her employer refused. The less favourable treatment she received was due to a combination of indirect discrimination on the grounds of her sex and direct discrimination on the grounds of her disability.

That is also an issue that specifically impacts on migrant women and is linked to gender concentration in certain occupations. For example, Citizens Advice has dealt with a case regarding the discriminatory working conditions women from certain countries face when recruited to the UK to undertake nursing jobs. I emphasis that this is only in specific circumstances, it is not everybody recruited to come over here to undertake nursing.

On combined harassment in Amendment 56, Citizens Advice conducted in-depth investigation of 15 cases that meet the Government's definition of direct discrimination. Some 13 of those-86 per cent-involved incidents of harassment as well as direct discrimination. While a small sample, Citizens Advice is convinced that it is a representative one, with its case workers reporting that many direct discrimination cases begin with or include some form of harassment, in particular verbal abuse and bullying which is often the precursor of less favourable treatment.

These amendments will improve protection to reflect the reality of people's lives and avoid claimants needing to bring complicated multiple claims.

It simply does not make sense to consider some acts on a combined basis and to have to separate out others into single characteristics. There is clear evidence of the need to address combined indirect discrimination and combined harassment, and I argue that adopting these two amendments would make it simpler for individuals to bring claims and for employers and advice agencies to ensure that their staff were trained adequately in the law.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality 5:45 pm, 13th January 2010

My Lords, it causes me personal pain ever to disagree with the noble Baroness, Lady Howe of Idlicote, as she knows. She and I have been working together in this area for more decades than we probably want to admit. However, I have to disagree here.

The starting point is to secure a fair balance between the right of alleged victims and the right of those who are alleged to have discriminated against or harassed them. There is a need for law which is capable of being understood not by ordinary men and women-that would be too much-but at least by the employment tribunals that have to deal with these matters and by specialists in this area.

When I began to look at the Bill, like the noble Baronesses, Lady Warsi and Lady Howe, I was tempted to push the Government to go further. However, Ministers allowed me to have a lengthy meeting with members of the Bill team, who convinced me, after detailed arguments, that I was wrong. It is always very desirable to recognise that that is likely to be the case.

At the moment, there is nothing to stop a woman or a man bringing a case on several different grounds of alleged discrimination or harassment, and nothing in the Bill will make that more difficult. Therefore if, for example, a woman wishes to say that she has been discriminated against because she is a woman or because she is black, there is nothing to stop her doing that. The Bill makes it easier for a person in that situation to say, "Well, I'm not sure whether it was because I was a woman or because I was black, or to what extent it was a bit of both, so I am putting in a combined grounds claim in that area". I hope that what I have said is intelligible-it is to me, at any rate-and workable. It means that the tribunal will look at the reasons for the less favourable treatment to see whether it is "because of", to use that admirable phrase, gender or race or a bit of both. Regardless of whether it is one, the other or a bit of both, it will be unlawful.

The argument is that if that can be done on two grounds, why cannot it be done on three or four grounds? I think the answer is that it would be excessively burdensome for employers and it would complicate litigation in employment tribunals. If two grounds are not enough, there is nothing to stop you adding others, as is the case at the moment. Therefore, I became convinced that pushing the matter further would be counterproductive.

Leaving that to one side, the next question is: what about harassment? Again, I do not think that there is a need for combined grounds in relation to harassment, which is a different concept. The question is whether the alleged conduct, on one or more grounds, essentially involves bullying, insulting people's dignity and so on.

The next question is: can one not go further in relation to indirect indiscrimination? Like the noble Baroness, Lady Howe, I am totally wedded to the idea that discrimination is not just about less favourable treatment but about equal treatment with unequal impact. The problem is that most people do not understand what indirect discrimination means in the first place. It is a difficult concept, as we have discovered. If you have lots of different grounds which you can combine in a single indirect discrimination case, it will become completely unmanageable. First, you have to define which group, of which the claimant is a member, is suffering an adverse disparate impact. If the group is, say, women, black people or the disabled, that must be intelligible. Then you measure whether there is disparate impact or not. Then you measure whether there is a lack of objective justification for having an equal rule with an unequal effect-something of that kind. But if you start adding more than one category to indirect discrimination, you have to start looking at the statistics, not just for the one ground, but for more than one ground, and the thing becomes unworkable.

There is nothing to stop somebody, if they have that kind of lawyer, having multiple grounds on indirect discrimination as it is. Those Ministers who took the step of having combined discrimination, dual characteristics, in Clause 14 did really well to persuade the business Ministers to allow that to happen, given that the CBI and other employers' organisations do not want any of this.

I conclude on a pathetically pragmatic political note, which is that I do not think we could get any more and we are jolly lucky to have what we have now. I would stick by that.

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench

My Lords, I welcome very much the Government's initiative to provide for claims of combined discrimination. Indeed, it has been welcomed by organisations representing disabled people. The organisations would also welcome some clarification that disability will always count as one single, protected characteristic with respect to claims of combined discrimination, in line with the Minister's Answer to the Written Question asked by the noble Lord, Lord Lester, on 19 October 2009. He asked whether,

"a person disabled by both physical and mental impairment should be treated as having one relevant protected characteristic if he alleges that he has been discriminated against because of a combination of those forms of impairment".

The noble Baroness, Lady Royall, replied:

"If a person is disabled by both physical and mental impairments, these impairments should be treated as the protected characteristic of disability with respect to any claims for discrimination that they may wish to make".

There is an element of uncertainty in this answer in that it begs the question whether the compositing of claims in respect of disability, which it envisages, is limited to the case where claims based on both physical and mental impairment are combined. The Minister concluded in more general terms by saying:

"Even though a single claim may involve a number of impairments, provided that the person met the definition of a disabled person ... this would be treated as disability discrimination".-[Official Report, 19/10/09; cols. WA 38-39.]

This speaks in quite general terms of a number of impairments, without reference to whether they are physical or mental. I would be grateful if the Minister could confirm on the record, when she replies, that all impairments or any combination of them, whether physical or mental, will be treated as the single protected characteristic of disability in claims for discrimination.

Photo of The Bishop of Winchester The Bishop of Winchester Bishop

My Lords, I want to take the opportunity that Amendment 56 provides of probing a line in this legislation about harassment that risks exacerbating an existing concern of very many in the churches. Subsections (2)(a) and (b) of the new clause proposed in Amendment 56 copy exactly the wording in Clause 26(1)(b)(i) and (ii). My concern with the first of those-that B's dignity may be violated-is the chain of cases we have seen in recent months where Christians, but it could be people of other faiths too, in the context of their work have said "God bless you" or offered to pray for somebody or whatever it may be, not as I understand it insistently or in any normal sense of the word harassingly, but much more because that is to them the most natural outworking of being Christian.

There have been a number of cases when their employer-a local authority, or whoever-has jumped on that, hauled them up and in some cases threatened them with suspension or dismissal. In some cases they have been suspended or dismissed. If such insensitive behaviour is repeated again and again against people's manifest wishes, that could be harassment, but this action by local authorities and other employers is a sign of something that occurs in a number of amendments to the Bill, that is sometimes there in the activities of the Government, and that is certainly in some of the work of the Joint Committee on Human Rights: that if one is a person of faith one can switch on and switch off one's whole mindset and behaviour. But people of faith who are worth their salt-I guess this is true of Jews, Muslims and many others, as well as Christians-are what they are through and through, like the lettering in a stick of rock.

I am concerned that the form of words in subsection (2)(a) of the proposed new clause, which is the same as in Clause 26(1)(b)(i), may exacerbate that set of problems. It is an irrational and ignorant way of behaving by authorities and others. I have an analogous and different anxiety on subsection (2)(b) of the proposed new clause, which reproduces Clause 26(1)(b)(ii). That anxiety is based not in imagination but in situations that I understand have occurred. In a Christian or Jewish care home, for instance, there is a fear that a worker who is not part of the faith of the home could complain. The same applies to a Salvation Army night shelter, for instance, or there might be a cross on the wall in a Roman Catholic care home, or a Jewish symbol in a Jewish care home. There have been instances when a worker has raised the question, as happened recently in Italy in relation to church schools, of whether the fact of-

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

I am sorry to interrupt, but we will have a full debate on harassment when we come to a later group of amendments. All these points, many of which I am sympathetic to, will arise in that context. We are dealing with combined characteristics only at the moment. Harassment is just a bit of it. I thought that I would mention that as we need to go into harassment in some detail. I apologise for even mentioning it.

Photo of The Bishop of Winchester The Bishop of Winchester Bishop

The noble Lord has said it very graciously. If I am speaking at the wrong time, I shall stop. What I have said is on the record so it may be useful later.

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Chancellor of the Duchy of Lancaster, House of Lords, Leader of the House of Lords and Chancellor of the Duchy of Lancaster

Amendments 34, 42 and 56 relate to Clause 14, which provides protection from what we call dual discrimination and enables someone to bring a claim of direct discrimination because of the combination of two relevant characteristics. I am grateful for the support for this clause from all around the Committee.

The law as it stands requires that people must separate the different characteristics and bring separate claims, which means that it can be hard for those who experience this kind of discrimination to secure a remedy. For example, a black woman discriminated against when she is passed over for promotion who has to bring separate claims for race discrimination and sex discrimination may not succeed in either claim if her employer can show that black men and white women are not treated in the same, less favourable manner. The clause provides proportionate and effective remedies for this gap in the law, based on careful consideration of the evidence available through consultation and discussions with all interested parties.

I have shared with interested Peers a factsheet on dual discrimination, produced by the Government Equalities Office, which explains this clause in some detail, and I will today place a copy with the Library of the House.

The noble Baroness, Lady Warsi, spoke quite properly of the impact on business. Our discussions with business and other organisations made the clear point that good guidance, issued early, will help businesses to ensure that they do not over-comply, as it were. The EHRC has today issued its first draft of the codes of practice, which includes combined discrimination and is available on its website. We understand that the commission will publish its draft guidance for consultation on 25 January, and I will ensure that it is circulated to all noble Lords participating in this debate.

Amendments 42 and 56 concern intersectional discrimination and harassment respectively. Before I address the proposed new clauses in the amendments, I should say to the right reverend Prelate that I have heard his concerns, which will be dealt with in a later debate. On the harassment protection in the Bill, the question was whether the Bill could prevent Christians or people of other religions expressing their faiths at work. I should make it clear that the test for harassment has an objective element; the test is whether it is reasonable for the treatment to have the effect complained of. I hear the concerns expressed by the right reverend Prelate and I have sympathy with what he says, but we will come to that later on.

When debating this clause in the other place, my honourable friend the Solicitor-General made it clear that this provision was being introduced, following careful consideration of the evidence, to ensure that there was a proportionate response to a gap in the law. There is general agreement that there is a gap in the law in respect of direct discrimination, and the evidence shows that extending protection to direct discrimination addresses the vast majority of intersectional discrimination cases. For businesses and organisations that are complying with existing discrimination law, this new provision will not require them to do anything more.

We have not, however, been persuaded that the same provision should be made for indirect discrimination or harassment. There is simply no indication that the existing law is failing to provide the necessary protection. Although we are very grateful to the citizens advice bureaux for their assistance in this matter, the scenarios that they raise-the noble Baroness, Lady Howe of Idlicote, referred to these-do not suggest otherwise, and to extend the provision to these areas would place a significant additional burden on businesses.

Amendment 42 would extend the law by introducing indirect dual discrimination. This would mean that all businesses and organisations would need actively to consider the impact of their provisions, criteria and practices on all 21 combinations of characteristics. In addition, the amendment would include marriage and civil partnership, a protected characteristic where there is no evidence that the existing protection is inadequate. This would mean that the coverage of indirect and direct dual discrimination would differ and would increase to 28 the number of possible combinations upon which employers and businesses would have to assess the effect of their policies and practices. The result would be contrary to the goals of simplification and harmonisation and would impose a disproportionate burden, given that there is no evidence of need.

Amendment 56 seeks to include protection from intersectional harassment in the Bill. As with indirect discrimination, there is no evidence that a remedy is lacking and therefore no basis to extend the law to include a provision for intersectional harassment. Unlike the prohibition of direct discrimination, the prohibition of harassment is not expressly comparative, and conduct involving a combination of protected characteristics is more likely to satisfy the standard of being "related to" each characteristic, even when considered separately. Moreover, because the associative definition of harassment used in the Bill eliminates any element of causation, harassment is not susceptible to the same problems of proof as direct discrimination. As with indirect discrimination, there is simply no problem necessitating further legislation.

Finally, the harassment provision that is proposed permits unlimited combinations of protected characteristics and therefore also goes significantly further than the approach adopted in Clause 14, imposing costly burdens and resulting in confusing discrepancies, again contrary to the Bill's aim of simplification and harmonisation. I recognise that indirect discrimination and harassment could occur on an intersectional basis, as some noble Lords have said, but there is no equivalent gap in the law, no evidence of a problem in practice and therefore no justification for new legislation. Based on consideration of the evidence available, Clause 14 is a proportionate response to a specific gap in the law, providing the necessary remedy without placing an undue burden on businesses and organisations. If there is any uncertainty as to the type of conduct or protected characteristics involved, nothing in the Bill would stop someone bringing more than one claim-as the noble Lord, Lord Lester, said-as is currently the case. However, extending the law further to include indirect discrimination and harassment would result in an unnecessary and disproportionate increase in the cost and complexity of the law.

Amendment 34 seeks to remove Clause 14(6), which empowers Ministers to specify further what a claimant does or does not need to show to prove dual discrimination, or to prescribe additional circumstances where this clause would not apply. It is necessary to include this power because dual discrimination is a new and untested provision. It is therefore prudent to provide flexibility to ensure that it is effective and to accommodate future changes in procedure. For example, Ministers might use the power if, in practice, it is thought necessary or appropriate to require claimants to adduce evidence relating to each protected characteristic in the combination, or if exclusive jurisdiction regimes were created for other types of discrimination in addition to that which is excluded by subsection (5). As the exercise of this power results in amending the Bill itself, any use of it is subject, under Clause 197(2), to the affirmative procedure. Prohibiting dual discrimination is a forward-thinking step on which we can all agree, and it preserves our place as a world leader in the fight against discrimination.

The noble Lord, Lord Low, asked me a specific question relating to disability. However you satisfy the definition of disability, it will only ever constitute a single protected characteristic for purposes of dual discrimination. I hope that that is clear.

I ask the noble Baroness to withdraw the amendment.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality 6:00 pm, 13th January 2010

I am sorry to mention this now, but I do so so that one can think about it later. Going back to the point which the right reverend Prelate rightly raised, the real problem arises in Clause 26(1)(b) with the word "or". The problem is that when the Government implemented EU law, their gold-plating was such that, whereas EU law allowed them to say "and" in the employment field, they said "or". The problem with saying "or" is that it means that there is harassment if,

"the conduct has the purpose or effect of ... violating B's dignity, or", rather than "violating B's dignity, and" creating an intimidating, et cetera, environment.

The result of "violating B's dignity" alone giving rise to harassment is that it gives rise to all the problems, to which the right reverend Prelate referred, of zealots who are unduly sensitive, and so on. I would wish to turn the clock back, if one can, and put in "and", both in employment and beyond. I know that officials know that that is my position, but I have not tabled an amendment.

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Chancellor of the Duchy of Lancaster, House of Lords, Leader of the House of Lords and Chancellor of the Duchy of Lancaster

That has certainly given us food for thought for a debate on a later set of amendments, and we will return to that in due course.

Photo of The Bishop of Winchester The Bishop of Winchester Bishop

Perhaps the noble Lord and I can make that amendment together at a later stage.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

Would this be an appropriate moment, first of all, to thank the noble Baroness the Leader of the House for her very clear guidance on this? I will need to think about and discuss this, because I have to say that the evidence that the CABs have gone into-they are the practitioners on the ground, as it were-does need to be considered carefully and, I think, has been. I am also grateful to my noble friend Lord Lester-I call him that even though he is sitting on another Bench-for explaining how he initially reached the same view but was persuaded down another path. I now have a great wall to get over if I wish to take my amendments any further.

I am also grateful to the noble Baroness, Lady Warsi, who made some clear points. The noble Lord, Lord Lester, seemed to indicate that it is perfectly possible to bring a claim on any of the points, making it certain that the lawyers will bear them in mind and reach a conclusion on a combination of all of them. It has not always happened that way, but it may well be that if combined direct discrimination becomes part of the law, that will encourage lawyers to take a rather broader view of all the other points raised. I am very grateful.

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Chancellor of the Duchy of Lancaster, House of Lords, Leader of the House of Lords and Chancellor of the Duchy of Lancaster

I suggest that I organise a meeting with officials on this issue before Report for the noble Baroness and the noble Lord, Lord Lester.

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government

I thank noble Lords, particularly the noble Baroness, Lady Howe, for taking part in this debate. The amendments that she tabled sought clarification from the Minister. I am grateful for the Minister's response and clarification and for some of the reassurances that I sought in tabling my amendment. I look forward to reading the codes of conduct which have now been published by the Equality and Human Rights Commission. I beg leave to withdraw this probing amendment.

Amendment 34 withdrawn.

Clause 14 agreed.

Clause 15 : Discrimination arising from disability

Amendment 35

Moved by Baroness Warsi

35: Clause 15, page 8, line 22, leave out subsection (2)

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government

This amendment is designed to probe the balance of responsibility between an employer and an employee when dealing with disability. The Government have brought in Clause 15 to try to restore disability law to its status before the judgment in the case of the London Borough of Lewisham v Malcolm in 2008. By now we are all familiar with the details of this case, so I will not cover it in much detail now.

Suffice it to say that, famously, the judgment in that case reversed the definition of disability-related discrimination decided by Clark v Novacold Ltd.That judgment stated that a like-for-like comparison could not be made because such a comparison may not be appropriate in a disability case. However, in the Malcolm case it was decided that Mr Malcolm, who had schizophrenia, should be treated in the same way as any other tenant who had sublet his home, despite the fact that his lawyers argued that the subletting was caused by his schizophrenia.

There was general agreement that this judgment must be reversed in order to return disability law to its status before the judgment, and to how it was understood to operate before the judgment. We welcome the fact that the Government have attempted to address the issue with this clause and so to provide the degree of protection for disabled people that was originally intended. However, we would like to raise certain concerns, as we have seen that the Disability Charities Consortium is still doubtful about whether this goes the whole way to addressing its concerns.

For this reason, we have tabled Amendment 35. It removes Clause 15(2), which states that person A does not discriminate against disabled person B,

"if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability".

The Disability Charities Consortium is very concerned by this because it argues that the Equality Bill inserts a knowledge requirement that was not present in the Disability Discrimination Act 1995. It is concerned by this because the feeling is that the balance will be very difficult to create and maintain. It is obviously the case that employers cannot be expected to know everything about their employees, and nor would it be right for them to ask. However, there is also the risk, as raised by the Disability Charities Consortium, that employers may use this requirement to create a culture of ignorance in which they can be less than proactive in asking questions and finding out details about their employees in order to provide themselves with a defence.

As the Minister said, this clause was redrafted on Report in another place,

"to provide greater clarity that the provision is intended to cover discrimination that arises from matters connected with a disabled person's disability".-[Official Report, Commons, Equality Bill Committee, 16/6/09; col. 275.]

We welcome many of the changes that have been made to the clause. These were in response to pressure from the Official Opposition and the Liberal Democrats in another place. However, the knowledge requirement remains. Can the Minister clarify that it is indeed a new provision, not a clarification? Can she inform the Committee how the best balance will be achieved and maintained so that employers and employees are aware of precisely where they stand in relation to the law? I beg to move.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality 6:15 pm, 13th January 2010

It is extremely useful that the noble Baroness, Lady Warsi, has gone to such trouble to explain the amendment. The knowledge that she has given the Committee is most valuable. However I do not think that, on reflection, she would be in favour of her own amendment. The consequence of leaving out Clause 15(2) would be that even if an employer did not know, and could not reasonably have been expected to know, that the alleged victim had a disability, there would nevertheless be liability. That would be wholly unreasonable.

I am all in favour of very strong disability discrimination protection, but if there is absolutely no knowledge that a person is disabled, and if someone could not reasonably be expected to know, I cannot understand how on earth there could be liability. Although I am grateful for the introduction, the Malcolm case has been effectively reversed by these amendments, and I would be very interested to know whether other noble Lords who specialise in this area-for example the noble Lord, Lord Low, or the noble Baroness, Lady Campbell-would think it unreasonable to keep Clause 15(2) in the Bill.

Photo of Baroness Deech Baroness Deech Crossbench

This clause is not confined to employment. I have some experience of this in handling student complaints. In my time, discrimination against students who had dyslexia was a major issue. Dyslexia is not visible, and universities, quite reasonably, could not be expected to make allowances in relation to time and marks if they did not know that a student had dyslexia. In the written decisions that the Office of the Independent Adjudicator for Higher Education gave, and based on counsel's opinion, we would say that the university had not acted unreasonably if it could not have known that the student had the disability of dyslexia. That seems to be a perfectly reasonable outcome. I therefore support the noble Lord, Lord Lester, in not wishing to place too heavy a burden on employers and others, such as universities, who cannot be expected to know every detail about employees and students. Indeed I believe that we should encourage employees and students not to be ashamed of having a disability and to come forward so that the organisation can cater for it, rather than waiting until something has gone wrong and then saying that they have been discriminated against. I think that this is a good subsection.

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench

My Lords, in response to the noble Lord, Lord Lester, perhaps I may say that I was not pressing for the knowledge requirement to be removed from Clause 15.

Photo of Baroness Meacher Baroness Meacher Crossbench

My Lords, people with mental health disorders are often very concerned that others do not know of their disorder. It would be unfair to allege discrimination in such cases. Therefore, I, too, support the subsection as it stands.

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Chancellor of the Duchy of Lancaster, House of Lords, Leader of the House of Lords and Chancellor of the Duchy of Lancaster

My Lords, Clause 15 provides that an employer or service provider, such as the universities cited by the noble Baroness, Lady Deech, cannot be liable for discrimination arising from disability if he or she does not know, and could not reasonably be expected to know, that the person is disabled. This is sometimes referred to as the "knowledge requirement". This amendment seeks to remove it from the Bill.

The judgment in the House of Lords in the Malcolm case was unanimous that actual or imputed knowledge of the disability must be a factor in determining whether there has been disability-related discrimination. It is right to reflect this in the legislation, rather than rely on case law.

An example is a pub landlady who refuses to serve a man who has had a stroke as she thinks that the man is drunk because of the way that he speaks. He is not refused service because he has had a stroke but because he has slurred speech, which is something that is connected with the disability. If any of the facts of the case, such as the other symptoms connected with a stroke or information given to the landlady by the customer himself, or by someone else, should have led the landlady to believe that the slurred speech was the result of the stroke rather than the drunkenness, the knowledge provision will be satisfied. This is the case even if the landlady herself did not believe that this was the case.

The legislation, therefore, achieves a balance between the rights of disabled people and the interests of those with duties. The Bill sets out that a person is still under a duty not to discriminate where they could reasonably be expected to know that the person was disabled; and that, once a prima facie case has been established, the burden of proof falls on the duty-holder to show that they have not discriminated.

The noble Baroness, Lady Warsi, asked how businesses or service providers would know what to do. There will be codes of practice that will be used alongside the legislation. These codes of practice will set out examples to show, where the treatment is unfavourable, how it should be determined. I am not sure when these codes of practice will be forthcoming but I will certainly let the noble Baroness and other noble Lords know. I would therefore respectfully request that the noble Baroness withdraw the amendment.

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government

My Lords, I thank the Minister for her response, specifically in relation to the assurances that more-detailed codes of practice will be published to provide further clarification. I thank the noble Lord, Lord Low of Dalston, and the noble Baronesses, Lady Meacher and Lady Deech, for bringing forward their experience and direct contact with individuals and organisations that may be affected by this. I am grateful for this experience. I beg leave to withdraw the amendment.

Amendment 35 withdrawn.

Clause 15 agreed.

Clause 16 agreed.

Clause 17 : Pregnancy and maternity discrimination: non-work cases

Amendment 37

Moved by Baroness Thornton

37: Clause 17, page 8, line 41, leave out "Chapter 2 of"

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, I speak to the amendment in the name of my noble friend Lady Royall. For brevity's sake, I refer to that of the noble Lord, Lord Lester, and thank him for tabling his amendment, which mirrors the Government's thinking on this sensitive issue.

Nobody is happy to see someone who is barely more than a child becoming pregnant while still at school. We want to reduce the incidence of this happening; the Government's Teenage Pregnancy Strategy is focused on this. However, once a pupil has become pregnant, and, if she decides to go ahead and have the baby, the important thing for both her and her baby's future prospect is that we try to ensure that she is able to complete her education. This is the best possible outcome for all concerned.

Initially, our view was that other measures already in place were sufficient to tackle this without extending discrimination law into this area. However, we have considered this issue very carefully and listened to the concerns raised during the passage of the Bill. We now accept that the best interests of pregnant schoolgirls will be served by their being protected from discrimination in schools. I am therefore happy to table this amendment, which will remove the exemption in schools from Clause 17 of the Bill. I am also at this point happy to accept the amendment of the noble Lord, Lord Lester, which will do the same in Clause 84.

Through their Teenage Pregnancy Strategy, the Government will continue to try to ensure that school-age mothers receive the support and tuition they need to complete their education. This new protection in law should help to clarify the position for very young mothers and ease their way back into an educational setting. I beg to move.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

My Lords, I am very grateful to the Minister. I strongly support Amendment 37. I am grateful to the Government for indicating that they will support my Amendment 105. If we do not bring our domestic law into line in this way, there will be a very strong argument for saying that not ensuring teenage pupils who become pregnant in schools are not discriminated against violates the European Convention on Human Rights; that is to say, not only the right to education but the right to private life without discrimination. It is one of the reasons why this is beneficial.

Of course, no one is saying that they regard teenage pregnancy in schools as a desirable matter. That is a different matter altogether from whether the fact that a girl becomes pregnant in school should mean that she will be subjected to less favourable treatment. I am extremely grateful and support this amendment.

Photo of Baroness Gould of Potternewton Baroness Gould of Potternewton Labour

My Lords, I, too, thank the Government for tabling this amendment after the concerns that were raised at Second Reading by the noble Lord, Lord Lester, and myself about pregnant girls facing discrimination in schools. The Government amendment and the amendment put down by the noble Lord, Lord Lester, are important. I give you three incidents.

It will benefit, for instance, a young woman who was asked by her school to leave when she got pregnant; a young woman who was 25-weeks pregnant and was told that she was not allowed to sit an examination because she could not wear her school uniform; and the girl who was told by her teacher that there was no need to carry on her education because she had ruined her life by becoming pregnant. Those are just three very quick examples that I put on record to show the importance of the amendment that we have before us.

Not to have this amendment would completely contradict the policy of the Government in respect of teenage pregnancy and the work that is being done to encourage girls to continue with their education and their future development. Therefore, I fully support this amendment.

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government

My Lords, these two amendments will effectively extend the protection against pregnancy and maternity discrimination to schools. The Explanatory Notes, as they stand, state that this chapter will not apply to people in schools with regard to their protected characteristics of age, marriage, civil partnership or pregnancy and maternity. In light of the Minister's assurance at Committee in another place that she did,

"not think that there is an issue here", as there,

"is plenty of law that covers this matter, as well as policies and guidance",-[Official Report, Commons, Equality Bill Committee, 24/06/09; cols. 466-67.]

can the Minister set out what research has been undertaken, and what results have been shown that prove that, since this matter has been in the other place, there is now an issue?

I listened to the examples laid out by the noble Baroness, Lady Gould. It is important that we extend legislation and protection to those who need it. However, it is also important that we ensure that this will work in practice. Therefore, can the Minister set out a couple of examples to inform the House of a situation where this new protection would come into place and how the school would ensure that that protection was in place? Have the Government, for example, done any research on the scope of this amendment? How many people does she envisage it will protect?

Furthermore, what analysis has been done of the impact of this provision on schools? Will guidance be provided to schools to demonstrate how these provisions will work and how they would be expected to operate within the bounds of the change of law? Will the Minister set out the changes she imagines will take place within schools in light of this change? In another place, this amendment was dismissed as unnecessary. We now see that the Government are putting it forward as necessary. Are they considering similar changes in other areas throughout the Bill?

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip) 6:30 pm, 13th January 2010

My Lords, the noble Baroness has raised a variety of questions which I hope that I will be able to cover. Yes, guidance will be issued to schools. Yes, that was done on the basis of discussion with the DCSF. I do not have in front of me the figure for the number of schoolgirls who have become pregnant. I have dealt with this question wearing my hat as a health Minister, so I should be able to remember, but I am afraid that I cannot. However, we are happy that the number is falling, which is how we like it.

We have listened to a number of organisations about this issue. They have made representations to us and have given examples very like those given by my noble friend Lady Gould, plus others. We hope that this will not be a much-used addition to the protection that this Bill offers. We certainly do not envisage lawyers and legislation to be used except in extreme cases. However, it is very important that schools treat these cases with sensitivity, on a case-by-case basis and look at the best interests of the child who is in their care. This addition to this part of the Bill will help us to do that. We have listened to the representations that have been made. We are a listening Government, which is why we wish to make this change.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

Perhaps I may ask a question, which will save me having to speak on Amendment 105. Is it not the case that at the moment sex discrimination against a pupil in a school is covered by the law? Therefore, in the old days one would have regarded pregnancy discrimination as part of sex discrimination. All that is now happening in order to make sure that it is covered is that there will be a separate provision to protect pregnant teenage girls and women.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

Perhaps the noble Baroness could give me some clarification. I am wondering how this measure will be implemented, although I probably have some comfort from the noble Lord, Lord Lester, who has said that already there is list. Will it be part of the order on schools that they include this measure? If so, when will it happen?

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

The DCSF already produces guidelines to schools which give specific responsibilities that they have for pupils in their care who fall pregnant. This guidance will make it clear that a school cannot exclude a pupil simply on the grounds of becoming pregnant, or refuse to educate young mothers. This is being revised and will reflect this amendment if it is accepted and becomes law. The DCSF and the Department of Health issue joint guidance to local authorities and PCTs on what works with regard to the care of these children. We would expect this amendment, if it is accepted and becomes law, to become part of that system, which is already in existence.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

I accept the Minister's point, but I should like one further clarification. I listened intently to the examples given by the noble Baroness, Lady Gould, one of which was a complete disruption of a girl's education because she was not able to wear a uniform. However, why even under the current situation was that allowed to happen without sanctions being taken?

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

I assume that legal action was not taken in that case. We are putting this beyond doubt.

Amendment 37 agreed.

Clause 17, as amended, agreed.

Clause 18 agreed.

Clause 19 : Indirect discrimination

Amendments 38 to 41 not moved.

Clause 19 agreed.

Amendment 42 not moved.

Clause 20 : Duty to make adjustments

Amendment 42A

Moved by Lord Low of Dalston

42A: Clause 20, page 10, line 29, leave out "three" and insert "four"

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench

The substantive amendment in this group is Amendment 45A and the other 29 consequential-except Amendments 43 to 45, to which the noble Baroness, Lady Warsi, will speak. I am aware that further amendments may still need to be made which are consequential on Amendment 45A, but I hope that they can be taken care of on Report. Clause 20 imposes a duty on a wide range of persons to make "reasonable adjustments" for disabled people by complying with one or other of three requirements to take reasonable steps to avoid a "substantial disadvantage" at which a disabled person may be placed as a result of a "provision, criterion or practice"; or a "physical feature"; or the absence of an "auxiliary aid" or service. Amendment 45A adds a fourth requirement-to avoid a "substantial disadvantage" caused by the provision of information in an inaccessible form.

I once had a colleague who always began by saying, "I feel very strongly about this". One got the impression that he was starting at about 7 or 8 on the Richter scale. Although I feel very strongly about this matter, I hope I will be able to make my presentation slightly lower down the Richter scale. It will immediately be clear that I have a direct personal interest in this amendment. Perhaps that is why I feel so strongly about it. I should also declare my interest as a vice-present of RNIB, the leading charity representing the interests of blind and partially sighted people for whom improving access to information is a major objective of policy and campaigning.

No one can be in any doubt that we live today in the information society-if by that is meant an age in which we are bombarded by information from all sides as never before. The ability to handle that information effectively is critical to being able to participate effectively in society, avail oneself of its opportunities, fulfil one's aspirations and responsibilities, and negotiate one's way around the various institutions of society and the services that it offers. Yet, for blind and partially sighted people, or those who are print disabled in any way, the ability to do that is largely denied by the fact that the great bulk of that information is completely inaccessible to them. That is why we need provision for the removal of barriers created by the provision of information in an inaccessible form. This is as important to the inclusion of those with print disabilities as the removal of the barriers created by physical features is to those with physical disabilities.

There are a number of points I would like to make about the amendment. First and foremost, without it the Bill will represent a regression from what we have at the moment and that, as we know, is something that the Government have pledged to avoid. At the moment, Section 21(4) of the DDA provides:

"Where an auxiliary aid or service (for example, the provision of information on audio tape or of a sign language interpreter) would-

(a) enable disabled persons to make use of a service which a provider of services provides, or is prepared to provide, to members of the public, or

(b) facilitate the use by disabled persons of such a service, it is the duty of the provider of that service to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to provide that auxiliary aid or service".

That is a plain duty in the Act with the provision of information clearly instanced as an example of the kind of services the duty refers to. There is nothing of that in the Equality Bill.

Secondly, it does not impose an undue burden on those providing services. Since it is an example of the duty to make reasonable adjustments, it only requires providers to do what is reasonable and is not mandatory. It is relatively cheap and easy to produce large print on a computer these days and not much harder to produce other formats. It might be thought-and I am sure the Government will say-this is not necessary because avoidance of the disadvantage caused by the provision of information in an inaccessible form is already covered by the first requirement to avoid the disadvantage created by a provision, criterion or practice, or the third requirement to provide an auxiliary aid or service. But these requirements effectively reproduce the current DDA duty to make a reasonable adjustment where a practice, policy or procedure, or the absence of an auxiliary aid or service, makes it impossible or unreasonably difficult to use a service. This has patently not worked. So we already have the obligation, in so far as it is comprehended by the equivalent of the first or third requirement, but it has not served our purpose.

Article 21 of the recently adopted UN Convention on the Rights of Persons with Disabilities on freedom of expression and opinion and access to information, which the UK has ratified, says that states parties should provide information intended for the general public to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost. Yet research recently carried out by Dr Foster for RNIB showed that as many as 72 per cent-nearly three quarters-of patients were given information by their GP which they could not read. Similar, even higher figures were uncovered in relation to the rest of the NHS and other surveys have yielded even higher percentages. This information ranged from appointment letters to confidential test results-not the sort of thing you necessarily want someone else to read to you. Even Moorfields, the UK's largest eye hospital, fails to provide appointment letters in large print, let alone Braille.

RNIB has also provided a snapshot of the situation in local authorities based on a range of 22 local authorities from all round the country. The survey asked whether the authorities could provide information such as council tax bills in accessible formats for blind and partially sighted people. It showed that just two of the 22 authorities surveyed-just 9 per cent-had front-line staff answering the query. In most cases the caller was directed to a variety of departments before they even reached someone who knew what the policy on accessible formats was. Over a third said they could not offer Braille or audio for people who could not read print. How are people expected to fulfil their responsibilities as citizens in those circumstances?

The Benefits Agency sends out benefit letters to blind people in standard print. A DWP survey of public bodies, including government, education, health and emergency services, found that only a quarter of organisations offered information in large print, only 8 per cent offered it on disk or CD, and as few as 4 per cent advertised the availability of Braille. Although some of these materials were available on request, the survey found that approximately 40 per cent did not provide information in an accessible format at all.

This is the daily experience of 2 million blind and partially sighted people, and the problem of the unavailability of large print is a growing one as the population ages. It is my contention that, if we are to tackle this in a manner which shows that we mean business, we need to have this amendment in the Bill no less than the requirement to remove physical features which prevent access. I have raised this issue regularly, with Cross-Bench support, in debates on the Health Bill, the Local Democracy Bill, the Local Transport Bill, the Apprenticeships Bill, and others. Ministers have invariably been sympathetic and recognised that the Equality Bill was an appropriate place to try to solve the problem once and for all with a generic solution. This amendment gives us that opportunity. I do not delude myself that it is a panacea, but it takes us a long way further than the guidance we have at the moment which is not working and it will give the enforcement authorities-the EHRC-something much more substantial to go on. I beg to move.

Photo of Baroness Campbell of Surbiton Baroness Campbell of Surbiton Crossbench 6:45 pm, 13th January 2010

My Lords, I support the amendment tabled by the noble Lord, Lord Low, as does the noble Baroness, Lady Wilkins. Unfortunately she could not dig her way out of the snow. I was lucky; I had two PAs who decided that I should go to work whether I liked it or not.

The noble Lord is absolutely right about accessible information. It is as important to blind and deaf people as a ramp is to me, a wheelchair user. Since 1996 I have witnessed a monumental change in the environment in terms of access. Where once steps said "No entry" to disabled people, there are now, in most instances, ramps and automatic doors. I wish I could say the same for my blind friends who still have to ask, and at times beg, for information in a suitable, accessible format. In today's society, information is power. The only way to empower my blind and deaf colleagues so that they feel equally informed is to make sure that accessible information is on everybody's radar. This amendment could do exactly that.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

My Lords, no one who has listened to the two speeches that we have just heard could be other than overwhelmingly in favour of this amendment and the related ones. I have heard many speeches in my 15 years in this House, but I have never heard one better put than that by the noble Lord, Lord Low, with the backing of the noble Baroness, Lady Campbell. If I were the Minister, how would I reply other than to accept the amendment? I would probably say, "It's not working in practice, but we'll get the Equality and Human Rights Commission to do this, that and the other in the future". I can only say that if that is the response, it will not be good enough. The noble Lord, Lord Low, is right to feel indignant after all the attempts that he has made in the past. I very much hope that, in our consensual approach to the Bill, it will not be necessary at any stage to divide on this matter. However, if it becomes necessary to divide in the future, I shall ask my party unequivocally to support the amendment and the related ones.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

My Lords, I, too, have listened to the very moving speeches. I agree entirely with the noble Lord, Lord Lester of Herne Hill.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, I add my name to those who would support the amendment, including voting in favour of it if that were necessary.

Photo of Lord Elton Lord Elton Conservative

I am equally moved by the two admirably succinct and lucid speeches that we have heard and the way in which they demonstrated the effects of these disadvantages on the lives of those who suffer from them. I share the enthusiasm of the noble Lord, Lord Lester, for the object of the amendments, but I would think that the Committee needs to be reassured on a single point. The noble Lord, Lord Low, has made it clear that provisions already exist for the remedy of these situations. The Committee needs to know how adding the same obligation to this statute will remedy the failure of similar provisions in earlier statutes. Is not some stronger measure or different approach needed to relieve this intolerable situation?

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government

My Lords, we have heard a very persuasive case, made by the noble Lord, Lord Low, about the importance of, and the need for, this amendment, supported by the noble Baroness, Lady Campbell of Surbiton. However, the points that have just been raised by my noble friend Lord Elton need, too, to be borne in mind.

As I understand it, the noble Lord, Lord Low, is asking for no change to be made to the scope or extent of the Bill; he has argued that the intention of the "fourth requirement" is merely to place in a more obvious position the need for A to provide more accessible information. Will the Minister confirm that the amendment would achieve what the noble Lord seeks and would go no further than the current law as it stands? If it does not, the argument would appear to rest on whether it would be more beneficial to state the need for accessible information in the Bill, which in turn would depend on whether the more visible position of the requirement would mean that more people would be likely to follow it.

The Bill must be about achieving real change. The duty to provide accessible information for disabled people has been in force from 1995 and guidance around the issue has been available since then. However, as was clear from the speech of the noble Lord, Lord Low, there is still a considerable lack of compliance with it. Does the Minister think that if the requirement were placed more clearly in the Bill, it would increase compliance with the duty? Or perhaps she can inform the Committee whether there are deeper issues here which we need to look into in more detail. Are there other reasons for this duty not being complied with? If so, are there other ways in which the problem needs to be addressed?

I have considerable sympathy with the concerns raised by the noble Lord, Lord Low. I would be interested to hear the Minister's response, particularly as to whether this is a cosmetic change to the Bill and the best way to ensure compliance with the DDA guidelines on accessible information to which the noble Lord referred.

Research from the RNIB submitted to the Conservative Party's working group on health information has shown that only 9 per cent of local authorities could even say whether they could provide accessible information, and that 72 per cent of patients have been given information by their GPs which they could not read. Lack of access to information can range from the annoying, such as not being able to read the day on which your rubbish will be collected, to the downright dangerous-for example, 81 per cent of people surveyed by the RNIB said that they did not get information about prescribed medicines in a format they could read.

In the age of computers where the touch of a button can provide information in a large format, it seems ridiculous that this should be such a hard provision to comply with. According to figures from the RNIB, there are currently 2 million people in the UK with sight loss. We have tabled Amendments 43, 44 and 45 to probe the Government's intentions regarding the possibility of the need for the asymmetric treatment of disabled people.

As the Bill stands, Clause 20 appears to concentrate more heavily on helping disabled people to "overcome" the disadvantage that may be put in their way. This can be seen from the examples in the Explanatory Notes. The first example is a utility company that knows that many of its customers have sight impairment-making it difficult to read invoices and other customer communications-thinking about how to make the correspondence more accessible. This may involve making some letters available in large print.

However, the Disability Charities Consortium is worried that this does not comply with the spirit of the Disability Discrimination Act, which was designed to ensure that disabled people have the same level of access as non-disabled people. Lord Justice Sedley in the case of Roads v Central Trains Ltdin 2004 stated that,

"the policy of the [Act] is not a minimalist policy of simply ensuring that some access is available to the disabled; it is, so far as reasonably practicable, to approximate the access enjoyed by disabled persons to that enjoyed by the rest of the public".

The Disability Charities Consortium is concerned that the Bill as it stands does not replicate this duty. It therefore considers it necessary to make clear the anticipatory nature of disability discrimination law. The emphasis should be on removing the barrier before it has even become a hindrance. Only where this is not reasonable should there be a requirement to provide an alternative means. There may therefore be a need to treat disabled people more favourably than those who are not disabled in order to take these factors into account and address these issues properly.

We have therefore tabled the amendments to question the Minister as to how far these concerns are addressed in the Bill. Do the provisions contain an anticipatory duty? The Explanatory Notes state that this clause and those following it simply replace similar provisions in the Disability Discrimination Act, but does the Minister consider that they retain the principle encapsulated in that Act? Can she give any reassurance to the Disability Charities Consortium on this point?

Photo of Lord Elton Lord Elton Conservative

My Lords, my noble friend reminds me of a practical point of some importance. I receive, as do all your Lordships, a steady stream of communications through my letterbox from local authorities. At the end of a great many of them is a little line which says, "If you need this in large print, then ring up the following number". The print is the same size as the rest of the document or smaller. That ought to be illegal.

Photo of The Bishop of Chichester The Bishop of Chichester Bishop

It is a counsel of despair to say that some existing legislation is not working and, therefore, something should not be included in this Bill. If one takes the strict logic of the case, one could argue that Clause 20(4) is scarcely necessary. A physical obstacle is clearly excluded by the first subsection, but we draw specific attention to the need to remove physical obstacles. As the noble Baroness, Lady Campbell, said, knowledge is power. There are very few things more important than the free exchange of and access to information in our world.

I am very conscious of a particular area of disability that has not been mentioned today: people with learning difficulties, who often have a much higher capacity for understanding simply given information than they are often given credit for. Much public information and many publications of public bodies are confusing, obtuse and arcane in a way that they do not need to be. Accepting the amendment and including in the Bill the addition which the noble Lord, Lord Low, is proposing would give a clear signal that we have an obligation to make information accessible to everybody regardless of disability.

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip) 7:00 pm, 13th January 2010

My Lords, the duty to make reasonable adjustments for disabled people is unique to the provisions of current disability discrimination legislation and is the cornerstone of protection which the Bill provides for disabled people. It is important therefore that we ensure the new provisions in the Bill work and I welcome the opportunity to discuss this group of amendments.

Amendments 43 and 44 in the name of the noble Baroness, Lady Warsi, would remove the comparative from the first two requirements of the reasonable adjustment in Clause 20. The reasonable adjustment duty is triggered when the disabled person is at a substantial disadvantage,

"in comparison with persons who are not disabled".

It may also be worth reminding noble Lords that we have introduced a common threshold in this Bill for the duty in substantial disadvantage: the threshold that currently applies in the Disability Discrimination Act's employment provision. The service's trigger in that Act is impossible and unreasonably difficult. This change in the threshold is beneficial to disabled people as a substantial disadvantage test is an easier one to meet. The employment provisions in the DDA contain an equivalent comparator for the reasonable adjustment duty. We have no evidence that the use of the comparator has led to any difficulty in disabled people obtaining the reasonable adjustments they require.

Furthermore, we believe that removing the comparison with persons who are not disabled would confuse duty holders and therefore hinder, rather than help, disabled people who might require an adjustment. The courts may feel obliged to reintroduce a comparator in order to make the provision work effectively, and this would create a climate of uncertainty. On that basis, I respectfully request that the noble Baroness withdraws her amendment.

Amendment 45 deals with the duty's third requirement. It would alter the dynamics of the way the reasonable adjustment duty is designed to work in the Bill, and would increase the circumstances in which the service provider would be required to make a reasonable adjustment by way of providing an auxiliary aid or service by removing the threshold of substantial disadvantage and replacing it with a much more general concept of enabling and facilitating use of the service by the disabled person.

In framing disability discrimination legislation, we are always careful to try to balance the rights of the disabled persons and the duties we place on businesses and public bodies. Indeed, the noble Lord, Lord Low, and the noble Baroness, Lady Warsi, referred to this. In that context, this amendment is unhelpful because it would remove the clarity that the substantial disadvantage threshold provides and might place a rather too onerous burden on the service provider.

This amendment would also make this particular requirement inconsistent with the first and second requirements of the reasonable adjustment duty. In addition, it does not provide a link between the disability and enabling or facilitating, which should be the basis of any reasonable adjustment duty.

All the evidence we have is that the reasonable adjustment duty has greatly increased disabled persons' access to services, and we are widening its application by introducing the common threshold, as we have discussed, to create a simpler law. I suggest that these are reasonable and proportionate steps to take and that this amendment might go too far. I therefore again request that the noble Baroness withdraws this amendment.

On the group of 30 amendments submitted by the noble Lord, Lord Low of Dalston, I will not go through all the numbers and read them into the record; they will be there. They have a single objective, so it is sensible for us to consider them together. That single objective is to introduce into the reasonable adjustment duty an explicit fourth requirement. This would require those bound by the duty to consider taking reasonable steps to avoid the substantial disadvantage that disabled people would face if the manner in which they are offered information would otherwise result in them being so disadvantaged. I listened to the remarks of the noble Lord with great interest. Indeed, I felt humbled by them and ashamed that our Government and other public bodies are still struggling to meet this requirement.

At Second Reading in this House, the noble Lord, Lord Low, said:

"What ramps are to wheelchair users, large print and other forms of accessible information are to blind and partially sighted people".-[Hansard, 15/12/09; col. 1469.]

He told us that despite large print being easy to produce now, even eye hospitals fail to provide it. None of us would doubt or challenge the necessity for ready access to information so that we can participate in the workplace, exercise informed choice when accessing services and play a full part in society. The noble Lord has championed this cause during the passage of other legislation, so I have found myself on my feet having to answer similar points and arguments in the past. I acknowledge that to be exemplars of good practice in this area, government and the public sector can and should do more-a great deal more. I am sure the noble Lord would say "Hear, hear" to that. It is important that we continue a dialogue with him about how we can best achieve this in your Lordships' House.

There is already a provision in the Bill that is designed to deliver the outcomes that the noble Lord's amendments would make explicit. The Disability Rights Commission's highly regarded code of practice, Rights of Access: Services to the Public, Public Authority Functions, Private Clubs and Premises, has a good number of examples of the types of auxiliary aids and services that might be appropriate by way of reasonable adjustments for people with sensory impairments, including visual impairments, to help them access information, auxiliary aids and services which we believe are captured by the third duty in this Bill.

The noble Lord spoke of his concerns at Second Reading and, if I correctly understood his remarks and those from others around the House, they relate to compliance with this duty. As I have indicated, our attention should be focused on compliance and good practice and, for example, on ensuring that the Equality and Human Rights Commission delivers on its statutory duties to raise awareness of the new legislation through codes of practice and non-statutory guidance. Anticipating the remarks of the noble Lord, Lord Lester, it has recently launched a consultation on the draft codes of practice. To use the full range of its enforcement powers, including inquiry powers to drive up compliance and ensure good practice, an inquiry by the EHRC into the provision of accessible information would be entirely relevant and a worthwhile initiative to take.

If I can turn to one point before I conclude-

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

My Lords, having listened to the noble Baroness so far-

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

If the noble Lord lets me finish, he may be pleased with what I have to say. Before I complete my remarks, I want to clarify a point raised by the noble Lord, Lord Low, about the reasonable adjustments duty in the Bill not being as strong as the duty in the Disability Discrimination Act. We do not think this is true. We believe the Bill provides better protection for disabled people, and three elements of the duty and requirements do what is reasonable, as is required by the DDA.

The noble Baroness, Lady Warsi, asked whether the duty for service providers is still anticipatory. As with the DDA currently, the duty of reasonable adjustment as it applies to those who provide services or public functions remains owed to disabled people at large.

In conclusion, I hope that what I have said goes some way to reassuring the noble Lord, Lord Low. The Government share his objective for the reasonable duty to deliver access to information to people with sensory impairments. However, we need to take these amendments away and look at them again. It would appear that the point is being made by every noble Lord around the House that the problem we have is one of implementation. We are not sure whether these amendments would improve that situation, but we will look at them again to see whether we can come up with something that could.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

I am grateful to the Minister for asking me to be patient because what she has just said is obviously very important.

The great Archbishop of Canterbury William Temple once said: "Whenever I travel on the Underground, I always intend to buy a ticket, but the fact there is a ticket collector at the other end just clinches it". Of course, we no longer have ticket collectors at the other end. I have not heard in the Minister's reply any good reason why the amendment of the noble Lord, Lord Low, which would add a fourth requirement, would do the slightest harm or impose an unreasonable duty. Since we all agree that the present situation is intolerable, I asked myself why one should not accept these words, or something like it, and I have not heard the answer. Perhaps the Minister is saying that she will think about it and come back; I see two Ministers nodding. Of course, the noble Lord, Lord Low, cannot see that, but he should know that they are nodding. That gives me some reassurance, but I tend to be a William Temple person.

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

I shall take this away and look at it with a view to returning to it.

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench

I am very grateful to Minister. I was initially a little dismayed that the Minister placed so much weight on greater efforts to achieve compliance, because it is my view, and my reason for moving the amendment, that we should do a bit more in the legislation to motivate that compliance and give the enforcement agency more to secure compliance. However, I too was glad that I waited until the end of the Minister's remarks, when she indicated that she would be happy to take the matter away and look further at the amendment.

I am very grateful to all noble Lords who have spoken and for the degree of support that there has been for the amendment round the House. One or two points have been asked of me. The noble Lord, Lord Elton, and to some extent the noble Baroness, Lady Warsi, asked what the point was of reinstating something that was not working. Before we go any further, we need to get something back in the Bill about this matter but if possible to improve on it and give it greater visibility. I thought that we had done this by putting it back in the language used by the drafters of the Bill for these requirements. It seemed to me that the correct way in which to do it was by adding another requirement. However, if the Minister feels that that does not do the job properly and would like to discuss other ways in which to achieve the objective, of course I would be extremely happy to engage in those discussions.

The right reverend Prelate mentioned the case of people with learning difficulties. I am very mindful of them, too. Making information accessible means not only putting it into Braille or large print but making it available in an Easyread format such as he was talking about. My objective would be to ensure that the needs of people with learning difficulties were encompassed just as much as blind or partially sighted people. People may feel that putting everything into an Easyread format would impose an intolerable burden but, as with all the applications of this amendment, it would only mean seeking on demand the rendering of information accessible; it would not have to be done automatically, for every piece of information that was produced.

I am a little sceptical about guidance, which is why I want to see something in the Bill. I think back to when we talked about the apprenticeships Bill. I was told that there were accessible information guidelines in the Cabinet Office but, unfortunately, nobody could find them. So noble Lords will understand why I entertain a measure of scepticism about the efficacy of guidance-certainly the efficacy of guidance that nobody can find.

I appreciate the fact that we have had a very good debate and am very grateful for the support that has been evinced around the House. I look forward to discussing the matter further with the Minister, in the hope that we will be able to find a consensual way forward, as the noble Lord, Lord Lester, says, and will not have to bring it back and divide the House at a later stage. I beg leave to withdraw the amendment.

Amendment 42A withdrawn.

Amendments 43 to 45 not moved.

Amendment 45ZA

Moved by Baroness Royall of Blaisdon

45ZA: Clause 20, page 10, line 41, at end insert-

"( ) A person (A) who is subject to a duty to make reasonable adjustments is not (subject to express provision to the contrary) entitled to require a disabled person, in relation to whom A is required to comply with the duty, to pay to any extent A's costs of complying with the duty."

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Chancellor of the Duchy of Lancaster, House of Lords, Leader of the House of Lords and Chancellor of the Duchy of Lancaster 7:15 pm, 13th January 2010

The purpose of this amendment is to make explicit that the costs of a reasonable adjustment should not be passed on to an individual disabled person. The policy intention that we have sought to capture in the drafting of the Bill is that the costs of reasonable adjustments should not be passed on to individual disabled people, and that approach should apply in the employment context as well as in the areas addressed by Amendments 57C and 108P, which I understand will not be moved. The issue was not raised in the Commons at all, but in meetings with the disability lobby in the past couple of months we have become aware of the lobby's concerns. Indeed, the noble Baroness, Lady Campbell, made a very persuasive speech on Second Reading. On further reflection, the Government have decided to act to leave the matter beyond doubt. We believe that that is what the amendment achieves. I hope that noble Lords will be satisfied with the development and I beg to move.

Photo of Baroness Campbell of Surbiton Baroness Campbell of Surbiton Crossbench

I would just like to say how thrilled I am at this amendment, for two reasons. First, I feel that it is my amendment, as it reflects so admirably the amendment that I was going to table. Secondly, it means that I do not have to read out a four-page speaking note for another persuasive amendment. I thank the Minister very much.

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench

I had my name on the amendment tabled by the noble Baroness, Lady Campbell, so it seems appropriate that I should also welcome the Government's amendment. Given the wonderful support that the noble Baroness, Lady Campbell, gave to my amendment, it would be churlish if I did not join her in welcoming the Government's change of heart and their habit of listening and reflecting, which I hope will set a pattern that they will be willing to continue in the period before Report.

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government

My Lords, we welcome the Government's decision to make explicit on the face of the Bill their intention on costs incurred by a duty holder making "reasonable adjustments" under Clause 20. A very helpful letter from the Minister stated that,

"in the existing legislation there is reference to not passing on costs of making reasonable adjustments in services and functions in the context of a different justification regime than applies in the Bill".

Can the Minister clarify this statement a little for the House? Clause 20, as I understand it, replaces similar provisions in the Disability Discrimination Act, with only a few changes. It introduces "substantial disadvantage" as a single threshold, applies the current practice by explicitly applying the third requirement to employment, and alters some of the language. These are only small changes from the Disability Discrimination Act. Why was the provision stating the cost of making a reasonable adjustment not also therefore transferred over? According to the Disability Charities Consortium, the Government had argued that they had included,

"sufficient safeguards that the costs of adjustments should not be passed on to disabled people".

If this was the intention, and the policy had been made explicit on the face of the Disability Discrimination Act, why did it take so long for it to be transferred over?

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

We on these Benches add to the consensus, and we are delighted that the Government have changed their mind. We look forward to further changes.

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Chancellor of the Duchy of Lancaster, House of Lords, Leader of the House of Lords and Chancellor of the Duchy of Lancaster

My Lords, in the first instance when we were drafting the Bill we did not consider that such a provision was needed, as the very fact that the DDA and the Bill impose a duty on an individual implies that the individual should bear the costs of complying with the reasonable adjustment duty. If the duty could be read as meaning that it only had to be complied with if costs were met by someone else, the legislation would have made that clear. This is the case in relation to the duty to make alterations to the common parts, as paragraph 7(3) of Schedule 4 provides that it is reasonable to expect that the costs be paid by a disabled person. In addition, as far as we know, there have not been any reported cases of attempts to pass on the costs of the reasonable adjustments.

However, while our position was absolutely clear, the disability lobby felt that there was still some confusion or that this was misleading, and questioned whether the subsection about disability-related discrimination could be justified. This is a sort of belt-and-braces thing to clarify the position, and to ensure and to make explicit that the costs of a reasonable adjustment should not be passed on to an individual disabled person. We wanted to make it absolutely clear that we wanted disabled people themselves to feel secure that they were not going to have any additional burdens. That is the reason for this amendment.

Amendment 45ZA agreed.

Amendments 45A and 45B not moved.

Clause 20 agreed.

House resumed. Committee to begin again not before 8.22 pm.