Clause 6

Equality Bill – in a Public Bill Committee am 10:30 am ar 16 Mehefin 2009.

Danfonwch hysbysiad imi am ddadleuon fel hyn


Photo of Evan Harris Evan Harris Shadow Science Minister

I beg to move amendment 114, in clause 6, page 5, line 4, leave out ‘and long-term’.

An amendment to remove the requirement for a disability to be long-term before a person with that disability is afforded protection from discrimination.

Photo of Joe Benton Joe Benton Llafur, Bootle

With this it will be convenient to discuss the following: amendment 179, in schedule 1, page 144, line 10, at end insert ‘the effect’.

To clarify the meaning of the sub-paragraph.

Amendment 186, in schedule 1, page 144, line 11, leave out ‘it’.

Amendment 187, in schedule 1, page 144, line 12, leave out ‘it’.

Amendment 188, in schedule 1, page 144, line 13, leave out ‘it’.

Amendment 180, in schedule 1, page 144, line 16, leave out ‘effect is likely to recur’ and insert

‘impairment is of a nature where it, or its effects, is liable to recur’.

Photo of Evan Harris Evan Harris Shadow Science Minister

It is a pleasure to welcome you back to the Chair, Mr. Benton.

I want to speak briefly to the amendments tabled in my name and that of my hon. Friend the Member for Hornsey and Wood Green. The group has three separate components, the lead amendment being amendment 114, which would take out reference to “long-term” when defining an impairment. I shall explain the reasoning.

The other amendments in the group, specifically amendments 179 and 186 to 188, would clarify whether there is an ambiguity in the Bill—a minor point, on which I do not intend to spend long. Amendment 180 is a more detailed attempt to get at the same issue as amendment 114, questioning whether there is a way to define an impairment so that we capture those that, while not being long term in themselves, are likely to recur. I do not claim great faith in the wording of amendment 180 as appropriate to that aim, but that is the intention.

A long-standing concern of the disabled community, and among those of us who support equality, has been the need to ensure that all the people who need to  benefit from the protection provided by existing anti-discrimination law and what is proposed can benefit without matters of definition preventing them from doing so. The concern about the use of “long-term” and how it is described in schedule 1 is that that might prevent those people—I am quoting the Equality and Human Rights Commission briefing on the amendment—

“with short-term conditions, particularly mental health conditions such as depression” from benefiting from the protection.

“Long-term” is defined in schedule 1:

“The effect of an impairment is long-term if... it has lasted for at least 12 months... is likely to last for at least 12 months, or... is likely to last for the rest of the life of the person affected.”

The concern, therefore, is with chronic but fluctuating conditions in which the effect cannot be seen to last continuously for 12 months, but is liable to recur.

The Equality and Human Rights Commission welcomes the removal of the list of normal, day-to-day activities from the definition of disability in the Bill, but it is concerned that the clause repeats the requirement for the effects of the impairment to be long term.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I want to ask the hon. Gentleman about something he said a minute ago—that the definition is inadequate for conditions that will not last 12 months but are likely to recur. Of course he knows that paragraph 2(1) of schedule 1 specifically provides that if an impairment stops having a substantial adverse effect on someone’s ability to carry out day-to-day activities, it is to be treated as none the less continuing to have that effect if it is likely to recur. That covers precisely what he was talking about.

Photo of Evan Harris Evan Harris Shadow Science Minister

I am grateful to the Minister, because that is the meat of the issue. I tabled amendment 114, which would take out “long-term” and consequently render that part of schedule 1 ineffective, but amendment 180 probes the question of “likely to recur”. That is perhaps where we can have most of the substantive debate on the group.

Amendment 180 uses the words

“leave out ‘effect is likely to recur’ and insert ‘impairment is of a nature where it, or its effects, is liable to recur’.”

The problem with “likely to recur” is that one is not certain whether one’s particular condition, which is liable to recur, is likely to recur.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I looked at how the hon. Gentleman changed “likely” to “liable” and checked in the dictionary, but they are synonymous. I was surprised, because I thought “liable” was less than “likely”, but they are synonymous, so I do not think he has a point.

Photo of Evan Harris Evan Harris Shadow Science Minister

Two dictionaries, three definitions. However, I accept the key point behind what the Minister says. If it is her intention to say that “likely” is not a balance of probabilities but a liability to recur—I can go into examples, although I am not keen to get bogged down in them—that would be helpful and enable us to go away and consider whether what she said by means of clarification would be useful not only for the courts, but for people to know their rights. There is a difference,  however, and I am seeking to identify a lower threshold than “likely”, which at least implies a balance of probabilities.

Many conditions can and are liable to recur, but they may not recur on the balance of probabilities. The fact that they are liable to recur, but there is uncertainty, is part of the effect that they have on someone. People often have to make life-changing decisions and adjustments to their lifestyle and day-to-day activities because of the fear of something returning.

I look forward to hearing a precise definition of “likely” from the Minister. A common understanding is that “liable” to recur is not as strong as “likely”. However, if her view is that “liable” is as strong as “likely”, we might need to find new wording, such as “has the potential” to recur. For example, depression is a condition that can recur and doctors might not be able to say “likely to recur” when an employer or potential complainant asks the question. Part of the point of treatment, even for conditions that can recur, is the hope that they are treated.

Finally, there is ambiguity about what the “it” refers to in schedule 1(2)(1) because it says:

“The effect of an impairment is long-term if—

(a) it has lasted for at least 12 months”.

We ought to have clarity on whether the “it” is the impairment or the effect. I have argued that it is the effect and my amendment addresses that. I do not claim to have absolutely certainty that it would be useful to clarify that, but it seemed to me that it would.

I do not think there is much more to say except that there is widespread support for doing something about the threshold that is felt to be there by the disability community on the question of “long-term” and the definition provided. It is noteworthy that the EHRC is even supportive of what might be considered the strongest amendment in the group, which would remove “long-term” entirely. It is important that there is clarity and confidence that people can access the protection. All members of the Committee will recognise that disabled people need and deserve that.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I am pleased to welcome you back to the Chair, Mr. Benton. I want to speak to the amendments briefly. The hon. Gentleman raises an important issue about fluctuating conditions. I have tabled an amendment to schedule 1, looking at one issue in particular, where we can have a more useful discussion. We had good evidence in the evidence sessions and Ruth Scott of the Disability Charities Consortium raised the issue about fluctuating conditions, particularly depression, which we will discuss in relation to schedule 1. She also pointed out that removing “long-term” probably was not the way to go because, for example, “long-term” features in the UN convention.

The issue of fluctuating conditions really needs to be addressed. The Minister has already raised that and said that schedule 1 deals with it adequately. We will come to that. Although the hon. Member for Oxford, West and Abingdon has raised an important and valid issue, I do not think his amendments are the way to go about solving the problem. I look forward with great interest to what the Minister has to say.

Photo of Tim Boswell Tim Boswell Ceidwadwyr, Daventry

Briefly, it is right to flag up the concerns of the hon. Member for Oxford, West and Abingdon, which will exercise many across the Committee.

Two aspects of the matter also occur to me, and are relevant to the provision of services by a public authority generally. One is that while the hon. Gentleman is entirely right to say that long-term and fluctuating conditions are, by themselves, the main remit of the measure, people may have short-term disabilities that may be finite and discrete—they might arise, for example, from an accident at work—but are, nevertheless, real.

I messed my shoulder up some years ago—hardly a matter of interest to the Committee, but one of record. It is quite difficult to be a Member of Parliament and to find that one cannot drive, or do anything else, for a period. It gives one, perhaps providentially, some insight into the problems of people who have a long-term disability that is then forgotten about. We should consider that, because I hope that local authorities and others will.

Secondly, there are issues, for example, about how people are handled in relation to parking, where they need help and where, once again, although their condition may not be long-term, their need is nevertheless real. I hope that as we build up policy on this and some related issues on human rights, which I may wish to deploy before the Committee later, we give this matter sympathetic consideration and try to find a better way to deal with it than has sometimes been the case in the past.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

Welcome back to the Committee, Mr. Benton. I agree with the hon. Member for Forest of Dean that we have a better amendment than this to deal with the question of “likely to recur” and, in particular, the question of depression, which is the meat of where any perceived difficulty arises. The hon. Member for Oxford, West and Abingdon says that there is long-term concern about this, which would be likely, assuming that he represented the disability sector, but we have talked and consulted extensively with it about this and he is overstating the issue. He has missed it, anyway, with the amendments.

I looked up “likely” and “liable” in the “Shorter Oxford”. I can do no better than that, and if he wants to include redefinitions in the “Evan Harris English Dictionary”, that is absolutely fine. However, we will go with the normal meaning of those words. There has to be a line drawn somewhere and we think that 12 months is not unreasonable. Of course, the hon. Member for Daventry is right: people have to be considerate of those who have hurt themselves—they have their human rights in any event, if I can put it like that, although that is an odd phrase to use about human rights—but he clearly would not have expected reasonable adjustments to be made by his employer because he had a sore shoulder for a short time. That is the scale of what we are trying to balance—interests of that kind.

The 12-month requirement has applied since the introduction of the Disability Discrimination Act 1995 and we do not think that there is any real need to change it. Some of the amendments are consequential on the first, so let me consider amendment 180 as quickly as I may, which is a quest to clarify paragraph 2(1) of schedule 1. To make sense of that paragraph, the  question is whether it is the effect or the impairment that has to be “long-term” or “likely to recur”. It is perfectly plain that the paragraph says:

“The effect of an impairment is long-term if” and goes on to say how it becomes long term. The amendment is therefore not needed because the sense of the schedule is entirely clear.

Photo of Evan Harris Evan Harris Shadow Science Minister

I note the Minister’s view that the meaning of the schedule is clear. That will no doubt be considered here and in another place. On the question of the views of the disability community, it depends who one speaks to. The Disability Rights Commission was charged with monitoring and reviewing the definition and when it conducted its research for its review of the DDA in 2002, it concluded that the “long-term” requirement, if I can call it that, was

“a persistent problem for people with depression and anxiety disorders.”

I do not claim to speak on behalf of disabled people or the non-governmental organisation community, but I hope that the Minister accepts that there is concern out there. That is why even the organisation that has taken on the work of the Disability Rights Commission, the EHRC, has concerns about the use of “long term” and supports the lead amendment.

I am not convinced that the Minister’s reference to the “Shorter Oxford English Dictionary”, fine tome as it is, is sufficient fully to deal with the issue behind amendment 180. The amendment speaks of the impairment being

“of a nature where it, or its effects, are liable to recur”, and is not a direct substitution of

“the effect is likely to recur” with “the effect is liable to recur.”

However, it is clear that the Minister has set her mind against accepting any of the amendments and against recognising that there is even a problem. As the hon. Member for Forest of Dean said, we may go on to probe that issue further in the next group of amendments. With that in mind, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions) 10:45, 16 Mehefin 2009

I beg to move amendment 166, in clause 6, page 5, line 19, at end insert—

‘(4A) Where reference is made in this Act to a person (B) who is perceived to have a disability, the reference is taken to apply to this person whether or not the perceived impairment has a substantial and long-term adverse effect on B’s ability to carry out normal day-to-day activities.’.

Photo of Joe Benton Joe Benton Llafur, Bootle

With this it will be convenient to discuss the following: amendment 168, in clause 13, page 9, line 15, at end insert—

‘(3A) If the protected characteristic is disability, this section applies to a person who is perceived to have a disability.’.

Amendment 169, in clause 18, page 13, line 14, at end insert—

‘(2A) If the protected characteristic is disability, this section applies to a person who is perceived to have a disability.’.

Amendment 175, in clause 24, page 18, line 3, at end add—

‘(6) If the protected characteristic is disability, this section applies to a person who is perceived to have a disability.’.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

The amendments have been discussed with the Disability Charities Consortium and are supported by that organisation and the EHRC. They would provide an explicit definition of persons who are perceived to be disabled so that people experiencing discrimination on the grounds of a perceived disability would enjoy effective protection under the law. I want to probe the Minister on the four clauses that would be amended to find out whether the Government believe that the difference between direct discrimination of those who actually have a disability and those who are perceived to have one are covered by the existing wording of the Bill.

The Bill’s wording is wide enough to cover direct discrimination and harassment based on perception. However, in the view of the DCC and the EHRC, the approach is not sufficient in the case of disability. That is partly linked to the issue that we have just considered in the previous group of amendments. Unlike other protected characteristics, for a person to be considered disabled for the purposes of claiming disability discrimination, they must meet the stringent definition of disability, including its long-term nature. The person who is discriminating against them, based on the perception of whether they are disabled, clearly will not have in their mind a specific legal definition of disability. The reason behind the amendments is to make clear that for cases that involve discrimination based on perception of disability, it is the defendant’s motivation for discrimination that matters, not whether the claimant meets the legal definition of disability. In the United States, the Americans with Disabilities Act of 1990 specifically provides that a person is regarded as being perceived to be disabled if they are discriminated against based on that belief, whether or not the effects of the perceived disability meet the definition of disability under that Act.

Given the stigma surrounding a large number of disabilities, especially hidden ones such as mental health problems and HIV, discrimination based on perception may well be widespread. We tabled the amendments to probe whether the Minister feels that the Bill already covers the matter and, if so, so that she can give the Committee an explanation. The view of the DCC and the EHRC is that it does not. The EHRC has specifically said that it does not think, on a normal reading of the clauses to which I have referred, that discrimination against people with a perceived disability is sufficiently covered. Will the Minister set out what she feels the wording in the Bill does, and whether it already covers those issues?

Photo of Evan Harris Evan Harris Shadow Science Minister

I share the hon. Gentleman’s concern. I have tabled several amendments to clause 13, which we will come on to later, so I will not speak long on this group. I am asking, in respect of all protected characteristics, whether the definition of direct discrimination in the explanatory notes in paragraph 71 on page E9

“broad enough to cover cases where the less favourable treatment is because...the victim is wrongly thought to have it”— already covers perception. That is not explicit in clause 13, but it is clearly important that the provision not only covers disability and other strands, but is seen to do so.  Simply working on the basis of case law or intention behind legislation without making things clear, when we can, represents a missed opportunity.

I know that the Government are keen to ensure that such legislation is accessible to individuals and organisations. Even if the amendment’s wording is not exactly right, it would serve that purpose well if, as I suspect, the Government’s view is that the statute should cover perceptions of disability and, I hope, other strands.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

Perhaps I should make it clear that, in our view, “related to”—this is probably what amendment 175, which was tabled by the hon. Member for Forest of Dean, is directed towards—is wide enough to cover association and perception. That is our intention, and it is an important point. I want to make that clear at the outset, even though the hon. Gentleman did not lay great emphasis on that amendment. I understand why he set out that query, as he is probing a particular aspect of the Government’s thinking.

Amendment 166 would provide that a person perceived as having a disability would not have to meet the requirement that their perceived impairment must have

“a substantial and long-term adverse effect” on their ability to carry out day-to-day activities in order to be protected by the Bill. However, somebody who had a disability would continue to have to prove that. It would be most inequitable for somebody who did not have a disability to have a lighter test to gain protection than somebody who did, and that is the logical fault in the proposal. However, I agree with the hon. Gentleman that the perception aspect of discrimination is targeted on the intention of the person who is “discriminating”—I will put that in inverted commas for the moment. The mischief occurs when a person intends to discriminate against somebody who is in the protected strand, even though they have misperceived that person’s identity, and they are not in fact in that protected strand. This is another way of protecting those who are in that strand, not of protecting those who are outside it.

To pursue the point further, there is nothing to be gained from requiring people to make reasonable adjustments for somebody who is perceived to be disabled but is not disabled and does not need those adjustments, which would follow on from what the hon. Gentleman is saying and one of his later amendments. In one sense, he is right. A person who is not within the strand, even though they are perceived to be in it, is not covered for all purposes as if they were disabled, running through the gamut of protection that we give to disabled people. However, such people are protected against discrimination and, importantly—this is a point that the hon. Gentleman honed in on—the person whose motivation is discrimination is dealt with under the legislation. We think that that is the right way forward, and with respect, having proved the point, I invite him to withdraw the amendment.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I am grateful to the Solicitor-General for that reply. Her point about amendment 166 is sound, and I will withdraw it in a moment.

I would like to take the Solicitor-General back to her first point. Following on from our earlier discussion, I would like verification on clause 24 regarding harassment. She is right to say that someone who does not have a  protected characteristic does not need a reasonable adjustment because they are not disabled. However, there could be people who have a disability, or who are perceived to have a disability, and that leads to harassment. That is the mischief, as opposed to them needing a reasonable adjustment—which clearly they do not. Such people might suffer a detriment based on the fact that they have no disability, but are perceived to have one. For example, a person might be ill treated because someone wrongly thinks that they have HIV or a mental health problem. Is she confident that without amendment 175, the harassment provisions in clause 24 would adequately protect a person who does not have a protected characteristic but is suffering harassment none the less?

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

Yes, we are confident of that—I am sorry if I said it too briefly. Let me set out the position more extensively so that it is clear.

Amendment 175 relates to clause 24, which uses the formulation “related to” in the definition of harassment. It means that protection is not limited to a person who has a protected characteristic. It also covers a person who is harassed because of their association with someone who has a protected characteristic or—this is the thrust of the hon. Gentleman’s point—someone who is harassed because they are perceived, whether incorrectly or not, to have a protected characteristic. To set out an explicit provision, as under amendment 175, would cast doubt on the issue that the formulation of being “related to” a protected characteristic would be broad enough to cover harassment based on perception. That would be an unwelcome outcome of such a provision, which I am sure would be unintended. I hope that I have made our intentions absolutely clear. We are satisfied with clause 24, and I hope that the hon. Gentleman will not press that amendment.

Photo of Evan Harris Evan Harris Shadow Science Minister

The hon. and learned Lady’s response was helpful in respect of harassment, but what does the hon. Gentleman feel about amendment 168, to which I spoke, which covers direct discrimination under clause 13. Is he satisfied that the same thing that applies to harassment, as opposed to the definitional amendment that leads the group, should apply? Is there more virtue in amendment 168 than in the intention behind amendment 175? Does he intend to refer to that when we discuss clause 13?

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I am grateful to the hon. Gentleman for his intervention. When studying the group of amendments, I focused specifically on the issues relating to disability. The Solicitor-General was right when she said that people who do not actually have the disability will clearly not require a reasonable adjustment and that, if someone does not make appropriate provision, they will not suffer a detriment. That is not the case with harassment, and she has adequately satisfied me that that is covered by the Bill.

The hon. Member for Oxford, West and Abingdon made a point about issues other than disability, which we shall indeed cover in due course when we reach  clause 13. Given the Solicitor-General’s comprehensive reply, particularly on harassment, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 ordered to stand part of the Bill.