Committee on the Equality Act 2010 and Disability Report

Baroness Campbell of Surbiton Excerpts

Tuesday 6th September 2016 Lords Chamber

[Baroness Campbell of Surbiton (CB)]

My Lords, I, too, welcome the Prime Minister’s desire to create a country that works for everyone. Last December, disabled people marked the 20th anniversary of the Disability Discrimination Act with a very big party. So it is a good time for renewed government commitment on the eve of the Paralympics. It is worth remembering the extraordinary success of the London Paralympics, seamlessly integrated into the overall planning of 2012, in deep contrast to what is happening in Rio.

It was a great privilege to be a member of the Select Committee. I have been involved in the campaign against disability discrimination from the very beginning. I lobbied and demonstrated and I even got arrested in the 13-year battle for the DDA. I served on the ministerial taskforce that set the parameters for the legislation and then on the Disability Rights Commission to enforce the law, educate the public and develop good practice. When the commissions on race, sex and disability were merged with the new protective groups into the overarching Equality and Human Rights Commission, I was again appointed as a commissioner and the first chair of the disability committee. I tell noble Lords this because I believe that I am uniquely placed to compare disability equality under two Acts and two commissions, one with a specific disability focus and the other generic.

First, I pay tribute to my noble friend Lady Deech, whose chairmanship of the committee was exceptional. She steered it with strength, commitment and great foresight, providing leadership that, frankly, inspired us all. Our collective endeavour speaks for itself, including the excellent work of the clerks and the special adviser. It was a joy to be part of. The report recommends workable, low-cost, legislative and practical changes that would greatly enhance equality for disabled people in this country. This has been echoed in another place by Maria Miller MP, chair of the Women and Equalities Committee.

Turning to the Government’s response, I welcome the positive decision—albeit after 20 years—to enact Section 165 of the Equality Act, requiring taxis to carry wheelchair users at no extra cost. The timing of the announcement was quite uncanny: it was the very day that Channel 4 invited me to talk about the report. I hope that it asks me more often. Sadly, that did not set the tone for the rest of the response. I note that where the committee accepted the status quo the Government agree, but otherwise they merely report on meetings held or in the pipeline, which perhaps explains why equality for disabled people has so markedly stalled since the demise of the Disability Rights Commission.

At some point, talking has to give way to action. Our report was guided by the life experiences of disabled people, in written and oral evidence, and we also visited the inner London Centre for Independent Living, run by disabled people. So I am sure noble Lords will understand disabled people’s frustration at the failure of the Government to embrace the recommendations more fully. There is a striking similarity in the Government’s response to the 1980s series “Yes Minister”. At that time, if the Permanent Secretary wanted to avoid action, one of his techniques was to establish an interdepartmental committee to review whatever was on the table. These committees could easily sit for years, ensuring that there was plenty of activity but absolutely no action.

The preamble emphasises the Government’s distaste for regulation, reverting to the arguments of the 1980s and 1990s. Once again, I hear the exhausted cliché that regulation will not change hearts and minds, and that,

“changing hearts and minds will lead to better attitudes, better access, and better outcomes for disabled people”.

The Government claim they have achieved more by initiating “conversations” with disabled people and the public and private sectors than the “blunt instrument of regulation”. Our report clearly demonstrates that this approach is not working. All the evidence shows that without legislation we cannot win “hearts and minds”. One of the first formidable disabled campaigners for civil rights legislation, Sir Peter Large, argued in the 1970s that:

“I do not care what people think about me. I am concerned about how people behave towards me. Laws regulate behaviour”.

The Government’s response suggests that cutting the employment and support allowance is helping disabled people. They also boast about Disability Confident. Sir Bert Massie, who chaired the Disability Rights Commission from its inception, reminded me, as I prepared for this debate, that it was only when we used carrot and stick that the employment gap began to narrow. We were ready to enforce the law, which captured employers’ attention, but it was supplemented by codes of practice and education. Regulation is crucial in changing hearts and minds.

I turn to our specific proposals. We recommended that the Equality Advisory and Support Service is restored to the EHRC. The Government defend the current service. They then seek to justify the decision to put the contract out to tender, claiming that the EHRC did not express an interest in taking it in-house. This is not true. The EHRC flatly refutes this, saying it strongly supports our recommendation, and made clear to the Government its concerns about EASS, and its desire to take back responsibility or at least greater control. However, EHRC’s role has been restricted to a seat on the management board for the new service. This is not simply a discrepancy between two accounts; it indicates a total lack of understanding by the Government of the central role of the helpline. It was one of the DRC’s prime assets, enabling it to monitor the kind of problems disabled people were experiencing. Indeed, a number of its key legal cases started with a call to the helpline. The new contract has now been awarded to G4S, which is devastating news. It beggars belief that a company with such an appalling history of abuse and mismanagement could have been appointed to provide such an important and sensitive service.

The helpline is even more critical now that access to justice through the courts is all but impossible because of tribunal fees, severely reduced legal aid and red tape procedural changes. It is deeply disturbing that the Government have rejected all the committee’s proposals to remedy what is a denial of justice: for instance, changing the costs rules; restoring statutory questionnaires and tribunals’ power to make wider recommendations; and allowing charities to bring class actions.

Another area of concern is the public sector equality duty—a tool to help public services ensure disabled people’s inclusion in society. My noble friend Lady Deech has referred to the due regard duty but we also recommended new specific duties to bring them closer to Scotland and Wales and the previous disability equality duty. Public authorities would have to make an action plan and involve disabled people, collect and publish data and report on progress. As we know, the Government were planning to review the duty again. We suggested that our proposals should be the starting point—eminently sensible, you might think. Therefore, it is deeply dispiriting that the Government’s response is merely that our concerns and recommendations will be taken into account in any review.

I refer to codes of practice. We recommended that the Government should lay the EHRC’s technical guidance on the public sector equality duty, schools and further and higher education before Parliament as statutory codes. The Government’s response—that the advice is already available as technical guidance and can be taken account of in the courts—completely misses the point. Technical guidance does not have the status of a statutory code of practice, which must be taken into account. That is what gives codes the authority that they have. It is also what makes them helpful to employers and service providers as it makes clear what has to be followed and what need not be. Therefore, when the Government say they need “clear evidence” that codes of practice would help compliance with the legislation, they are ignoring the evidence they have.

In contrast, all the DRC codes of practice were accepted by the Government of the day and approved by Parliament. They were welcomed by everyone who used them for the clarity and practical help they provided. Is it not time that the Government departed from their dogmatic principle that regulation is bad and flies in the face of their sacred Red Tape Challenge?

When the committee was taking evidence, I became acutely aware of how many people mourned the loss of the DRC and the positive impact it had on their lives over its seven years’ existence. The EHRC has nine years under its belt. How do they compare? During our nine months of receiving evidence, I was struck by the vast number of submissions from disabled people and their organisations who complained that the broader remit was not effectively combating disability discrimination. Unlike the noble Baroness, Lady Prosser, I was disappointed that the EHRC rejected our suggestion to retain a disability committee when its statutory role comes to an end. Like the noble Baroness, Lady Prosser, I sat on the EHRC, but unlike her, I also sat on the Disability Rights Commission for its entire existence, so I am able to make that comparison. The disability committee at the very least provides a structure to focus on the barriers specific to disabled people. Eradicating inequality, as the noble Baroness, Lady Thomas, said, does not mean treating all groups in society the same. No to integration; yes to inclusion. When I was at the EHRC I felt that we were on the side of integration and not quite there on the side of inclusion.

The demise of the DRC has undoubtedly put disability equality in the slow lane because the broader remit has simply become too broad to identify the host of complex disabling barriers faced by disabled people. Can the Minister explain how the complex nature of disability will be accommodated in the Government’s new “broader remit” they speak of in their response?

Much of the EHRC response to the committee’s report was heartening and I welcome the new chair’s recent reference to “a more muscular” approach—it desperately needs it. But I agree with my noble friend Lady Deech that the Government need to go back to the drawing board. On 27 August our new Prime Minister crystallised her determination to address the burning injustices in society by announcing an equality audit of public services, starting with a review into how ethnic minorities and white working-class people are treated by public services. Disabled people are part of the black and working-class population and face dual discrimination. It graphically illustrates why Section 14 is necessary. However, I ask the Government to ensure that disabled people are at least included in this audit if, as they say in their response, the Government do not feel that Section 14 should come into force.

In preparing for this debate I asked Sir Bert Massie, a trusted adviser to Governments over three decades, for his reaction to the Government’s response to our 55 recommendations. If anyone understands how to tackle deep-rooted discrimination, he does. He said:

“It is now ... 35 years since disabled people called for the right to be treated as equal citizens. Yet the Government still wants to ... talk and meet. It is no wonder disabled people are ... becoming increasingly angry. The Government’s tepid response to the Committee’s report clearly demonstrates a deep lack of understanding and concern about Britain’s disabled people”.

I am afraid that this just about sums up how the committee and disabled people feel about the Government’s disability agenda in 2016. Yes: it is time for the Government to go back to the drawing board.