Committee on the Equality Act 2010 and Disability Report

Lord Shinkwin Excerpts

Tuesday 6th September 2016 Lords Chamber

[Lord Shinkwin (Con)]

My Lords, I too thank the noble Baroness, Lady Deech, and her committee for the service that they have done not just the disabled community but also government and society as a whole in producing such a comprehensive, valuable and timely report, as the noble Baronesses, Lady Campbell of Surbiton and Lady Brinton, have already pointed out, coming as it does 21 years after the then Conservative Government’s Disability Discrimination Act. This begs a question, which I feel in truth has probably been hanging over this entire debate. Has that Act, at 21 years of age, truly come of age? Reading this report, and the various responses to it, I think it is fair to say that it has not. None the less, I will start on a positive note. Based on my previous work with Penny Mordaunt, I welcome with real hope the promotion of her role as Minister for Disabled People to Minister of State level. This is in line with recommendation 7 in paragraph 115 of the report.

I also welcome the Government’s acceptance that it is fairly reasonable to expect that some effort be made to establish the cost of making an adjustment prior to rejecting a request on such grounds rather than relying on arbitrary and potentially inaccurate assumptions about cost. This is in line with recommendation 17 in paragraph 225. I would have liked to be able to welcome the Equality and Human Rights Commission’s response to the crucial recommendation 8, in paragraph 137, that it engage with disabled people and their organisations to co-produce a disability-specific action plan, which other noble Lords have already mentioned. I regret that I cannot do so, because, as we have already heard, the commission has—mistakenly, in my view—said that it does not consider that a separate co-produced action plan would be the most effective way forward. I was a member of the National Disability Council, set up by my noble friend Lord Hague of Richmond when he was Minister for Disabled People and taking the Disability Discrimination Bill through the House of Commons. The council was only advisory, but none the less it had a disability-specific focus. So, like the noble Baroness, Lady Campbell of Surbiton, and my noble friend Lord Northbrook, I beg to differ.

I also do not understand the position taken by the commission on recommendation 9 in paragraph 144, rejecting the need to re-establish the disability committee as a decision-making body and to ring-fence specific resources for it. Surely both are essential if the commission is to enjoy the confidence of the disability community, an important consideration which I do not feel the commission has really taken into account. I therefore urge the commission to reconsider its response to both recommendations 8 and 9. I also respectfully urge the Government to encourage it to do so. The Conservative Government who brought in the DDA in 1995 were right to ensure a sharp disability focus then. Notwithstanding the amalgamation since that time of the different commissions—including, as we have already heard, the Disability Rights Commission—under the umbrella of the Equality and Human Rights Commission, this Conservative Government would be right to ask now that that sharp disability focus be maintained. This is particularly important given the Government’s laudable manifesto aim of halving the disability employment gap.

I am not sure I entirely share the Government’s optimism when they state in their response that,

“the concept of reasonable adjustment is now familiar to both employers and service providers”.

The concept may well be familiar but, if that is the case, then the old adage that familiarity breeds contempt remains all too often sadly true in my experience. Awareness of a concept is not the same as awareness of a legal obligation. I am all for maximising incentives, for using carrots rather than sticks where possible, but I wonder whether carrots in the form of yet more guides on how to make your business accessible have been on the menu for rather a long time. To paraphrase Teddy Roosevelt, smiling sweetly—in this case at service providers—is not going to get us very far if they do not understand that there is also a damn big stick behind that smile.

Might I suggest to my noble friend the Minister that the Government pursue a slightly more robust approach by introducing a scheme of tapered incentives for reasonable adjustments to be made? For example, businesses could be told that they had a certain number of years—I take the figure five at random; it could be fewer—to make the necessary adjustments. There could be a declining tax break for the first three years, no tax break in the fourth and a tax take—a penalty—levied by government for any non-compliance in the fifth year. Obviously the Government would also need to work in partnership with the relevant trade bodies, disability organisations and providers of ramps, induction loops and other disability aids to make service providers, particularly SMEs, aware that reasonable adjustments need not cost the earth. Might I also suggest that any guide produced to publicise the scheme has as its title the simple message: “The law is the law. It pays not to break it”? This report shows that 21 years after your Lordships’ House passed the Disability Discrimination Act into law we still need to join up the dots.

I welcome the Government’s stated commitment in paragraph 4 of the preamble to their response to improving attitudes. I also welcome their restated commitment to take steps to implement the UN Convention on the Rights of Persons with Disabilities, and the clear acknowledgement that such a commitment means that all government departments need to consider what the convention says when developing a policy that affects disabled people, including, in the case of the UN convention, disability before birth. This is particularly important because I am concerned that one department, the Department of Health, may be in breach of at least the spirit, if not the letter, of that convention as it relates to disability before birth. If this excellent report is to have a lasting impact and if we are committed to equality, we must allow disabled babies to have a future to enjoy equality. At the moment, many of them do not. The sad, shocking fact is that a diagnosis of disability in the womb means all too often that they are lucky to make it out alive.

Disability discrimination may have been outlawed after birth 21 years ago, but for disability diagnosed before birth, discrimination remains enshrined in 2016 in the law of our land. Take Down’s syndrome, for example. Some 90% of Down’s syndrome diagnoses result in termination, and that figure is likely to increase if the Department of Health approves the National Screening Committee’s recommendation that a test be introduced to make it even easier to identify Down’s. It is one thing to eradicate disability discrimination—and this excellent report powerfully shows the way forward on that. It is an entirely different thing to eradicate disability itself through termination. For that is what is happening, and not just on grounds of severe handicap, to use the terminology of the legislation—not that severity justifies discrimination. The Department of Health’s own figures for 2015 record that 11 terminations were carried out for cleft lip and cleft palate, which are easily rectifiable conditions.

I say to the Minister in good faith that, if the Government want to prove their commitment to tackling discriminatory attitudes, let them back my Private Member’s Bill. Let them make the time available so that my Bill completes its passage through your Lordships’ House and so that MPs, as the people’s elected representatives, have a chance to debate and vote on removing disability as grounds for termination.

We all know that some reports—not, I hasten to add, from your Lordships’ House—deserve to gather dust. This is not one of them. This report deserves to be a living document, to which we return on a regular basis and against which we measure progress. I look forward to doing everything I can to ensure that by eradicating disability discrimination in all areas of life both after and before birth, we do this report, Parliament and society justice in the years to come and help the Government embark on real, lasting and inclusive social reform.