Policing and Crime Bill

Baroness Thomas of Winchester Excerpts

Committee: 4th sitting (Hansard - part two): House of Lords
Wednesday 9th November 2016 Lords Chamber

[Baroness Deech (CB)]

Amendment 210 is in my name and the names of the noble Baronesses, Lady Thomas, Lady Pitkeathley and Lady Campbell—all former members of the Lords Select Committee on equality and disability, which reported in March this year. The report found many areas of transport, employment, education, communication and law enforcement failing in their impact on disabled people. We made recommendations that were carefully crafted to be cost neutral, or very inexpensive, and that would ensure a fair deal for the growing number of disabled people. Very few of our recommendations involved changing the law, but this is one of them. It is a simple, economic and transformative amendment, central to our recommendations, which would go a long way to adjusting our living environment to the needs of disabled and elderly people.

Licensing authorities have a duty, under Section 4 of the Licensing Act 2003, to promote, in their duties of inspection and licensing,

“the prevention of crime and disorder … public safety … the prevention of public nuisance; and … the protection of children from harm”.

Amendment 210 would add a fifth enforceable duty, namely compliance with the Equality Act. In taking evidence from disabled people and those involved with them, the Select Committee uncovered a weakness in enforcing existing duties, and at the same time found a way to improve life for disabled people and all of us as we get older. In their response to our report, the Government said that since the Equality Act already applied to businesses and employers, no more was needed, and that they were holding discussions with the hospitality industry to promote increased accessibility for disabled people. It is true that equality law applies across the board, but the issue is enforcement where equality is being denied. Sadly, it is clear that mere guidance and good will do not do the trick.

With this amendment, licensing authorities could require, for example, old and existing buildings to be made accessible. When they are out inspecting and find disabled facilities not being provided as they should be, they could review the licence. They could issue a warning or, in the last resort, remove a licence from an entertainment premises that refused customers because of their disability—or indeed sexuality or race—or charged extra to disabled visitors. At the moment, the licensing authority can only remind owners of premises of their duties under the Equality Act, and they have no teeth. Where the situation is not remedied, this amendment would shift the enforcement burden away from the individual disabled person or the person discriminated against—who, under existing law, have to take legal action on their own—to the local authority. It is self-financing. The functioning of this amendment would not depend on taxpayers’ money.

This extra condition in the Licensing Act would give local authorities in every sphere the power to say, “We are not going to licence you unless we see the premises are fit, or as fit as they can be, for disabled persons’ use”. The Select Committee learned that the National Association of Licensing and Enforcement officers would support this. Businesses that already comply would have nothing to fear from it. Indeed, some already behave as we would all wish. For example, Newham Council denied planning permission unless all new stations in Newham were step-free. By way of contrast, the committee heard evidence that new shared spaces and pedestrianised shopping areas were designed sometimes without regard to accessibility by disabled people. It is no answer to say, as Ministers tend to, that guidance to the authorities is all that is required. Guidance is no substitute for enforceability.

The United Nations Committee on the Rights of Persons with Disabilities carried out an inquiry into the condition of the UK’s disability programmes and reported on 6 October. The United Nations committee condemned the lack of cumulative assessments of the impact of cuts and other recent policies affecting disabled persons. It called on the UK to ensure that in the implementation of legislation, policies and programmes, special attention is paid to the most vulnerable disabled people and it requires the UK to report back on the steps taken to comply with the United Nations Convention on the Rights of Persons with Disabilities. That report is not out of date, it is bang up to date. Amendment 210 would not only go a long way to achieving the aims of the Lords Select Committee but would assist the Government in making a decent response to the United Nations committee and avoiding international opprobrium. I beg to move.

[Baroness Thomas of Winchester (LD)]

My Lords, my name is also on Amendment 210 which, as the noble Baroness, Lady Deech, has said, is one of the recommendations of our committee. I am particularly speaking about how the amendment would apply to existing, rather than new, premises. Before I go any further, I should say something about the Select Committee on the Licensing Act. I do understand what is being said but my mind goes back to the words of a pop song of the 1960s:

“Catch a falling star and put it in your pocket

Save it for a rainy day”.

This might be, “Catch a passing Bill and put it in your pocket”. That is an important point: maybe some Members do not quite appreciate how difficult it is to get Bills into the legislative programme.

The vague terms used by the then Secretary of State for Education and Minister for Women and Equalities in her evidence to the committee about spreading good practice rather than legislating in this area simply will not do, as it does not work. The licensing solicitor at Sheffield Council, Marie-Claire Frankie, was clear when she gave evidence to our committee:

“What could strengthen the licensing authority and give them the ability to enforce it is to make a fifth objective related to equality”.

She said specifically that a friendly word in somebody’s ear at the premises, even if followed up by a letter from the local authority, just did not work. She went on:

“For old and existing premises that transferred over before the Licensing Act, there is not anything that we can go back and revoke licences on or anything that we can add conditions on. Because of the licensing objectives, there is no way of getting it before a committee because they are not breaching crime and disorder; they are not committing public nuisance; they are not publicly unsafe; and they are not endangering children. If there was an additional objective relating to equality, there would be a mechanism to get it before a committee, to enable the local authority and the licensing authority to do something”.

We are talking only about reasonable adjustments, not a mandatory lift, say, if a small club, restaurant, pub or other entertainment venue is entirely upstairs. No one wants premises closed down, but what those of us who are disabled want is as much accessibility as possible, and we do not want to have to go to court to get such access. I hope the Government will accept the amendment.

[Baroness Campbell of Surbiton (CB)]

My Lords, I am also very pleased to add my name to Amendment 210 in the name of my noble friend Lady Deech, who I must say not only ably chaired the Select Committee on how disabled people are faring under the Equality Act but has become a passionate leader for access.

There is a recurring theme in responses to calls for statutory enforcement of disabled people’s access rights, which is that guidance and awareness is much better. This is clearly exemplified in the recent rejection of my amendment to the Bus Services Bill and the lacklustre response to the Select Committee’s report on how disabled people are doing under the Equality Act, as my noble friend Lady Deech has powerfully said. If guidance works so well, why, 21 years after the passing of disability discrimination legislation, are disabled people still denied access to so many pubs, clubs, restaurants and entertainment venues because they are inaccessible? Is it because we cannot enjoy ourselves? I do not think so. I believe there are two major reasons.

First, many service providers who operate from licensed premises are either unaware of their duties under the Equality Act or think they can ignore them with impunity—from the local publican to the London club owner. To most, it is a remote piece of legislation, and only a few understand its relevance. It does not touch the general day-to-day running of the business, so little thought is given to disabled people’s access needs unless these are brought to their attention, usually by a very frustrated and angry disabled person who cannot get in. However, if their licence to trade from those premises was in jeopardy of being withdrawn on the grounds of inaccessibility, the importance of the duty would be so much clearer and change would happen.

Secondly, disabled people, as has been said already, have borne the sole burden of enforcing their rights to social inclusion for years. These are the people least likely to have the resources to challenge a barrier-ridden society, especially when access to justice has become so difficult. So, venues and facilities are likely to remain inaccessible. Our Select Committee received a lot of evidence from witnesses illustrating this. In fact, while waiting to speak today I have received 21 tweets from disabled people telling me of pubs, restaurants and facilities in their area that they cannot get into— 21 tweets in just over an hour.

The Government need to back a more proactive enforcement stance. Compliance with the Equality Act should be added to the objectives of the Licensing Act to ensure that it is followed. When the Select Committee visited a local centre for independent living in Tower Hamlets, I was struck by the similarities of people’s experiences and frustrations with my own 25 years ago, when I was actively campaigning for the Disability Discrimination Act. They told me about the general reluctance to make reasonable adjustments, and the excuses are the same now as they were then: “no money”, “burden on business”, “more advice and guidance needed”. You name it, disabled people have heard it, year on year. Two weeks ago I was having a similar exchange with the Minister, the noble Lord, Lord Ahmad, over my amendment to require accessibility policies as a condition of granting a bus operator’s licence. Today is Groundhog Day, this time over empowering local authorities to withdraw a licence to trade or impose conditions if the Equality Act is ignored. This would not add duties—they are already in place—but it would help to enforce them. What is offered? More guidance. The status quo prevails.

No wonder disabled people are worn down and cynical. No wonder the UN Committee on the Rights of Persons with Disabilities believes the Government are failing in their duty to progress disability equality. This is not my idea of “a society that works for everyone”. I really hope the Government will break the mould today and seriously consider Amendment 210.

Policing and Crime Bill

Baroness Thomas of Winchester Excerpts

Report: 2nd sitting (Hansard): House of Lords
Wednesday 7th December 2016 Lords Chamber

In conclusion, the Select Committee’s report, from which this excellent amendment stems, sent an undeniably powerful message to disabled people that the anticipatory nature of the duty to make reasonable adjustments is not up for renegotiation. Disabled people should not have to demand access. Parliament needs to convey that same simple message tonight. Accepting this amendment would enable the Government to prove to disabled people that they mean what they say when they commit to building a country that works for everyone. I hope they will seize this opportunity to honour that pledge.

[Baroness Thomas of Winchester (LD)]

My Lords, it is a pleasure to follow the powerful speech of the noble Lord, Lord Shinkwin. As the noble Baroness, Lady Deech, has said, this amendment is more focused than the one we tabled in Committee, but it is essentially about the same issue: giving the licensing authority a few more teeth by way of the licensing objectives to ensure that disabled people can access as many licensed premises as possible.

We are not being unreasonable. The key phrase for what a licensee should do to allow disabled people to access their premises is still only to make a “reasonable adjustment”. A licensed premises which, for example, is entirely upstairs with no lift available would still not be caught by this addition to the objectives. I dare say the Reform Club would not be either, because it is up a flight of stairs, as many of us who cannot access that premises know.

Crucially, the amendment would transfer the onus to the licensing authority from disabled people themselves. If a disabled person cannot get into a pub, club, or restaurant, or any other licensed premises, why should they have to take action themselves which might mean taking the licence holder to court? Our lives are hard enough now without having to enforce the law too. This is a golden opportunity to do what many organisations think should have happened years ago—to have licensing officers who are able to take action beyond writing a licensee a letter or having a word in their ear.

Does this mean extra work for the licensing authority? No, because we are told that it visits licensed premises all the time. Are we putting an unfair burden on licensees? No, because we are talking about only a reasonable adjustment, not an unreasonable one. The whole point is to take the burden off the shoulders of the disabled person who, under present circumstances, is made to feel guilty for making a fuss, or even for not being able to join a group of friends for a drink or a meal. It happens all the time.

I believe the tide will turn one day when there are even more disabled people out and about than there are now. This is a perfect opportunity to act now.

[Baroness Hamwee (LD)]

We support the amendment from these Benches. I congratulate those who tabled it on their persistence and on taking forward the work of a Select Committee to seek to translate it into legislation. That is an example of how this House can work so effectively.

As others have said on many occasions, we should not have to legislate, but it seems that we do in order to change attitudes. Sometimes we have to make something enforceable before people come to understand that the subject is actually a right. The amendment has been described as anticipatory. Unfortunately one often sees that it is too easy for someone who infringes a rule not to take the sanction seriously. It can be regarded as an operating cost. If you are caught out and have to pay a penalty it is tough, but it is part of the costs of the business.

The value of the amendment is that bringing the issue into the licensing process will concentrate minds at the right point. I slightly take issue with my noble friend Lady Thomas, who talked about teeth. I say that it is about a mindset—so minds rather than teeth —but I think that is the only difference between us.

As the noble Baroness, Lady Deech, said, it is about mainstreaming the issue, making sure that everyone approaches it with the right objectives in mind. It is very harsh—almost offensive—to expect the objectives of the amendment to be met by individuals who find themselves unable to get into a set of premises, to use that as the example, not having known beforehand that there would be a problem, and to put the burden on them, in retrospect, to take it up—and we know that these rights are difficult to enforce, because individual rights are not easily enforced.

The Minister said in Committee that it would be inappropriate for licensing conditions to refer to specific legislation, because there is already an obligation to comply with that legislation. The new formulation is very neat. The current objective is shorthand, in just the same way as the other four licensing objectives are shorthand—one of them is for protection of children, safety is another. Indeed, the Minister gave examples of that in Committee. There would not be a call for the amendment if guidance worked and if good practice, which is no doubt observed by the good practitioners, was observed by those who have made the amendment necessary. We are very enthusiastic in support of the amendment, although it is sad to have to be enthusiastic for it.