Equality Bill

My Lords, in moving Amendment 101D, I shall speak also to Amendments 101E and 101F, which all amend paragraph 4 of Schedule 9. Their effect would be to remove the blanket exemption of service in the Armed Forces from the employment provisions of disability discrimination legislation. But it is important to be clear just what the amendments do and do not do. They amend paragraph 4(3) of the schedule so that it no longer disapplies Part 5—that relating to work—from service or work experience in the Armed Forces as regards disability. However, Amendment 101D adds, ""a requirement not to be a disabled person"," to the requirements which may be applied to service in the Armed Forces if they can be shown to be a proportionate means of ensuring combat effectiveness. The exemption I seek to modify was in the Disability Discrimination Act when it was enacted in 1995, along with similar exemptions in respect of service in the police, prison and fire services. In 2004, the police, prison and fire services were brought within the scope of the DDA by the regulations implementing the European directive on equal treatment in employment and occupation. But an exemption from that directive was negotiated in respect of service in the Armed Forces. That exemption is retained in the Bill and also formed the subject of a reservation to the UN Convention on the Rights of Persons with Disabilities when it was ratified last June. At first sight, trying to lift the taint of discrimination from the ban on disabled people serving in the Armed Forces seems like political correctness gone mad. What disabled person would want to make a point of serving in the Armed Forces if they did not have to? Of all the bastions of exclusion that one would most like to storm, the armed services would probably not rank high on anyone’s list. Surely it could have the effect only of undermining fighting capability. Disabled people need to recognise their limitations and be realistic about how far they take the principle of inclusion. Why, then, do disabled people care about this? The answer is that excluding any occupation lock, stock and barrel sends a very negative signal about disability and undermines the principle of full inclusion and citizenship for disabled people. Is it even necessary? What about all the civilian jobs that do not require combat effectiveness, including cooks, radio operators, quartermasters and the like? But a principle is not worth having if it flies in the face of all practicality. Therefore questions of practicality inevitably come into it. In the fighting services of today, it is said, sharp demarcation of roles no longer exists. You can be cooking one minute and fighting on the front line the next, or if not actually fighting on the front line, then fleeing for your life, which requires you to maintain a pitch of fitness which is out of the question for disabled people. This begins to make the argument based on the wide diversity of jobs available in the forces difficult to sustain. But there may be more to this than meets the eye. The argument that bans all disabled people from serving in the Armed Forces on the basis that people in wheelchairs or people who are totally blind could not possibly go into action is based on a very narrow and outdated stereotype of what disability is and certainly not one that is recognised by the DDA. There disability includes things like severe disfigurement, diabetes, controlled epilepsy, having had a mental illness at some time in the past, and many more conditions, none of which would necessarily disable a person from active service in the Armed Forces. What is to prevent such a person being fully combat-effective? This is the crux of the argument for sticking up for disabled people’s right not to be excluded automatically from serving in the Armed Forces. It is not about the diversity of jobs but the diversity of disabilities. The matter was considered in 1999 by the Disability Rights Task Force, of which both the noble Baroness, Lady Campbell, and I were members, along with the question of service in the police, prison and fire services. The MoD was understandably concerned about operational effectiveness. It argued that disability, or a history of disability, was not compatible with the need for a combat-effective fighting force able to undertake military operations anywhere in the world at any time. The task force recognised the special nature of the Armed Forces and the significant efforts they make to retain personnel who become medically unfit. However, it did not consider there was a case for a major public sector employer to be exempt from the provisions of the Disability Discrimination Act or that disabled people in the Armed Forces should be denied protection against unfair discrimination in employment. It noted that, under the DDA, employers are not required to do anything that is unreasonable and, for example, employ or retain someone who cannot do a particular job after any reasonable adjustments have been made. This acknowledged the concerns of the defence chiefs about being sued by disabled people claiming to do things which they plainly could not do. The task force therefore recommended that the employment provisions of the DDA should cover the Armed Forces as well as the police, prison and fire services. But, in the case of the Armed Forces, it recognised that adequate safeguards needed to be put in place to ensure that operational effectiveness was not compromised. That is what my amendments do. They would relax the total exemption of service in the Armed Forces but add the requirement not to be a disabled person to the requirements which may be applied to service in the Armed Forces if they can be shown to be a proportionate means of ensuring combat effectiveness. In this way, disability is placed on the same footing as the requirement to be a man or not to be a transsexual person, and the safeguards called for by the task force in the interests of combat effectiveness are guaranteed. The matter was considered again last April by the Joint Committee on Human Rights in the context of reservations to the UN Convention on the Rights of Persons with Disabilities. It said that it had seen no evidence to support the Government’s position but that the exemption was justified and appropriate. It noted the conclusion of the EHRC that lifting the exemption which had previously applied to the police and fire services, which both place similar demands on their personnel, had had no negative impact upon the ability of both services to determine objectively who joins the service or upon operational effectiveness and that so far no other EU party to the convention has felt the need for such a reservation. Given the breadth of the proposed reservation, the committee considered that it is open to challenge as being incompatible with the object and purpose of the convention, which the UK has ratified, and reiterated its recommendation that this should be reconsidered in the context of the Equality Bill. If the Government decide to lodge a reservation in the terms proposed or any alternative based on the principle of combat effectiveness, we recommend that they should commit to keep the reservation under review and undertake to reconsider the necessity for it within six months of Royal Assent. It is very disappointing, therefore, that the Government have not seen fit to reconsider the matter in the context of the Equality Bill. What we are speaking of here is a right not to be automatically excluded from service in the Armed Forces, not an automatic right to do so. No one is saying that any disabled person can perform any role in the services. In the words of the noble Lord, Lord Lester of Herne Hill, speaking in the debate held in Grand Committee on the ratification of the UN convention: ""Recruitment should be based on assessments of individual merits, rather than on the basis of stereotype or prejudice".—[Official Report, 28/4/09; col. GC26.]" All that disabled people want is the right not to be subjected to a blanket ban which states that the one thing a disabled person cannot be allowed to do is serve in the Armed Forces of his country. I beg to move.