Equality Bill

My Lords, I, too, thank the noble Lord, Lord Low, for tabling this important amendment. We have given long and careful consideration to whether it is appropriate to retain the Armed Forces’ exception in relation to disabled persons. As we have heard this evening, this exception has been carried forward from the current disability discrimination legislation. I hear what many noble Lords have said about the police and fire services, which have done away with their disability exemptions. However, the Armed Forces perform a role that is fundamentally different from organisations such as the police and fire services. All service personnel are weapons trained and need to be able to respond to the uniquely harsh realities and complexities of warfare. This involves deployment overseas and prolonged working in stressful situations and arduous environments. Service in the police and fire services is intrinsically different, not least because there is no requirement for everyone to be weapons trained or to serve overseas for prolonged periods. The Government do not therefore consider that a direct comparison can be drawn between services in such disparate organisations. We believe that it is right for decisions on operational effectiveness to be taken by Ministers, accountable to Parliament and based on military advice, not by the courts. Like the noble and gallant Lord, Lord Craig of Radley, we believe that the Armed Forces must be able to determine and set their own standards, based on the tasks to be performed. Combat effectiveness relies on teams consisting of fully able personnel in order to meet the worldwide obligation to deploy. The Armed Forces are called on to perform in a wide range of different tasks and great damage would be done if the base requirement for physical fitness was abandoned. It is important to ensure that personnel have the fitness attributes to cope with the physical demands of service in the Armed Forces. The Armed Forces thus have a medico-legal obligation to ensure that they do not recruit individuals who are clearly unfit for task and to protect vulnerable applicants from harm. Recruiting those who are not fit for task potentially endangers not only the individual’s health and well-being but also the safety of other personnel serving in the same unit or in the same operational environment. The noble Lord, Lord Low, rightly spoke of the diversity of disabilities and, as my noble friend Lady Wilkins and others have said, the Armed Forces no longer make generalisations about disabled people’s capacity to serve. Indeed, the Armed Forces already demonstrate their willingness to follow the spirit of disability legislation by recruiting people who have some degree of impairment, including learning disabilities, and by retaining service personnel who became disabled in the course of their duties. The noble Lord is absolutely right to say that there is much more that we could and should be doing in this area. The noble Baroness, Lady Masham, and the noble Lord, Lord Lester, spoke of a blanket ban of disabled people in the Armed Forces. Whereas the provision permits the Armed Forces to discriminate against disabled people, its purpose is not to allow the operation of a blanket ban. The purpose of the exception is to allow the Armed Forces to organise themselves so as to be able to operate effectively. The Armed Forces have a good record of recruiting and retaining service personnel. The retention of service personnel who become disabled, whom the Armed Forces have a clear moral obligation to look after, requires a sensible balance to be struck between the needs of the service and those of the individual. Adjustments for disabilities are made when practical, but it is not possible for the services to retain everyone who becomes disabled. Cases are considered on an individual basis against manpower requirements. While the services endeavour to continue to employ people injured on duty, where necessary in an alternative role, they do not artificially create posts to accommodate them. I add that the Armed Forces’ exemption is entirely consistent with European law. Member states have an exemption from the relevant directive, which says that, ""in so far as it relates to discrimination on the grounds of disability and age"," it, ""shall not apply to the armed forces"." In 2009, the UK ratified the UN Convention on the Rights of Persons with Disabilities, to which we entered a reservation on behalf of the Armed Forces to safeguard the exemption. The European Union has also ratified the convention without prejudice to the derogation in the directive for all member states’ Armed Forces. In response to the question of when the UK’s reservation to the convention will be reviewed, the Ministry of Defence gives careful consideration to whether its policies and practices meet our current needs or whether they could be revised. The MoD reviewed the current arrangements recently but concluded that it remains essential that we retain our reservation and the Armed Forces’ exemption from domestic disability legislation. We will, however, continue to keep these under review. I know that the EHRC has suggested that there should be a pilot exercise whereby the employment provisions of the Bill, plus specific justifications concerning combat effectiveness, should be simulated and that the exercise should be independently reviewed to determine any risk to the MoD’s ability to ensure the fitness of the people whom it recruits into the Armed Forces. However, we do not think that such an exercise would be helpful and would not want to run the risk of recruiting someone who was not fit for task. Recruiting those who are not fit for task potentially endangers not only the individual’s health and well-being but the safety of other personnel serving in the same unit or operational environment. Therefore, while I note what the noble Lord, Lord Lester, said about the potential for future challenges to our current position, for the moment we have not changed our position, although I have carefully listened to what noble Lords have said. I ask the noble Lord to withdraw the amendment.