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Equality Bill

Volume 716: debated on Monday 25 January 2010

Committee (4th Day) (continued)

Amendment 101D

Moved by

101D: Schedule 9, page 165, line 39, at end insert—

“( ) a requirement not to be a disabled person”

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 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.

My Lords, I strongly support Amendment 101D moved by the noble Lord, Lord Low, which seeks to remove the Armed Forces exclusion from the provisions of the Disability Discrimination Act. The noble Baroness, Lady Campbell, also very much wanted to support this amendment. As the noble Lord has said, the matter was strongly pressed when she was a member of the Disability Rights Task Force, but unfortunately, although she would have liked to be here, the hour has grown too late.

The military has a narrow view of what constitutes disability. Perhaps I may expand on that. The military believes that all forces personnel must be fit to be deployed instantly to any part of the world and to be fully operational in whatever circumstances they happen to find themselves. Some people believe that inclusion in the DDA would mean that the military would have to consider blind soldiers, submariners in wheelchairs and so on. They have not grasped the concept of genuine occupational requirements. It is perfectly reasonable for the military to impose a fitness standard for new recruits and, providing that the standard can be justified, people who do not meet it could be rejected. The DDA permits this. However, the military has a blanket ban on disabled people.

Everyone should be considered on their merits. It is worth noting that when Sir Bert Massie was chair of the Disability Rights Commission and spoke to military commanders, they were shocked to learn that facial disfigurement counted as a disability. Ironically, the many soldiers who have been burnt in the course of their duty would be protected if the military were subject to the DDA. When the Act was first passed, the uniformed police and the fire service were also excluded. They used the same defence that is now used by the Armed Forces. From 1 October 2004, the exemptions for the police and the fire service were abolished, and it is interesting to note that the performance of both has continued to improve.

A recent report in the press showed that the Armed Forces were doing a great deal to retain soldiers who have been injured in Afghanistan. To a large extent, the military is already beginning to implement some of the principles of the DDA, and surely the exclusion of the military from the Act makes less and less sense as the years pass. I suspect that part of the anxiety within the military is the fear of appearing in civilian courts because of the belief that civilians cannot possibly understand the rigours of military life. This is the same belief that was applied to gender and race, but the military is now subject to the law regarding both; disability is still the exception. I urge noble Lords to think again about this exclusion anomaly and to support the amendment.

I would like to start by recognising the determination and commitment to this theme of the noble Lord, Lord Low, over many years. He wrote to alert me to his Amendments 101D, 101E and 101F and, predictably, wanted me to speak in support of his proposal. The noble Lord is aware that I am not going to speak in support of his amendment.

I am not the first former Chief of Defence Staff not to be in favour of, or attracted to, this idea. Way back in 2000, the noble Lord, Lord Low, was very active in seeking to lift the restrictions on disabled persons from joining and serving in the Armed Forces. At that time, the then serving Chief of the Defence Staff—now the noble and gallant Lord, Lord Guthrie—spoke in a very public way against the idea, no doubt much to the disappointment of the noble Lord, Lord Low, and others seeking honourable ways to eradicate discrimination against the disabled. The persistence and commitment shown by the noble Lord deserves acknowledgement but I share the reservations of the noble and gallant Lord, Lord Guthrie.

The Minister will be well briefed on the reasons for the policy of the Ministry of Defence, so I shall not attempt to cover all the points in her notes. Only a fortnight ago, the Under-Secretary of State for Defence and Minister responsible for veterans, Mr Kevan Jones, was reported as giving a number of cogent reasons why the Armed Forces must confine their search for recruits to those individuals who meet certain medical, physical and fitness standards. To do otherwise is to limit the potential for flexible and worldwide deployment, following training, of individuals for their particular roles. The Ministry of Defence’s policy is clear and robust, and with good reason.

Noble Lords will recall that in recent years the Armed Forces have not only been heavily committed to operations but have been steadily civilianising posts where front-line fighting and operational capabilities are not required. This applies not only to HQ posts but also, through the use of public finance initiatives, to many other tasks once undertaken by men and women in uniform but now contracted out to civilian companies. So on a practical level, the opportunities that once might have existed for some disabled individuals are all but gone. I know that the noble Lord, Lord Low, is not expecting the Armed Forces to recruit disabled men or women to tasks that they are unable to perform satisfactorily, so realism as well as principle is at stake.

As a good employer, the Armed Forces are rightly keen to do all that they can to retain trained individuals who have been wounded or injured while on duty and who wish to stay. For the very few who remain and cannot return to full time operations, there is, hopefully, still some small scope to use them productively. Indeed, I hope there always will be. It is both morally right as well as helping to amortise the cost of their training and experience to fit them in to a less demanding position—a position which could well not be available if the Armed Forces were to change their policy and recruit a uniformed element solely to fill such positions. We could offer no hope for those who have fought and recovered from their injuries. Surely that would be even more unfair.

The less expensive alternatives of employing a civilian or contracting to industry have helped to reduce the size of the uniformed services, thereby cutting pay and pension provisions and easing pressures on the defence budget. I do not foresee any change in that position. There may well be opportunities for the disabled in these non-uniformed posts where they are able to integrate with and support the Armed Forces in their vital work, but for those who seek to become full-time members of the Armed Forces, the present MoD recruitment policy is realistic, rational and reasonable. I do not support the amendments.

I do not intend to draw upon my rather inglorious career in national service as a second lieutenant in the Royal Artillery, although I should say, as one who was at 24 hours’ notice to help invade Suez, that I do not think that if the amendments of the noble Lord, Lord Low, had been in force, we would have been any less effective in some areas than we proved to be. That, though, is beside the point.

I shall explain why we so strongly support the noble Lord, and not only for the reasons given in the report by the Joint Committee on Human Rights, to which I was party. I shall not read the relevant two pages of the report now—they are there for everyone to read. Instead, I shall explain why the Ministry of Defence and senior members of the Armed Forces have in the past persistently opposed the application of equality legislation on very similar arguments to those that are now being deployed in relation to disability. Not only is that true of the Armed Forces but it was once true of the police service.

The case that I am most proud to have argued in my career was not about the Armed Forces but about the police service in Northern Ireland. In 1986 the chief constable of the Royal Ulster Constabulary had decided, a few years before, that in order to combat the IRA and terrorists it was important that the part-time reserve police force should be composed of men, because it was ungallant to expose women to the risk of death by terror and because men were more likely to be effective than women in combating terrorism in the police service. The Minister of the day blocked the women’s access to justice by granting a national security certificate, which was, like the present law in relation to disability in the Armed Forces, a blanket ban allowing of no exceptions.

We eventually finished up in the European Court of Justice, this being a case about sex discrimination, and the court said, “Even in terms of national security, you must not have a blanket ban”. The case went back to Belfast, I had the privilege of cross-examining the chief constable, evidence was given in camera, and of course it turned out that the women were every bit as able as the men—more able, in certain posts—in combating terrorism. In the end the chief constable had to concede and the policy had to change. That was a case about police power, not Armed Forces power, but it involved violence, the use of weapons and all the rest of it.

Next, the Ministry of Defence decided, in its wisdom, that women could not enter the Armed Forces if they were pregnant, nor if they became pregnant. It became necessary for us to bring a judicial review challenging that on the basis of European law. Ridiculous though it seems, that was the policy, and it was deployed with powerful arguments by the military in the same way that it is doing now. The Ministry of Defence was forced reluctantly to change that policy.

The next case was with regard to homosexuality. There was a blanket ban on becoming a member of the Armed Forces if you were openly gay, so Mr Lustig-Prean and others eventually had to go to the European Court of Human Rights in order to establish their right to equal treatment and overturn the blanket ban.

Now we are faced with a ban on disability. The Joint Committee on Human Rights questioned the Minister from the Ministry of Defence, received written evidence and so on. We could not understand how it was possibly justifiable to ratify the UN Convention on Disability with a blanket reservation allowing any discrimination on the basis of disability rather than a flexible test that, of course, made sure that members of the Armed Forces were combat-effective in the posts that were needed. Now we face very sensible amendments by the noble Lord, Lord Low, which introduce proportionality and flexibility, while maintaining the combat effectiveness of the Armed Forces.

I have no doubt whatever that Ministers will have to get up on behalf of the Ministry of Defence, which—and I say this with the utmost respect—has never knowingly been in the vanguard of reform in the equality area, to explain why the Government cannot accept these amendments because the MoD will not allow it. Very well. If that is the Government’s position I predict that, at some point, somebody or a group of disabled people will challenge the Government in the courts and they will succeed.

For those reasons I oppose the blanket ban and strongly support the noble Lord, Lord Low. I admire him hugely for his persistence in raising the matter and I only wish that glasnost would come to the MoD.

My Lords, in this amendment we speak of brave and honourable people, who have risked their lives. To have a blanket ban cannot be good for rehabilitation. The Committee should think for a moment of some past leaders. Douglas Bader lost both legs, yet had very high morale. Nelson had one eye. Napoleon had one arm. They were leaders of men. Rehabilitation is so important. If people from the services feel that they have no future, rehabilitation goes downhill.

I hope that the amendment of the noble Lord, Lord Low, will be looked at carefully because a blanket ban is a dangerous thing.

My Lords, I also support my noble friend Lord Low’s amendment. Listening to this discussion takes me back even further to the Sex Discrimination Act, where there were various exemptions for the police over height requirements for certain jobs and goodness only knows what. We have moved a little way since then.

I understand fully what my noble and gallant friend Lord Craig is saying. However, given the speed at which we are treating people with disabilities, people are living who might well not have lived in the past, We have a proportion of our population who have absolutely the same rights as the rest of us to lead a full and fulfilling life. I suggest that we follow the examples that have been given. It is not an absolute requirement. Clearly, reasonableness dictates what can and cannot be done. We already know that those who are in the armed services have been looked after, resettled and so on quite effectively. We are saying that entrance should not be blocked either. That is a very important point.

I hope that the Minister will give some hope that this will be seen as part of our future behaviour and attitudes to everyone, whether or not they are disabled according to this huge range of so-called disabilities that we have now got—and we have heard how wide the range is these days—to lead full and satisfying lives.

My Lords, I pay tribute to the noble Lord, Lord Low of Dalston, who put across his amendments in a very reasonable way, rehearsing a number of the arguments we have heard before. This is a very difficult issue. Everyone who has participated in the debate has contributed to a greater understanding of what is at stake here. Listening to the debate, the problem I had was that there were so many cross-issues here. Perhaps the most important concerns what happens to someone who is injured or suffers some form of illness or disability while on active service. Certainly, it is my experience that our Armed Forces look after those who suffer in that way exceedingly well. Issues around this have arisen in the past, but in every case that I have investigated I was satisfied that rehabilitation was very much at the top of the priorities for the individual concerned.

Therefore, we come back to the point raised by the noble Baroness, Lady Wilkins, about the fitness standard. I can see that that can be justified. We are asking our Armed Forces to do more and more, and we pride ourselves on our flexibility and the ability to utilise everyone who is part of the team on the front line. The noble and gallant Lord, Lord Craig of Radley, knows a tremendous amount about this subject. We should heed his words that the situation is being addressed by the Ministry of Defence in a realistic, rational and reasonable way. Confronted with that evidence, I need some persuading that we should change the law. The noble Baroness, Lady Masham of Ilton, said that a blanket ban, on the face of it, seems a dangerous thing. I am not sure that it is a dangerous thing, but there has to be a broader attitude towards disability than we have at present. I am not sure that that should apply to the front-line forces, but I want us to put rehabilitation much higher up the list of priorities.

As always, the word “reasonable” summarises the attitude of the noble Baroness, Lady Howe of Idlicote, to all these issues. She used that word again tonight. Is it reasonable to continue in the way that we have? The noble Lord, Lord Lester, knows a tremendous amount about this subject and I bow to his expertise. I said earlier that we should try to simplify, rationalise, consolidate and codify the existing law so that everyone can understand it. I think most people would understand that you have to have able-bodied people on the front line who are able to undertake all those tasks which put their lives at risk in defence of freedom and in our defence.

I am grateful to the noble Lord. He keeps using the phrase “the front line”, but does he realise that the blanket ban we are talking about does not apply only to the front line? Does he think that it would be good to protect ourselves against the kind of litigation about which I have warned?

I was really following the noble and gallant Lord, Lord Craig of Radley, when he pointed out that in today’s flexible fighting force, the front line summarises the line to which you could be called at any time, whatever your task. I think that the noble Lord, Lord Low of Dalston, conceded that in opening the debate. If one wants to see an even more flexible fighting force, I am not sure that we should impose these restrictions on the forces’ ability to provide the fittest possible fighting force. I agree with the noble Lord about the need to avoid litigation. We must ensure that when this Bill eventually leaves this House it is immune to such challenges, which could otherwise occur unless we make the law simple and easy to understand.

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.

I am grateful to everyone who has spoken. In particular, I am grateful to my noble and gallant friend Lord Craig of Radley for the collegiate way in which he expressed his opposition to my amendment. We remain in mutual respect of one another, but in mutual disagreement.

I did not expect the Government to roll over and accept the amendment. The Minister’s response was fairly predictable. I have heard it several times before. The Ministry of Defence may keep the matter under review, but its response does not change. It has not changed for the past 10 years and I do not expect it to change in a hurry. However, like the noble Lord, Lord Lester, I predict that it will have to change one of these days, just as the responses of the police, prison and fire services have had to bow to the onward march of our concern for equality in this society.

The noble Baroness said that the stance of the British Government is consistent with EU law. That is perfectly true, in that the European Union permits an exemption in respect of service in the Armed Forces as regards disability. The UK just happens to be isolated and alone as the only country within the EU that has felt the need to avail itself of such an exemption.

I shall try to be a little conciliatory. It is disappointing that the Government have not felt able to be a little more flexible, given that we framed the amendment in such a way as to give the Armed Forces a get-out, an exception, in cases where excluding disabled people was a proportionate response in the interests of combat effectiveness. However, there we are—the Government have not felt able to go that far tonight.

When we on the task force discussed these matters with the Ministry of Defence, I suggested that if the MoD were to relax the blanket ban, perhaps a code of practice could be designed in such a way as to cater for the concerns of the service chiefs. I respectfully repeat that suggestion to the Government. I am sorry that it has not been followed up since we discussed it on the task force.

If the noble Lord will allow me, I find this a fascinating suggestion. Had it come earlier it might have given rise to an extended but certainly worthwhile debate. Can he clarify whether he has raised this idea before? I am not saying that I would be in favour of relaxing the blanket ban, but certainly I am interested in whether some form of code could be worked up which would allow people with disability and in general to support the Armed Forces in some way, other than being part of the flexible fighting force. Has such a code been considered in the past? I cannot recall that it ever has.

I am grateful to the noble Lord for his positive intervention. I did not raise this before only because I had kept it in reserve until I had heard the Government’s response. Given the response that we have had from them, it seemed appropriate to throw in that suggestion in winding up. We suggested a code of practice when the task force was considering these matters, and it was taken up by the Disability Rights Commission when it was established. There were perhaps some preliminary discussions—I think it was floated with the Ministry of Defence—but it does not appear to have got off the ground. I am grateful to the noble Lord for his positive response to the suggestion, and I would be extremely grateful if the Government would pick this up to see if it would represent a way forward or out of the complete impasse at which we seem to be regarding the exemption.

My Lords, clearly it is an interesting suggestion—like the noble Lord, Lord Hunt, I was not aware of it. I certainly could not agree to look into it in the course of this Equality Bill. The Government’s position now is absolutely clear, we are not going to waver and we are not going to consider such a code in the context of the Equality Bill. However, I will undertake to take back the suggestion of a code to see if we can reflect further and perhaps work on this proposal. As I said, this will not be in the course of the Equality Bill.

I am grateful to the Minister for that response. I would not expect to see it in the Equality Bill, but perhaps it can be picked up afterwards. No doubt if we could agree on a code of practice, it would have to come before Parliament and noble Lords would then have an opportunity to pronounce upon it. With that constructive end to the debate on all sides, I am happy to withdraw the amendment.

Amendment 101D withdrawn.

Amendments 101E and 101F not moved.

House resumed.