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Lord Skelmersdale moved Amendment No. 76:
The noble Lord said: Cancer is always a most serious cause of concern, and the most likely cause of death—if you separate, as I have learnt to do over the past 10 or 11 years, heart disease from stroke, which medical statistics group together. The National Statistics Office says that in 2003, the last year for which we have figures, there were almost 140,000 deaths from cancer, 26 per cent of total deaths. This amendment seeks to persuade the Government to treat all cancers the same for the purposes of the DDA.
Currently the Bill allows the Secretary of State to lay orders to disapply so-called "non-serious" cancers, which will not be covered by the very welcome inclusion of cancer in the Disability Discrimination
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Act. We had a very short discussion of the matter at Second Reading, when, atypically, I cross-questioned the Minister during her winding-up speech. Before Second Reading, we knew only that there was to be such an excluded list. The noble Baroness said, in effect, that she did not know what was to be on it, but then stated subsequently:
"We are consulting on basal skin cell cancer and squamous cell cancers".—[Official Report, 6/12/04, col. 710.]
The noble Baroness went on, after my intervention, to mention cervical cancer, which can be treated by cone biopsy. We now know of three forms of cancer, which are likely to be—although I understand that it is not yet settled—on the excluded list.
I am no medic, and plenty of other Members of your Lordships' House know much more about cancer than I do, although there are no obvious examples in the Grand Committee at present. I hope that we will hear from those noble Lords before too long. However, I do know that there are very few types of cancer, if any, which, if not treated quickly, will not spread with devastating effect. Once cancer has a hold on the body, it will normally after months or years hit a major organ, and death is then inevitable. Although not a case of minor cancer, my mother, for example, went to her GP because she had discovered a lump on her breast. He examined her and said, "Nothing to worry about. Come back in six months when I am back from being a locum in Australia". She duly did, and in six months she had to go into hospital, resulting in the removal of the breast. Alas, despite further treatment, it was not sufficient, and two years later she died of cancer of the liver. So I make the point that cancers spread.
None the less, it is not for medical reasons per se that I believe the Government have added cancer to the definition of disability. It is because they have been convinced through the cases brought by the Disability Rights Commission that people with cancer, particularly but not exclusively of working age, are discriminated against. They are discriminated against in the areas of employment, mortgage applications, insurance and health and travel insurance, to name but four.
The key to the DDA is whether less favourable treatment is justified. That is covered by An Insurer's Guide to the Disability Discrimination Act 1995, which says:
"In relation to the terms on which the service is provided, the difference in terms reflects the greater cost to the provider of services in providing the service to the disabled person".
The insurer should avoid imposing precautionary higher premiums where there appear to be no definite grounds for justification. The Association of British Insurers has told me that this is the case. But—and it is a very big but—this applies only to the DDA, as amended, to qualify a person as disabled.
If we do not remove this exception to the Act, Clause 17 will mean that there are two lists: an A-list of cancers that are covered, and a B-list that will not qualify. The B-list will not be protected from precautionary—I do not go quite as far as Macmillan Cancer Relief and describe
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them as "scandalously prohibitive"—premiums by the Bill. I came across several cases in my research. The DRC case study No. 20 concerned a gentleman who applied for and was ultimately offered a job that was not due to start immediately. So, perfectly reasonably, he went on holiday. While he was away, he discovered that he had skin cancer. Incidentally, I have been told that the Government are considering skin cancer for the excluded list. He e-mailed his employer to explain and to delay his start date. The job offer was promptly withdrawn. Fortunately, at least in part, the DRC took up his case and a settlement was reached at £12,000 to reflect loss of income and injury to his feelings.
I have spoken for long enough. The fact is that such an episode should not have occurred. It would not have done if melanomas were not on the excluded list. The Government need to make a very good case indeed for having an excluded list at all. This amendment seeks to delete that list. I beg to move.
Lord Carter: My Amendment No. 78 is in this group. It approaches the cancer situation from a different angle so I shall not add to anything that the noble Lord, Lord Skelmersdale, has said on his amendment.
It seems to me that my amendment is so logical that the Minister must accept it. It states:
"A cancer prescribed under sub-paragraph (2) means a cancer where the Secretary of State has reasonable grounds for believing there will be no risk of discrimination if the cancer is prescribed".
Presumably, there is no chance that the Government would wish to prescribe a cancer if they thought there was a risk of discrimination, so they would be going through the process anyway. It would subject the prescription of a cancer to the test of unjustified discrimination on the basis of a cancer diagnosis where assessed as minimal by an independent body charged with giving advice to the Secretary of State.
This amendment would link the exclusion of a person with a specific type of cancer from the protection of the Bill with the level of discrimination experienced as a result of being diagnosed with cancer as opposed to simply the initial treatment of the cancer. It would thereby recognise that, as with MS and HIV, discrimination against a person diagnosed with cancer is often made on the basis of the diagnosis of cancer per se rather than the type of cancer and the unpredictability of the condition. In the case of cancer, the presumption is of an increased likelihood of recurrence, even if an individual has had a minor cancer or has made a good recovery. It would only require the Secretary of State to demonstrate that there has been an assessment of the risk of discrimination attached to the prescription of a cancer.
It is worth pointing out that the Under-Secretary of State, Maria Eagle, in a letter to Roger Berry, said that:
"People with cancer experience disability discrimination based on stigma from the point at which a diagnosis was made. Cancer is no different from HIV in this respect".
Since, in deciding whether they should prescribe a cancer under the Bill, the Government will have to go through the process of satisfying themselves that the prescription will not produce discrimination, Amendment No. 78 is entirely logical.
Lord Skelmersdale: Before the noble Lord, Lord Carter, finishes, can he identify any forms of cancer that would fall within the scope of his amendment? If there is none, I should have thought that the correct answer would be to leave out the exclusion subsection to which I referred just now.
Lord Carter: I do not understand the point. I thought that this concerned the process by which the Government decide to prescribe a cancer; it is not linked to types of cancer. I presume that when the Government are drafting a regulation to prescribe a cancer, they will satisfy themselves that it is not the sort of thing that would risk discrimination. In other words, they must be satisfied that having the cancer does not produce discrimination and that it is safe to prescribe it and to remove it from the prescription of the DDA. This requires them to go through that process; that is all.
Lord Ashley of Stoke: I am afraid that the Government's provision in the Bill is a prescription for confusion. As the noble Lord, Lord Skelmersdale, said, there will be two lists of cancer sufferers. I cannot believe that the great British public will be able to identify clearly which is which. The fact is that cancer is a bombshell. It has a shattering impact. It does not matter what kind of cancer it is, small or large, serious or non-serious, it will automatically attract stigma and discrimination. I sympathise with my noble friend Lord Carter, but I do not agree with him on this one. I think that the remedy proposed by the noble Lord, Lord Skelmersdale, is far better: to eliminate the provision altogether. In that way we will avoid confusion. There is no nonsense about it. There is no chance of people getting mixed up about who has cancer and who does not.
If this provision is allowed to stand, many people will suffer. In its briefing, Macmillan Cancer Relief says that if these amendments are not carried, the power to discriminate against people with cancer will be enshrined within the very legislation that people hope will protect them. I agree.
I cannot for the life of me see what the Government would gain by this provision. Cancer sufferers certainly will not gain. I hope that the amendment of the noble Lord, Lord Skelmersdale, will be accepted.
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