Special Educational Needs and Disability Bill [Lords]

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Ms Hodge: This is the first time that I have appeared in a Committee under your chairmanship, Sir David, and possibly the last. I hope that it will be a memorable and enjoyable occasion for both of us.

Mr. Boswell: A brief encounter.

Ms Hodge: But a significant one.

I reassure Opposition Members that the purpose of the clauses that the probing amendments seek to clarify is not to subvert our intention to outlaw discrimination. The clauses provide a common-sense solution to institutions that will implement the new duties proposed by the Bill, and a common-sense interpretation for individuals who will try to exercise their rights in the Bill.

I shall deal with the amendments separately. The amendment of the hon. Member for Daventry would delete subsection (6) of clause 27. He will recall that we consulted widely on our proposals for the Bill. We received many representations, especially from universities, that expressed a concern that academic standards would be lowered if the Bill forced the admission of students without reference to academic ability. We inserted the clause because of those representations. The discussions of the disability rights taskforce, which I had the privilege of chairing, also emphasised that the need to retain standards in courses and qualifications was important.

Mr. Boswell: I am grateful to the Minister for that elucidation. I wondered whether it was along those lines, and I am reassured that it is. For the record, Universities UK makes it clear in the communication to which I have referred that the ``balance'' in clause 27 is now as it would wish it to be.

Ms Hodge: I am delighted to hear that, because the Government share the view that further and higher education institutions must maintain all entry requirements and academic standards to which all students, whether or not they have a disability, and prospective students are subject. Removing that justification would undermine the quality of the education that those institutions offered.

The amendment would also remove subsection (6)(b), which makes provision for regulations to prescribe the standards other than academic standards that justify less favourable treatment. Again, the overriding factor in determining whether an applicant is admitted to an institution or on to a course is their ability, or potential to develop ability, in areas relevant to the course of study. For example, admission to a music course whose purpose is to develop musical ability will depend on the applicant's level of attainment in music. Less favourable treatment would be justified in those circumstances if objective standards were in place but an applicant did not meet them.

As with the need to maintain academic standards, some institutions, such as drama schools and art colleges, were worried that the Bill's provisions would undermine their standards. The regulation-making power is needed to allow such institutions to maintain some non-academic standards, such as artistic, dramatic and musical standards.

Mr. Hayes: I will intervene briefly, Sir David, not to interrupt your brief encounter—as my hon. Friend said, it has become a menage a trois—but simply to strike a note of caution on the previous two points. One thinks, for example, of the percussionist Evelyn Glennie, who might well have been discriminated against because of her handicap when she trained and, in a rather less liberal-minded institution, might not have gained the opportunity that she did. One thinks of people in a range of areas with emotional, behavioural or mental health difficulties. Any dynamic disadvantage or special need could well be used as a means of discriminating against someone, but not necessarily on justifiable grounds. I have a concern, but I put it no more strongly than that.

Ms Hodge: I am rather pleased, because that intervention enables me to clarify how an institution could justify excluding or including a student. In the instances to which the hon. Gentleman referred, there would be no justification for having regard to a disability to exclude a person from participating in a course, because his or her musical or other ability would be of a high standard. Evelyn Glennie is a great percussionist. As long as the musical or dramatic ability is demonstrated, it is illegal for an institution to have regard to a disability in judging that musical or dramatic ability.

Mr. Hayes: The Minister is really saying that each case will be judged on its merits.

Ms Hodge: Yes.

Mr. Hayes: So it would not be satisfactory for an institution to say that a group of people fall into a category that is apparently not conducive to their prospering in drama, theatre, music or whatever. That would not be sufficient or proper grounds to discriminate against them under this part of the Bill.

Ms Hodge: Of course, one must make judgments on a case-by-case basis. That is absolutely right. Equally, any individual who meets the standard required by a course will be entitled to participate in it. The institution may then have to make a reasonable adjustment to enable him or her to participate fully, depending on the disability. The institution sets the standard for a specific specialism, and anyone who meets it will be entitled to participate in it.

Mr. Andrew George: Does the Minister share my concern that much drama does not properly reflect the broad span of real life, particularly in relation to disability? If drama is about the suspension of disbelief and the presentation of a wider life beyond what much of us see in our smaller lives, drama courses should be encouraged to accept disabled students. If standards are being set, they should be set in a way that encourages disabled applicants. If they reflect the nature of theatre in the public eye, that may be discriminatory.

Ms Hodge: If, in admitting a student, an institution set a standard whereby people were discriminated against simply on the grounds of their disability, it would be illegal under the Bill. However, the hon. Gentleman is correct that there is a widely prevailing attitude within the community, which is reflected in the media and drama, that disabled people cannot play a whole range of roles, simply because of their disability. Far too often we see disabled people playing only a role that reflects their disability.

One of the delights for me of going to the millennium dome—[Interruption.] I was one of those people who had a good time there. Other hon. Members may not have enjoyed what I am about to describe. Wheelchair users participated in the acrobatic display on the central stage and it was one of the few occasions when I have seen disabled people as mainstream participants in an activity. It was warm and welcoming and displayed a proper inclusive attitude that exists all too rarely in our society. Certainly it is an issue about which I constantly try to talk to all sorts of people in the media.

Mr. Boswell: I rise to give the Minister another accolade without getting on to dome territory. I know that she has worked with the actor's union Equity with whom I have also been in touch about the inclusion of disabled actors in a wide range of roles. The essential point that we are all trying to make in this Committee is that we do not want disabled people to be type cast. As my hon. Friend the Member for South Holland and The Deepings has challenged me to bring Sophocles into this afternoon's proceedings and look at ancient Greek tragedy, I would only opine that, even if the cast do not start with disabilities, by the end of the tragedy, most have usually acquired some.

Ms Hodge: I am not sure where that leaves us in disability discrimination terms, but I shall reflect on that when I read the hon. Gentleman's contribution in Hansard.

I come now to amendment No. 24. The example given by the hon. Member for St. Ives of someone with a visual impairment not being able to enter the dental and medical professions is false. As a spectacle wearer myself, I know that adjustments can be made that probably mean that it would be discriminatory not to allow someone with a visual impairment to participate on a course.

Subsection (7) is much more difficult. I can see why hon. Members might be concerned as it appears to give institutions a get out, but I assure the Committee that it is not our intention to use the power extensively, only in limited circumstances.

There are similar, though not identical, provisions in section 5 of part II of the DDA to make regulations about less favourable treatment in respect of its employment provisions. Those powers have been used in several detailed matters without attracting controversy in the Disability Discrimination (Employment) Regulations 1996. They were used, for example, to justify the application of performance pay systems to a disabled person and to justify not paying a disabled person a benefit for an occupational pension scheme on grounds of substantially increased costs. I could provide other examples, but those two may suffice.

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The benefit of this type of provision is that it provides, by way of a reserve power, the ability to clarify the effect of the legislation in response to unforeseen circumstances or developments as they arise. One area where we envisage using the power would be to permit institutions to refuse an individual entry to a course leading to professions where there were medical requirements that an individual could not fulfil. For example, a person with throat cancer who is unable to speak might be able to undertake a course of study to train to become a teacher, but might not subsequently be able to teach in a classroom. Similarly, a person who has been diagnosed with schizophrenia might be able to study medicine, provided they met the academic entry requirements, but might not be able to become a doctor if they posed a safety risk to future patients.

Mr. Andrew George: That is interesting in view of my example of a dental or medical qualification leading to a profession. The Minister now provides examples from other professions in which disability might call into question the ability to perform the requisite professional procedures. Does the Minister not accept that those concerns—about teaching and the medical profession—are already adequately covered under subsection (6)(a)? The student could be given less favourable treatment in relation to academic standards achieved on the course.

 
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