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Session 2000-01
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Standing Committee Debates
Special Educational Needs and Disability Bill [Lords]

Special Educational Needs and Disability Bill [Lords]

Standing Committee B

Thursday 5 April 2001

[Mr. Bill O'Brien in the Chair]

Special Educational Needs and Disability Bill [Lords]

New Clause 3

Support in cases of discrimination

`The Disability Rights Commission shall provide advice and assistance for persons seeming to them to have a prima facie case of discrimination against any person or body regulated by this Act, to pursue their case through litigation.'.—[Mr. Boswell.]

Brought up, and read the First time.

9 am

Mr. Tim Boswell (Daventry): I beg to move, That the clause be read a Second time.

The three new clauses selected for debate this morning all raise important issues, possibly in ascending order of importance. My slightly hoarse voice might suggest to hon. Members that the Committee need not be detained unduly long, but it is important to rehearse the arguments.

New clause 3 is about the Disability Rights Commission's role in helping people to make complaints. It is not explicit in the new clause, but we agree with the Minister that conciliation, discussion, accommodation, reasonable adjustment and other such concepts are the sensible way to approach discrimination, at least in the first instance. The new clause is not an attempt to provide a trigger-happy solution or to encourage people to go to litigation without consideration, let alone an attempt to provide open season for those who go to law on the chance that they may make money out of the process.

In what I believe to have been a sensible start to its work, the commission recognises that although jaw-jaw is a good idea most of the time, war-war is occasionally necessary. If we are to have disability discrimination legislation such as we introduced in 1995, and if we are to have a Disability Rights Commission with the general duty of promoting the interests of persons in asserting their disability rights, there must be an element of sanction.

The commission's method of operation is critical, and it is clearly right to begin with the conciliatory route, although it will sometimes be necessary to switch modes to other routes. I am sure that everyone understands the distinction that I am making. In the real world, such institutions will have other things to do. The commission will have a mainly educational front but, while busily getting on with its job in a perfectly proper manner, it may have allowed itself to discriminate, perhaps unconsciously or institutionally. It is not a matter of people getting up in the morning, addressing themselves in the shaving mirror and saying, ``I am going to be nasty to disabled people today.''—[Interruption.]

The Parliamentary Under-Secretary of State for Education and Employment (Jacqui Smith): I do not do that.

Mr. Boswell: For the avoidance of doubt, I should make it clear that a number of hon. Members, on both sides and of both genders, have dissociated themselves from my remarks. Let us say that those people are combing their hair—

Mr. Tom Levitt (High Peak): I dissociate myself from that.—[Laughter.]

Mr. Boswell: That jocular exchange has woken me up; it has also made the entirely serious point that we are all different.

For institutions, there is a huge difference between trying to do a decent job and getting on and doing it. Those who have anything to do with education know that that is the norm. Perhaps we need an outsider to point out that a pupil with a disability has not been treated sensitively. The alternative is the wilful approach of saying, ``We are not really interested in this case. Taking us to court is the only way that you will get any remedy, sunshine.'' I do not like that approach, although if people feel constrained because resources are restricted or for other similar reasons, they may occasionally resort to that tactic. It is important to the work of the Disability Rights Commission to keep the broad working distinction in mind. That will apply more comprehensively, given the extension of the provision across education. I do not think that I have said anything contentious so far.

We have repeatedly stated our concern that the roots of remedy for discrimination for people over 16 are different from those for people under 16--in one case there is a tribunal, and in the other a court. The Parliamentary Under-Secretary of State for Education and Employment, the hon. Member for Barking (Ms Hodge), rehearsed her reasons on the issue the other day, and I do not seek to re-open that debate.

In relation to educational services, it is incontestable that people over 16 will have to go to the courts to assert their rights. They would be wise to raise matters informally through an institution's procedures, which I hope will have improved. The existence of those procedures in, for example, further education colleges is an important safeguard against possible litigation for the institution. Alternatively, people over 16 could ring up the DRC on the hotline and say that they have not been treated fairly. An informal investigation may take place to take some soundings. At some point, push will come to shove and it may be necessary to take an institution to court. When Bert Massie started at the DRC, I suggested to him that the conciliation route should, of course, be used—we did not disagree—but that, if I were him, I would find one or two really nasty cases to take to court in the first year to show some teeth. He did that.

If an ordinary private citizen with a problem happens to be at a further or higher educational institution, and it has not been resolved easily internally or through the friendly assistance of the DRC, he eventually has a choice. It may be an unwelcome choice, assuming that he is not merely on a fishing expedition to embarrass an institution or to try to win punitive damages for himself. He will want legal redress through the courts, as that is the route open to him.

The subject could take us wide of the debate, but we all know that a private individual faced with possible litigation is at a disadvantage compared with an institution. Whether he is suing the Inland Revenue, going to the general commissioners, taking on Railtrack or fighting a Department, one hand is tied behind his back. He is a small player dealing with a big player. We need not over-dramatise that, and I do not suggest that someone who makes a complaint is necessarily right to do so. However, we must consider levelling the playing field to some extent, to ensure that if someone pursues a case in good faith, with prima facie evidence of discrimination against him, he should not be deterred from making the case simply because he does not have the resources or firepower to take it to court.

I hope that the DRC already has powers to assist on other cases of discrimination under the part II or, more typically, part III duties. They have not been used much, and perhaps should not be, but we must ensure that they are available to assist the individual citizen in the pursuit of educational remedies in a prima facie case.

No one suggests that such recourse should be the first recourse, or that it should be universally available. However, it is necessary to have some reserve provision whereby, as lawyers would say, the DRC can be joined in the action with the individual complainant in order to secure justice for him, which is the common concern of the Committee.

The Parliamentary Under-Secretary of State for Education and Employment (Ms Margaret Hodge): We do not need to spend long on this issue, as I believe that I can give the necessary assurances to the hon. Gentleman. I agree that we want to be able to resolve cases of discrimination in schools, colleges, universities or anywhere else in the education service outside the realms of judicial processes. By framing the legislation around the powers of the DRC, we have modernised the institution so that it has better powers than either the Equal Opportunities Commission or the Commission for Racial Equality, which work in separate but related areas.

There are two aspects to the modernisation. First, the DRC has to run a conciliation service, which it has just established. We shall have to wait and see how effective that is. I strongly agree with the hon. Member for Daventry (Mr. Boswell) that conciliation is a better way to resolve issues. Secondly, we established in the Disability Rights Commission Act 1999 the power for the Commission to enter into legally binding agreements with either employers or suppliers of goods and services, outside the realms of judicial processes. Those agreements are to be entered into after discussion and negotiation.

Although it will not be necessary to go to court or to the new special educational needs and disability tribunal, should the employer or supplier of goods and services--perhaps an education authority--break the agreement, a case could be taken through the judicial process. We see the area as one of changing cultures. As going to court at too early a stage is not always the best way to change cultures, we have attempted to resolve issues of discrimination outside the courts, and in the process modernise the institution. We shall have to see how well that works.

I also agree with the hon. Member for Daventry that it is imperative that we have the facility to take legal cases where that is appropriate. We would not propose the Bill if we did not believe that to be true. The basis of the legislation is that our experience in schools, colleges and universities suggests that without a basic framework of rights set in law, unacceptable discrimination occurs. We need that framework of rights to ensure that we can change practice, policies and procedures within organisations.

Section 7 of the Disability Rights Commission Act, as amended by the Bill, permits the DRC to give assistance in discrimination proceedings brought under what will become the new part IV of the Disability Discrimination Act 1995. The DRC will have the power to assist individuals with actual or potential proceedings. Section 7 also sets out the grounds on which the DRC can grant an application for assistance in relation to proceedings, and deals with the range of assistance that the DRC may provide if it grants an application. The types of assistance that can be provided or arranged are legal advice; legal or other representation; seeking to procure a settlement and any other assistance thought appropriate by the DRC.

If the DRC is to provide such assistance, the applicant must have brought, or be proposing to bring, a claim of unlawful discrimination under the DDA 1995. Further criteria must also be met: the case must raise a question of principle, or it must be unreasonable to expect the applicant to deal with the case unaided—because of its complexity, because of the applicant's position in relation to another party or for some other reason—or some other special consideration must make it appropriate for the DRC to provide assistance.

The DRC should take cases, but should also have discretion. The new clause would, by the use of the word ``shall'' rather than ``may'', remove that discretion. It would compel the Disability Rights Commission to give assistance whenever it perceived a prima facie case of discrimination. That might result in its having to provide so much assistance in this sphere of its duties that a huge drain on its resources would result, impairing its ability properly to discharge its other functions.

The commission is approaching its first birthday and it has taken 40 cases so far. Its legal committee has decided to grant assistance in about half the cases that have been presented to it. It has exercised its discretion with some care, and expects to take about 75 cases in its second year. The new clause would remove its discretion, and, unless the hon. Gentleman wants to put up taxes even further, I do not think it would be possible to fund the amount of litigation that might land at the commission's door as a result. It is not a risk that we are prepared to take.

9.15 am

The hon. Gentleman may, nevertheless, be reassured to hear that the DRC helpline is open to all—education providers, pupils, their parents, students and adult learners. Helpline advice—short of legal advice—will be freely available. The hon. Gentleman will know, because I said this at a meeting that he attended the other night, that in its first year the Disability Rights Commission received something in the region of 50,000 calls on its helpline and expects double that number in the second year of operation, as it becomes better known. I hope that the hon. Gentleman will withdraw the new clause.


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