The
Chairman: Order. I am afraid that the hon. Gentleman
cannot debate a non-starred amendment.
Dr.
Harris: On a point of order, Lady Winterton. I am quite
happy not to refer to the amendment, but I want to raise the point that
I wanted to make as I would have raised it anyway in the schedule stand
part debate. What I was seeking to do by tabling the amendment was to
raise the fact that I wanted to ask a question about the schedule. I do
not see how I can raise a question about the schedule if I cannot raise
it in the schedule stand part debate. If you do not want me to refer to
the amendment paper today, I am more than happy not to refer to
it.
The
Chairman: The hon. Gentleman can speak on the schedule as
long as he does not refer to amendment 270 in any
way.
Dr.
Harris: In schedule 12, there is a provision on page 202
that I would like to draw to the attention of the Committee. I believe
that there has been a serious omission in relation to the provision of
further education. Previous legislation was always very clear that the
words “only in so far as it was necessary” existed in the
equivalent of paragraph 5(1)(b) of schedule 12 to this Bill. After the
words “it does so” in paragraph 5(1)(b) of schedule 12,
the words “in so far as it was necessary” would have been
included, before the
words “to
preserve the institution’s religious
ethos”. In
brief, therefore, the absence of those words—“in so far
as it was necessary”—seems to amount to a widening of the
exemption here and it is not clear whether that was ever presaged in
any consultation and it is also not clear what the original intention
of paragraph 5(1)(b) of schedule 12 was. I think that the
statutory instrument concerned was No. 437, which provided regulation
21b in the old formulation, and was
disapplied, “in
so far as it is necessary for an institution to give preference in its
admissions to persons of a particular religion or belief in order to
preserve that institution’s religious
ethos.” I
understood that to mean that there must be a necessary causal link
between preferential admissions and preservation of ethos. The words
from SI No. 437 are just not there now in schedule 12 and therefore
there is a significant reduction in protection for people who may now
be discriminated
against.
I could give
background information about Roman Catholic colleges, but I do not
think that I need to as I think that I have made my point. I have made
it to give the Minister an opportunity to say whether she thinks that
there has been a lessening of the protection and, if so, what the
justification for that is. If she does not think that the protection
will be lessened, I would be grateful if she could clarify why not,
given the significant change between the version of the provision in
the schedule and the one in previous
regulation. 8
pm
The
Solicitor-General: We have returned to the 2003
regulations; there is no change from those. Preference may be given to
a child of the same faith in
order “to
preserve the institution’s religious
ethos”. The
test is objective, not subjective. There is a clear causal link between
giving preference to a child and the preservation of the
school’s religious character. There is no lessening of the
protection. Question
put and agreed to.
Schedule
12 accordingly agreed to.
Clause 90
ordered to stand part of the
Bill.
Clause
91Qualifications
bodies Question
proposed, That the clause stand part of the
Bill.
Mr.
Harper: I shall endeavour to be brief. The clause concerns
qualifications bodies and will make it unlawful to discriminate
against, harass or victimise people in
making arrangements for deciding on whom to confer qualifications. It
carries across an existing provision in law.
Concerns have
been raised by the National Deaf Children’s Society on behalf of
deaf children as well as by the Royal National Institute of Blind
People. Those organisations point out that disabled people are twice as
likely as non-disabled people to have no qualifications. Of those
disabled people without qualifications, only 23 per cent. are
employed. That is in stark contrast to non-disabled people without
qualifications, of whom 60 per cent. are employed. Having a
qualification is clearly important, and it is vital that the
examination system is
accessible. I
raise the point because at the moment, the Bill proposes to replicate
provisions in the Disability Discrimination Act that place a duty on
qualification bodies offering general qualifications to make reasonable
adjustments for disabled students. It will give new powers to the
qualifications regulator—Ofqual in England, and others in Wales
and Scotland—to decide what adjustments would not be reasonable
and what parts of the qualification are not subject to reasonable
adjustments.
I will give a
couple of examples of my concern and leave it at that. Also, I wanted
to flag up to the Minister that I have tabled an amendment to schedule
19 that would extend the public sector duty to Ofqual, so that it would
not just have to make reasonable adjustments but have a positive duty
to promote the interests of disabled people.
My purpose is
to raise with the Minister some of the concerns of those organisations.
Despite the fact that existing law will carry through into the Bill,
there are a lot of examples of deaf candidates, in particular, finding
that qualifications providers are not making reasonable adjustments for
them to get qualifications and are not thinking creatively enough about
how they could test ability and learning rigorously, thereby protecting
the value of the qualification.
One
example—I will leave it at one—involved a profoundly deaf
candidate who was asked a question about listening to music on his GCSE
English exam. He had never experienced music and so was not familiar
with how people enjoy and talk about it. That question was not
necessarily appropriate for a deaf student. He could easily have been
asked to demonstrate his English ability without being asked that
inappropriate question.
Although I
said that I would give one example, I will give one more, and that
really will be it. GCSE music tends to highlight a number of issues.
One example involved a family whose son is profoundly deaf and uses a
cochlear implant. He is selecting his options for GCSE and wishes to do
music. The school uses the Edexcel exam board, 40 per cent. of whose
music GCSE is a listening exam. The family want him to be able to study
music, and they want the exam board to think about ways for him to do
alternative work because of his hearing impairment. That could be dealt
with in a range of ways, given that he has a cochlear implant, but he
is basically being told that unless he can listen to CDs and answer
questions, he should not really be studying that subject at
all.
I accept that
there are cases in which nothing can be done, but schools do not seem
to be thinking creatively enough. I wanted to raise that issue in
respect of the
clause and to flag up the fact, in looking at the public sector equality
duty in respect of schedule 19, that rather than just having the
provision on reasonable adjustments, by placing the public sector
equality duty on the qualifications regulator, there will be a positive
duty to work with disabled people and those with the other protected
characteristics to deliver a more inclusive system, while still
protecting the value and rigour of the qualification. Has the Minister
anything to say about those examples and how we might tackle the
problem and disadvantage for disabled
people? The
Solicitor-General: Those examples seem quite gross. We do
not have provision in legislation to command regulators to think
creatively. I think it is a matter of what is a reasonable adjustment.
I take it that the hon. Gentleman is not concerned about the balance
between what is adjusted and what is not. He is just saying that people
are insufficiently imaginative, when it comes to reasonable
adjustments, with some aspects of disability. The long and short of it
is that the court will have to decide on judicial review whether
sufficient adjustment has been made for the individual. I can only echo
what he says. One hopes that this provision will not have a depressing
effect on creativity and the way education is delivered to the
disabled, but will strike a balance, allowing it to have a positive
effect. When we come to schedule 19 we might hit the nail more firmly
on the head when we talk about the equality
duty. Question
put and agreed
to. Clause
91 accordingly ordered to stand part of the
Bill.
Clause
92Interpretation Amendments
made: 75, in
clause 92, page 70, line 6, after
‘a’, insert
‘relevant’. This
amendment and amendments 76 and 77 would make in relation to
educational qualifications corrections corresponding to the corrections
that amendments 62 and 63 would make in relation to work
qualifications. Amendment
76, in
clause 92, page 70, line 7, after
‘a’, insert
‘relevant’. See the
explanatory statement for amendment
75. Amendment
77, in
clause 92, page 70, line 7, at
end insert— ‘( ) A reference
in section 91(8), (10) or (11) to a qualification is a reference to a
relevant qualification.’. —(The
Solicitor-General.) See
the explanatory statement for amendment
75. Clause
92, as amended, ordered to stand part of the
Bill. Clause
93 ordered to stand part of the
Bill.
Schedule
13Education:
reasonable
adjustments
Lynne
Featherstone: I beg to move amendment 202, in
schedule 13, page 203, line 19, at
end insert— ‘(2A) For the
purposes of this paragraph, the reference in section 19(3), (4) and (5)
to a disabled person is to disabled persons
generally.’.
An amendment to ensure that the
anticipatory nature of the duty to make reasonable adjustments is
retained in education as in the Disability Discrimination Act by
providing that the duty applies to ‘disabled persons’ not
only to an individual disabled
person. The
amendment is on the matter of reasonable adjustments. It is a departure
from the original language on reasonable adjustments in the services
and functions, private clubs and education provisions of the Disability
Discrimination Act 1995. My understanding is that the phrase
“disabled persons” must direct attention to features
which impede persons with one or more kind of disability. We are aiming
not simply for an education establishment to anticipate the needs of an
individual who would have impairments requiring specific reasonable
adjustments. The wording of the Bill needs to include the fact that it
is about a class of disabilities—for example, being
mobility-impaired or visually impaired—and about making
reasonable anticipatory adjustments so that someone who has that
disability and belongs to that group, will not need to arrive at the
school and then ask for that adjustment to be made; it will already be
there. The EHRC
says: “This
is a critical underlying aspect of the reasonable adjustment duties and
failing to address this in education would be
regressive.” Therefore,
I am seeking the Minister’s response to see if there is any room
to oblige on that
matter.
The
Solicitor-General: Let me confirm that schedule
13 provides for the anticipatory provisions that the hon. Lady seeks,
but they are drafted differently from the DDA and differently from hon.
Members’ proposals.
I agree with
the hon. Lady’s desire—she was taking the provisions in
the DDA that make the adjustment requirements anticipatory. They need
to be made for disabled persons and not just for a specific disabled
person. In short, I hope she will take it from me that we are confident
that the provision she seeks is already present in schedule
13.
Lynne
Featherstone: I thank the Minister. If that is covered in
schedule 13 and there is no question about it, as the Minister has said
and put on the record, I beg to ask leave to withdraw the
amendment.
Amendment,
by leave, withdrawn.
Schedule
13 agreed
to. Clause
94 ordered to stand part of the Bill.
Schedule
14 agreed to.
Clause
95Application
of this
Part Amendment
made: 78, in
clause 95, page 70, line 26, leave
out subsection (3).—(The
Solicitor-General.) This amendment
is consequential on amendment
90. Clause
95, as amended, ordered to stand part of the Bill.
Clauses 96
to 98 ordered to stand part of the Bill.
Ordered,
That further consideration be now adjourned. —(Lyn
Brown.) 8.13
pm Adjourned
till Thursday 25 June at Nine
o’clock.
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