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Baroness Blackstone: No, I do not think it is as bad as that. It is a matter of commonsense application of the Bill when it is enacted. It is a matter of planning timetables sensibly so that difficult-to-access rooms are used for provisions that may not be universal across the curriculum and therefore essential for every pupil.

Anyone who has run an educational institution, whether an independent school, a maintained school, an FE college or a university, will be familiar with what the noble Lord, Lord Northbourne, has just described. Most of our school buildings were built at a time when there was much less sensitivity to the needs of disabled students and pupils than there is today. It is a matter of common sense, trying to apply a timetable in a sensible way and to make the changes that are required to the most important parts of a school building, leaving those that are much more difficult until later or using them for a slightly different purpose.

Baroness Blatch: Can I ask the noble Baroness a quick question? Is there a power to require an

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independent school--whether it is a special or a non-special school--to accept children with special educational needs? Is there a power to compel physical changes to the buildings? If so, it would be helpful to have those requirements set out, so that schools know what their protected areas are and can defend themselves in the not untypical circumstances referred to by the noble Lord, Lord Northbourne.

Baroness Blackstone: There are no physical features duties on any schools, either independent or maintained. It is a matter of making reasonable adjustments as and when it is possible to do so. There is an overall power requiring schools, whether maintained or independent, not to discriminate.

Lord Northbourne: If I was doing business with the noble Baroness, I would be perfectly happy, but I am not; I shall be doing business with local authority inspectors, or in an extreme case, with the courts. They will not necessarily interpret things in the same reasonable way as the Minister. That troubles me, but I shall read the Minister's comments with interest and bring my concerns back on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendment No. 92:

    Clause 10, page 8, line 34, at end insert ("on the grounds of the disability of that person").

The noble Baroness said: I shall speak also to Amendments Nos. 93, 95, 159, 160 and 217. I hope that the amendments make it absolutely clear that unlawful discrimination should be discrimination on the grounds of disability. This part of the Bill needs to be worded very carefully if it is not to be abused. It is right that a disabled person should be protected against discrimination on the grounds of their disability, but fair discrimination applies to all pupils, and must include people with disabilities.

Schools are entitled to discriminate between applicants in their admissions criteria. For example, an academically selective school can reject an applicant on the grounds of insufficient academic ability, whether the applicant is disabled or not. A school specialising in music, dance, or sport is entitled to discriminate on those grounds. Clause 11 attempts to define the discrimination that is to be outlawed in the Bill. However, in addition to Clause 11, it would be better for greater clarity simply to insert into Clause 10 that the discrimination, which is to be unlawful, is discrimination on the grounds of disability. That is quite simply what I have done in this amendment.

The noble Baroness gave an example of a person in a wheelchair taking an academic test for entry into a school which was selective on academic grounds. That is a very good example that, if the person is rejected, it should not be on the grounds of disability but on the grounds that they are not up to the mark, or that there has to be some selection process to take a limited number of people from the list.

Clause 10 reads:

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    "It is unlawful for the body responsible for a school to discriminate against a disabled person";

but that is not specific enough. What it should say is that it is unlawful for the body responsible for a school to discriminate against a disabled person on the grounds of the disability of that person.

It is true that Clause 11 seeks to define the meaning of discrimination as applied in this Bill, and it does so in a rather tortuous manner. However, it would give much greater clarity to the Bill, while leaving in Clause 11, if we started by making discrimination on the grounds of the disability of the person unlawful.

My other two sets of amendments do the same in other parts of Clause 10. My third set of Amendments, Nos. 159, 160 and 217, also refer to the further and higher education part of the Bill. I beg to move.

Baroness Blackstone: Amendments Nos. 92, 93, 95, 159, 160 and 217 seek to confine the duty on schools and post-16 institutions not to discriminate against disabled pupils, students and people enrolled on courses on the grounds of disability only.

Those amendments are not necessary. Part II of the Bill outlaws discrimination on the grounds of disability. Clauses 11 and 26 make it entirely clear that discrimination requires either less favourable treatment of a disabled person for a reason relating to his or her disability, or a failure to make reasonable adjustments to ensure that disabled persons are not placed at a substantial disadvantage in comparison with non-disabled persons, where that failure is to the detriment of a disabled person. The Bill could not be any clearer on that point.

The Bill does not prohibit discrimination against a disabled person on the grounds of, say, race or sex, because we already have effective legislation--the Race Relations Act and the Sex Discrimination Act--which outlaw discrimination on such grounds.

All of the amendments tackle the same fundamental issue and I hope I have persuaded the noble Baroness that they are unnecessary in respect of either pupils, students or indeed adults. I hope that the noble Baroness will feel able to withdraw the amendment.

Lord Lucas: Perhaps I can just raise a point on Amendment No. 95. Subsection (4) seems to present problems if it stands as it is. I cannot see how a school is meant to deal with, say, a boy with a severe case of ADHD. He may be extremely disruptive in class; his condition may be getting out of control and causing a great deal of difficulty to other pupils. If, as part of the management of that child and to bring home to him that he should perhaps in some way be subject to the same disciplines as other pupils and to set him objectives to help him come into line with reasonable standards of behaviour, the school wishes to exclude that child, it will no longer be able to do so. There will be no way in which exclusion of children can be used as a measure against a child where the disruption is a direct result of the disability.

Am I right in understanding that that is to be the position? If so, how would the Government wish a school in that situation to proceed?

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5 p.m.

Baroness Blackstone: We have already had a long debate about this in relation to the efficient education of other children where the Government were criticised by some members of the Committee for having included such a clause. Under this part of the Bill, yes, the schools will be able to say that a child who is consistently disruptive, out of control or disturbing the education of others can be excluded on the grounds of justification. They will have to provide that justification. But through that justification that will become possible.

Lord Addington: I am not sure whether this is the right time to raise a point about the new sports academies which are being formed. If they are not used to training wheelchair athletes, would they be allowed to discriminate? I hope not. If they were not used to dealing with that type of athlete I wondered whether they might be brought to account. I ask that as a matter of clarification.

Lord Lucas: I should like to come back to the question I raised earlier. Yes, I understand that discrimination can be justified, but I did not understand Clause 28A(4) to relate to discrimination. It states, as entirely separate from discrimination, that it is unlawful for a school to exclude a child on the grounds of discrimination. That seemed to be phrased separately in some way from subsection (1). However, that is clearly my misunderstanding, so I shall shut up.

Baroness Blackstone: I am not sure that I completely followed the question of the noble Lord, Lord Addington, but I believe that the answer is no, as long as it is a maintained school.

Baroness Blatch: There is clearly still some confusion about it. I am more than partly satisfied with the Minister's explanation. She appears to be saying that clause 11 has the same effect as I was trying to achieve through the amendments. I shall read carefully what the Minister said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 92A to 93 not moved.]

The Earl of Mar and Kellie moved Amendment No. 94:

Clause 10, page 9, leave out lines 5 to 9 and insert--

("(3) For the purposes of subsection (2), education or associated services shall include the provision of education and services related to teaching and extracurricular or leisure activities organised by the school for the pupils attending that school.").

The noble Earl said: I should like to make two points, one serious and one slightly frivolous. Everything that I shall say relates to the application of the Bill in Scotland. Indeed, the amendments have been inspired by the Law Society of Scotland, the Consortium of Children in Scotland and the RNIB Scotland. The frivolous point is that my name seems to have become prepositionally deficient throughout the

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Marshalled List: there is an "of" missing. That is not an amendment; perhaps it should be an amendment to the Marshalled List.

The purpose of amendment No. 94 is to probe the meaning of the words "education" and "associated service". It also attempts to widen the possible meanings to ensure the inclusion of extra-curricular and leisure activities organised by the school for the benefit of pupils attending that school. The existing subsection (3), which the amendment would delete, gives the Secretary of State powers to decide retrospectively what education and associated services are and allows the Secretary of State to alter the definitions--and hence the extent of the clause--by regulation.

I am confused about who the Secretary of State is, especially in the Scottish context. I should have thought that the definition about education should come most naturally from the Education Secretary, the Scottish Minister in charge of education or the Secretary in the National Assembly for Wales. However, I do not have a problem with the possibility of there being three different definitions as a result.

To focus on the merit of the amendment, I believe it would be useful to have on the face of the Bill from day one a clear commitment that discrimination in education is outlawed in all aspects of the life of the school and not just in any narrow definition of, say, the classroom and the dining-hall. Subsection (3) will not help the reader of this future Act to understand to what it applies. Only by acquiring the regulations when they are published can the reader begin to understand the extent of this ban on discrimination. Surely, that is not a useful purpose for any Bill to have.

I anticipate that the Minister will tell me that all this is explained in the explanatory notes. However, these will disappear and will not be available to readers after enactment.

Amendment No. 157 is grouped with Amendment No. 94, which is another amendment needed in the Scottish context. There are several attempts in the Scottish legislation to define who is a disabled person and what their characteristics are. Since this legislation will alter somewhat the admissions process for all educational institutions in Scotland and, no doubt, elsewhere, it is essential that it is clear to whom the legislation applies and to whom it does not apply. I believe that the headings of physical, mental, emotional and psychological disability are helpful in establishing who exactly may not be discriminated against.

Amendment No. 162 is also in this group and is designed to probe and clarify the extent of the description of higher and further education. The amendment proposes to place a description of that extent on the face of the Bill rather than leaving the definition to a hotch-potch of secondary legislation to be published as and whenever the relevant Secretary of State feels like it. The amendment gives a broad definition demonstrating that discrimination issues have to be considered in that full context.

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Finally, and briefly, Amendment No. 180 probes the meaning of disabled person and further and higher education by providing a broader definition. The amendment will be helpful but only if it is accurate. I can see little advantage if the Bill does not make it clear at whom it is aimed. I beg to move.

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