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Baroness Blackstone: We need the regulation-making power in Clause 10 because the boundaries of what constitutes education or associated services are not always black or white. Where it is unclear whether a particular service constitutes education or an associated service, the regulation-making power will help clarification. Amendment No. 94 seeks to set out on the face of the Bill certain services which will be included with those covered by the new duty not to discriminate against disabled children in the education and associated services provided by the school. However, I am clear that we need the flexibility here of a regulation-making power.

The Disability Rights Task Force recommended that all activities covering the life of the school should be subject to the new duty. The task force described what it wanted to secure as a set of new anti-discrimination duties which covered the life of the school. We followed that recommendation. This will, of course, include the provision of education and services relating to teaching and extra-curricular or leisure activities for pupils attending the school but it will also include things like break times, school meal provision, after-school clubs provided by parent associations, school trips and childcare provided by the school. It is impractical to list every aspect of school life in the Bill. We must not forget that new initiatives or activities like breakfast clubs, for example, which were not at all widespread five years ago, are always likely to appear. Where there are grey areas, we want the flexibility to be able to describe in regulations what services are and are not caught by the new duties so that schools and LEAs are always clear. The proposed amendment would not help because it would be inflexible and it would not have the same degree of clarity.

I have some sympathy with the intention behind Amendment No. 162, though not with the amendment itself. I understand the wish to provide clarity and certainty about whether particular services provided wholly or mainly for students are covered by the duties in this clause. Indeed, it is precisely in order to provide such clarity about which services to students are covered by these duties that the Secretary of State has given the powers under subsection (12) of this clause to make regulations to set out whether particular services are covered. Incidentally, it is the Secretary of State for Education and Employment because this is not a devolved matter; it is a reserved matter.

Such regulations are the most flexible and comprehensive way of defining student services, given the obvious complexity and variety of services provided for students and the changing way in which education and training are delivered.

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The noble Earl's amendment seeks to remove that regulatory power and to give examples of student services on the face of the Bill. I have no difficulty with the examples given; they are taken from the examples given in the Explanatory Notes. But Explanatory Notes do not disappear once a Bill is enacted; they remain and are available for people to read as and when.

Far from providing more clarity and certainty than regulations, examples of this kind on the face of the Bill would leave it open to interpretation whether particular services, other than the specific examples mentioned, are or are not covered by the duties. With a power to make regulations, the Secretary of State will be able to clarify the extent to which a wide range of services to students--for example, career or welfare services--are student services covered by the duties in this clause, and will be able to react to any future difficulties which occur in interpreting whether a particular service falls within the definition on the face of the Bill.

Amendments Nos. 157 and 180 deal with the definition of disability. For the purposes of this Bill, the definitions of disability and of a disabled person are those used in Section 1 of the DDA. We intend to keep this definition of disability. Our clear intention, on which we have consulted, is to extend the DDA to cover education, and we believe that has the considerable benefit of clarity.

The DDA defines a disabled person as someone who:


    "has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities".

Schedule 1 of the DDA regulations and statutory guidance expand on and clarify the definition. People who have had a disability, within the definition, are also protected from discrimination even if they have since recovered. Obviously any child or student meeting the definition will be protected by the Bill. Retaining the DDA definition of disability also provides consistency throughout someone's life.

The definition of disability already in the DDA has worked very well. However, the Disability Rights Task Force reviewed the definition and in its report, From Exclusion to Inclusion, made some recommendations about legislative changes to it. Two would involve covering people with cancer or HIV at an earlier stage in their illness. A further one recommended that people who are certified as being blind or partially sighted should be deemed to meet the definition because the task force found that some people with visual impairment were experiencing difficulties at tribunals in proving that they were disabled.

Finally, the task force made some recommendations for reviewing the definition. It proposed that aspects of the definition should be reviewed to ensure that there was appropriate coverage of people with mental health conditions and that there were no difficulties with the restriction to mental illnesses being clinically well-recognised ones. It recommended that the exclusion of particular conditions should continue for the time

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being but be reviewed by the Disability Rights Commission. And it proposed that the definition be amended to bring in a range of conditions which can have severe but short-term effects; for instance heart attacks and depression, although they are covered if long-term. The task force suggested that the wider implications of the proposal needed to be explored. The Minister for the disabled announced in the other place on 20th November that we would respond to the task force report around the end of February. That response will cover the recommendations that I have just outlined. The DRC has a statutory duty to keep the working of the DDA under review and has decided to adopt all of the task force's recommendations. Like other equality commissions, the DRC can make proposals and give advice to Ministers on proposed changes to the law.

Having heard my reassurances, I hope that the noble Earl, Lord Mar and Kellie, is able to withdraw the amendment.

5.15 p.m.

Lord Lucas: May I probe the Minister further on Section 28A(3)? She said that there would be regulations to cover the detail, but I should be interested to know in which services, not regarded as education or associated services, the Government think that discrimination may occur. The Minister spoke earlier about cricket as an example of an activity in which a disabled person clearly might not be able to participate. Rolf Harris addressed the problem a long time ago in "Jake the Peg". Many disabled people, especially those in wheelchairs, would be a great deal better at cricket than I would be--and I was made to play the game. With a little effort, it is surely possible to integrate disabled people into a lot of sports that some prejudiced sports masters might not think appropriate. I would be most concerned if those words in subsection (3) were to be interpreted widely. I would like to know what the Government think about that.

Lord Rix: There is a strong movement on cricket for the blind. They play very successfully with an audible ball.

Baroness Blackstone: Sport will be covered as a service. I entirely agree with what both noble Lords have said. Many disabled people can participate in a wide range of sports and are probably better at them than I would be, just as they may be better at cricket than the noble Lord, Lord Lucas. One only has to see the extraordinary success achieved by disabled people in the Paralympics in Sydney. I hope the noble Lord, Lord Lucas, is reassured on that point.

Lord Lucas: Yes, but I should still be grateful if the noble Baroness could give me some examples of what services the Government think might not to be regarded, for the purposes of subsection (3), as being education or associated services, although I accept that she cannot give me examples now.

Earl of Mar and Kellie: I thank the Minister for clarifying the issues raised in my probing amendments.

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I note that the regulations are yet to be published, so we have to await that definition. I also take the point that my attempt to define what school and college life revolve around was not sufficiently inclusive. The noble Baroness spoke about a wider group of activities, which was highly satisfactory.

I attempted a definition in Amendments Nos. 157 and 180. They refer to a


    "person with physical, mental, emotional or psychological disability".

Section 1 of the DDA, which is the ruling definition, refers only to a person with physical or mental, rather than emotional or psychological disability. That leaves us unclear about the position of people with behavioural difficulties or pupils such as those who attend the school run by my noble friend Baroness Linklater of Butterstone for educationally fragile children. I am not yet clear whether they are included in the definition.

Baroness Blackstone: I think that they are. I do not see why they should be excluded.


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