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Baroness Blatch moved Amendment No. 140A:



("(1) The Tribunal shall establish the procedures to be followed on a claim of unlawful discrimination under this Chapter, and shall take into consideration any advice on procedure offered by the Secretary of State.").

The noble Baroness said: In speaking to Amendment No. 140A, I shall also speak to Amendments Nos. 142, 144 and 145.

Clause 18 continues with the procedure to be followed by the tribunal in hearing claims of discrimination. The opening subsection to Clause 18 sets out that the Secretary of State can make regulations as to the proceedings of the tribunal and as to the procedure required for making a claim.

The second subsection is a long one and provides what those regulations may include. In effect, it tells us what the present Secretary of State wishes to include in the regulations that he intends to produce.

The tribunal was established under previous legislation and is already in existence. We must assume that competent people have been, and will continue to be, appointed to the tribunal. They are not to be simply ciphers of the Secretary of State doing whatever he tells them to do. They are responsible people who are

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capable of establishing the best procedures to be followed in this additional duty of hearing appeals relating to discrimination on the grounds of disability.

The tribunal has demonstrated its ability to manage its own affairs. The fact that it has established the procedures that it and the advocate have to follow greatly adds to its authority and competence. The tribunal will naturally take note of any advice that the Secretary of State may offer, but it should not have to be subject to the heavy hand of regulations from the Secretary of State about how to run its affairs.

The first two amendments in the group would remove the provision for regulations and replace it with the competence of the tribunal. The second, which follows on from the first, would delete all the possible regulations listed in subsection (2).

New Section 28J(7) says:


    "Part I of the Arbitration Act 1996 does not apply to proceedings before the tribunal".

However, the Bill goes on to say that regulations may be made covering such proceedings and that those regulations will correspond to some or all of the provisions to be found in Part I of that Arbitration Act. In other words, as I understand it, the Arbitration Act does not apply, and yet the Secretary of State may have second thoughts and produce regulations for all or a part of that Act to apply to all hearings of the tribunal.

Again, the Secretary of State must make up his mind whether the Arbitration Act shall apply, rather than leaving it open to some future regulation. We all know that regulations are subject to much less scrutiny than primary legislation. I have already argued that the tribunal ought not to be over-burdened with regulations anyway. Its members are competent people--or if they are not, competent people must be appointed to it.

My Amendment No. 144 would leave in the provision that Part I of the Arbitration Act 1996 should not apply, but would remove the provision for regulations. However, it would give the Secretary of State the power to direct that certain parts of the Arbitration Act should apply if there is a need to take cognisance of all or part of it in a very difficult case.

Amendment No. 145 would make a similar amendment to subsection (8) of Clause 18. I beg to move.

Lord Davies of Oldham: I am grateful to the noble Baroness for separating this issue from the previous one, because I agree that this is a difficult enough issue without being complicated by an additional debate. The provisions that the amendments desire to remove are virtually identical to those in Section 336 of the Education Act 1996, by which governors proceed to the tribunal and the SEN appeal. We believe there is an advantage in the two procedures being identical. We have chosen, as far as we can, to replicate for disability cases the existing provisions governing the tribunal's procedure.

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There are a number of reasons for that. First, it would facilitate the joining together of SEN and disability cases where appropriate. That can be a great advantage to the individual concerned. Secondly, LEAs and those who support and advise parents are growing in their familiarity with the existing procedures. We are worried that new ones would cause unnecessary confusion. Thirdly, the SEN procedure is now proving itself. It has been tested and is working. That is why we are seeking to replicate it as closely as possible.

On the issue of the regulation-making powers, I have listened carefully to what the noble Baroness had to say. The powers in fact give a framework within which the tribunal can operate in an independent and impartial way, without interference. It is imperative that there should be a universal procedural framework applicable to those bringing claims before the tribunal. I cannot see how two separate ways of formulating procedural rules for the same tribunal would be in any way helpful.

Although the noble Baroness has stated that this would happen only in exceptional circumstances, giving the Secretary of State the power to make procedural directions in cases that were already live and under consideration before the tribunal would add delay and bureaucracy. It might also be thought that it could compromise the judicial independence of the tribunal because the Secretary of State would be acting upon the scene on which they were seeking to reach judgment. It is conceivable--not under our present Secretary of State, of course--that the DfEE itself could be joined to the party in a particular case where an LEA or school is accused of discrimination and its defence is that it merely followed departmental guidance. The Secretary of State should surely not have the power or be seen to have the opportunity to make procedural directions that could affect the outcome of such a case. We have sought to keep the tribunal as independent as possible from such a possibility.

Amendments Nos. 144 and 145 would trigger the provision of the Tribunals and Inquiries Act, requiring consultation with the council on tribunals prior to the Secretary of State issuing directions. This could introduce considerable delay before individual cases could be heard. There is no doubt that with regard to the operation of the tribunal, we are all seeking for it to be as prompt as possible in considering potential and malpractice so that the remedy should be available as quickly as possible.

I hope that in the light of both comments, the noble Baroness might feel able to withdraw her amendment.

6 p.m.

Baroness Blatch: The Minister's answer was more than convincing--certainly the second part. I accept that I may have fallen into the trap of interfering with the independence of the tribunal. I acknowledge that explanation. I am trying to avoid what seems to be cumbersome. Again, I am never impressed by saying that it happened in a previous Act--although I may well have been part of government when it happened.

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It seems unnecessary to say in one part of the Act that,


    "Part I of the Arbitration Act does not apply",

and then provide a regulation power to apply it in part or in whole depending on whether the Secretary of State at some future date deems it appropriate. First, I do not think that the Secretary of State has used that power in the 1996 Act. We are now entering 2001, it has not been used, so perhaps the provision need not have been there. It would seem far better--having listened to the convincing answer of the Minister--to say that Part I of the Arbitration Act shall apply where appropriate. That leaves the tribunal entirely independent and free to use, refer to or take into account Part I of the Arbitration Act where appropriate. It would then not have to rely upon making a case to the Secretary of State and waiting for an order to come before Parliament to introduce the use of that part of the Act. I remain unhappy about the wording on the face of the Bill but I am totally convinced by the arguments made by the noble Lord to my particular amendments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 141 to 145 not moved.]

Clause 18 agreed to.

Clauses 19 and 20 agreed to.

Clause 21 [Roles of the Secretary of State and the National Assembly]:

Baroness Blackstone moved Amendment No. 146:


    Page 20, line 20, at end insert--


("(1A) Subsection (1B) applies in relation to--
(a) special schools which are not maintained special schools but which are approved by the Secretary of State, or by the National Assembly, under section 342 of the Education Act 1996; and
(b) city academies.
(1B) If the appropriate authority is satisfied (whether on a complaint or otherwise) that a responsible body--
(a) has acted, or is proposing to act, unreasonably in the discharge of a duty which that body has in relation to--
(i) the provision to the appropriate authority of copies of that body's accessibility plan, or
(ii) the inspection of that plan, or
(b) has failed to discharge that duty,
it may give that body such directions as to the discharge of the duty as appear to it to be expedient.").

On Question, amendment agreed to.

Baroness Blackstone moved Amendment No. 146A to 153:


    Page 20, line 21, after ("(1)") insert ("or (1B)").


    Page 20, line 26, leave out ("appropriate authority") and insert ("Secretary of State").


    Page 20, line 32, leave out ("it") and insert ("he").


    Page 20, line 33, leave out ("it") and insert ("him").


    Page 20, line 34, after ("(1)") insert (", (1B)").


    Page 20, line 35, leave out ("appropriate") and insert ("directing").

6 Feb 2001 : Column 254


    Page 20, line 38, leave out ("appropriate") and insert ("directing").


    Page 20, line 43, at end insert--


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