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Lord Rix: I welcome the fact that the Government want the same things as we want, except that they are not prepared to put them on the face of the Bill in the same way. The Special Educational Consortium has pressed me on these amendments. It will no doubt speak to ministerial officials in due course. I hope that we may be able to approach the issue from a slightly different angle on Report. In the meantime, I beg leave to withdraw my amendment.
It is important for students who may benefit from the right of the Bill to have the ability to keep their disability confidential if they wish. We want to make it absolutely clear to institutions that when discharging their duties under Clause 27 to make reasonable judgments, they should take into account the need to maintain confidentiality in respect of an individual student if a request has been made by a student. Subsections (3), (4) and (5) are meant to provide the clarity on this point that both individuals and institutions need. I do not know whether, in the light of the assurance I have given, the noble Baroness will feel satisfied. That is the purpose of those subsections. If we were to cut them out, I do not believe that that clarity would be there, particularly for institutions.
Baroness Blatch: The one defence I would not use for keeping the provision in is clarity. As an analogy, it is rather like saying that when determining whether to teach reasonably young people English one shall have regard to the extent to which the school taught English adequately. It is such a convoluted contortion of a paragraph. The explanation given by the noble Baroness has not helped me. However, no doubt we shall return to the issue on the Floor of the House. I beg leave to withdraw the amendment.
The aim of this series of amendments is to move the enforcement of disability rights in further and higher education out of the courts and into tribunals which are more accessible and would have greater relevant awareness and experience of disability issues. We were talking a little while earlier about the difficulties of going to court on disability discrimination issues and, because of the difficulty of taking such cases to court with all the costs and complexity that this entails, many disabled people do not pursue this course of action. The switch proposed in this series of amendments would ensure that the new rights of disabled learners in further education and higher education were much more readily enforceable.
The amendment has been supported by the Royal National Institute for the Blind and in a recent study they have pursued called The Price of Justice: Towards Effective Enforcement of the Disability Discrimination Act, they have documented the very considerable barriers to disabled people in bringing discrimination cases before a county court. At autumn 2000 only 25 cases had been brought to the county or sheriff courts under Part III of the DDA as against over 5,000 similar cases to employment tribunals.
The barriers to bringing cases into courts were shown to be the costs involved, the complexity and the lack of disability awareness on the part of judges. The conclusion that the RNIB derived from this was that under the present system disabled people's rights of access to goods and services are virtually unenforceable. The recommendation was very firmly that all disability discrimination cases should be commenced in a tribunal.
The Independent Review of Anti-Discrimination Legislation carried out by Professor Hepple and his colleagues at Cambridge University, for similar reasons, recommended that discrimination cases should be heard in tribunals. A good deal of concern was expressed on the Disability Rights Task Force about the suitability of county courts for dealing with cases of discrimination, and similar concerns were expressed by the Commission for Racial Equality and the Equal Opportunities Commission in their recent reviews of anti-discrimination legislation.
A SENDIST tribunal is already being established. The aim would be that it would be appropriate to establish a separate division of that tribunal in order to cater for the differences which exist between school and post-school cases. The tribunal would, by and large, be a far more suitable place to hear such cases. There is a precedent for this in the field of social security tribunals, and the feeling is that it would be a good idea to go forward in that direction. I beg to move.
Baroness Darcy de Knayth: I have to say I am a bit worried about this amendment. Is it not very important that discrimination on the grounds of disability has the same profile as that against sex and race? I think it should not be marginalised into a tribunal. The noble Baroness, Lady Sharp, has said that there is a difference between school and post-school anyway, so that this would be something new
Lord Davies of Oldham: Not half as interested as the Minister was to hear what the noble Baroness, Lady Darcy, had to say, because I agree with her completely. She has effectively presented the basis of the argument that we have unleashed as to whether the tribunal or the courts should provide redress and effective action. Here we are dealing with the relationship between students and their institutions. It is very different from the relationship within schools and pupils under the age of 16, where it is clear that one of the merits contained within our proposals, as the noble Baroness, Lady Darcy, indicated, is that it keeps the disability issues four square with the issues on race and sex discrimination. The institutions expect to meet any failure on their part in the courts of the land, rather than with a tribunal, which is designed for a different purpose from the relationship between students and institutions.
The difference is that in the case of the student, it might be that some aspect of real expense and compensation was involved in the discrimination against them, with which the courts would be able to deal. We have already discussed this afternoon why it is inappropriate for the tribunal to be dealing in that way with regard to students under the age of 16.
The nub of the Government's position has been exemplified in the discussion in the Committee. I understand the intent behind the approach of the noble Baroness, Lady Sharp, and her reservations about the way in which the courts may have acted in the past.
There is an ongoing process under my noble and learned friend Lord Irvine at the present time of modernising the civil courts in order that we can see more effective redress of grievances across the range of cases brought before the civil courts. Therefore, if there are anxieties about the way the courts have dealt with race and sex discrimination in the past, then that is where change needs to be effected, and any such benefits of course would obtain also in relation to disability. However, we do not believe that the case has been made for putting the position for students beyond 16 and their different relationships with their institutions full square with pupils in schools. That is why we ask the noble Baroness, Lady Sharp of Guildford, to withdraw her amendment.
Baroness Sharp of Guildford: I thank the Minister for his reply. I should point out that there is a precedent here in relation to employment tribunals. He is right to say that there is a different relationship between students and their institutions and between schools and their institutions. I take that on board, and this is why what was suggested was a different division of the same tribunal.