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The noble Baroness said: Clause 29 seeks to extend protection for the disabled student by providing that if the student claims that he has been discriminated against, contrary to the provisions of the Bill, then he can pursue that claim for damages through civil proceedings. Under such civil proceedings the court might award compensation to the student. Subsection (2) of the clause states that included in any such compensation for damages, the court may include compensation "for injury to feelings".
The intention of this subsection is obviously to assert that as well as compensation for, for example, loss of teaching time or education provision, or financial loss, the court may order compensation for any emotional hurt caused to the disabled person.
"Injury to feelings"--the term used in the Bill--is a very difficult concept and not easily defined or measurable. To try to improve on the phrase "injury to feelings" and to make it something more measurable and which any tribunal or court could assess, I recommend in my amendment that the words "injury to feelings" should be replaced by "any personal offence caused". That is much more direct, to the point and more likely to be the case. I beg to move.
Lord Davies of Oldham: We are in areas of considerable subtlety here. The Bill refers to "injury to feelings". The noble Baroness, Lady Sharp of Guildford, has her views on the matter and of course the noble Baroness, Lady Wilkins, in Amendment No. 139 had the phrase "any personal hurt experienced". We are all trying to define as accurately and as effectively as we can the problems against which a grievance can be identified.
The basis of the Government's position with regard to its phrase "injury to feelings" comes under Parts II and III of the Disability Discrimination Act. Therefore, there is a great deal to be said for consistency in those terms.
I hear what the noble Baroness, Lady Blatch, says about the different ways that the question could be phrased, but that is the basis for the choice. Our anxiety is that if the amendment were accepted, the difference in wording between identical provisions in this Bill and the rest of the Disability Discrimination Act could cause confusion.
I recognise that the parliamentary draftsmen may not always have quite as subtle an approach as others who are having a second shot at it. However, that is the basis of the phrase in the Bill before the House.
Baroness Blatch: I am sorry again that the intellectual rationale offered by the Minister is that the wording has been used before, so the Government are being consistent. There is more than half a point in the noble Lord's statement that this is being compared with a very recent Act of Parliament. However, injury to feelings is a difficult concept to measure. There are many situations in which one might have hurt feelings. If any personal offence is caused by the specific activity that is the subject of the case before the tribunal, that is a far more direct description. However, I shall not press my amendment further. I beg leave to withdraw the amendment.
The noble Earl said: Here we have a selection of Scottish amendments, starting with Amendment No. 178, which would remove any ambiguity about the remedies that will be available in Scotland under this section. It says that the remedies will be those available to the Court of Session.
Amendment No. 206 would extend the period in which a complaint about possible discrimination may be laid. The extension is very reasonably made, to allow a complaint to be made after whenever the discrimination is noticed or realised rather than just within six months of the start--or is it conclusion?--of the discriminatory action. It is surprisingly easy for the subjects of decision-making to be unaware of the unsatisfactory nature of decisions handed down to them. Six months may well be a very short time in which to come to a conclusion that a complaint is substantive. Similarly, finding some advocacy support and insight can be difficult for many people.
Amendment No. 207 is identical to Amendment No. 212. They are focused on the use of the correct legal terminology in Scotland. I am certain that the Committee would wish this to be both clear and accurate. The words "sufficient evidence" are the correct words when the value of evidence is being determined in Scots law. This is a very straightforward amendment.
Amendment No. 208 is similar to Amendment No. 213. They are both aimed at remedying the position of certificates of evidence. For this amendment, I must confess my indebtedness to the briefing of the Law Society of Scotland. The amendment would remove the presumption that a document purporting to be a certificate of evidence is a certificate unless it can be disproved by the other side. The amendment would
Lord Davies of Oldham: I have dreaded this moment ever since the Chief Whip a fortnight ago prevented me from going to a Burns supper where I could have received some elucidation on these matters and made me stay in the House to deal with English and Welsh matters instead. The noble Earl will recognise my limitations in responding to him on aspects of Scottish law. I will deal with each of the amendments as precisely as I can.
First, on Amendment No. 178, as the High Court in Scotland is a supreme court and the Court of Session is a term specific to the Scottish legal system, we are not quite clear why any aspect of confusion should arise.
The Earl of Mar and Kellie: Perhaps I might respond immediately. Those briefing me were unhappy about the use of the words "as the case may be" and felt that their removal and the substitution of "in Scotland" would make the position as clear as possible.
Turning to Amendments Nos. 207 and 212, the provisions in the Bill mirror equivalent provisions in the DDA. The problem with the amendments is that they would introduce an inconsistency with references elsewhere in the DDA to the precise term "conclusive evidence". Furthermore, the term "conclusive evidence" seems to work equally well whether used in Scotland, England or Wales, although I heard what the noble Earl said about the aspect of sufficient evidence.
Legal confusion in these issues is of no benefit to disabled people north or south of the border and our search for consistency with the DDA across the whole of the UK except Northern Ireland is the basis of our position and why we feel that the introduction of the distinctive and different phrase suggested by the noble Earl would not be wholly appropriate.
Turning to Amendments Nos. 208 and 213, the provisions in the Bill which the noble Earl seeks to amend mirror equivalent and non-controversial provisions in the DDA. There is nothing sinister about provisions of this nature; they are there simply for reasons of administrative convenience. Let me explain what I mean.
The Bill as drafted ensures that a respondent to a claim of disability discrimination will have a defence if the act was done to comply with any condition or requirement imposed by a Minister of the Crown by virtue of any enactment. A respondent will be able to prove this defence by producing an appropriate certificate to which the noble Earl referred. This does not mean that the person bringing the claim cannot
Amendments Nos. 206 and 210 relate to Schedule 2. Amendment No. 206 has the same effect for the schools provisions of Schedule 2 and the tribunal as Amendment No. 210 has for further and higher education and the courts.
I understand why the amendments have been put forward but they are not necessary. Circumstances could indeed arise in which an act of discrimination had taken place but which the complainant could not reasonably have known about at the time or within the six month period during which proceedings may be brought before the tribunal or the courts. But under paragraph 10(3)and paragraph 13(3) inserted by the schedule the tribunal and the court respectively may consider any claim which is out of time if, in all the circumstances of the case, they consider that it is just and equitable to do so. That the complainant could not reasonably have known about the discriminatory act at the time it occurred will be among the circumstances of the case that the tribunal, or the court as the case may be, may properly consider. With those reassurances in mind, I hope that the noble Earl will see fit to withdraw his amendment.
We have already dealt with Amendment No. 178. On Amendment No. 207, the Scottish legal system understands the odd occasion when English legal words end up being dealt with in Scotland. As regards the words "conclusive" or "sufficient", if this were a Scottish Act the word "sufficient" would have been used, but it is a United Kingdom Bill and we have more than one legal jurisdiction, so I suspect that we shall have to live with the position.
On Amendment No. 208, I shall be interested to hear what those briefing me have to say about the noble Lord's response. I suspect that they will persist in the view that proving a certificate of evidence is the wrong way round. However, I shall say no more on that because I am dependent on briefing on that point.
On Amendment No. 206, I am more than heartened by what the noble Lord said as regards the six-month cut-off period; namely, that consideration may be given to a later period in exceptional circumstances. He explained that point very well. Therefore I beg leave to withdraw the amendment.