Clause 11 - Discrimination Against Disabled Pupils and Prospective Pupils

Special Educational Needs and Disability Bill [Lords] – in a Public Bill Committee at 2:45 pm on 29th March 2001.

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Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment) 2:45 pm, 29th March 2001

I beg to move amendment No. 17, in page 9, line 25, leave out subsection (3).

We have done our best on SENs—although there may be one or two further flurries on the matter later—and we now turn to disability discrimination. I suspect that the hon. Member for Barking (Ms Hodge), the Under-Secretary of State for Education and Employment, is about to come into play. I bid a fond farewell to her ministerial colleague, the hon. Member for Redditch (Jacqui Smith), and welcome the hon. Member for Barking to her moment in the sun.

These are hugely important issues. Members of the Committee will have gathered from debate on Second Reading that Conservative Members are not minded to object in principle to the inclusion of education in the disability discrimination field. I need not rehearse our thinking on that, and I shall not seek to do so.

I should like the Minister to give some account, during this debate or the clause stand part debate, of the interaction between the SENs part of the Bill and the disability discrimination part of the Bill. We do not want to set off on what lawyers would call a forum shopping exercise by taking one route to deal with SENs, then transferring to another route to have a go under disability discrimination. If I may say so, that might prolong the agony. It is important to understand how the two elements dovetail in the resolution of individual, as well as collective, cases of difficulty.

The amendment is a probing amendment. Proposed new subsection (3) gives the Secretary of State powers by regulation to

``prescribe services which are, or...are not, to be regarded for the purposes of subsection (2)''— that is, unlawful discrimination—

``as being—

(a) education; or

(b) an associated service.''

In what kinds of situation might the Government wish to draw the line? I recall from earlier custom and practice on the interface, when education was excluded from the Disability Discrimination Act 1995, that several cases lay on the margins. We heard about examples such as the exclusion of diabetics from school trips and of disabled pupils from work experience—areas that, because they were not defined as education, were possibly caught by the 1995 Act. We are now perhaps entering lawyers' territory.

I am not seeking in any way to subvert the inclusion of education in the Bill, but it would be helpful to know what will be left out and in what circumstances. I understand the Government's position. Anyone who has ever been a Minister will know that Governments want to have saving clauses, sometimes even to deal with situations that nobody has thought about. However, I should like the Minister to clarify what is likely to left be out. I hope that it will be as little as reasonably possible, given that we have embraced the concept of the inclusion of education. It would also be helpful if she could speak about the wider aspects of how the provision will operate and how it will mesh with the SENs side.

I make neither of those requests in a querulous way. We are happy to express our good will towards clauses, but is important that they do not become discredited because they do not work as well as we would have wished owing to unintended consequences. Will the Minister respond to this probing amendment with that in mind?

Photo of Margaret Hodge Margaret Hodge Parliamentary Under-Secretary (Department for Education and Employment) (Employment and Equal Opportunities)

I take this opportunity to say how delighted I am to have the privilege of serving under your fair and judicious chairmanship, Mr. O'Brien, even at this latter end of the Parliament.

I join my hon. Friend the Under-Secretary in saying how pleased I was to introduce the Bill, which fulfils another part of our manifesto commitment on comprehensive rights for disabled people. It puts right a flaw that has incensed many hon. Members: that education in schools, colleges and universities has not been covered by previous legislation on disability discrimination.

To put that in context, one line in the report of the Disability Rights Task Force led to the Bill and, therefore, the clause. I shall read it to the Committee because it encapsulates what disabled people felt about exclusion of education from previous disability discrimination legislation. It asked:

``What value do we place on education when a disabled person has rights against discrimination under the DDA when going to the cinema, but not whilst at school or college?''

That reflected an outrage that we are delighted to put right. I am pleased that the Opposition have come to accept that it is unacceptable for that vital part of life not to be covered by disability discrimination legislation.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

We should accept that as a consensual and helpful comment. However, I want to state for the record that subsequent clauses of the Bill will unpick the arrangements which, although temporary and imperfect, were made in the 1995 Act by the then Government--of whom I was some little part--to run past issues of disability sensitivity in higher and further education. We may want to return to those matters when debating resources, but I do not want the Minister to think that they all emerged from a blank sheet of paper and that no one had thought about them before.

Photo of Margaret Hodge Margaret Hodge Parliamentary Under-Secretary (Department for Education and Employment) (Employment and Equal Opportunities)

I accept indeed what the hon. Member for Daventry says about those matters having been thought about, but it is a shame that they were not acted on before. It is delightful to be part of a Government who are putting them into legislation.

I turn to the issues which the hon. Gentleman raised, appropriately, and which we thought through carefully. The first was the interaction between SEN legislation and disability discrimination legislation. We agree that clarity is necessary, so we decided that, in relation to schools, both disability discrimination and SEN issues should be dealt with by one tribunal. That will ensure clarity. To reassure the hon. Gentleman, the SEN provisions amend part IV of the Education Act 1996, which covers special educational provision, and the disability provisions largely amend the DDA, to ensure that the rights of access of disabled pupils, students and adult learners to education are protected. Bringing those amendments together under one tribunal will ensure clarity for all users of education services--children and their parents, students and adults.

The amendment is a probing amendment. I am delighted that it is because it would remove the regulation-making powers that enable us to prescribe what are education or associated services for the purposes of the duty on schools not to discriminate against disabled people. The history is that the Disability Rights Task Force considered what should be included as education issues to be covered by disability discrimination legislation and used the phrase, ``the life of the school'', which goes beyond the narrow definition. It said that it wanted to secure a new set of anti-discriminatory duties covering the life of a school. That is what we have attempted to provide in clauses 11, 12 and 13, which take forward the task force's recommendation. The life of the school is what is meant by the ``education and associated services'' that a school will offer its pupils. If it will help the hon. Gentleman and other hon. Members, I will give some details of what that covers.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

That would be immensely helpful. As the Minister has correctly surmised, it was the aim of my probing amendment.

What happens when schools are venues for activities that are not directly controlled by the governors, although they have their permission, such as after-school clubs? In such areas, we need to clarify who has responsibility in order to avoid embarrassment to governors in matters beyond their control.

Photo of Margaret Hodge Margaret Hodge Parliamentary Under-Secretary (Department for Education and Employment) (Employment and Equal Opportunities) 3:00 pm, 29th March 2001

This is a complex area. Some activities of the kind to which the hon. Gentleman referred are already covered by part III of the DDA, but we must ensure that all activities that take place in schools—education and associated services—are covered. If I give examples of the activities that we will cover in regulations, it will give the hon. Gentleman an idea of what we hope to achieve.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

I assure the Minister that I am not trying to be difficult, and nor is she, but I would like to be absolutely clear. If an activity—such as an after-school club—is under the direct control not of the governors but of the person or body carrying out the activity, would that person or body be responsible in the event of litigation? I understand if the Minister does not want to answer that now, but it needs clarification, because governors, and others, might want to protect themselves.

Photo of Margaret Hodge Margaret Hodge Parliamentary Under-Secretary (Department for Education and Employment) (Employment and Equal Opportunities)

I know about after-school clubs, regardless of my ministerial responsibilities. We hope as soon as possible to make governors responsible for such matters—under the Regulatory Reform Bill that is going through Parliament. After-school clubs will be covered under the new anti-discriminatory provisions in the Bill.

A parents' evening is the kind of activity covered by part III of the DDA. If a parent suffered discrimination and could not participate in a parents' evening solely because of a disability, he or she could take action under the existing part III. A child's inability to participate in an after-school activity, even one not currently run directly by the governors, will be incorporated in the proposed revision of part IV that we are debating.

Photo of Mr Win Griffiths Mr Win Griffiths Labour, Bridgend

I should like to clear up a nicety of devolution. In the first part of the Bill, we were looking to amend an earlier Education Act, so we were discussing a devolved matter. For example, clause 5(6) states:

``Regulations under this section, so far as they relate to Wales, require the agreement of the National Assembly for Wales.''

We are now discussing an Act that covers what is not, strictly speaking, a devolved matter. However, proposed new subsection (3) states:

``The Secretary of State may by regulations prescribe services'' that are defined as being

``(a) education; or

(b) an associated service.''

Education is a devolved matter. In one sense, I can understand why the clause is written like that, but is the matter covered by the concordats between the Welsh Assembly and the Minister's Department? How will the consultation process work in this instance?

Photo of Margaret Hodge Margaret Hodge Parliamentary Under-Secretary (Department for Education and Employment) (Employment and Equal Opportunities)

My hon. Friend touched on an issue that has greatly concerned us. Equal opportunities are reserved to the Department, but education, as my hon. Friend rightly said, is a devolved matter. It has been very complicated to get the right relationship between the devolved responsibilities to the education authority and the reserved responsibilities of anti-discrimination. We consulted closely with officials in Wales and with Members of the Welsh Assembly while developing our proposals for legislation, and I reassure my hon. Friend that, if the Bill is enacted, we will ask the Disability Rights Commission to prepare codes of practice about the implementation of duties. We will ask them to produce separate chapters, if not separate codes, for both Wales and Scotland. Therefore, there will be ample consultation to give regard to the differences that are inevitably present in a devolved situation. I hope that that assures my hon. Friend.

In order to help the Committee, I return to the matters that will be covered by the proposed regulations. Obviously, we will cover all teaching during core school hours. We will also cover school assemblies, field trips—school trips for a child with diabetes would be covered—exchanges and study-support activities, which was a further example to which the hon. Member for Daventry referred. We will also cover all extra-curricular activities, such as sport, music or drama coaching and sports activities in which pupils represent their school. We will also cover all school trips with an educational element, break times, school meal provision, after-school clubs provided by parents' associations with the permission of the school, which have also been referred to, non-educational school trips, childcare, and leisure activities such as school discos. [Laughter.] They are a very important part of school life.

Photo of John Randall John Randall Opposition Whip (Commons)

I was thinking of other activities that may take place in a school environment. Would cadet forces be covered?

Photo of Margaret Hodge Margaret Hodge Parliamentary Under-Secretary (Department for Education and Employment) (Employment and Equal Opportunities)

I will seek detailed advice on that and I will write to the hon. Gentleman about it. Off the top of my head, I think that cadet forces may well be a part III issue under the old DDA. I am receiving nods from my officials.

Photo of John Randall John Randall Opposition Whip (Commons)

I wondered because of the current debate about disability within the armed forces.

Photo of Margaret Hodge Margaret Hodge Parliamentary Under-Secretary (Department for Education and Employment) (Employment and Equal Opportunities)

I understand the matter being raised. In order to be accurate, it will be better for me to write to the hon. Gentleman about it, and I undertake to do that.

I shall clarify some complexities. Part III would cover services to parents involved with the school. Such services as parent-teacher association meetings, parents' evenings, open days for new and prospective parents, and the community use of schools will continue to be covered by the provisions. We seek the power to make regulations about education and associated services because, as the debate has illustrated, there may still be areas around the margins in which it is unclear to the school, or others, which set of DDA duties apply to which activities; is it part III or part IV?

Mr. Boswell rose—

Photo of Mr Bill O'Brien Mr Bill O'Brien Labour, Normanton

I call the Minister—[Interruption.]

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

Well, it is only a matter of time, Mr. O'Brien.

Can the Minister clarify that anything that goes on in a school will be covered either by part III or part IV? The converse of that is that the provision for regulation is about the designation between the various duties. It is not about finding categories that are left out, unless they are wholly exceptional categories, such as the one to which my hon. Friend the Member for Uxbridge (Mr. Randall) referred, which may fall for other reasons as excepted occasions. When I tabled the amendment, I was anxious to find out what had been left out of the provision, but I think that the hon. Lady is saying to me, unless I misinterpreted her remarks, that everything is under one heading or another. Will she clarify the situation?

Photo of Margaret Hodge Margaret Hodge Parliamentary Under-Secretary (Department for Education and Employment) (Employment and Equal Opportunities)

The hon. Gentleman is right that the provision gives us the facility to ensure that we can properly categorise whether the measure is a part III or part IV obligation.

I wish to return briefly to the issues raised by my hon. Friend the Member for Bridgend (Mr. Griffiths).

Photo of Margaret Hodge Margaret Hodge Parliamentary Under-Secretary (Department for Education and Employment) (Employment and Equal Opportunities)

We are all getting new titles this afternoon. We shall ensure that the specific interests of Wales are taken on board when developing the necessary codes of practice. There will not necessarily be a separate chapter, however. I would not like my hon. Friend to leave the Committee not knowing that. Having given those reassurances, I hope that hon. Gentlemen will withdraw the amendment.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

I am grateful to the Minister. She has taken a certain amount of incoming fire. However, it has been friendly fire and was designed to elucidate on such matters. I see that the hon. Member for Bridgend is now leaving the Room, having fired his bullets. As a vicarious Welsh person through marriage, it clearly would be unfortunate if the effect of the duties were to be materially different under the two Administrations.

The Minister has confirmed that everything is in, unless for some exceptional reason, it is out and that her regulation-making powers that I always bridle at—if only in theory and temporarily—are about how she assigns those duties between the different parts of the Disability Discrimination Act. In the light of that and bearing in mind that, broadly speaking, there are safeguards within the Act and through the Disability Rights Commission that are designed to make the safeguards do-able and not unduly onerous or unreasonable, we can give her a fair wind both for her explanation and for the clause.

Photo of Tom Levitt Tom Levitt Labour, High Peak

The reference of the hon. Member for Daventry to his being temporarily non-ministerial—a phrase that applies to most of us—meant in a general way that we were all temporarily non-disabled.

I refer to the Disability Rights Task Force. How it was set up within weeks of the Government coming to power in 1997 and the work that was done with it not only by my hon. Friend the Member for Barking (Ms Hodge), the Under-Secretary of State for Education and Employment, but her predecessor, the right hon. Member for Newport, East (Mr. Howarth), showed a sense of purpose right from the start. We are now witnessing one of the first positive outcomes from the Government's response to the Disability Rights Task Force operation. It was a privilege to work closely with my hon. Friend throughout 1999 before I was moved to my present position in another Department. I am therefore especially proud to be here today.

To return to the clause, I want to pick up the idea that I mentioned this morning that someone with a disability is not necessarily the same as someone with special educational needs. I am sure that there was a time in the past when people with disabilities that did not impose an educational or learning imposition or burden on them were nevertheless treated as having one. It was only because of the lack of insight, inspiration, care and thought by that temporarily non-disabled majority who run things that the needs of such people were not met. What the clause does—I regret that the amendment would remove this provision—is to provide a legislative framework for what is already being done, in terms of the doubling by the Government of the grants available for disabled students and of the grants available for schools to put in lifts and ramps, so that they do not have to meet the cost out of normal revenue expenditure.

The temporarily non-right hon. Member for Uxbridge led me to think about climbing walls, which are found in many gymnasiums. The thought went through my mind that providing a ramp would allow people access to a climbing wall. That is not as silly as it sounds, because there is no reason why people with disabilities should not access climbing walls—it is merely that they do not access them in the same way as everyone else. We should facilitate that part of their wider education. I am sure that my hon. Friend the Member for Barking is aware that when we talk about schools making the necessary accommodations to comply with the clause, we must also consider acoustics, lighting and decor. All of those are important in making a disabled-friendly environment within schools.

Photo of Mr Bill O'Brien Mr Bill O'Brien Labour, Normanton

I want to draw attention to the fact that we are still considering the amendment, which would delete subsection (3) of the clause. The hon. Gentleman has not yet addressed that. To broaden the debate would be a discourtesy to the Committee.

Photo of Tom Levitt Tom Levitt Labour, High Peak

I take your point, Mr. O'Brien. With respect, the kind of provisions that I was talking about may not be possible if the amendment is accepted, and if the power to set regulatory orders is successful. I want to ask my hon. Friend the Member for Barking a question, which I am sure that she will wish to answer in her wind-up: given that the Disability Discrimination Act had a timetable of implementation, where do these provisions fit into that timetable? When can we expect to see the provisions come into effect, should the Bill become law?

Another nice little phrase came into my mind—the Government are committed to comprehensive civil rights for disabled people, not just in comprehensive schools but comprehensively throughout the education process.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 ordered to stand part of the Bill.

Clause 12 ordered to stand part of the Bill.