Clause 23 - Enforcement procedure: Scotland

Special Educational Needs and Disability Bill [Lords] – in a Public Bill Committee at 12:15 pm on 3rd April 2001.

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Question proposed, That the clause stand part of the Bill.

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

I shall try to follow the masterful intervention on the previous clause of my hon. Friend the Member for Uxbridge (Mr. Randall). He reminded me of the person who expressed confusion on a difficult matter, consulted his friend and was advised to go to a conference. On returning from the conference, he was debriefed by his friend and declared himself to be still confused, but at a somewhat higher level.

With great trepidation, I dip a toe in the water not only of English, but of Scottish law. Although I am aware that there is a Parliamentary Private Secretary in the Committee who will, no doubt, support the cause of Scotland in a silent capacity, I am sorry that the hon. Member for Aberdeen, South (Miss Begg) is unable to be with us.

The Scots have not had a special needs tribunal, and it was implicit in the arrangements drawn up by the Conservative Government that they felt that they did not need one. Victims of disability discrimination of all ages must go to the courts to obtain redress in Scotland. That differs from the position in England and Wales, except in the case of post-16 education, where England and Wales are more like Scotland. I am not saying that the situation in Scotland is wrong. Essentially, and not just within the new structure but already, that is a matter for the Scots to decide. However, I am anxious to secure what could loosely be called equality of redress.

The Minister will say—rightly—that the Government have provided for everybody to have redress. Obligations under the Human Rights Act 1998 apply across the United Kingdom. An hon. Member representing a Northern Ireland constituency made the point during an intervention on me during a debate on the programme motion, when I was less well-briefed than I am now, about the application of the legislation to Northern Ireland. I could have disabused him, if I had read the explanatory notes with more care. The provisions are not designed to apply to Northern Ireland. No doubt Northern Ireland will have its own procedures for dealing with these matters.

Although I do not object to the use of different legal forms or forums for determining people's rights, it is important that people should in general enjoy the same kind of redress. The Minister has made much of the relative informality of the special educational needs tribunal, and, on the basis of experience, we welcome that. However, parents in Scotland have to go to court to claim their rights. It is not difficult to construct a hypothetical case in which a marriage had been dissolved and one sibling had gone to live with a parent in England while the other had gone to live with a parent in Scotland. It may be that, as identical twins, they might suffer from the same special educational need. There would be potential for discrimination.

I am, I admit, building circumstance on circumstance, but such a situation is statistically likely to arise. There would be different provision for the two siblings. Whatever happens, people would have to go down different routes to obtain redress. I do not mind that, but if it meant that fewer Scottish parents than English or Welsh parents were able to avail themselves of the right, or if there were particular differences within natural families such as those that I have mentioned, we would not have done ourselves a lot of good.

A recent Royal National Institute for the Blind survey cogently pointed that while as many as 25,000 cases were heard by employment tribunals under section (2) of the Disability Discrimination Act, only a handful of cases—between 40 and 50—brought under part III for England and Wales went to court. It is a big assumption to make, but differences in application or compliance between part II and part III duties suggest that whatever the legal form, the avenues of redress are not the same. Whatever else we can say, discrimination on special educational needs in England and Wales is not likely to be hugely different from that in Scotland. I put down a marker that the Bill might not operate in the same way in Scotland, and that it might not afford the same rights there that it does in England and Wales.

Photo of John Hayes John Hayes Shadow Minister (Education) (Schools)

For clarity, my hon. Friend might invite the Minister to consider that children living in Scotland being educated in England, or children living in England being educated in Scotland, could throw up all sorts of potential conflicts.

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

My hon. Friend is entirely right. None of us wants the United Kingdom Government to be arraigned under the European convention on human rights for systematically failing to provide the same pattern of recourse in the various countries of the Union. Nor do we want people going to court in Scotland to say that it is not fair that people in England can go to the tribunal. We should raise such matters, but the Minister may want to say something about the Disability Rights Commission, which is a United Kingdom body, albeit with Scottish representation. For the record—I do not like speaking inaccurately—I do not know whether that is a United Kingdom body or a Great Britain body.

Photo of Mr Harry Barnes Mr Harry Barnes Labour, North East Derbyshire

It is a British body. Northern Ireland has a general committee on rights, which covers various provisions including disability.

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

The hon. Gentleman is helpful. I remember that the DRC is a Great Britain body—a three-country body. It is important that the rights of Scottish parents should be broadly comparable with those of English or Welsh parents. That is all that we ask. I hope that the Minister can assure us.

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

The hon. Member for South Holland and The Deepings asked about Scottish children being educated in England and vice-versa. The Bill is clear on that. It depends who has discriminated. If it is a Scottish child in an English school, the case will go to the special educational needs and disability tribunal; if it is an English child in a Scottish school, the case will go to court. That is one of the interesting facets of devolution.

The Under-Secretary, my hon. Friend the Member for Redditch, suggests that if the Committee agrees, we should note our concern about what happened to my hon. Friend the Member for Aberdeen, South at the weekend. I understand that she fell out of her wheelchair when trying to cross a road, which is why she is not here today. From the work that she and I have done together, I know that she is utterly dedicated to getting the Bill on the statute book. She feels most strongly about it, and is personally involved in it. She will be distressed at not being able to be with us today, and it would be appropriate if the Committee were to send her its good wishes.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment) 12:30 pm, 3rd April 2001

I am distressed to hear what the Minister said; I was not aware of what had happened to the hon. Member for Aberdeen, South. She is a redoubtable fighter and has made a considerable personal contribution, and I acknowledge what the Minister said about her. We are all mortified, as the Minister must be, to hear the reason for the hon. Lady's absence. I warmly endorse the Minister's suggestion that the Committee send its best wishes to the hon. Lady and our hope that she can return soon.

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

Under clause 23, a claim made in Scotland by a disabled pupil who has been discriminated against will be dealt with by civil proceedings in the sheriff court. Under subsection (1), the alleged discrimination may be committed by the responsible body, by its employees acting in the course of their employment or by its agents. Under subsection (3), all remedies available in the Court of Session are available other than the award of damages. Subsection (5) adjusts the application of the relevant provisions in schedule 3, which makes further provision on enforcement in Scotland. As with the equivalent provision in England and Wales, a claim has to be made within six months of the act in question.

We come to the issue of redress. As the hon. Member for Daventry pointed out, the situation in Scotland is not exactly the same as it is in England and Wales. Scotland does not have a tribunal, and cases of alleged discrimination will be heard in the sheriff court. Nevertheless, the sheriff will have a range of remedies at his disposal, including the power to order a responsible body to refrain from discriminatory practices. The sheriff will also be able to order positive measures to be set in place to rectify shortcomings in the educational provision made for disabled children. They are strong measures and we believe that they provide an appropriate means of redress.

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

With the greatest respect, the Minister is missing the point. The issue is not whether the sheriff court has powers comparable with those of the tribunal, but whether the complexity and formality of the proceedings in the sheriff court will make it less easy for parents to make application to the court.

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

Order. Can the Minister respond to the hon. Member for Daventry?

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

If I respond quickly, I shall gladly take the intervention from my hon. Friend.

We have held discussions with a number of voluntary organisations and several Scottish Members of Parliament. My hon. Friend the Member for Aberdeen, South has also raised many of the issues mentioned by the hon. Member for Daventry. It is a matter for the Scottish Executive. The Under-Secretary, my hon. Friend the Member for Redditch, has been in correspondence with her counterpart in the Scottish Executive about reviewing some of their processes and procedures. They are currently reviewing the process by which they record needs, including the appeals mechanisms. It will be for them to introduce proposals to establish something like the special educational needs tribunal that we have in England and Wales.

Photo of Mr Win Griffiths Mr Win Griffiths Labour, Bridgend

I thank my hon. Friend for giving way. She has answered the point that I was going to raise, so I shall sit down.

Photo of John Hayes John Hayes Shadow Minister (Education) (Schools)

I am grateful to the Minister for giving way again. Am I right in assuming that children can appear before the sheriff court? The Minister argued against my earlier point about the worry of children appearing before tribunals. If they can appear before tribunals, might that not create a perverse situation in which the informal tribunals are less child friendly than formal courts? I do not know the answer to that question, but it is an important point.

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

Yes, children can appear before sheriff courts. That is one reason why Scottish Members of this Parliament, voluntary organisations in Scotland that deal with such issues and the Government, in discussions with the Scottish Executive, have been considering whether a review is appropriate. I am delighted that the Scottish Executive is considering such a review, but they will have to make the final decision.

Question put and agreed to.

Clause 23 ordered to stand part of the Bill.

Clause 24 ordered to stand part of the Bill.