Clause 27 - Meaning of ``discrimination''

Special Educational Needs and Disability Bill [Lords] – in a Public Bill Committee at 5:30 pm on 3rd April 2001.

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Photo of Mr David Madel Mr David Madel Conservative, South West Bedfordshire

With this it will be convenient to discuss amendment No. 24, in page 26, leave out lines 37 to 41.

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

We have had a good discussion on earlier clauses. I assure the Minister, the hon. Member for Barking, that I do not intend to replicate the length of previous exchanges, because we have been given important assurances. It is nothing personal if we are now more perfunctory when speaking to the hon. Lady than when speaking to the Under Secretary, the hon. Member for Redditch.

The purpose of my amendment and, I suspect, of the Liberal Democrat amendment—it is geographically challenged, which is why it comes after mine—is to probe the meaning of discrimination. Given the consensus that has emerged in Committee that we do not want discrimination of any sort, we now need to discover in what circumstances less favourable treatment might be justified.

Ministers clearly think that there may be such circumstances. This may be a get-out clause, rather like the famous section of the Army Act that catches anyone who has not thought of anything else. It would enable Ministers to exempt something that they thought was reasonable or even something unreasonable that might give rise to undesirable consequences. I am sure that Ministers do not intend it as a means of subverting their intentions, but it would help if the Minister could tell us something about it. On the other hand, there will not be many members of the Committee who are against academic standards, or any other prescribed standards.

On the whole, we are in favour of standards, but we need to know how the clause will work and what the potential difficulties might be. Thinking ahead to a later amendment tabled in the name of the hon. Member for St. Ives (Mr. George), I can see that the Committee would be interested in the matter of academic qualifications. Hon. Members will share the view of Lord Dearing on the importance of bite-sized chunks. Some Committee members might have heard me make impassioned speeches about my preference for glasses that are half full rather than half empty. That is particularly relevant to people with learning difficulties. If we want them to achieve something—it is important that they should be able to do so—we must offer them achievable qualifications, even if those qualifications are not available to other people in that institution. That difficulty must be considered—perhaps that is what the Minister has in mind. As it is a probing amendment, I rest my case and await the Minister's response.

Photo of Andrew George Andrew George Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Work and Pensions)

In welcoming you to the Chair, Sir David, I offer my commiserations to the hon. Member for Aberdeen, South (Miss Begg) who, as we heard this morning, has had an accident and is unable to be with us. I add my name to the list of those who wish her a speedy recovery.

The hon. Member for Daventry is probably right to say that my amendment is geographically challenged if he means that it is the second amendment on the page; perhaps it is sequentially challenged given where it has fallen in the scheme of things. Subsection (6) attempts to define when less favourable treatment is legitimate.

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

I should have said that it is possible that there is a link between this provision and the provision of efficient education for other pupils, which we debated in the context of schools on clause 1.

Photo of Andrew George Andrew George Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Work and Pensions)

I am grateful for that intervention. We are attempting to tease out further amplification of an earlier debate, but in a different context. Amendment No. 24 would limit the justification for discrimination to the need to maintain academic and other standards, and not simply to give the Minister the leeway to introduce regulations that would allow a wider spread of less favourable or discriminatory treatment of students. Sometimes it is necessary and proper for colleges and universities to give less favourable treatment to disabled applicants and students—for instance, when the academic and other requirements of a course necessitate that disabled students are not admitted, or that adjustments are not made. I am sure that hon. Members would agree that medical and dental students need good vision, and that students with a visual challenge might not be able to meet the academic or professional standards necessary to complete the course. Perhaps we could debate the matter.

Although it might be possible to justify subsection (6) in tightly defined circumstances, it is less easy to justify subsection (7). That subsection refers to prescribed treatments, and to less favourable treatment in prescribed circumstances that have to be justified. What are those discriminatory treatments? What are the circumstances in which discrimination is justifiable? The Bill gives no indication, nor do the explanatory notes. Once the needs of a particular course have been allowed, what other possible justifications are there for discrimination, if the reason for less favourable treatment cannot be justified in terms of academic standards? Can it be justified because the efficient education of other students will be affected, or because the student or other students might be put in some danger? We need examples of justifications for less favourable treatment that are not encompassed in subsection (6).

The leeway given for discrimination in subsection 7 is far too broad and leaves too much to the whim of those who write the regulations. Perish the thought that anyone would doubt the good intentions of the present Administration, but there is no certainty that some future Administration will not write regulations that are unhelpful and clearly discriminatory towards disabled people. Why leave it to chance? There is no need for subsection (7); subsection (6) does everything that is necessary, unless the Minister is able to elucidate the circumstances in which subsection (6) does not encompass all other possible circumstances. I cannot envisage them. Will the Minister give the Committee one example—or several, if possible—to elucidate why it is necessary to provide such a widely drawn right through regulation to allow less favourable treatment to disabled people?

Photo of Margaret Hodge Margaret Hodge Parliamentary Under-Secretary (Department for Education and Employment) (Employment and Equal Opportunities) 5:45 pm, 3rd April 2001

This is the first time that I have appeared in a Committee under your chairmanship, Sir David, and possibly the last. I hope that it will be a memorable and enjoyable occasion for both of us.

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

But a significant one.

I reassure Opposition Members that the purpose of the clauses that the probing amendments seek to clarify is not to subvert our intention to outlaw discrimination. The clauses provide a common-sense solution to institutions that will implement the new duties proposed by the Bill, and a common-sense interpretation for individuals who will try to exercise their rights in the Bill.

I shall deal with the amendments separately. The amendment of the hon. Member for Daventry would delete subsection (6) of clause 27. He will recall that we consulted widely on our proposals for the Bill. We received many representations, especially from universities, that expressed a concern that academic standards would be lowered if the Bill forced the admission of students without reference to academic ability. We inserted the clause because of those representations. The discussions of the disability rights taskforce, which I had the privilege of chairing, also emphasised that the need to retain standards in courses and qualifications was important.

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 for that elucidation. I wondered whether it was along those lines, and I am reassured that it is. For the record, Universities UK makes it clear in the communication to which I have referred that the ``balance'' in clause 27 is now as it would wish it to be.

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

I am delighted to hear that, because the Government share the view that further and higher education institutions must maintain all entry requirements and academic standards to which all students, whether or not they have a disability, and prospective students are subject. Removing that justification would undermine the quality of the education that those institutions offered.

The amendment would also remove subsection (6)(b), which makes provision for regulations to prescribe the standards other than academic standards that justify less favourable treatment. Again, the overriding factor in determining whether an applicant is admitted to an institution or on to a course is their ability, or potential to develop ability, in areas relevant to the course of study. For example, admission to a music course whose purpose is to develop musical ability will depend on the applicant's level of attainment in music. Less favourable treatment would be justified in those circumstances if objective standards were in place but an applicant did not meet them.

As with the need to maintain academic standards, some institutions, such as drama schools and art colleges, were worried that the Bill's provisions would undermine their standards. The regulation-making power is needed to allow such institutions to maintain some non-academic standards, such as artistic, dramatic and musical standards.

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

I will intervene briefly, Sir David, not to interrupt your brief encounter—as my hon. Friend said, it has become a menage a trois—but simply to strike a note of caution on the previous two points. One thinks, for example, of the percussionist Evelyn Glennie, who might well have been discriminated against because of her handicap when she trained and, in a rather less liberal-minded institution, might not have gained the opportunity that she did. One thinks of people in a range of areas with emotional, behavioural or mental health difficulties. Any dynamic disadvantage or special need could well be used as a means of discriminating against someone, but not necessarily on justifiable grounds. I have a concern, but I put it no more strongly than that.

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

I am rather pleased, because that intervention enables me to clarify how an institution could justify excluding or including a student. In the instances to which the hon. Gentleman referred, there would be no justification for having regard to a disability to exclude a person from participating in a course, because his or her musical or other ability would be of a high standard. Evelyn Glennie is a great percussionist. As long as the musical or dramatic ability is demonstrated, it is illegal for an institution to have regard to a disability in judging that musical or dramatic ability.

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

The Minister is really saying that each case will be judged on its merits.

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

So it would not be satisfactory for an institution to say that a group of people fall into a category that is apparently not conducive to their prospering in drama, theatre, music or whatever. That would not be sufficient or proper grounds to discriminate against them under this part of the Bill.

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

Of course, one must make judgments on a case-by-case basis. That is absolutely right. Equally, any individual who meets the standard required by a course will be entitled to participate in it. The institution may then have to make a reasonable adjustment to enable him or her to participate fully, depending on the disability. The institution sets the standard for a specific specialism, and anyone who meets it will be entitled to participate in it.

Photo of Andrew George Andrew George Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Work and Pensions)

Does the Minister share my concern that much drama does not properly reflect the broad span of real life, particularly in relation to disability? If drama is about the suspension of disbelief and the presentation of a wider life beyond what much of us see in our smaller lives, drama courses should be encouraged to accept disabled students. If standards are being set, they should be set in a way that encourages disabled applicants. If they reflect the nature of theatre in the public eye, that may be discriminatory.

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

If, in admitting a student, an institution set a standard whereby people were discriminated against simply on the grounds of their disability, it would be illegal under the Bill. However, the hon. Gentleman is correct that there is a widely prevailing attitude within the community, which is reflected in the media and drama, that disabled people cannot play a whole range of roles, simply because of their disability. Far too often we see disabled people playing only a role that reflects their disability.

One of the delights for me of going to the millennium dome—[Interruption.] I was one of those people who had a good time there. Other hon. Members may not have enjoyed what I am about to describe. Wheelchair users participated in the acrobatic display on the central stage and it was one of the few occasions when I have seen disabled people as mainstream participants in an activity. It was warm and welcoming and displayed a proper inclusive attitude that exists all too rarely in our society. Certainly it is an issue about which I constantly try to talk to all sorts of people in the media.

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

I rise to give the Minister another accolade without getting on to dome territory. I know that she has worked with the actor's union Equity with whom I have also been in touch about the inclusion of disabled actors in a wide range of roles. The essential point that we are all trying to make in this Committee is that we do not want disabled people to be type cast. As my hon. Friend the Member for South Holland and The Deepings has challenged me to bring Sophocles into this afternoon's proceedings and look at ancient Greek tragedy, I would only opine that, even if the cast do not start with disabilities, by the end of the tragedy, most have usually acquired some.

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

I am not sure where that leaves us in disability discrimination terms, but I shall reflect on that when I read the hon. Gentleman's contribution in Hansard.

I come now to amendment No. 24. The example given by the hon. Member for St. Ives of someone with a visual impairment not being able to enter the dental and medical professions is false. As a spectacle wearer myself, I know that adjustments can be made that probably mean that it would be discriminatory not to allow someone with a visual impairment to participate on a course.

Subsection (7) is much more difficult. I can see why hon. Members might be concerned as it appears to give institutions a get out, but I assure the Committee that it is not our intention to use the power extensively, only in limited circumstances.

There are similar, though not identical, provisions in section 5 of part II of the DDA to make regulations about less favourable treatment in respect of its employment provisions. Those powers have been used in several detailed matters without attracting controversy in the Disability Discrimination (Employment) Regulations 1996. They were used, for example, to justify the application of performance pay systems to a disabled person and to justify not paying a disabled person a benefit for an occupational pension scheme on grounds of substantially increased costs. I could provide other examples, but those two may suffice.

The benefit of this type of provision is that it provides, by way of a reserve power, the ability to clarify the effect of the legislation in response to unforeseen circumstances or developments as they arise. One area where we envisage using the power would be to permit institutions to refuse an individual entry to a course leading to professions where there were medical requirements that an individual could not fulfil. For example, a person with throat cancer who is unable to speak might be able to undertake a course of study to train to become a teacher, but might not subsequently be able to teach in a classroom. Similarly, a person who has been diagnosed with schizophrenia might be able to study medicine, provided they met the academic entry requirements, but might not be able to become a doctor if they posed a safety risk to future patients.

Photo of Andrew George Andrew George Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Work and Pensions) 6:00 pm, 3rd April 2001

That is interesting in view of my example of a dental or medical qualification leading to a profession. The Minister now provides examples from other professions in which disability might call into question the ability to perform the requisite professional procedures. Does the Minister not accept that those concerns—about teaching and the medical profession—are already adequately covered under subsection (6)(a)? The student could be given less favourable treatment in relation to academic standards achieved on the course.

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

No, because subsection (6)(a) refers to academic standards and subsection (6)(b) to other prescribed standards. Subsection (7) deals with the standards required within the profession. That is the difference: the course and the institution on the one hand, and the profession to which the course leads on the other.

Let me provide two further reassurances for the hon. Gentleman, whose concerns I understand. First, if further regulations were necessary, they could be debated in the House, and would probably be subject to negative resolution procedure. Secondly, in our response to the disability rights taskforce recommendations, we made it clear that we intend to ensure that the public sector has a duty to promote equality of opportunity for people with disabilities. We have just introduced similar measures with respect to race. That should provide added pressure and help to ensure that the power is used only in circumstances where it is essential.

With those reassurances, I hope that the hon. Member for Daventry will withdraw the amendment so that we can proceed to the clause stand part debate.

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

The Minister has made a fair attempt to answer the matters raised. She has responded to the feeling on both sides of the Committee that the clause should not be operated as a get out from the main intentions of the Bill, which were the reason for our probing amendments. The hon. Lady needs to remember that standards and what is feasible may change over time. I mention that only in the context of a particular constituent who came to see me. As well as having a tendency to fits, she had a diabetic condition that might have compromised her sight. Her immediate wish was to train as a social worker. She was already employed by the county council, but it was reluctant to allow her to undertake such training on the grounds that she might pass out and, during a period of unconsciousness, be unable to deal with a client.

I understand such a difficulty, but in most cases that situation can now be overcome. I want such cases to be an exception rather than the rule. Such a matter needs prescription and, as the Minister said, it needs regulation, which should be subject to debate. I hope that such a regulation will not be tabled until it had received a jolly good period of consultation and had rattled around the various interests. As we said earlier, we are not theologians. I concede that there might be a case for exception and, if so, it should be clearly outlined.

Photo of Andrew George Andrew George Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Work and Pensions)

This has been a useful and—as the amendments have implied— a probing debate to find the limitations of how and when the two subsections might be used to provide for less favourable treatment to disabled students. The debate has been helpful in relation to subsection (7) on which I want to focus particularly. It has helped to identify the need to constrain the possibility for that subsection to be abused, although simply saying that it would be left to regulation and be subject to negative procedure is something that I am not sure about. One always hopes that some of the hysterical and outrageous statements made in public by certain politicians will not in fact gain credence with the majority.

Photo of Hilary Benn Hilary Benn Labour, Leeds Central

Does the hon. Gentleman accept that there are other reasons why it is important to keep the provisions in the clause under review? The Minister referred to someone with throat cancer who was not able to speak. Given the developments, for example, in voice synthesising technology, it may be possible for someone to undertake a profession using such aids and adaptations in the future in a way that people may currently find difficult to imagine.

Photo of Andrew George Andrew George Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Work and Pensions)

The hon. Gentleman makes a helpful intervention, because in a sense that pushes back the frontiers in the other direction. We must keep our eyes open for opportunities to ensure that less favourable treatment is reduced as a result of technological improvements over time. Subject to my misgivings, although I am reassured by the Minister's comments, I shall not press the amendment.

Amendment, by leave, withdrawn.

Clause 27 ordered to stand part of the Bill.

Clause 28 ordered to stand part of the Bill.