Special Educational Needs and Disability Bill [Lords]

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Mr. Hayes: 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.

Mr. Boswell: 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.

Mr. Harry Barnes (North-East Derbyshire): It is a British body. Northern Ireland has a general committee on rights, which covers various provisions including disability.

Mr. Boswell: 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.

Ms Hodge: 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.

12.30 pm

Mr. Boswell: 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.

Ms Hodge: 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.

Mr. Boswell: 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.

Mr. Win Griffiths: Will the hon. Gentleman give way?

Mr. Boswell: I would readily give way, but it is the Minister's speech, so I shall end my intervention there.

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

Ms Hodge: 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.

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

Ms Hodge: I give way to the hon. Member for South Holland and The Deepings.

Mr. Hayes: 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.

Ms Hodge: 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.

Clause 25

Interpretation

Mr. Boswell: I beg to move, amendment No. 21, in page 23, line 24, leave out from beginning to end of line 25.

This is a probing amendment to deal with a King Charles's head, or friendly obsession that I have had throughout our proceedings, that the Bill should deal as comprehensively as possible with different types of schools. We have not talked much about the independent sector, but the explanatory notes confirm that the independent sector will be covered. It is estimated that a comparatively small compliance cost of less than £1 million a year will apply to the independent sector, although the sector feels the impact of various other costs, including boarding and housekeeping costs in boarding schools. Perhaps the Minister will say whether the independent sector has made any representations to her on its inclusion in the Bill. It would be inappropriate to exclude independent schools, because, as I know from my experience of several such schools, their ability to demonstrate disability-friendly policies is a positive selling point.

The purpose of the amendment is to tease out from the Government whether the legislation will include all kinds of schools. More specifically, it seeks to discover whether it will include all kinds of maintained schools that might be established in the future. It would be nice if a different Minister could give exactly the same assurances—

The Parliamentary Under-Secretary of State for Education and Employment (Jacqui Smith): No, it is me.

Mr. Boswell: It is the same Minister, who, I hope, will give me precisely the same assurances, in her charming way, that if the Labour Government—or a Conservative Government, in due course—invent a new sort of school, we will not have to legislate especially for that situation. I am sure that she does not want to spare my labours, and we look forward to long debates in Committee on that matter, but will she clarify the situation?

My third point relates to Scotland. I notice that proposed new section 28Q(4) provides for an exception relating to Scotland—or does my proposal amend the section that relates to Scotland? One always reads these clauses upside down. Will the Minister give us the following assurances: first, about the situation regarding independent schools; secondly, about the position regarding new types of school that do not yet exist; and, thirdly, will she say whether the interpretation section is comprehensive as between England and Wales and Scotland? It is the common interest of the Committee that we should show a united front towards the component parts of Great Britain, although not, as the hon. Member for North-East Derbyshire (Mr. Barnes) reminded us, Northern Ireland, which is handled slightly differently.

Jacqui Smith: I can, I hope, reassure the hon. Member for Daventry on all three of his points. It is probably worth while saying that the purpose of the interpretation provisions under proposed new section 28Q is to help the reader to interpret the new chapter I of part IV of the Disability Discrimination Act. That is why his questions are justified. We place duties on schools in chapter I and therefore need to be specific about the types of schools to which they apply. Otherwise there would be confusion, which would undermine the Bill's intentions.

 

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Prepared 3 April 2001