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The Chairman: Order. I am afraid that the hon. Gentleman cannot debate a non-starred amendment.
Dr. Harris: On a point of order, Lady Winterton. I am quite happy not to refer to the amendment, but I want to raise the point that I wanted to make as I would have raised it anyway in the schedule stand part debate. What I was seeking to do by tabling the amendment was to raise the fact that I wanted to ask a question about the schedule. I do not see how I can raise a question about the schedule if I cannot raise it in the schedule stand part debate. If you do not want me to refer to the amendment paper today, I am more than happy not to refer to it.
The Chairman: The hon. Gentleman can speak on the schedule as long as he does not refer to amendment 270 in any way.
Dr. Harris: In schedule 12, there is a provision on page 202 that I would like to draw to the attention of the Committee. I believe that there has been a serious omission in relation to the provision of further education. Previous legislation was always very clear that the words “only in so far as it was necessary” existed in the equivalent of paragraph 5(1)(b) of schedule 12 to this Bill. After the words “it does so” in paragraph 5(1)(b) of schedule 12, the words “in so far as it was necessary” would have been included, before the words
“to preserve the institution’s religious ethos”.
In brief, therefore, the absence of those words—“in so far as it was necessary”—seems to amount to a widening of the exemption here and it is not clear whether that was ever presaged in any consultation and it is also not clear what the original intention of paragraph 5(1)(b) of schedule 12 was. I think that the statutory instrument concerned was No. 437, which provided regulation 21b in the old formulation, and was disapplied,
“in so far as it is necessary for an institution to give preference in its admissions to persons of a particular religion or belief in order to preserve that institution’s religious ethos.”
I understood that to mean that there must be a necessary causal link between preferential admissions and preservation of ethos. The words from SI No. 437 are just not there now in schedule 12 and therefore there is a significant reduction in protection for people who may now be discriminated against.
I could give background information about Roman Catholic colleges, but I do not think that I need to as I think that I have made my point. I have made it to give the Minister an opportunity to say whether she thinks that there has been a lessening of the protection and, if so, what the justification for that is. If she does not think that the protection will be lessened, I would be grateful if she could clarify why not, given the significant change between the version of the provision in the schedule and the one in previous regulation.
8 pm
The Solicitor-General: We have returned to the 2003 regulations; there is no change from those. Preference may be given to a child of the same faith in order
“to preserve the institution’s religious ethos”.
The test is objective, not subjective. There is a clear causal link between giving preference to a child and the preservation of the school’s religious character. There is no lessening of the protection.
Question put and agreed to.
Schedule 12 accordingly agreed to.
Clause 90 ordered to stand part of the Bill.

Clause 91

Qualifications bodies
Question proposed, That the clause stand part of the Bill.
Mr. Harper: I shall endeavour to be brief. The clause concerns qualifications bodies and will make it unlawful to discriminate against, harass or victimise people in making arrangements for deciding on whom to confer qualifications. It carries across an existing provision in law.
Concerns have been raised by the National Deaf Children’s Society on behalf of deaf children as well as by the Royal National Institute of Blind People. Those organisations point out that disabled people are twice as likely as non-disabled people to have no qualifications. Of those disabled people without qualifications, only 23 per cent. are employed. That is in stark contrast to non-disabled people without qualifications, of whom 60 per cent. are employed. Having a qualification is clearly important, and it is vital that the examination system is accessible.
I raise the point because at the moment, the Bill proposes to replicate provisions in the Disability Discrimination Act that place a duty on qualification bodies offering general qualifications to make reasonable adjustments for disabled students. It will give new powers to the qualifications regulator—Ofqual in England, and others in Wales and Scotland—to decide what adjustments would not be reasonable and what parts of the qualification are not subject to reasonable adjustments.
I will give a couple of examples of my concern and leave it at that. Also, I wanted to flag up to the Minister that I have tabled an amendment to schedule 19 that would extend the public sector duty to Ofqual, so that it would not just have to make reasonable adjustments but have a positive duty to promote the interests of disabled people.
My purpose is to raise with the Minister some of the concerns of those organisations. Despite the fact that existing law will carry through into the Bill, there are a lot of examples of deaf candidates, in particular, finding that qualifications providers are not making reasonable adjustments for them to get qualifications and are not thinking creatively enough about how they could test ability and learning rigorously, thereby protecting the value of the qualification.
One example—I will leave it at one—involved a profoundly deaf candidate who was asked a question about listening to music on his GCSE English exam. He had never experienced music and so was not familiar with how people enjoy and talk about it. That question was not necessarily appropriate for a deaf student. He could easily have been asked to demonstrate his English ability without being asked that inappropriate question.
Although I said that I would give one example, I will give one more, and that really will be it. GCSE music tends to highlight a number of issues. One example involved a family whose son is profoundly deaf and uses a cochlear implant. He is selecting his options for GCSE and wishes to do music. The school uses the Edexcel exam board, 40 per cent. of whose music GCSE is a listening exam. The family want him to be able to study music, and they want the exam board to think about ways for him to do alternative work because of his hearing impairment. That could be dealt with in a range of ways, given that he has a cochlear implant, but he is basically being told that unless he can listen to CDs and answer questions, he should not really be studying that subject at all.
The Solicitor-General: Those examples seem quite gross. We do not have provision in legislation to command regulators to think creatively. I think it is a matter of what is a reasonable adjustment. I take it that the hon. Gentleman is not concerned about the balance between what is adjusted and what is not. He is just saying that people are insufficiently imaginative, when it comes to reasonable adjustments, with some aspects of disability. The long and short of it is that the court will have to decide on judicial review whether sufficient adjustment has been made for the individual. I can only echo what he says. One hopes that this provision will not have a depressing effect on creativity and the way education is delivered to the disabled, but will strike a balance, allowing it to have a positive effect. When we come to schedule 19 we might hit the nail more firmly on the head when we talk about the equality duty.
Question put and agreed to.
Clause 91 accordingly ordered to stand part of the Bill.

Clause 92

Interpretation
Amendments made: 75, in clause 92, page 70, line 6, after ‘a’, insert ‘relevant’.
This amendment and amendments 76 and 77 would make in relation to educational qualifications corrections corresponding to the corrections that amendments 62 and 63 would make in relation to work qualifications.
Amendment 76, in clause 92, page 70, line 7, after ‘a’, insert ‘relevant’.
See the explanatory statement for amendment 75.
Amendment 77, in clause 92, page 70, line 7, at end insert—
‘( ) A reference in section 91(8), (10) or (11) to a qualification is a reference to a relevant qualification.’. —(The Solicitor-General.)
See the explanatory statement for amendment 75.
Clause 92, as amended, ordered to stand part of the Bill.
Clause 93 ordered to stand part of the Bill.

Schedule 13

Education: reasonable adjustments
Lynne Featherstone: I beg to move amendment 202, in schedule 13, page 203, line 19, at end insert—
‘(2A) For the purposes of this paragraph, the reference in section 19(3), (4) and (5) to a disabled person is to disabled persons generally.’.
An amendment to ensure that the anticipatory nature of the duty to make reasonable adjustments is retained in education as in the Disability Discrimination Act by providing that the duty applies to ‘disabled persons’ not only to an individual disabled person.
The amendment is on the matter of reasonable adjustments. It is a departure from the original language on reasonable adjustments in the services and functions, private clubs and education provisions of the Disability Discrimination Act 1995. My understanding is that the phrase “disabled persons” must direct attention to features which impede persons with one or more kind of disability. We are aiming not simply for an education establishment to anticipate the needs of an individual who would have impairments requiring specific reasonable adjustments. The wording of the Bill needs to include the fact that it is about a class of disabilities—for example, being mobility-impaired or visually impaired—and about making reasonable anticipatory adjustments so that someone who has that disability and belongs to that group, will not need to arrive at the school and then ask for that adjustment to be made; it will already be there. The EHRC says:
“This is a critical underlying aspect of the reasonable adjustment duties and failing to address this in education would be regressive.”
Therefore, I am seeking the Minister’s response to see if there is any room to oblige on that matter.
The Solicitor-General: Let me confirm that schedule 13 provides for the anticipatory provisions that the hon. Lady seeks, but they are drafted differently from the DDA and differently from hon. Members’ proposals.
I agree with the hon. Lady’s desire—she was taking the provisions in the DDA that make the adjustment requirements anticipatory. They need to be made for disabled persons and not just for a specific disabled person. In short, I hope she will take it from me that we are confident that the provision she seeks is already present in schedule 13.
Lynne Featherstone: I thank the Minister. If that is covered in schedule 13 and there is no question about it, as the Minister has said and put on the record, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 13 agreed to.
Clause 94 ordered to stand part of the Bill.
Schedule 14 agreed to.

Clause 95

Application of this Part
Amendment made: 78, in clause 95, page 70, line 26, leave out subsection (3).—(The Solicitor-General.)
This amendment is consequential on amendment 90.
Clause 95, as amended, ordered to stand part of the Bill.
Clauses 96 to 98 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Lyn Brown.)
8.13 pm
Adjourned till Thursday 25 June at Nine o’clock.
 
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