The
Chairman: Order. I remind the hon. Gentleman that he must
stick to the subject of his amendment and not go too wide. I have
allowed him some rein, but I must reign him in
now.
Mr.
Harper: I am grateful for your guidance, Lady Winterton. I
will finish off
narrowly. Those
statistics are clear, and I think that people have got the message.
This is an opportunity for the Minister to go away and look at this
issue—as the Prime Minister promised that he would do last
week—and come back to it on Report, if she thinks that there is
something worth moving on. That would get support from not only
Committee members, but from across the House and from the
public.
Mr.
Boswell: I assure the Committee that I do not intend to
speak at length. I do not guarantee that I will always support my hon.
Friend, but I have great pleasure in doing so on this
occasion.
My first
recollection of this place is being invited to have lunch here in 1959
by the then Clerk, because of school connections. For the record, he
had joined this
place in 1924, so the link is a fairly long one. I remember listening to
the debate on the Mental Health (Scotland) Bill. I will just make the
point to the Solicitor-General that we are not many years out of the
world of using “lunatics”, “persons of unsound
mind” and all the other deeply derogatory phrases that we were
prepared to entertain in legislation, as well as in substance, for our
treatment of persons with a mental health problem. As my hon. Friend
said under your tutelage, Lady Winterton, the matter has been one of
great concern to the all-party group on mental health. It is a matter
of record that the problem has been identified as substantial among our
numbers as well as in the population more
generally. My
basic support for this is on the stigma issue, but my secondary support
relates to the question of what will happen in public policy. One
danger is that if a Member has a sufficiently serious mental health
problem—one that could result in a loss of livelihood, or the
threat of a loss of livelihood—they might not seek or take help
as they should, thus aggravating their problems, meaning that they are
unable to resolve them, whereas they might have been able to do so if
they had been attended to in good time.
My third
concern is the potential for discrimination, which is more than purely
formal. If we understand the importance of attending to physical
disabilities—people with physical disabilities have, or should
have, opportunities here—we should equally be prepared to deal
with mental health issues as
well. My
final concern—I look at the Annunciator as I say this—is
that the provisions interact with the legislation on parliamentary
standards and our conduct that is going through this place. Although I
know that the Government, on reflection, have made some concessions on
the matter, and I think that we should debate that Bill in its context
and this Bill in this context, the Minister might well want to reflect
on the fact that there is an interaction with whatever a standards
authority might want to say about the fitness of persons to serve in
this place and expectations.
Mr.
Harper: My hon. Friend makes a good point. The body that
will be set up by the Parliamentary Standards Bill does not yet exist,
so clearly it has not been put into this Bill, but it would be
interesting for the Minister, when she responds to this debate, to
touch on whether the Parliamentary Standards Authority would be
captured by the Bill, whether the public sector equality duty would
apply to it, and whether that would have any bearing on my hon.
Friend’s
comments.
Mr.
Boswell: I am grateful to my hon. Friend. My concern is
with the individual Member of Parliament and whether they would be
disciplinable under the Parliamentary Standards Bill or sanctionable
through the mental health provision. However equally, as my hon. Friend
said, the Parliamentary Standards Authority will clearly be a public
body discharging public functions and will, prima facie, be embraced by
this Bill’s obligations, notwithstanding the fact that
Parliament is probably seeking to exempt itself. There is a lot to
think about. The amendment is looking not for trouble, but for a
sensitive and more enlightened approach to how those difficult issues
can be resolved.
The
Solicitor-General: We were trying to work out what
amendment 278 was for. Not unsurprisingly, we did not. Although the
hon. Member for Forest of Dean clearly pinpoints an issue that looks,
on the face of it, like discrimination between one kind of disability
and another, that is the law, because Parliament has decided that it is
so. The equality duty will operate only within the law, so even if it
were applied to Parliament, it would not trump the law and get around
section 141 of the 1983 Act. The way to deal with the problem is not to
apply the equality duty to something that it cannot reach, but to look
at repealing section 141, which others are reflecting on, partly in
response to the hon. Gentleman’s
question. 6.15
pm
Mr.
Harper: To help the Minister, I am aware that that is how
to do it. I attempted to draft such a clause, but it was not selected.
The amendment was a convoluted way of getting the discussion to happen,
which we have managed. That was the objective. I am aware of the
appropriate solution, which is working out how to get that into
law—changing the law so that that is the objective achieved. We
shall not be relying on the public sector equality
duty.
The
Solicitor-General: As I say, other people are thinking
about a way forward, now that the issue has been drawn into public
focus. I invite the hon. Gentleman to withdraw the amendment on the
basis that this is not the right
place.
Mr.
Harper: Your admonitions earlier in the debate and my new
clause not being selected, Lady Winterton, suggest that the Bill is not
the correct vehicle for bringing about that change, despite it
promoting equality of opportunity for those with mental health problems
and other disabilities. Given the Minister’s assurances,
following the issue being raised by me at Prime Minister’s
questions and by others a number of times, that other Ministers are
looking at it, I am happy for the time being and, therefore, I beg to
ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Amendments
made: 283, in schedule 18, page 216, line 40, leave out
paragraphs (d) and (e). This amendment is
consequential on amendment
282. 284,
in
schedule 18, page 216, line 43, leave
out paragraph (f). This
amendment would remove from the exceptions to the duty imposed by
clause 143 on persons other than public authorities who exercise public
functions, an exception for decisions to prosecute; accordingly, the
duties imposed by clause 143 on public authorities, and others
exercising public functions, will apply to such
decisions. 285,
in
schedule 18, page 216, line 45, leave
out sub-paragraph (4).—(The
Solicitor-General.) This amendment is
consequential on amendment
282. Schedule
18, as amended, agreed
to. Clause
144 ordered to stand part of the
Bill.
Schedule
19Public
authorities
Mr.
Harper: I beg to move amendment 266, in
schedule 19, page 218, line 43, at
end
insert— ‘The
relevant qualifications regulator (The Office of the Qualifications and
Examinations Regulator—Ofqual).’.
The reason for
the amendment was touched on when we debated clause 91 on
qualifications bodies. I went through a number of the arguments then,
so I shall not repeat them all here. I gave examples in which disabled
people, specifically deaf children, when seeking to take examinations
appear to have been discriminated against by examination bodies. I gave
some examples in which the examination bodies did not seem to have
thought creatively enough, while holding up the standards and rigours
of their exams, which is clearly important, about how disabled people
could be given the opportunity to demonstrate their talent and ability
and to show that they were at the appropriate level of skill. The
Solicitor-General rightly responded briefly and made the point that,
when we came to schedule 19, we could hit the nail more firmly on the
head when talking about the equality
duty. The
amendment is about making sure that the qualifications regulator is
explicitly mentioned as one of the bodies. I wanted to make sure that
the issue was discussed, partly because of the specific cases, but I
also remember a discussion that we had much earlier in the Bill
concerning which bodies were included. We had a discussion at that
point in response to amendments tabled by the hon. Member for Hornsey
and Wood Green about regulators—specifically energy regulators.
The Minister made the point then that it would not be appropriate to
extend that particular duty to the regulators because they did not have
the appropriate powers to take those steps.
If the
amendment were accepted and the Office of the Qualifications and
Examinations Regulator were included, I should like to explore whether
it would have the appropriate powers. I think that it would because it
is specifically given the power to make decisions about which
adjustments should not be considered reasonable, and also about what
parts of the qualification of a qualification body are not subject to
adjustment.
I have
specifically focused on Ofqual in England in the amendment, but there
are equivalents in Wales and Scotland that I have not specifically
mentioned Those regulators have powers over qualification bodies about
what adjustments are reasonable or are not reasonable and, by
implication, what is reasonable. They also have powers about what parts
of their qualifications are not subject to adjustments and, by
implication, which are.
The measure
takes some decisions about competence standards and reasonable
adjustments away from courts and gives it to the regulator. In this
particular case, the regulator has some powers and abilities to take
steps to insist that qualification awarding bodies behave in a
particular way. The powers piece is made clear.
I laid out
some specific examples when we debated clause 91. That can be found in
the report of our proceedings in Hansard, so I shall not repeat
those and I think that the Minister can remember one or two of them. My
amendment seeks to find out whether she thinks that explicitly putting
the qualifications regulator in the schedule would be useful and help
to deal with some of the cases that I mentioned. If she does not want
to accept my amendment, what alternative solution does she propose in
order to deal with those examples of discrimination that I have
highlighted under clause 91?
The
Solicitor-General: I completely agree that Ofqual should
be subject to the equality duty—it has all the roles that the
hon. Gentleman has outlined. The Qualification and Curriculum Authority
is subject to an existing equality duty. He has spoken about his
concerns that qualification bodies need to do more to meet the needs of
disabled people. We think that by showing that Ofqual is subject to
that duty it will need to think more creatively about how it works with
the disabled.
The specific
duties consultation document proposes a duty to involve people from the
protected groups, including the disabled, when drawing up policies and
taking decisions. That duty will be highly relevant to engaging Ofqual
in using more imaginative ways to ensure that the disabled do not
suffer in their attempts to learn. There is a “but”,
which concerns the peculiar state of Ofqual.
It would be
useful to mention the way that we have approached schedule 19. I have
already alluded to that, but I shall now do it at the right place.
Ofqual exists, but only on an interim basis. The Apprenticeships,
Skills, Children and Learning Bill, which is in the Lords, will put
Ofqual on a statutory basis and we will put Ofqual into schedule 19
when it has that
status. As
I have already said, we have a core of about 90 per cent. of public
authorities already in schedule 19. However, we are talking to a number
of other bodies that we think should be included in the schedule. We
will update the schedule through secondary legislation before the new
duty comes in, in 2011, so that there is no gap in coverage.
That is the
same process that was used to build up the list of bodies subject to
the race duty. I have already referred my hon. Friend the Member for
Stroud, who is not in his place, to that sizeable list and we are
following that precedent. It allows us to have informed discussions
with those we want to list. Public authorities need to let us know
their views on whether they should be subject to the duty, but they
need to know what the general duty is. Therefore, we have put it out
publicly and we will engage with them now that they know what being a
public authority will involve. We would like to deal with Ofqual at the
same time, but we will definitely put it in schedule
19.
Mr.
Harper: I am grateful for the Minister’s assurance.
I recognised the point about the status of Ofqual, which is why I
tabled the amendment to test it, but she has confirmed that once it has
become a statutory body—once the other Bill has passed through
Parliament—it will be included. That is what I was seeking to
do. I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Schedule
19 agreed
to.
Clause
145Power
to specify public
authorities Question
proposed, That the clause stand part of the
Bill.
John
Mason: With your indulgence, Lady Winterton, I should like
briefly to comment on clauses 145 to 149. The Government appear to be
aiming to create wide-ranging order-making powers for themselves to
fill in the gaps in the public sector duty. Clauses 145 and 146 create
powers to specify—
The
Chairman: Order. I wonder whether the hon. Gentleman would
concentrate on clause 145, which is what we are debating at the
moment.
John
Mason: I shall make a few comments on that clause that
will apply more widely to the other clauses, but I shall not repeat it
each time. Creating the powers to specify which public authorities the
duty will apply to is too important to be left to secondary
legislation. I should be interested to hear the Minister say why, after
10 years or so of preparation, the Government have not been able to
include more detail in the
Bill.
The
Solicitor-General: The clause is needed to allow us to
amend schedule 19 in the way that I have just described, and we intend
to amend it. We have published what the general duty will involve, with
the intention of extending the reach of schedule 19 to other bodies
that we think should be in it, but we did not feel that it was right to
do that until we had finalised the general duty. Now that duty is in
the public domain we can enter into those conversations, but we need a
power to add provisions, as necessary, to the
schedule. Question
put and agreed
to. Clause
145 accordingly ordered to stand part of the
Bill. Clause
146 ordered to stand part of the
Bill.
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