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Lord Mackay of Ardbrecknish: I do not intend to repeat at length the remarks made that I made on Tuesday when the noble Baroness sought to extend the coverage of the whole Bill to people who are only perceived to have a disability. Noble Lords will remember that I pointed out that the Government are determined to keep the definition of disability as close as possible to the commonsense view of what constitutes a disabled person. It would be extremely difficult to establish legally what was in the mind of the service provider who is accused of having "perceived" a disability. Any such change would confuse an already complex definition and leave it totally unclear as to who is and who is not covered by the Bill.

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As I mentioned on a number of occasions on Tuesday, this is not a general anti-discrimination Bill. In my view, these arguments are every bit as valid for service providers in Part III as they are for employers in Part II. I do not accept the argument that suggests that it is more important to consider what a service provider thinks on the grounds that, unlike an employer, he is unlikely to have details of his customer's impairment, or lack of one. In my view, the fact that he will nearly always be acting on first impressions makes it more important, not less, that we have a commonly understood definition. The absence of material evidence about a person's impairment, or lack of one, would leave service providers more vulnerable to spurious actions brought by people who claimed to have been perceived as disabled. In any case, the very fact that a service provider will usually be acting on the evidence of his eyes will mean that people who have a minor impairment but who are not disabled for the purposes of this Bill, and of course people who have no disability at all, are generally unlikely to be treated any differently than any other member of the public. Finally, the noble Baroness's amendment would seek to remove the subsection that confirms that the provision in Clause 28 which enables people to bring actions where they have been victimised applies to able-bodied people and disabled people alike. The prohibition of victimisation against those who have, for example, given evidence in court in support of a disabled person who had previously been discriminated against is an important element in the Bill and corresponds to a similar provision in race and sex legislation. In fact one could argue that the provision is all the more necessary in disability discrimination legislation because the victims will often be among the most vulnerable in society. I do not suppose that I have surprised the noble Lord, Lord Addington, and the noble Baroness by indicating that they have failed to convince me on this issue, just as they failed to convince me on the related issue of employment. I hope, having explained the position and in particular pointed out what I suspect is one of the unintended consequences of the amendment, that the noble Baroness with withdraw it.

Baroness Hollis of Heigham: The Minister will not be surprised that again I am disappointed. I thought that with goods and services we had moved into a different area from employment, one where judgment and choice in a competitive situation did not apply. I thought that the Minister would be more supportive of the amendment in this context.

The Minister said that this is not a general anti-discrimination Bill. I agree. But we are trying to make it a general anti-discrimination Bill in the context of discrimination against those with a disability, whether the disability is substantial or moderate, or whether it is merely the perception of disability, in the field of goods and services. I am very unhappy with the Minister's response. I wish to seek the opinion of the Committee.

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8.56 p.m.

On Question, Whether the said amendment (No. 65) shall be agreed to?

Their Lordships divided: Contents, 94; Not-Contents, 50.

Division No. 2


Addington, L. [Teller.]
Airedale, L.
Archer of Sandwell, L.
Ashley of Stoke, L.
Attenborough, L.
Avebury, L.
Barnett, L.
Beaumont of Whitley, L.
Brooks of Tremorfa, L.
Carter, L.
Castle of Blackburn, B.
Chandos, V.
Cledwyn of Penrhos, L.
Craigavon, V.
Dahrendorf, L.
Darcy (de Knayth), B.
David, B.
Dean of Thornton-le-Fylde, B.
Desai, L.
Diamond, L.
Donaldson of Kingsbridge, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Eatwell, L.
Falkender, B.
Falkland, V.
Farrington of Ribbleton, B.
Fitt, L.
Foot, L.
Gallacher, L.
Geraint, L.
Gladwin of Clee, L.
Gould of Potternewton, B.
Graham of Edmonton, L. [Teller.]
Greene of Harrow Weald, L.
Hamwee, B.
Harris of Greenwich, L.
Haskel, L.
Healey, L.
Hilton of Eggardon, B.
Hollick, L.
Hollis of Heigham, B.
Holme of Cheltenham, L.
Hughes, L.
Hutchinson of Lullington, L.
Jay of Paddington, B.
Jenkins of Putney, L.
Kennet, L.
Kilbracken, L.
Lockwood, B.
Longford, E.
Macaulay of Bragar, L.
McIntosh of Haringey, L.
Mallalieu, B.
Masham of Ilton, B.
Mayhew, L.
Merlyn-Rees, L.
Mishcon, L.
Monkswell, L.
Morris of Castle Morris, L.
Nicol, B.
Ogmore, L.
Parry, L.
Peston, L.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Rea, L.
Redesdale, L.
Richard, L.
Robson of Kiddington, B.
Rochester, L.
Rodgers of Quarry Bank, L.
Russell, E.
Seear, B.
Sefton of Garston, L.
Serota, B.
Shepherd, L.
Stallard, L.
Stedman, B.
Stoddart of Swindon, L.
Strabolgi, L.
Taylor of Blackburn, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Tope, L.
Turner of Camden, B.
Whaddon, L.
White, B.
Williams of Elvel, L.
Williams of Mostyn, L.
Winchilsea and Nottingham, E.
Young of Dartington, L.


Addison, V.
Balfour, E.
Biddulph, L.
Blaker, L.
Blatch, B.
Brabazon of Tara, L.
Brougham and Vaux, L.
Burnham, L.
Campbell of Croy, L.
Chalker of Wallasey, B.
Clanwilliam, E.
Cranborne, V. [Lord Privy Seal.]
Dacre of Glanton, L.
Denman, L.
Denton of Wakefield, B.
Dixon-Smith, L.
Downshire, M.
Ferrers, E.
Fraser of Carmyllie, L.
Gage, V.
Gardner of Parkes, B.
Goschen, V.
Hamilton of Dalzell, L.
Henley, L.
HolmPatrick, L.
Howe, E.
Inglewood, L.
Long, V. [Teller.]
Lucas, L.
Lyell, L.
McColl of Dulwich, L.
McConnell, L.
Mackay of Ardbrecknish, L.
Mackay of Clashfern, L. [Lord Chancellor.]
Marlesford, L.
Montgomery of Alamein, V.
O'Cathain, B.
Renton, L.
Renwick, L.
Rodger of Earlsferry, L.
Sanderson of Bowden, L.
Seccombe, B.
Soulsby of Swaffham Prior, L.
Strathclyde, L. [Teller.]
Swinfen, L.
Torrington, V.
Trumpington, B.
Ullswater, V.
Wakeham, L.
Wynford, L.

Resolved in the affirmative, and amendment agreed to accordingly.

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9.5 p.m.

[Amendments Nos. 66 and 67 had been withdrawn from the Marshalled List.]

Lord Inglewood moved Amendment No. 68:

Page 9, line 29, leave out ("Subject to any provision to the contrary made by regulations") and insert ("Except in such circumstances as may be prescribed").

On Question, amendment agreed to.

Baroness Darcy (de Knayth) moved Amendment No. 69:

Page 10, leave out lines 5 and 6.

The noble Baroness said: In moving this amendment I should like to speak also to Amendments Nos. 70, 90, 91 and 92. Amendment No. 150 does not need much speaking to.

The purpose of Amendments Nos. 69 and 70 is to bring further and higher education into the Bill. Without these amendments it would be quite legal to discriminate unreasonably on grounds of disability in the field of education, unlike employment and other services.

I should like to say at once that this is a probing amendment to promote discussion and consider why we believe that it is necessary, what is "reasonable" in the field of education and how we could contain costs. That is why I was initially reluctant to group these amendments with the government amendments. However, I agreed, and I shall keep my remarks separate. I hope that they do not seem too muddled or too lengthy.

Skill, whose 21st birthday occurs this year, had the opportunity to look back and see what progress had been made over those years. It believes that there has been huge progress and that colleges and universities should not feel too concerned about bringing further and higher education into the Bill. Skill has had letters from further education colleges wanting further education to be included in the Bill. There are many good institutions of further and higher education which make overall long-term strategic plans and meanwhile respond to the needs of individual students. But some other institutions are less good. The government amendments are welcome and go a good deal of the way to cover strategic planning. Amendments Nos. 69 and 70 are needed to help individual students who encounter problems before and after entering college.

The Minister may feel that I am applying a belt to his braces, or vice versa, but that is not so. These amendments are trying to prevent the seams splitting, the buttons

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falling off and holes developing in the pockets. We need both amendments. I can give the Committee examples of the problems that occur for students in higher education and the reasons why I feel the amendments are necessary.

In further education students are still turned away unnecessarily from local colleges because of their disability. Sometimes the colleges are unwilling to make small changes to buildings and there are examples of students not receiving the support when they enter that they were originally promised. In relation to higher education, one medical school has a policy not to admit dyslexic students. One applicant who did not disclose her dyslexia on admission was accepted but was refused modifications to her exams. Those are the sorts of modification that would have been allowed on any other course in the institution. Is the medical school acting unreasonably in those cases? Its blanket policy of discrimination is unreasonable. There are effective and successful dyslexic doctors—that may explain their writing—but that is not the point. The individual student is also experiencing unreasonable discrimination in that she will not be able to prove her worth if she is not given the wherewithal to complete her exam.

Many problems are to do with exam time, the difficulty in papers being produced in large print or on coloured backgrounds for people with dyslexia, and separate rooms and an extra invigilator not being made available. If one is given extra time to do an exam, it is disrupting if everyone else leaves half an hour before the end. After five minutes of disruption it is often difficult for the student to settle down again.

Everyone is worried about costs. But we must remember that it is only unreasonable discrimination that will be illegal. Only reasonable steps, for example, would be necessary on overall access and, similarly, it would only be reasonable responses to the specific student that were necessary. For example, if a college had just spent a lot of money on strategic accommodation, it may not be unreasonable to refuse entry to an individual student who had high cost requirements. On the other hand, it may be unreasonable to refuse a student who did not require much accommodation. "Reasonableness" must be to do with common sense.

I am cheered that the Minister is creating a new Part IIIA, called "Education". It gives us the opportunity to draw up a new definition of "reasonableness" applicable to that part of the Bill and regulations, which could include a scale of additional costs. For example, one may not be required to spend more than a certain amount per student and on not more than a certain number of students per school year. That is something which should be discussed; it may vary with the size of the college, the access and so forth.

I turn to the Government's amendments. I welcome the new Part IIIA. To begin with, I welcome the heading because it brings education into the Bill. It is a little move towards what we wanted. Have the Government had any further thoughts on including a more positive, though perhaps still declaratory, statement in the Bill in relation to education? Amendment No. 90 on schools is extremely welcome. It will mainly help people without statements but perhaps we can take this opportunity to do something

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for those pupils with statements as well. That is perhaps a conversation for another day before the next stage. I welcome also the amendment in relation to the teacher training agency. That is something we were trying to introduce during the Education Act 1994—I see the noble Lord, Lord Peston, is nodding in agreement.

Amendments Nos. 91 and 92, covering further and higher education, will make strategic changes, as I said. They will not provide direct protection for individual students and that is why I feel our amendments are necessary. The amendment requiring the FEFCs to make annual reports is welcome if it means that positive attention is paid to students who have previously been overlooked or seen as unimportant. The amendment requiring colleges to make clear statements about the facilities they offer is welcome because it means that students will be clear about what is on offer. However, it will not prevent colleges from saying that they do not intend to do very much. I would welcome the Minister's assurance that that is not the case.

The amendment requiring higher education funding councils to have regard to the needs of disabled students is welcome. It will mean that they have a duty that parallels that of the further education funding councils. Those duties have been seen as important influences by students and teachers since they were introduced. The amendment will also require universities to declare what they will offer disabled students. This amendment, like the equivalent for further education, is welcome, but again it will not guarantee that universities will necessarily improve opportunities. I should like an assurance about that from the Minister as well.

I have said quite enough. The amendments are very welcome in as far as they go but they do not go quite as far as I should like. I look forward to a full discussion about how we really could contain the cost. People are worried that it will escalate. I very much hope that we can continue the discussion, perhaps outside the Chamber. If the Minister would indicate at the end of the debate whether he is willing to do that, I should be very grateful. I beg to move.

9.15 p.m.

Baroness David: The noble Baroness, Lady Darcy (de Knayth), has given such a full description of what the amendments aim to do and such a very good critique of the Government's amendments that I think it would be redundant for me to go on at this stage before we have heard the Minister's response. All I want to say at this moment is that I very much support her amendments. We are grateful that the Government have produced their amendments and I look forward to hearing what the Minister has to say.

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