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However, I am afraid that this is a complex area and we cannot accept the amendment as it stands. The effect would be that someone being educated at a higher education institution in a research capacity, perhaps undertaking a PhD but who is also employed by that institution, for example as a lecturer, would be covered by Part IV in respect of some of the things that they do and by Part II in respect of other things. An individual who wanted to bring a case would then have to decide whether he had been discriminated against in one capacity or the other, and an institution defending the case would be able to bring arguments that the individual had chosen the wrong capacity.
The creation of doubt and room for misinterpretation in such cases would be unhelpful. Enforcement of Part II is by the Employment Tribunal while enforcement of Part IV is through the courts. Researchers need to be clear as to how they can take forward claims or risk getting to the court only to find that they should have gone to a tribunal or vice versa. That could be costly and confusing for individuals, and may even result in them losing a case because they ran out of time to bring it in the correct forum.
There is also an issue in relation to the position of an employee at an institution, for example a lecturer, who is undertaking an academic course at the institution where he or she works. We need to consider whether such a person should fall under Part II or Part IV or both. We propose, therefore, to reconsider the wording and return to this issue on Report. In the light of that, I hope that the noble Baroness, Lady Sharp of Guildford, will feel able to withdraw her amendment
The noble Earl said: The amendment is aimed at the serious issue of communicating the purpose of this Bill to the public and students, pupils and parents. For very sound historical reasons the educational regimes in England, Wales and Scotland have always been different. That should be understood as an inevitability within a Union state where the institutions of the constituent parts are retained and developed. The consequence is that the context, the structure, the language, the legislation and the terminology used are all different.
I believe that the code of practice should be an effective communicator, understandable by all readers. I strongly urge the publication of separate national codes of practice. I hope that there will be no attempt to produce a composite code in which there may well be three sets of context and terminology. Such an Anglo-Welsh-Scottish code document would be confusing, self-defeating as a means of communication and really only of use to someone studying diversity within the United Kingdom. I acknowledge that this matter is reserved to Westminster. I am also sure that there is no requirement based on that reservation to necessitate a single composite code document. Such a document would have a depressing, as well as a confusing, effect in Scotland.
The aim of Amendment No. 184 is to include the voice of the child in the process of selecting the best way ahead. The amendment would ensure that the codes of practice promote the involvement of disabled young people, and specifically children, in the decisions that affect them. It is unfortunate that we have to acknowledge that disabled children have been largely ignored in the process of deciding what provision should be made for them. However, now there is an international obligation to give due to regard to a child's view in matters that affect the child, which is Article 12 of the UN Convention on the Rights of the Child.
Clause 25(1)(a) aims to give practical guidance. Research has shown that many disabled children have difficulty in getting their views heard and, what is more, identifies that that is often a problem to do with adult attitudes to communication. This was identified by the Joseph Rowntree Trust research, by Ward, in 1997.
This issue of ensuring that the disabled person has the right and opportunity to be heard should be central to the Bill and, of course, the child's voice is required in Section 15(4) of the Standards in Scotland's Schools etc Act 2000. I beg to move.
Lord Addington: I shall speak very briefly to Amendment No. 185, which is grouped with the amendments of my noble friend. This is a probing amendment that aims to ensure that, when the codes of practice are drawn up, the Government will listen to those people about whom they are being drawn up and to those who are going to use them. I hope that the Minister will be able to assure me that what is suggested in the amendment will occur, because it seems to be eminently sensible.
Lord Davies of Oldham: I listened very carefully to the noble Earl's identification of the distinct educational tradition of Scotland to which we all pay the greatest of respect, and I understand the basis of his argument in its context. He will recognise from the way in which the Bill is drafted that other powerful considerations need to apply for the present framework that we propose.
We intend to have two codes which cover Britain as a whole: one covers schools and one covers post-16 duties. I hear what the noble Earl has said that this, therefore, would provide a Great Britain perspective when it would apply to an education tradition very different in Scotland from that which obtains in England and Wales. Of course, we are talking here about special aspects of the education system, namely in relation to non-discrimination against the disabled and the enhancement of the rights of the disabled, and we are following the pattern which is provided nationwide in relationship to race and sex discrimination legislation also. We must beg to differ on where the priority lies. However, I merely reassure the noble Earl that no disrespect is intended towards the Scottish education system or its distinct separateness, many features of which we greatly admire. A disabled child in Scotland should not have different rights from one in England and Wales. The thrust of our proposal is to ensure similarity.
Amendment No. 184 replicates the provision in the Bill to give the DRC the power to issue codes of practice with a view to encouraging good practice in the way that disabled people are treated in education. Involving disabled people in decisions that affect them is clearly one aspect of good practice. Many disabled children and young people should benefit from good practice in education. It is inconceivable that our provision for good practice could exclude the rights of the child that the noble Earl advanced so eloquently.
The noble Lord, Lord Addington, sought reassurances on his amendment. The DRC is under a statutory duty when preparing codes to carry out such consultations as it feels appropriate, including publishing for public consultation proposals that relate to the code. It is inconceivable that the DRC could carry out a consultation process without including the participation of disabled people, the organisations that represent them and those to whom the practical guidance is designed to apply. I hope the noble Lord will accept that assurance
Lord Davies of Oldham: Perhaps I should have made it explicit that there is no question of the codes being developed without consultation with experts from Scotland on the particular needs of the Scottish dimension in order to cope with the problems of nomenclature that the noble Earl has identified.
The Earl of Mar and Kellie: I am very pleased about that. However, it is important that there should be separate chapters, even if there is only one document. That would obviate the need to have words in brackets at the bottom of every paragraph to explain how the situation will be dealt with in Scotland. That would merely make for confusing reading. I am not necessarily suggesting the production of separate documents, but the Scottish issue definitely needs to be addressed on an equal basis, with its own chapters.
I could begin to accept the Minister's suggestion that my Amendment No. 184 was not necessary and that it was implicit. I will read Hansard to gain a better understanding of that. Meanwhile, I beg leave to withdraw the amendment.
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