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Baroness Blatch: My Lords, it is deeply unfortunate. I was giving way to the noble Lord, Lord Rix; he was giving way to me and the noble Baroness came between us. Therefore, I shall have to put the point I wish to make in the form of a question before the noble Baroness sits down.

As regards the further and higher education sector, this matter is a particular worry. Certainly, I know that the Association of Colleges is concerned about the judgment as to what is and what is not reasonable. One suggestion is that at the end of the day they are judged after the event as to whether they have been reasonable and whether they are acting in good faith. I take it that the point also applies to schools. A third person, body or adviser is involved to test whether they are being reasonable in their attempts to fulfil their obligations under the Act so when they come to be judged, possibly by a tribunal or some other body, they can at least say that in their attempts to fulfil their obligations under the law they had taken proper advice, which is what they are minded to do. Therefore, they will be considered at the end of the day as having taken all reasonable steps.

They are in no-man's land on this issue. They do not know at the end of the day how they are going to be judged or who they will be judged by.

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Baroness Blackstone: My Lords, may I apologise for intervening. I did not realise that the noble Baroness wanted to speak and neither did I realise that the noble Lord, Lord Rix, also wanted to. I shall wait to hear what he has to say.

Lord Rix: My Lords, I am very grateful to the Minister. As the time of night is late and I agree with everything that was said by the noble Baroness, Lady Sharp of Guildford, it would be better if I shut up and sit down, but offer my entire support for her amendment.

Baroness Sharp of Guildford: My Lords, I continue to believe that it is odd that subsection (3) states that regulations will lay down what steps are reasonable. Then we have the detail set out. I remind the Minister I am not arguing in my amendment that these issues should not be dealt with, but that they should be dealt with in a code of practice which is the right place for them to be set down rather than on the face of the Bill. I have repeated arguments which the noble Baroness has put to us on previous occasions when we have suggested putting detail on the face of the Bill. I continue to believe that that proposed step is illogical and I do not think that there are advantages in dealing with the matter in the Bill rather than in regulations. I am sure that we shall return to the matter at Third Reading but, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Lord Lucas moved Amendment No. 82:

    Page 11, leave out lines 30 and 31.

The noble Lord said: My Lords, the amendment would delete subsection (4)(a) in Clause 12, which refers to,

    "the need to maintain academic, musical, sporting and other standards".

I want that paragraph out because of the suggestion that there is something about academic, musical and sporting standards that is not already covered in paragraph (g), which refers to,

    "the interests of other pupils and persons who may be admitted to the school as pupils".

That provision seems to me to be admirable. It should certainly be taken into account when making an adjustment. To take an early example discussed by the noble Baroness, if one reduces class sizes in which there happen to be a disabled person, one increases class sizes elsewhere, and the provisions in paragraph (g) will come into effect.

We might also consider the two examples that the noble Baroness instanced in her letter to me, in which she discussed this amendment when I moved it in Committee. Her first example was of a school orchestra that wanted to enter a competition. It would require its performers to be of a certain standard. That, too, would be covered by the provisions in paragraph (g). Unless the disabled person who could not play music properly or who could not hold a tune was excluded, the other pupils would be disadvantaged. Her second example was of a sporting team that wanted to enter a competition. Again, paragraph (g) would come into force, because other pupils would be disadvantaged if the disabled person was not disadvantaged.

That seems to me to be entirely reasonable. I cannot see any circumstances in which the decision not to take a particular step involving discrimination in relation to paragraph (a) should apply when the provisions in paragraph (g) do not apply. Why should an educational institution not be allowed to say, "We will not do that because it would threaten academic standards", when that would not affect the interests of pupils? What interest would it affect that would justify it being used as an excuse not to take steps in favour of a disabled person?

Again, the matter comes down to examples. The examples that have been given so far today and in the noble Baroness's letter all come under the provisions in paragraph (g). What is paragraph (a) for? Will the Minister give some examples that fall under the provisions of paragraph (a) but not those of paragraph (g)? I beg to move.

Lord Davies of Oldham: My Lords, we discussed this matter in Committee; that is why I wrote to the noble Lord responding to his points. I appreciate the reasonable way in which he presented his case.

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In Committee, I gave the noble Lord an example of the relevant factors and explained why they were needed in the Bill. Subsection (4)(a) refers to,

    "the need to maintain academic, musical, sporting and other standards".

That will enable schools to preserve particular standards where there is a need to do so and only where there is a need to do so. Schools will have to decide whether there is a need to maintain a particular standard or whether a standard should in fact be adjusted. One case, which we discussed in Committee but which I shall present again to the noble Lord in the hope that I can do so with greater conviction, involves a school that enters a sporting competition with the aim of winning it. The school should be free to select a team with the greatest likelihood of winning.

If a school has a reputation for success in this area, that factor would come into play, not to exclude disabled pupils but to ensure that schools thought carefully about their activities and the way in which they choose pupils to take part in particular activities. Obviously we would be concerned if schools were making decisions on the choice for particular activities which looked in any way to be discriminating against disabled students, but not in circumstances where it looked perfectly reasonable that the qualification for success in that area would mean that a disabled person could not take part successfully.

The important thing is that (g) is there for those factors which affect other pupils in a general way. Individual factors do not necessarily affect general pupils in quite the same way: that is why the factors are listed separately and we have already discussed on previous amendments the desirability of the factors being on the face of the Bill. I recognise that some noble Lords disagree with the Government's position on this, but there is advantage in having a specific group of factors on the face of the Bill which clearly identify where a school could operate to preserve its reputation or enhance its standards without falling foul of any discrimination against a disabled student within the school. That is the basis of it.

I recognise what the noble Lord is saying and the reasonableness of his presentation. I am prepared to look at the matter again, because we are here on a somewhat delicate point--the noble Baroness referred in an earlier debate to "dancing on the head of a pin". There is no substantial difference between us and I will look at the matter. However, the obvious point to establish is that the schools have to decide whether there is a need to maintain their standards. That may, in certain specific categories, lead to the necessity of discriminating, though this is done in such a way that they are not discriminating against the disabled but seeking to enhance the standard for which they have a reputation.

12.45 a.m.

Lord Lucas: My Lords, I understand entirely what the Minister is saying, but it still disturbs me. He is saying that a school can have a quality of academic standards and can refuse to admit a disabled person because the academic standing of the school might be

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threatened even though no potential pupil at that school would be disadvantaged. Suppose there is a young lad with cerebral palsy who wants to go to a particular school and the school, though comprehensive in nature, might have a high academic reputation. I can think of a Catholic school in Hammersmith which would satisfy those criteria. It might say, "if we admit this lad he will be way below our usual standard; our ratings in the league table will fall and this will threaten our academic standards, so we will tell him to go away."

Actually, having a kid with cerebral palsy at the London Oratory would probably be welcomed anyway. It would not do the school or its pupils any harm, having a kid like that there. There would be no detriment under subsection (4)(g). Why is a school allowed to have a quality and to maintain this abstract quality which would allow it to turn disabled pupils away and deny them access to particular facilities at the school in order to maintain some ethereal quality of academic, musical, sporting or other excellence, when disabled kids would be disadvantaged by doing that and it would offer no advantage to other children at the school? I do not see that it is consistent with the Government's attitude to the difference between comprehensive and grammar schools. I tend to agree with them. I know my Front Bench does not, but I do not see the consistency. Surely it is the pupils who matter and not the school.

A school's reputation for musical standards may be threatened by having deaf people in the school who will not be able to sing in the school choir, but how will that disadvantage other pupils? Why should schools be allowed to discriminate on that basis? I do not understand the reasoning of the Government in that regard. I hope that they will think again. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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