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Lord Ashley of Stoke: My Lords, before my noble friend sits down, perhaps she could comment on the human rights point.

Baroness Blackstone: My Lords, the legal advice I have had is that there is no human rights problem here.

Lord Ashley of Stoke: My Lords, when I was brought up as a beautiful innocent choir boy, I was always taught that only the good Lord was infallible. Tonight my noble friend has proved that she is as fallible as the rest of us. I am sorry that she has not seen fit to accept this very constructive amendment. However, I am glad that she has seen the error of her ways and removed the word "fatally". That was very wise indeed. I am sorry that my noble friend opposed the amendment. I wish her God's speed with the clause and, indeed, with the Bill.

Lord Addington: My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 27 and 28 not moved.]

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Clause 22 [Roles of the Secretary of State and the National Assembly]:

Baroness Blackstone moved Amendments Nos. 29 to 31:

    Page 20, line 35, leave out ("in the exercise of a power conferred, or").

    Page 20, line 41, leave out ("the exercise of the power or").

    Page 21, line 14, leave out ("the exercise of the power, or").

On Question, amendments agreed to.

Clause 25 [Interpretation]:

Baroness Blackstone moved Amendment No. 32:

    Page 24, line 2, at end insert ("; and

( ) in relation to Scotland, has the meaning given in section 135(1) of the Education (Scotland) Act 1980.").

On Question, amendment agreed to.

Clause 27 [Meaning of "discrimination"]:

Lord Addington moved Amendment No. 33:

    Page 26, line 41, after ("know") insert ("(and had allowed for disclosure by the student, parent or guardian)").

The noble Lord said: My Lords, we return to disclosure, a subject that we have dealt with on and off. Previously, when I moved the amendment, I agreed that there was an amendment regarding the school system which was getting in the way. That allowed for slightly different circumstances.

Amendments Nos. 33 and 34 allow for adults in the further and higher education sectors. We should look at these issues by themselves. The amendments refer to adults and to the situation where an opportunity has to be given to inform those sectors so that plans that help can be implemented. Before, we heard the Minister helpfully say that there will be implementation policies. Such policies will not extend to the support structures in the case of higher education. The plans have to be implemented for students, individuals and adults in their own right. I suggest that the Minister should look at the matter again. That will ultimately save time and save people running around and desperately trying to chase the right help and support. That is surely what it is all about. I beg to move.

Lord Ashley of Stoke: My Lords, my noble friend will have heard my comments in Committee and on Report endorsing what the noble Lord has just said. He has been very constructive and helpful on the Bill and I hope that my noble friend will accept the argument this time.

Baroness Darcy de Knayth: My Lords, I echo what the noble Lord, Lord Ashley, has said.

Baroness Blackstone: My Lords, the amendments seek to provide that an institution must have allowed disclosure before it can be deemed not to be liable under either the less favourable treatment duty or the reasonable adjustment duty because it does not know and could not reasonably be expected to have known

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of a person's disability. I am very sympathetic to the intention of the amendments, but I believe that they are unnecessary.

A post-16 provider would only be able to rely on the defence which the clause provides if it did what could reasonably be expected of it to acquaint itself with whether or not its students and prospective students have a disability.

Most colleges and universities should have, and indeed already do have, procedures in place to try and ascertain if a student or prospective student has any disabilities or requirements. In many instances there are opportunities on the admissions form, such as a tick-box or at the admissions interview, to declare a disability or the need for extra support. This self-identification can then form the basis for a discussion with a student as regards his or her needs and how they will be met.

I am happy to endorse such practices and to state our expectation that they should become universal. I accept the view expressed by the noble Lord that they are not universal at present and that more could be done. We would like the Disability Rights Commission to include relevant examples of good practice in the code. However, we should also look beyond the effects of this Act. To that end, I am now making a commitment that my department will commission good practice guidance to post-16 providers on what steps to take to ascertain the disabilities of their students. We shall involve bodies with expertise in this area in the drawing up of such guidance and seek to ensure that it is widely disseminated, including through relevant guidance produced by other appropriate bodies. I am convinced that we do not need to make a specific provision on the face of the Bill, although I should like to reiterate that we want institutions to take this responsibility seriously.

In the light of what I have proposed, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Addington: My Lords, although that response might not represent route A, route B can often get one to the destination. I believe that the noble Baroness has suggested route B, and that possibly even route C will be open to us. We shall have to monitor these procedures to ensure that they are undertaken properly but, realistically, we have progressed as far as we can as regards this Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 34 not moved.]

Clause 28 [Disabled students not to be substantially disadvantaged]:

Baroness Sharp of Guildford moved Amendment No. 35:

    Page 28, line 1, leave out from ("(1),") to end of line 20 and insert ("a responsible body must have regard to any relevant provisions of a code of practice issued under section 53A").

On Question, amendment agreed to.

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[Amendment No. 36 not moved.]

Baroness Blackstone moved Amendment No. 37:

    Page 28, line 30, leave out from ("disabled") to end of line and insert ("person, which asks for the nature, or asks for the existence, of his disability to").

On Question, amendment agreed to.

Clause 30 [Right of redress]:

The Earl of Mar and Kellie moved Amendment No. 38:

    Page 29, line 35, leave out ("(as the case may be)") and insert ("(in Scotland)").

The noble Earl said: My Lords, I shall begin by saying that I am most grateful for the correspondence I have received from the Minister in connection with my amendments, generated in Scotland. I am always interested in the ways in which this Parliament legislates for Scotland within the reserved powers. To that end, I seek to improve the clarity surrounding such legislation.

Amendment No. 38 has been retabled in response to our debate in Grand Committee. The noble Lord, Lord Davies of Oldham, gave me some hope that it might be accepted. Since then, the noble Baroness has written to me explaining why the words, "as the case may be" are more appropriate than my amending words, "in Scotland". The noble Baroness stated that there will be "no ambiguity" about the powers of which courts are being described. She is correct, at least in the mind of a constitutionally well-informed reader. However, I would respond by insisting that it would be more helpful to general readers to insert the words "in Scotland".

It is likely that a Scottish reader would recognise the term "Court of Session" to describe the highest civil court in Scotland and would not confuse it with the High Court of Justiciary. However, although the use of the term, "High Court" is meaningful to English and Welsh readers, the use of "Court of Session" may not be so. Rather than use the unhelpful phrase, "as the case may be", why will not the Minister adopt the term, "in Scotland"? It would ensure absolute clarity.

The term has been used earlier in the Bill, specifically in Clause 30(1) at line 23. Here the words have been used to differentiate legal terminology used in the two distinct legal systems:

    "claim in tort or (in Scotland) in reparation for breach of statutory duty".

I hope that the Minister will relent for the sake of clarity.

Further amendments tabled in my name have been grouped with Amendment No. 38. Amendments Nos. 40 and 42 return us to the question of how the codes of practice will be written. I fully accept that the Disability Rights Commission will write the codes of practice for schools and, separately, those for universities and colleges. At the end of our earlier debate, I expressed the view that there should be separate chapters for the three countries in both of the codes of practice for the purpose of ensuring that a

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coherent description of the new anti-discrimination procedures will be fully understood in the context and the terminology of the three systems of education.

I am anxious about the composition of the working groups charged with drawing up the codes within the DRC. Can the Minister give an assurance that there will be a separate Scottish working group rather than merely a couple of Scots tacked on to the English and Welsh working group? Furthermore, I hope that the working group will be instructed to write in the codes separate chapters covering Scotland.

I shall not move Amendment No. 41, which has been included in this grouping.

Finally, I shall turn to Amendment No. 44. First, I must confess to an error in the text. The amendment should refer to Sections 14 and 15. I apologise to the House that this amendment was not correctly retabled, but I hope that we shall be able to discuss the principle.

The amendment returns us to an earlier debate in Grand Committee concerning whether it would be a good idea to make clear on the face of the Bill the fact that Sections 14 and 15, which impose a duty to plan ahead for accessibility, do not apply in Scotland. I contend that it makes good sense to ensure that the reader is absolutely clear about the status of Sections 14 and 15. At present they apply only to England and Wales, but they lie marooned in a sea of United Kingdom legislation.

When replying to this amendment in Grand Committee, the noble Lord, Lord Davies of Oldham, was at pains to point out that it was clear from the content and context of the sections that they could apply only to England and Wales. I can accept that argument as being technically correct, but it is far too obscure. A similar argument was advanced as regards Part I of the Bill; that is, that it can apply only to England and Wales because it amends England and Wales education Acts. I can accept that explanation as being technically correct but, once again, it is obscure.

I have limited experience of the subtleties of legislation, but the position is now clear because the Minister has explained it to me. However, not only do most people not have much experience of reading legislation, the Bill is obscure as regards the legislative task that appears to await the Scottish Parliament, should it wish to legislate for such a planning duty--although so far the Scottish Executive has not committed itself. The only way that a citizen would know that Sections 14 and 15 do not apply to Scotland would be by having an in-depth knowledge of Schedule 5 to the Scotland Act 1998 and thus being able to determine that education is not one of the many areas reserved for the United Kingdom Parliament. Furthermore, an in-depth knowledge of education Acts would also be necessary.

Why do not Ministers want people in Scotland to be able to understand easily and accurately this piece of United Kingdom legislation? What advantage could possibly be gained by denying this straightforward clarification? I beg to move.

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Lord Renton: My Lords, may I say that I warmly support Amendment No. 38? The words "as the case may be" leaves the matter a little obscure. Obviously, Scotland should be referred to, and the noble Earl, Lord Mar and Kellie, is correct in moving his amendment, which I hope the Government will accept. The noble Earl has also tabled Amendments Nos. 40 and 42, and I hope that the Government will consider them sympathetically.

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