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The other three amendments mirror amendments laid in the other place during previous rounds of this Bill's scrutiny. The issue here is certain freedoms given to schools with a religious character and how they recruit and discharge their teaching staff. Nothing in the Bill will change the position of faith schools or diminish their ability to deliver an education in line with their religious character. However, I understand that there are concerns about the SSFA and what it may potentially allow faith schools-in particular, voluntary-aided faith schools-to do with regard to their teachers.
Sexual orientation, in particular, has been debated in this context. Let me be clear: discrimination because of a person's sexual orientation is unlawful and nothing in the School Standards and Framework Act would allow it; nor do the faith bodies which run most of our faith schools seek to discriminate on these grounds.
My noble friend Lady Turner asked about the compatibility of the Schools Standards and Framework Act provisions with the European directive. Article 4.2 of that directive provides that member states may maintain national legislation in force at the date of adoption of the directive. It also provides for future legislation to allow differential treatment on religious grounds where it reflects national practices and where there is a,
The wording of the directive was negotiated and agreed by the UK with precisely the circumstances covered by the SSFA in mind. In order for schools to maintain an ethos based on their faith, the Government think it is reasonable for them to be able to ensure that they have a strong and dedicated teaching staff who understand and identify with the religious ethos of the school.
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Anxieties have also been expressed about how the School Standards and Framework Act may apply to the dismissal of teachers. We need to be clear about what the Act allows. Section 60(5) says that regard may be had, in connection to termination of employment, to a teacher's behaviour which is incompatible with the tenets of the relevant faith. It does not say that such behaviour can necessarily be taken as grounds for dismissal. Having had regard to whatever the conduct in question might be, it may be proper for a school to take disciplinary action but it may also be entirely improper. In those circumstances, nothing in the Act would prejudice a claim for unfair or constructive dismissal. The SSFA provisions must also, as I have already said, be read alongside other relevant employment legislation.
I assure my noble friend that, if the Government thought that a problem was caused by the provisions of the School Standards and Framework Act, we would do something to remedy it. At present, we are not convinced that there is any reason to do so, and I therefore ask my noble friend to withdraw her amendment.
Baroness Turner of Camden: My Lords, I thank my noble friend for that response and I also thank other noble Lords who have spoken in this debate. I say to my noble friend that I am completely and utterly in agreement with the Bill and its aim. It seeks to help groups of disadvantaged people who, without the Equality Bill, would continue to have discrimination practised against them. I agree with the noble Lord, Lord Lester, that it is very important to get this Bill on to the statute book as soon as possible.
However, during discussion on the Bill, the Government have made a large number of concessions to religious groups, which I do not think are always justified. People with no belief also have some rights. The EU directive simply says that respect should be shown to the religious ethos of religious employers by the employees. I agree, although in my view that does not include the necessity to become a member of the religion involved. I still believe that that is not a requirement-it is certainly not a requirement of the EU directive. Nor is it true that people who send their children to these schools always want to see that requirement, but I have been given evidence that parents are very concerned that teachers have these requirements imposed on them.
Furthermore, so far as I am concerned, teaching unions support the line of my amendment. However, I do not believe that there is any point in pursuing it at this stage. I shall read very carefully what my noble friend has said in relation to the Government's stance on the amendment and, in the mean time, I beg leave to withdraw it.
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Clause 91 : Students: admission and treatment, etc.
106AZA: Clause 91, page 58, line 10, at end insert-
"(2A) The responsible body of such an institution must not discriminate against a disabled person-
(a) in the arrangements it makes for deciding upon whom to confer a qualification;
(b) as to the terms on which it is prepared to confer a qualification on the person;
(c) by not conferring a qualification on the person;
(d) by withdrawing a qualification from the person or varying the terms on which the person holds it.
(2B) Subsection (2A) applies only to disability discrimination.
Baroness Royall of Blaisdon: My Lords, I will also speak to government Amendments 106AZB and 106AZC. These are purely technical amendments aimed at replicating existing provisions in the DDA, which were inadvertently omitted from the Bill. These provisions ensure that disabled people who are having qualifications conferred on them by a higher or further education institution and are not students of that institution are protected against discrimination, harassment and victimisation because of their disability.
I sincerely apologise for the omission in the Bill and the late arrival of these amendments. I am sure that noble Lords would agree that such protection that already exists needs to be maintained and on that basis I hope that the amendments are accepted. The noble Lord, Lord Low, will now speak to his amendments and I will respond at the end of the debate.
Lord Low of Dalston: My Lords, I had thought that the Minister would speak to her Amendment 106B, but perhaps she will come to that later. In the mean time, I will speak to Amendments 106AA, 106AB and 106C. They relate to a concern that I raised at Second Reading. The amendments are to Clause 96, which provides that qualifications bodies must make reasonable adjustments for disabled candidates such as a large-print exam paper for partially sighted candidates, extra time for dyslexic candidates or lip-speakers for deaf candidates in oral exams. It also provides that Ofqual or the Scottish or Welsh regulators can specify matters that are not subject to the reasonable adjustment duty and decide whether certain reasonable adjustments should not be made. Disabled people's organisations are concerned that the Bill permits the regulators to take these decisions too lightly and with the wrong factors in mind. I declare an interest as president of SKILL, the National Bureau for Students with Disabilities.
Qualifications are vital for disabled people no less than for non-disabled people. Having a qualification opens the door for disabled students to go on to further study or employment. It is therefore vital that the examination system is fully accessible to them. From that point of view, disabled people and their organisations have not had a happy experience. In 2005, the qualifications regulators withdrew much of the support available to disabled students in examinations
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Disability charities successfully campaigned to reinstate the support and have since been working with the Government, qualifications bodies and regulators to encourage them to go further and make sure that all qualifications are fully accessible to disabled students. However, improvements are still needed to ensure access. In particular, the legal framework governing the powers and duties of qualifications bodies and regulators needs clarifying and strengthening to ensure that they fully implement the principles of disability equality with a view to ensuring that the mistakes made in 2005 are not repeated.
As stated, that legal framework is set out in Clause 96. Subsection (8) provides:
"For the purposes of subsection (7)"-
which disapplies the duty to make reasonable adjustments-
three factors. These are: the desirability of minimising the disadvantage to disabled students; the need to secure the reliability of qualifications; and the need to maintain public confidence in qualifications. These have caused concern on the ground, broadly, that they subordinate the needs of disabled students to the goal of maintaining public confidence in qualifications. The amendments seek to address that concern.
5.30 pm
Let me say straight away that I am grateful to the Government for tabling Amendment 106B, which changes in paragraph (a) the "desirability of minimising" the disadvantage to disabled students to the "need to minimise" that disadvantage. Concern had been expressed that the language of the Bill gave rise to the impression that, whereas it was "necessary" to secure the reliability of qualifications and to maintain public confidence in them, it was only "desirable" to minimise the disadvantage to disabled students.
I have had constructive discussions with the Bill team, Ofqual and Iain Wright MP, the Minister in the other place with responsibility for this area of policy. I am grateful that they have responded so positively to my suggestion that they should put the three factors in Clause 96(8) on an equal footing whereby it is necessary for the regulator to have regard to them. In particular, I have had positive discussions with Kathleen Tattersall, the chair of Ofqual, who made it clear that Ofqual sees ensuring that the need for disabled students' qualifications to be fully accessible as being at the heart of its concern-more or less irrespective of the precise wording of the statute. However, that is no reason not to get the wording as right as we can. At the risk of appearing to look a gift horse in the mouth, which I certainly do not want to do, I am afraid that disability organisations, particularly SKILL and the National Deaf Children's Society, have told me that they are still very unhappy that the wording of the paragraph, even with the government amendment, does not give disabled students the assurance or the protection they need. The problem is that they feel
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Before I mention the charities' specific concerns, I shall explain Amendment 106AA. It would change the obligation in Clause 96(8) for the regulator to "have regard" to the three factors to an obligation for the regulator to "have due regard" to them. That would align this provision with the wording of the integrated public sector equality duty, which incorporates the current disability equality duty. The EHRC believes that this would strengthen and clarify the regulator's duty under Clause 96(8), not least because case law already supports and interprets the meaning of "due regard".
Beyond that, the charities' concerns are twofold. First, they are concerned that the need to which the regulator should have due regard in paragraph (a), even with the Government's amendment, will only minimise the disadvantage to disabled students. That seems to accept that disabled students must suffer some disadvantage. The aim should surely be to avoid any disadvantage altogether. Hence, I have tabled Amendment 106AB, which proposes the need to,
and follows the language of "substantial disadvantage" used throughout the Bill in relation to reasonable adjustments.
Secondly, and most importantly, the organisations are worried about the reiteration of the public confidence objective in paragraph (c)-hence, I have tabled Amendment 106C, which would delete that paragraph. Why reiterate the objective of maintaining public confidence in qualifications specifically in the context of making reasonable adjustments for disabled students? Does this not have the negative implication that making reasonable adjustments for disabled students may somehow undermine public confidence in the qualifications conferred on them and on students generally? Does it not smack of the very mindset which was betrayed in 2005 when the regulator withdrew support on the ground that providing extra time for students who had physical difficulty with reading the exam paper or writing their answers, or an interpreter for a deaf student in oral exams, would be unfair to people who did not need this kind of support? At the very least, does it not appear to collude with such ill-informed assumptions? This is what organisations such as NDCS are worried about, and you can see their point.
You can especially see their point when it is not even necessary. What does the objective of maintaining public confidence in a qualification add to the objective of securing its reliability? If, in the language of the Bill-this is paragraph (b)-you have secured that a qualification gives a reliable indication of the knowledge, skills and understanding of the person upon whom it is conferred, what more do you need to do to maintain public confidence in the qualification-unless, of course, it is to make sure that it is not undermined by making reasonable adjustments for disabled students?
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Ofqual already has the objective of maintaining public confidence in qualifications as one of its governing objectives in the legal framework establishing it-the Apprenticeships, Skills, Children and Learning Act, passed last year. It is hard to see why it should be reiterated here in the context of making reasonable adjustments for disabled students unless it is to counter the suggestion that making such adjustments is somehow incompatible with the objective of ensuring public confidence in qualifications. It would be better and would cause less anxiety and heart-searching all round if it was simply removed from the Bill at this point. After all, the Bill is about ensuring equality and not about the governing objectives of a body such as Ofqual. I understand that Ofqual would not have any difficulties with the amendments.
Baroness Wilkins: My Lords, I strongly support government Amendment 106B and the amendments in the name of the noble Lord, Lord Low. As he said, qualifications are vital to disabled people; they are the major gateway to gaining employment. Of those disabled people without qualifications, only 23 per cent are employed-which compares starkly with 60 per cent for non-disabled people-and yet disabled people are twice as likely as non-disabled people to have no qualifications at all.
Looking at the figures for educational achievement of deaf young people, I am struck by how many are failing to achieve their potential. Government figures show that in 2008, 72 per cent of deaf students failed to achieve the Government's benchmark of five GCSEs at grades A* to C, including English and maths. It is vital that we do everything we can to break down the barriers facing deaf and disabled young people, including those which exist in the examination system.
The Government have taken action in this area in the past few years to clarify the law, but there continue to be concerns and there are still reports of problems over exams. For instance, deaf students are not being provided with transcripts for video or radio tapes, or being given extra time to lip-read instructions. A particular example involved a deaf student being asked in an English exam to describe how it felt to be a fan of a music group. The question completely threw him and lowered his confidence for the rest of the exam. When a complaint was made that the question was inappropriate and unfair, the examining bodies refused to accept that the question would disadvantage a student who had no experience of listening to music.
It is clear that disabled students are still being let down by the examining bodies and I hope that the Government will accept the amendments.
Lord Hunt of Wirral: My Lords, I will return to the important points made by the noble Lord, Lord Low of Dalston, and the noble Baroness, Lady Wilkins, but I will first respond to the Chancellor of the Duchy of Lancaster. I am very worried by what has happened here. I hope the noble Baroness will accept that, from these Benches, we have long wanted to see on the statute book an Equality Bill that codifies, consolidates and simplifies the law. We have said that on many occasions.
I recall that it is more than a year since I had the opportunity of speaking from this Dispatch Box on the Equal Pay and Flexible Working Bill when we had
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In her Second Reading speech the Chancellor of the Duchy of Lancaster informed us that she would have to disagree with all the concerns that we raised-there were many-about the lack of sufficient time for scrutiny in another place. The worry was that there would not be enough time here. I recall her saying that the Bill had had considerable scrutiny. It was therefore very worrying when we found, last night, that the Government had to table amendments the day before a Committee stage, when we were quite some way through that stage, and give notice of them late in the evening. This is not a surprise; it has happened before. I am further astonished when these amendments claim that they were,
I am going to make several suggestions, but all I ask now is that the Minister will, in the light of these amendments, revise her position that the Bill has had more than enough scrutiny. I do not believe that it has.
We are, however, delighted that the omission being rectified has now at least been dealt with. We have made it clear throughout these debates that we support the need for every effort to ensure that inequalities between people with disabilities and non-disabled people are minimised as far as possible. For this reason, I declare firmly that we support the Government's Amendment 106B, which would strengthen the provisions already contained in the Bill so that disabled people are not put at a disadvantage.
To return to the inadvertent omission, I should like to hear a little more about how on earth this happened. It has been my experience that when such omissions occur, they are like an amber light on the Minister's radar. I used to have the privilege of scrutinising draft Bills. I understand that there were a number of drafts of this Bill and, no doubt, a number of instructions to parliamentary counsel. I am very worried that there may be other provisions in this absolutely critical Bill that have, sadly, been omitted. There is only one way that we can resolve this now. I am prepared to make this offer to the noble Baroness: if all the original drafts could be placed in the Library of the House, with the instructions to parliamentary counsel that were submitted, I will personally go through all those drafts to ensure that another mistake has not been made somewhere. We do not have much more time to get the Bill right. The one thing we can be sure of is that we will not get another opportunity in the immediate future, because it has taken so long for the Bill to reach us. I think it was first in the party opposite's manifesto in 2005, and we have had to wait so long. The Minister seems unashamed. Surely we can rely on Ministers carefully to scrutinise drafts to make sure that nothing has gone wrong. I do not want to say any more but I make that offer. I care so deeply, having wanted a Bill such as this for some considerable time, that I will do everything I can to make sure it is right.
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As I have said all along, I want above all to see a simple, easy-to-understand Bill so that everybody knows where they stand. One of the problems I share with the noble Lord, Lord Lester of Herne Hill, is that we are both practising-he at the Bar and me as a solicitor. We know that this whole area is slightly uncertain at the moment. People have to see a lawyer to know exactly where they stand. Although I suppose that this is in my interest-
Lord Patten: Can my noble friend help me? As he well knows, I am neither a barrister nor a solicitor; I am a simple Back-Bench Peer. If the noble Baroness does not accept his generous and modestly put offer, how I can be assured that the Bill is in a fit state to be passed through the House?
5.45 pm
Lord Hunt of Wirral: There are only two points on which I disagree with my noble friend. First, he could never be described as a, "simple Back-Bench Peer", in view of his distinguished record in the Cabinet and elsewhere. That is another matter. Secondly, it is for the noble Baroness, the Chancellor of the Duchy of Lancaster, to respond to the point that he makes. I merely express worries and concerns. I know that the noble Baroness will do everything she can to reassure me. As the First Secretary of State said to me at Questions in the Chamber the other day, "Calm down, it is all going to be okay". That is all the reassurance I seek.
Going back to the key points raised by the noble Lord, Lord Low of Dalston, and strengthened by the remarkably important speech of the noble Baroness, Lady Wilkins, I agree that asymmetric treatment may be required to ensure that people with disabilities are not put at a disadvantage. To treat someone with disability in exactly the same way as a non-disabled person will not ensure equalities of outcome. As we have discussed throughout the debate, there may need to be extra, reasonable adjustments made to help counter the disadvantages posed to people as a result of their disability and so aid the progress of equality.
The noble Lord, Lord Low, made it clear that charities remain concerned that the needs of students with disability will not be given sufficient weight in the clause. They are particularly concerned that Clause 96(8)(c), which specifies that one of the regulator's main roles is,
may outweigh the needs of people with disabilities. I hope the noble Baroness will be able to inform us of the legal status of these subsections. As the noble Lord, Lord Low, argued, could paragraphs (b) and (c) outweigh the amended paragraph (a)? The Explanatory Notes to this clause state that,
- "the appropriate regulator must have regard to the need to ensure disabled candidates are not disadvantaged, and the need to maintain the integrity and public confidence in the qualification".
Does the noble Baroness agree that while every effort must be made to take the needs of disabled people into account, this clause goes sufficiently far to address the issue?
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