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I support the intentions of the noble Lord, Lord Low of Dalston. We have also consistently called for a regulator to restore public confidence in the examination
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We also support, as I have already said, Amendment 106B tabled by the Government, which would minimise the extent to which disabled people are disadvantaged from obtaining the qualification because of their disabilities. However, we cannot support the removal of paragraph (c). It is vital to ensure that a regulator has due regard to the absolute need to ensure that standards rise and to maintain public confidence in the examination system. We feel, therefore, that with Amendment 106B the clause will go far enough to ensuring that the needs of disabled people are met.
Lord Low of Dalston: Does the noble Lord accept that Ofqual already has the public confidence objective given to it as one of its governing objectives in the Apprenticeships, Skills, Children and Learning Act so that there is not really any necessity to reiterate it here in this context?
Lord Hunt of Wirral: I do not think we can reiterate it too often. It is vital that public confidence is maintained. I concede the truth of what the noble Lord has just said but I think there is an additional necessity to keep stressing that fact.
Lord Lester of Herne Hill: I apologise for not being here to hear the speech by the noble Baroness, Lady Wilkins. We support the object of the amendment and look forward to what the Minister will say. We closely ally with what the noble Lord, Lord Hunt of Wirral, has said.
Baroness Royall of Blaisdon: First, I will deal with the issue of the inadvertent omission from the Bill and the way in which the Government have dealt with this. I apologised in the first instance and I share the concern expressed by the noble Lord that it is only at this stage that those omissions have become obvious. Am I embarrassed? Yes. Am I angry? Yes. Am I frustrated? Yes. That does not mean that I do not think that the Bill was scrutinised in the other place. Clearly, there is something lacking in the scrutiny of the other place. That is not to say that they did not have enough time. I believe that quality rather than quantity is of importance. I am very proud in this House of the fact that we give qualitative appraisal and scrutiny of Bills. I apologise to all noble Lords. The noble Lord will not be surprised to hear that I will not be taking him up on his kind offer. However, I have asked the Bill team to toothcomb the rest of the Bill to ensure that we are not in a similar situation during later stages.
General qualifications, such as GCSEs and A-levels, are a core part of our education system. They recognise and reflect what young people have achieved and they help promote the skills and knowledge that are essential for future prosperity. It is vital that all young people
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As the noble Lord, Lord Low, said in his, as usual, eloquent speech, of all aspects of equality it is access to qualifications for disabled people which can be a particular challenge. We need a system which will design qualifications and assessments which are as accessible as possible to those with disabilities. The statistics given by my noble friend Lady Wilkins were indeed shocking.
I am grateful to all noble Lords for their support on Amendment 106AZA, which was laid as a result of discussions with the noble Lord, Lord Low. My ministerial colleague, Iain Wright of DCSF, recently met the noble Lord, along with the EHRC and Ofqual, to discuss his concerns. At that discussion, the noble Lord made a compelling case that the Bill appeared not to give sufficient weight to the importance of access. That was certainly not the intention, so the Government accepted that this amendment should be made. It requires the regulators to have regard to the need to minimise the extent to which disabled people are disadvantaged.
We hoped that this amendment would satisfy the noble Lord, but he has tabled three further amendments, so he clearly still has concerns. His first amendment requires the regulators to have due regard to the three factors listed. Legally, there is no substantive difference between "regard" and "due regard". It is clear that the regulators have to take account of the three factors listed. The phrase "have regard" is the same as that used in the Act establishing Ofqual, so it seems appropriate that the same phrase should be used here.
His second amendment changes subsection 8(a) to refer to avoiding,
We believe that the wording in the Bill is appropriate. It sends a clear and powerful signal about the importance of access. If the regulator could not demonstrate that it had minimised disadvantage, it could be challenged in the courts, so I am not convinced that this amendment makes any substantive difference.
His final amendment leaves out subsection 8(c), which refers to confidence. Confidence is the currency of qualifications. Of course, it must be informed confidence. No regulator would or should be guided by prejudice or whim. If it was, it would risk breaching its general equality duty. I heard what the noble Lord said about Ofqual's duty in respect of confidence, but I agree with the noble Lord, Lord Hunt. In the Government's view, the damage to disabled people if their qualifications were no longer trusted would be incalculable. If we accepted this amendment, we would be doing a disservice to many disabled people. Consideration of public confidence is unlikely to affect whether a regulator decides to specify areas where the duty to make reasonable adjustments does not apply, but it might affect which adjustments the regulator concluded were appropriate.
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The noble Lord, Lord Hunt, asked whether subsections 8(b) and 8(c) outweigh subsection 8(a). The regulator would need to take all three factors into account and show that it had done so. The subsections need to be balanced against each other. No one factor is more important than the others. With that explanation, I hope that the noble Lord, Lord Low, will not move his amendments.
106AZB: Clause 91, page 58, line 13, at end insert-
"( ) a disabled person who holds or has applied for a qualification conferred by the institution."
106AZC: Clause 91, page 58, line 25, at end insert-
"( ) The responsible body of such an institution must not victimise 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."
Amendments 106AZB and 106AZC agreed.
Clause 91, as amended, agreed.
Clause 96 : Qualifications bodies
Amendments 106AA and 106AB not moved.
106B: Clause 96, page 62, line 36, leave out "desirability of minimising" and insert "need to minimise"
Clause 96, as amended, agreed.
Schedule 13 : Education: reasonable adjustments
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6 pm
107B: Schedule 13, page 182, line 36, at end insert-
"( ) For the purposes of this paragraph, the reference in section 20(3), (4) or (5) to a disabled person is to disabled persons generally."
Lord Low of Dalston: There is a lot I could say about this but I think we are all anxious to make more rapid progress with the Bill and so I shall truncate my remarks to the bare minimum.
In Committee on 19 January, the noble Baroness, Lady Wilkins, expressed concern that the reasonable adjustment duty in relation to education was not anticipatory; that is, owed to disabled people generally, not just to an individual disabled person. The Minister replied that the Government fully intended it to be anticipatory and that the Act as drafted made it anticipatory. She promised to write, setting out the legal analysis which would make that clear. The Minister has fulfilled her promise. She replied to the noble Baroness, Lady Wilkins, the following day and circulated copies of the letter to all the rest of us who took part in the debate, so the noble Baroness and I have had a flourishing correspondence in the past few days.
However, notwithstanding the Minister's letter, concerns still remain. The Act uses language in relation to services, transport and clubs or associations which makes it clear beyond any shadow of a doubt that the duty in respect of those things is anticipatory, but uses different language in relation to education, which, inevitably, to put it at its lowest, puts the matter in doubt. I have a detailed brief from the Disability Charities Consortium substantiating that point, but I do not want to trouble the Committee with all of that because, as I say, I am anxious, as we all are-I am sure the Minister is-to make progress. However, beside that brief, it seems to me that the Minister's letter looks more like ex post facto rationalisation than an open and shut case. In addition, the approach which the courts have recently taken to codes of practice, guidance and ministerial assurances in disability cases makes it plain that these can prove all too flimsy as a basis on which to found a legal duty.
I believe that at this point the best course would be if the Government could see their way to accept my amendments for the avoidance of doubt. That would mean that the reasonable adjustment duty in relation to education was anticipatory-the Government fully acknowledge that is their intention-and would greatly reassure disabled people. If the Government could undertake to look at this matter further, I would be happy to withdraw my amendments. I beg to move.
Lord Hunt of Wirral: We have just heard a brief but very important speech from the noble Lord, Lord Low of Dalston. As he explained, these amendments underline the fact that the duty to make reasonable adjustments in relation to education must be an anticipatory duty and not just a reaction to the particular circumstances of an individual person with disability.
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On these Benches, we would very much agree with the principle behind these amendments. We are concerned that as much as possible should be done to ensure that the disadvantages which disabled students may suffer as a result of their disability are minimised as far as possible. Every effort should be made to give disabled students an education that is equal to that of non-disabled students. That may require asymmetric treatment of a disabled pupil or student. Perhaps in some cases that does not happen to the extent that it should. In May last year, the Department for Business, Innovation and the Skills released a report which showed that inequalities in secondary education resulted in disabled 16 year-olds having lower GCSE attainment than those who are not disabled. Clearly, there are problems to be addressed.
Nevertheless, on these Benches we feel that the Bill as it stands already contains sufficient provision to ensure that education authorities anticipate the needs of disabled students and make reasonable adjustments in accordance with that. I saw in the Explanatory Notes constant reference to the duty to ensure that certain matters,
That theme has been running through a number of our debates. Therefore, that duty is strong: it both allows and actively encourages education authorities to ensure that reasonable adjustments are made for people with disabilities. Of course, there are places where improvements could be made but, on the whole, we believe that the Bill contains sufficient provision in these areas. I now look to the Minister to reassure me that I am right.
Baroness Thornton:I shall speak to Amendments 107B, 108EB and 108GA in the name of the noble Lord, Lord Low. As the noble Lord explained, these amendments would make explicit the anticipatory nature of the reasonable adjustment duty; that is, when considering a particular reasonable adjustment, education providers need to consider the needs of disabled people more generally. I agree that the consideration of such duties needs to be anticipatory and they are already framed differently from the DDA.
In her letter of 20 January, my noble friend the Leader of the House has already explained that in detail to my noble friend Lady Wilkins in response to the matter raised in Committee on 19 January. The noble Lord, Lord Low, has received a copy of that, as he said, and it is available in the Library.
This is not a fundamental disagreement of policy or principle, as we and the noble Lord, Lord Hunt, agree that the reasonable adjustment duty should be anticipatory. There is simply a disagreement on drafting. The noble Lord, Lord Low, and my noble friend Lady
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Lord Hunt of Wirral: Will the Minister say a little more about when she anticipates being able to return to the House or reply in writing to noble Lords who have expressed these doubts? What sort of timescale are we talking about, now that she has very kindly agreed to go away and have a further look?
Baroness Thornton: I suspect that we will start discussing drafting probably within the next few days, so we can be ready for Report and reach some agreement either that the current wording works for everyone or that we need to do something to it. We will, of course, consult noble Lords about that in advance of Report.
Lord Hunt of Wirral: Could the Minister explain who she is going to consult, just to set it out clearly?
Baroness Thornton: The noble Lord, Lord Low, explained very clearly that we have discussed these issues with a range of stakeholders and noble Lords who are interested in these issues, such as my noble friend Lady Wilkins and other colleagues on other Benches. We shall continue to have that discussion.
Lord Lester of Herne Hill: To follow up the issue raised by the noble Lord, Lord Hunt of Wirral, it is extremely important that we have a Report stage, because many of the concessions or differences can be crystallised only at Report. The longer that we go on in Committee, the more difficult it becomes. One answer to the noble Lord, Lord Hunt, is that this will be done before Report, otherwise we will have been scrutinising carefully and with high quality but it will be a waste of time in the outcome, because the Bill will then leave this House without a Report stage and we will have that dreadful thing called "wash-up". We are very concerned that there will be a Report stage, where all this can be dealt with.
Baroness Thornton: I absolutely agree with the noble Lord, and we intend that this Bill should reach the statute books. However, it is not entirely-not even mostly-in the Government's hands. We are very appreciative of the co-operation that we are receiving across the House to expedite this Committee stage.
Lord Low of Dalston: The Minister has asked me to withdraw my amendments, and I am happy to do that-all the more so since she has agreed to take the matter away and look further at it. I, too, shall be more than happy to do that, to participate in the discussions and to be of whatever help I can be towards reaching a solution with which we are all happy. I beg leave to withdraw the amendment.
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Amendments 108A to 108E not moved.
Amendments 108EB to 108K not moved.
Schedule 13, as amended, agreed.
Clause 101 : Members and associates
6.15 pm
108KZA: Clause 101, page 65, line 13, at end insert-
"( ) This section does not apply to financial charges imposed for different categories of membership within an association."
The Duke of Montrose: My Lords, I have not previously intervened in the passage of the Bill but I have come across issues that I feel must be addressed at this time. I realise that a number of similar issues were considered when your Lordships' Committee was discussing the provision of goods and services under Part 3 of the Bill. We now come to Part 7 and the question of associations. I have tabled the amendment at this stage because the Bill has seen fit to introduce a category in Part 7 which would mean that membership of an association cannot be regarded as quite the same thing as the supply of goods and services.
My concern focuses on sports clubs, especially golf clubs. I declare an interest as the owner and managing director of a golf club. It was in that capacity that the concerns of the Scottish Golf Union, the governing body of the sport in Scotland, were raised with me. My amendment addresses those concerns.
The exceptions provided in the Bill to the offence of discrimination, as they were discussed on the second day in Committee, focus on allowing businesses to provide distinctly different services to specified groups of people. My concern is to determine from the Minister whether the fact that in clubs, particularly in golf clubs, the same goods or services are offered to all but at a different price may entitle some members to feel that they are suffering discrimination and to call for a remedy under the Bill.
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