Special Educational Needs and Disability Bill [Lords]

Public Bill Committee, 3 April 2001.

Standing Committee B

Clause 17 - Special educational needs and disability tribunal

Tim Boswell (Conservative, Daventry)

As there is not a large number of amendments for the Committee to consider—[Interruption.] The Government Whip is in some difficulty; if he cannot see the Opposition, goodness knows what he will do to his own side. I wonder if the blinds could be lowered.

As I said, there are not many amendments; I think that we may have caught the spirit of the Government's commitment not to table more amendments, about which more anon, but some interesting points need to be made. The best way to raise them is probably in short and pithy clause stand part debates.

On rereading the relevant clauses last night, it seemed to me that lessons from settled practice over the Disability Discrimination Act 1995 have been well learned. Saying this is probably a terrible hostage to fortune—certainly Ministers should not ever say it—but the provisions seem technically well-conceived. I hope that they are, because we have no ill will towards them. Indeed, we want them to work properly.

In that spirit, I wish to speak about the tribunal. About 20 years ago, I had some experience of a tribunal's operation, and also about how this place works. When I first became a Minister, I was told that as I had already sat on a tribunal and knew about such things, I could handle the clauses of the Education Act 1993 that established the tribunal, so I readily undertook to do that. However, reflecting on my experience leads me to make one or two points.

The tribunal will convert itself from a special educational needs tribunal into a tribunal that can also hear complaints made under the Disability Discrimination Act on the conduct of education in schools. That will result in more traffic. The explanatory notes helpfully touch on the fact that that is likely to lead to a requirement for further resources. It is suggested that the extra number of cases will lead to an additional cost in the first year of about £400,000, rising to £1.25 million as awareness grows. We have no objection in principle to people having rights of redress. We back the Bill, and will not complain when people go to the tribunal or to court to claim their rights. However, I should be grateful if the Minister would say a little more about the costs and about the element of conversion.

Within the framework of special educational needs, it is reasonable to ask whether the tribunal has worked, and whether the system has been more or less litigious than expected in determining the appropriate provision for the children in question. Does a child need a particular provision? Does a school need to be specified? Do a certain number of hours need to be specified?

Our most important discussion on part I was on whether the Bill needed to put the interests of children first, and whether the absence of that priority would help or promote their interests. We remain sceptical about that, but at least the debate was about education. I was a member of the agricultural land tribunal, which had a legal chairperson and two expert assessors, one from either side. When I had done the job for a while, I regularly used to say that I could not remember who had encouraged me to go on the panel, and I did not regard myself as anything other than a practitioner. One considers such matters with an experienced eye, but in a legal framework.

The tribunal will no longer cover only special educational needs cases, as it will also be a disability tribunal. The Under-Secretary of State for Education and Employment, the hon. Member for Barking (Ms Hodge), is nodding. We will come to the exercise of jurisdiction in joint claims later. I do not want to chop words or use them too loosely, but the tribunal is, in a sense, a court enforcing human rights legislation. That creates a new dynamic, as different shoulders are needed to consider such matters.

In consideration of school provision, the focus will be on the child. However, the chairman must be aware of other human rights issues, such as those involved in employment law and gender or racial prejudice. The context therefore ceases to be purely educational. That is not a difficult change, and I do not suggest that it is wrong to make it. However, it is important that the legal chairperson and the lay members of the tribunal, the appointment of whom the disability organisations will not be consulted on, have broad training.

The tribunal's volume of work is now relatively established and broadly predictable, but it may grow and become unpredictable. That work will have a different nature, as it will bring in wider considerations. I am not arguing that the tribunal is the wrong body to handle such issues, because it is not, certainly in relation to schools--we will debate further and higher education later. However, the tribunal and the Ministers who plan the system must be sensitive to the wider issues. Ministers' guidance to the tribunal and the regulations under which it operates must also have regard to those issues.

The argument on whether entitlement to speech therapy should be specified in a statement is critical to the relevant pupils and parents. It may be of interest, as a precedent, to the LEA. Such matters have been the substance of the first seven or eight years of the tribunal's work. Now there will be a wider context, and there may be major human rights questions about what is or is not functional discrimination as it affects a school. For example, although the provision is not strictly for schools, I have recently explored with the awarding bodies the offence that might be caused when questions with religious overtones are set in a public examination. They might refer to the keeping of pigs, for example, about which Muslim pupils may feel uncomfortable writing answers.

I do not want to debate those issues now—it would be out of order for me to do so. However, there are some wider implications. There is, and I do not say this derogatorily, a growing legal interest in human rights. I can even imagine persons close to the Prime Minister engaging with the special educational needs and disability tribunal in its new role in order to carry forward some great flagship case. Ministers and the tribunal must be aware of these issues, plan for them and aim to contain them. That is not impossible. Cases do not always have to go through the tribunal—parent partnerships and conciliation can be used instead. We need to go into this with our eyes open.

John Hayes (Conservative, South Holland and The Deepings)

I want to make a couple of points by way of amplifying or specifying some of the issues raised by my hon. Friend. I will phrase them, in as friendly a way as possible, as questions to the Minister. Although my hon. Friend is right that these are not principally matters of cost, we need some indication of the Government's estimates of the volume of cases and the resultant cost. It is hard to come to a conclusion about that, but we need a rough approximation of the Government's estimates.

The second issue concerns representation. We are all anxious to maintain the informality of the tribunals. That issue was touched on in the other place, when these matters were debated there. As my hon. Friend has already said, the informal nature of the tribunal is important if we are to avoid disadvantaging parents and children. It is important to strike a balance between informality and proper representation. Those on one side in a hearing could be disadvantaged if they are not familiar with such proceedings and feel bamboozled or intimidated.

Tim Boswell (Conservative, Daventry)

My hon. Friend is amplifying my gist very well. Does he agree that whereas tribunals have generally been seen over the years as informal forums for the resolution of disputes, once lawyers get involved in the process, a kind of arms race emerges? Cases can involve a learned counsel, leading counsel and considerations can become protracted, at huge expense. I know from my own experience that that is a matter of some concern.

John Hayes (Conservative, South Holland and The Deepings)

Indeed, and that is what I am moving on to. The atmosphere created in these bodies, which will have legal force, is critical if we are to give the parents and children who come before them the best possible opportunity to make their case. The necessary balance between informality and proper representation was debated at some length in the other place, and I am sure that the Minister will want to comment on it.

The third issue is the role of the child in such circumstances. That could be a difficult matter. Lord Ashley of Stoke referred to it in the debate in the other place. He made it clear that the tribunal represented an opportunity for children to put their own perspective. However, the child would need to be assisted in that, and the environment of the tribunal should allow a child to put his or her case, which may be different from that of the parents. The child's view on a given issue might differ from that of the parents. We must ensure that the tribunal is not alien to the expression of such views.

I am mindful of the words of Baroness Blackstone in the other place. She said:

``Even in the informal environment of the tribunal an unassisted child is likely to be at a disadvantage which may lead to increased use of representation generally, affecting in turn the informality of those proceedings.''—[Official Report, House of Lords, 6 February 2001; Vol. 621, c. 240.]

Given the tribunal's multifaceted brief—it will be involved in issues of disability discrimination and of a narrowly educational nature—those different levels of representation may exacerbate the problem of representation, parental involvement and children's involvement in what we hope will be a positive outcome. This is not an issue of principle; we want to give the tribunals and the Bill a fair wind. However, these details require clarification, and I look to the Minister to provide it.

Margaret Hodge (Labour, Barking)

Clause 17 extends the jurisdiction of the special educational needs tribunal to cases of disability discrimination in schools and renames it the special educational needs and disability tribunal. Its reconstituted jurisdiction will extend only to England and Wales, as does that of the current special educational needs tribunal.

The hon. Members for Daventry (Mr. Boswell) and for South Holland and The Deepings (Mr. Hayes) raised the issues of cost and traffic. It is very early days and therefore difficult to judge. There is not even sufficient case law under part III of the Disability Discrimination Act for us to predict with any confidence the volume of cases that will be brought under the powers in the new part IV. However, I would draw the attention of both hon. Members to the fact that we established a conciliation service under the Disability Rights Commission specifically to minimise the number of cases that would need to come before the tribunal.

The hon. Member for Daventry was with me last night at the reception for disability organisations when I referred to that service as a key element of the role of the new commission. I am watching its development with great interest. It should minimise traffic.

Tim Boswell (Conservative, Daventry)

I hope that the Minister is right. On Second Reading, I said that experience of the operation of the 1995 Act has shown that employment tribunals, which hear cases relating to part II duties and to which access is relatively easy, have borne very much more traffic than the county courts, which hear cases in relation to part III duties. I accept that that occurred before the establishment of the Disability Rights Commission. My concern is that because this is tribunal territory, which, for an applicant, is relatively easy to access and relatively cost-free, there might be more traffic than either of us anticipates.

Margaret Hodge (Labour, Barking)

That might be true, but I hope that the anticipatory duties on schools and LEAs will ensure that action is taken before a tribunal is needed. I accept the difference between the county court and the tribunal, but as there have been so few cases so far, none of us has much experience of part III. Nevertheless, we make estimates of costs, and these have been supplied to the Committee in documents relating to the Bill. The tribunal has estimated that the cost will be approximately £400,000, rising to £1.25 million in the longer term, and that 20 more staff will be required. However, I would put a number of provisos on those figures as they are guesstimates, and we shall have to revisit them in the light of proper knowledge.

The hon. Member for Daventry also talked about whether the members of the tribunal would have the appropriate knowledge and experience to deal with discrimination matters in relation to disability—

Tim Boswell (Conservative, Daventry)

Or training.

Margaret Hodge (Labour, Barking)

Yes, or training. I can give the hon. Gentleman some reassurance on that.

First, the regulations that govern appointments to the tribunal will require its members to have knowledge of disability issues. That is one way of ensuring that appropriate people participate in the tribunal. Secondly, the composition of the tribunal will be not dissimilar to the current composition of the SEN tribunal, in that the chair will have a legal qualification and a minimum of seven years experience, and be appointed by the Lord Chancellor. The tribunal is a non-departmental public body, and has for some time been planning for expansion and changes in its duties and functions. It has also been training people appropriately.

Win Griffiths (Labour, Bridgend)

I previously referred to the devolution conundrum, whereby some devolved issues, which are the responsibility of the Welsh Assembly, are relevant but there are other, non-devolved matters in the same connection. The tribunal is one such matter, because it will consider issues relating to schools, but the Lord Chancellor's Department is not a devolved Department and the tribunal is not a devolved tribunal. Have there been any discussions with the National Assembly about the possibility, at some future date, of it having a more direct role and about the establishment of a separate tribunal in Wales? In addition, what administrative arrangements will be made in the immediate future, once the tribunal has been established?

Margaret Hodge (Labour, Barking)

English lay members of the tribunal will be appointed by the Secretary of State for Education and Employment, but the National Assembly for Wales will appoint Welsh members. Clearly, we must be extremely sensitive to the Welsh dimension as the development of the tribunal proceeds.

Tim Boswell (Conservative, Daventry)

May I first respond to the point made by the hon. Member for Bridgend (Mr. Griffiths). It is not simply a matter of the tribunal's jurisdiction. Under clause 18, the tribunal's power to make remedial orders will be binding on LEAs in Wales, despite the fact that they are bespoken to the National Assembly. Therefore, an extra-territorial jurisdiction will impact on them.

I believe that, in its first seven years of operation, the SEN tribunal has established considerable credibility and done a good job for all parties involved. It is important that we build on that credibility and ensure a constructive outcome.

Margaret Hodge (Labour, Barking)

I, too, believe that the SEN tribunal has been a success story, which we want to develop. We must be sensitive to the Welsh dimension, and review the impact that the legislation has on Wales. It is tricky, because the measure involves both a reserved power and a devolved responsibility, so we must ensure that the two interact effectively.

The tribunal has a comprehensive and on-going training programme for its members, which includes training on the legal developments, on the new powers created by the Bill and on the implications of the Human Rights Act 1998, which the tribunal will take seriously. The tribunal will enforce new rights under disability discrimination legislation, but it also has a history of enforcing rights with respect to special educational needs. We selected the mechanism for enforcing those rights for many of the reasons that Opposition Members have described. It is informal, it works more quickly and sensibly, and it is more responsive to a child's needs. It puts the educational remedy at the heart of the work that is done, which is vital in ensuring that children develop their potential without suffering any unnecessary disadvantages from discrimination or from their special educational needs.

The Disability Rights Commission will be preparing guidance, which will support and inform the tribunal in its new role. We have examined all the perspectives from which the Human Rights Act 1998 might affect the Bill, and have ensured that the Bill complies.

I want to mention one or two issues raised by the hon. Member for Holland and The Deepings.

John Hayes (Conservative, South Holland and The Deepings)

South Holland; I do not want to offend people in North Holland.

Margaret Hodge (Labour, Barking)

I am sorry; I want to answer the hon. Member for South Holland and The Deepings. The desire to keep the proceedings informal reflects our approach to respecting the rights of the child in the tribunal. In seeking effective determinations and in pursuing the child's rights in education, it is better that a parent should bring a case on behalf of the child. Parents have a better chance of identifying the child's rights at an appropriate age and of mounting a challenge.

The tribunal, rather than any other jurisdiction, is appropriate because it can work more swiftly and effectively, and can focus on an educational outcome for the child, rather than becoming entangled with lawyers and giving an overly litigious and formal impression. The child's rights would be less well served by that than they would by the more informal tribunal.

John Hayes (Conservative, South Holland and The Deepings)

I am sympathetic to the Minister's case. She may want to deal with two issues that I raised, first about disagreements between parents and children—which is a possibility particularly relevant to slightly older children in secondary education--and secondly, about circumstances in which parents are no longer in loco parentis, for whatever reason. My noble Friend Baroness Blatch raised the latter point in the other place. A conflict of interest might arise with respect to children in care or children whose parents were not in a position to represent their interests, if the local authority were called on to represent a child as well as putting its own case. That is a sticking point in the Minister's otherwise persuasive case.

Margaret Hodge (Labour, Barking)

As to the first point, we are ensuring that the rights of the child are protected in other ways. For example, under the new tribunal regulations, which will come into force in September, local education authorities will be required to state the views of the child or to state why they have not ascertained them. That will be covered by regulation 13. We plan similar provisions in disability-related tribunal regulations. I hope that that provides some comfort for the hon. Gentleman.

When a child's parents are no longer in loco parentis, social services departments will represent the child's interests and act in loco parentis in relevant circumstances. Local authorities have a duty under the Children Act 1989 to promote the welfare of the child. That may place the relevant departments in conflict with the local education authority, but each would observe the separate duties imposed on it by law.

Tim Boswell (Conservative, Daventry)

A Chinese wall.

Margaret Hodge (Labour, Barking)

It is a Chinese wall.

I have explained how we think the system will work in practice. The issues raised by Opposition Members are important, and we considered them when we framed the duties of the tribunal.

Question put and agreed to.

Clause 17 ordered to stand part of the Bill.

Clause 18 - Jurisdiction and powers of the tribunal

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 19, in page 17, line 28, after `concerned', insert

`including any element of apology which is appropriate'.

Bill O'Brien (Labour, Normanton)

With this it will be convenient to discuss amendment No. 20, in page 17, line 29, after `relates;', insert—

`(aa)includes power to invite local education authorities and education providers to re-examine their procedures and provisions for dealing with matters of wider application raised by the resolution of the particular case;'.

We are still dealing with tribunals. I hope that hon. Members will not repeat what was said on clause 17.

Tim Boswell (Conservative, Daventry)

Thank you, Mr. O'Brien. We shall not do that.

Amendment No. 19 is about the importance of redress, which can be the cause of great emotion. In the other place, views on that matter were divided, as they may be in the House of Commons. Some hon. Members—they may not be members of the Committee, but they should show themselves as we need to debate the matter—believe that the tribunal should be able to order pecuniary redress. I do not seek to exclude the caveat that rules out pecuniary remuneration. I agree with the Minister that that should not be included in the Bill.

Although an argument can be made in favour of pecuniary redress, it is, on balance, not right. The strongest argument in favour would be in cases of what might loosely be called wilful or delinquent behaviour by a local authority or a school's governing body. People may feel strongly that an LEA or governors should be punished by way of a fine or punitive damages to stop that happening again.

Were you to allow it, Mr. O'Brien, we could have a long debate on the impact of damages in cases of medical negligence—on whether such damages advance the nation's welfare or have negative consequences. I shall not be tempted down that route. Redress is provided for in equal opportunities legislation, and for gender and racial discrimination, but the Bill does not provide for it. Is the Minister comfortable about that? The balance is not right, and the amendments allow me to probe what the tribunal can order.

Paragraph 91 of the explanatory notes include a helpful list of the tribunal's

``wide powers to order any remedy''.

The list of powers should include the possibility of securing an apology or a re-examination of the case. I have singled out those two points because distressed parents or relatives often want those things to happen after a tragedy has occurred.

This may be neither the time nor the place for personal confession, but many of us will have experienced something pretty nasty or distressing, such as a death in the family. The financial implications for the loss of a life are small under English law. There may be damages for the loss of a business partner, a parent or a potential earning stream that would finance a child's education, but damages for death itself are comparatively small, a fact that feeds into my argument that a financial contribution would be inappropriate.

Another factor is what I might loosely call the Railtrack argument. Railtrack is a private sector company, but if all that we do every time that it fails is fine it, we make it more difficult for the company to put matters right. In the case of SEN, because of the size of the maintained sector, most of the traffic would be in the public sector of education, and any fines would come out of other educational provision.

What do relatives want? I shall recite the sad case of a family in my constituency. The husband and bread winner volunteered to help in a local country park, and met with a fatal accident when driving a dump truck as a volunteer. Someone slipped and put a JCB bucket through him. In due course, the family came to see me about the case. As people do in broadly similar, though perhaps less tragic, incidents, the family wanted the public authority to apologise, and it did so, most generously. The family also wanted—I am almost repeating its words—such events to be prevented from happening again, as a contribution towards the loss of its loved one.

In the real world, we know that some accidents are not as easy to predict as wise-after-the-event tabloid newspapers may say. Accidents may arise through unsatisfactory but institutionally embedded practices. The local authority may not be doing its job properly or sending the right signals. We must provide some differentiation.

It is not pleasant for any parent to have to make a case; I almost said that that is not pleasant even when the case is won. Life must go on, but parents want to feel that something positive has been achieved. The right remedy is needed. In my experience, that is not always easy, and the climate of litigation and litigiousness on which we have already touched tends against it. An admission that a terrible mess has been made in a specific child's case, and an apology for it, can be an important solvent of grief. That is the point of the amendment.

Amendment No. 20 moves us from the particular to the general. Mirroring the remarks in the sad case to which I referred, parents will say that if working practices are unsatisfactory, the public authority—most schools are public authorities—must ensure that something is done about the problem so that the situation is better in future. It would be unwise to stray into other territory, but we could have a long debate by analogy with, for example, institutionalised racialism. I do not want to do that, but some concerns must be dealt with. Incidentally, in my county, which does not have a particularly high component of ethnic minorities except in one or two places, I had a constructive conversation with our chief constable about his policies. He gave satisfactory answers and had clearly dealt with the issues.

If something goes wrong, and a case goes to tribunal, it is not just the money that counts, particularly for the individual. Although we should not forget the prescription for educational remedy, because that is the central point, it is sometimes important simply to have an LEA or a board of governors say, ``We got it wrong, but we are sorry and we are doing something about it.''

Amendment No. 20 sets out what would be done about that. If an LEA had had a dusting down at a SEN tribunal, it would be foolish and inappropriate of it simply to say, without its making any real changes, ``Oh well, we lost that one. Some you win, some you lose. On to the next.'' We want LEAs to say, ``We got it wrong. Perhaps we can learn from that. Perhaps we could do the children in our care and ourselves some good if we adopted a more positive and proactive attitude and actually did something about the problem.'' The Minister and Conservative Members would want that, and the amendment is intended to achieve it. In other words, out of a dispute may come some provision for specific educational remedy and, if appropriate, a generous apology. That must not be a matter of simply offering a few words: the authority must consider the case, learn from it and resolve to do better next time.

John Hayes (Conservative, South Holland and The Deepings)

I do not want to detain the Committee, and will make only a couple of further points. First, the issue dealt with by amendment No. 19 should be set in the context of prevailing assumptions about the relationship between parents and children and LEAs. Among many parents and young people with special educational needs and, one might say, people with disabilities in general, there is a feeling that those in authority can sometimes be arrogant. Such feelings are often exacerbated by people's sense of vulnerability, and, perhaps, by their earlier life experiences. My repeated experience of such matters suggests that parents frequently feel that the authorities do not take sufficient account of their concerns. They do not show sufficient humility. The apology that the amendment stipulates is designed to allow local authorities in such circumstances to be a little more humble—to say that they got it wrong.

Tim Boswell (Conservative, Daventry)

If I might just correct a small mistake in terminology in my hon. Friend's powerful speech, it is a matter not of allowing but of requiring authorities to do something about it.

John Hayes (Conservative, South Holland and The Deepings)

Indeed. I was being excessively polite, as I am wont to be. My hon. Friend is right. The current position is variable, as I would be the first to acknowledge. However, as an apology has frequently not been offered voluntarily, it is vital to introduce an element of obligation. Frequently, local authorities have not shown the requisite humanity and have not made it clear that they sometimes get things wrong. That is why we wish to strengthen the Bill.

I do not want to open up a hornet's nest, but the amendment would raise the issue of compensation for discrimination, which my hon. Friend has hinted at. That matter was debated at considerable length in the other place, not least by Lord Ashley, who discussed the tribunal's power, when it finds in favour of the parents, to insist that people are properly compensated. As we are probing the Government, it would be useful if the Minister would refer to the issue of an apology, which was debated at some length. I put it no more strongly than that.

On amendment No. 20, I want to add one point to what my hon. Friend has said. We might find, as matters proceed—the Minister was right to say that these are early days—that particular problems arise in certain areas and particular local authorities, and we may find that cases are concentrated in one part of the country.

Tim Boswell (Conservative, Daventry)

May I assist my hon. Friend by saying that, in conducting its inspections, Ofsted might also find that there is some systematic flaw in provision?

John Hayes (Conservative, South Holland and The Deepings)

Precisely. My hon. Friend anticipates my conclusion. If there is a concentration of cases in one part of the country, that might be indicative of an endemic or, as my hon. Friend describes it, a systematic problem. That is why it would be inappropriate not to include in the Bill provision for local authorities to learn from mistakes by examining specific examples or a collection of examples. If there is a concentration of cases or a repeated theme, that may indicate that there is a flaw. Amendment No. 20 simply suggests, arguing from the specific to the general, that it would be wrong if the Bill did not cover that possibility, allow local authorities to consider how systems and procedures work, and offer them an opportunity to iron out and amend their practices.

Once we have had a chance to see how the legislation beds down, get a feel for the number of cases, where they are, and what cases typically arise, we could learn from that experience and incorporate it in good practice. The amendment is constructive and persuasive—I suppose that I would say that. It would help local authorities and give extra protection to people who go to a tribunal, win their case and say, ``Let's hope that this does not happen to anyone else. We have won our case, but we do not want anyone else in a month, a year or five years' time to face the same challenges and go through the same process.'' If the amendment is rejected, intransigent local authorities may not learn from mistakes, and we know from experience that that has happened. Such situations will be testing for the parents and children involved. They would take comfort from an apology and from knowing that their case was a landmark. People are not entirely selfish in such matters; they hope that others will benefit from the difficult circumstances that they have had to endure. On that basis, I urge the Committee to support the amendment.

Tim Boswell (Conservative, Daventry)

Before the Minister responds, I want to raise a related issue regarding redress. The explanatory note helpfully says that the expanded tribunal will be able to set rigorous deadlines when directing action by schools and LEAs. If those deadlines are not met, the parent can ask the Secretary of State to make a direction to require compliance. I understand that, and it is helpful. However, the issue is not about deadlines, but about the substance of the response made by the school or the LEA. The argument is not about whether something has been done by the deadline, but whether it is consistent with the order made by the tribunal. Perhaps the action taken made a monkey of the tribunal, or was not in the spirit of its findings, which led to a complaint. I am not sure how often that has happened, or how many cases have been taken as far as the Secretary of State, but it would be useful to have the Minister's perspective on that more general issue.

Andrew George (Liberal Democrat, St Ives)

There has been an important debate in the other place on compensation. I am pleased that no amendments have attempted to delete lines 30 and 31 of page 17, which make up proposed new section 281(4)(b) of the Disability Discrimination Act 1995. It has become clear from the debate that, although financial compensation could be attractive, removal of the proposed new section might have the negative effect of creating a quasi-legal process and altering the motivation behind claims for discrimination. The other place considered including financial compensation, but on reflection it is right that it should not be included.

It is not appropriate for compensation to be related to retribution. The outcome of the process should be a learning experience for all. I hope that the Minister will clarify and amplify the Government's thinking on educational remedy. I am concerned, as are others, that an aspect of educational remedy may be additional teaching, which may be seen in the school as a punishment for failures in the pupil's past. These matters should be treated with sensitivity, especially when discrimination can be proven to have occurred over a long period. In such cases, a long period of educational remedy will be needed.

I want the Minister to elaborate on the explanatory notes, so that we are fully aware of what will and will not be included in the educational remedy. To what extent will the school and LEA be responsible for fulfilling the obligations?

Margaret Hodge (Labour, Barking)

I was grateful for that debate, as it gave us the chance to air some issues that had already been heard in the other place, but deserved another brief airing. The argument made by the hon. Member for South Holland and The Deepings was constructive and persuasive, but I hope that he agrees that provision for what he desires is already in the legislation, so the amendment is not necessary.

All three Opposition Members who spoke mentioned financial compensation. The Under-Secretary of State for Education and Employment, my hon. Friend the Member for Redditch (Jacqui Smith), and I have thought about the issue long and hard. However we played it, we were bound to end up with the possibility of disability discrimination issues being dealt with differently from issues of special educational need or gender and sex discrimination. In either case, that would have created a conflict. There was no way to square that circle. One of the ambitions had to be met, and that would inevitably lead to a contradiction with other legislation.

In the end, we decided to ensure that there must be an educational remedy. Therefore, we had to take a coherent approach to education legislation, and to provide for the rights of children under special educational needs provision when framing the disability discrimination provision and dealing with the compensation issue. I agree with the remarks of the hon. Member for St. Ives (Mr. George). The important consideration, which underpinned our approach, was making the child's learning and development central to our action. The educational remedy is therefore the most appropriate.

We engaged in extensive discussions, not only with the all-party group on disablement, but with a range of interest groups. I was persuaded—as was the Under-Secretary, my hon. Friend the Member for Redditch—by my dealings with those closest to the issue, such as the Council for Disabled Children and other members of the national advisory group on special educational needs. I think that, on balance, they agreed with us at the end of the process. None of us found the decision easy, but I think that we made the right one.

The arguments that affected our decision included the fact that if financial compensation were provided for in the Bill, the entire focus of the tribunal system would shift towards that and away from educational remedies. That would disbenefit the child in relation to educational opportunity and experience. The informal and friendly atmosphere that is the strength of the special educational needs tribunal would be lost if we switched to financial compensation. We would end up with a culture that was more strongly litigious, more formal and perhaps more adversarial and acrimonious. Changing the nature of the tribunal might put off from pursuing their case parents who felt that their child had suffered discrimination on grounds of disability or special educational need. The greater the informality, the greater the likelihood of less confident parents feeling able to participate in the tribunal.

Tim Boswell (Conservative, Daventry)

I do not disagree with the Minister. I think that she is essentially warning off any suggestion that the tribunal should provide the opportunity of an outing for gold-diggers. That would be wrong.

Margaret Hodge (Labour, Barking)

Gold-diggers include lawyers, and although I am married to one I am as anxious as others to keep them out of this arena in the interests of children and their education.

If the focus were on the financial contribution, the root cause of the discrimination may not be tackled. There may be a tendency to think that if a payment of £100, £200 or £2,000 is made, there is no need to bother to tackle the institutional issue that has led to one instance of discrimination and could lead to others. That was another strong argument that informed our consideration of the matter, and led to our decision. That does not mean that there will not be financial costs to schools and LEAs from involvement in tribunals and funding educational remedies. Remedies cost money. We would prefer money to be spent on educational remedies, rather than on financial compensation for individuals.

John Hayes (Conservative, South Holland and The Deepings)

I understand that argument, which is a good one. However, it was anticipated to some degree by Lord Ashley, in the other place. He talked about the tribunal being more like a small claims court than a gold-diggers' affair—perhaps we are talking about bronze-diggers. His said that we could ensure that by limiting the amount of money involved by regulation. I do not necessarily agree with that, but I think that it needs re-airing or re-amplifying, as the Minister described it.

Margaret Hodge (Labour, Barking)

I read that argument, too. However, my view is that when financial compensation is involved, a more litigious atmosphere is likely. Lawyers can currently participate in SEN tribunals; I believe that that happens in one in 20 such tribunals. In our judgment, there would be a tendency for that to increase. In a few cases, an educational remedy will be difficult. However, even in those cases some such remedy will be possible.

I should like to give the Committee some examples by way of illustration. It has been argued that once a child has been prevented from going on a school trip, nothing can be done. However, the child could be included in the trip of another year group by way of educational remedy. If a child were prevented from undertaking a public examination because insufficient adjustments had been made to enable that child to do so in an appropriate manner, that could be remedied. Although some time would be lost, the child could be given the opportunity to sit the examination once the appropriate adjustments had been made. If an act of discrimination occurs, it is difficult to rectify it 100 per cent. However, in most cases it is not impossible to find some educational remedy.

Tim Boswell (Conservative, Daventry)

Is not the difficulty with cases in which damage has been caused before the tribunal has considered the case? There might have been two or three years of inappropriate provision arising from the dereliction of either a school or an LEA. No money can put that right, and no educational provision can rescue that situation, although it might ameliorate it. What is required is an apology and a determination—a real determination, not just lip service—to do better by children when the circumstance occurs again.

Margaret Hodge (Labour, Barking)

That allows me neatly to move on to my next point on the two amendments. Anything that we do in this area deals with the future, not the past, so there will always be a sense of it not being the most perfect outcome for the child. We are trying to identify ever earlier both special needs and disability, and I hope that we are improving our ability to respond to a child's future needs more quickly than we have done in the past.

I agree entirely that what relatives often want is for people to say that they are sorry. Perhaps it is a good lesson for us as Members of Parliament—

Tim Boswell (Conservative, Daventry)

Some more than others.

Margaret Hodge (Labour, Barking)

I dare not pursue that argument, as I think I would find more instances among Conservative Members--particularly from their time in government--than I would among my hon. Friends. However, we all need to learn the lesson that the arrogance of power and position should not prevent us from recognising when things have gone wrong and from saying that we are sorry. I hope that I can convince Opposition Members that the Bill provides for that. We have enshrined in clause 18 —proposed new section 28I(3)(b) of the 1995 Act—the provision that on a successful claim for disability discrimination, the tribunal can make any order that it considers reasonable. The Bill also provides that, in deciding on the type of order that it will make, the tribunal may grant a remedy that will negate or reduce the adverse effect of discrimination. I hope that I have reassured Opposition Members that the Bill gives the tribunal wide powers to order an appropriate education remedy.

Tim Boswell (Conservative, Daventry)

If the local authority or the school were to regard a tribunal order as unreasonable or impracticable, what redress would that authority or body have? Could it challenge the order? Would it have to go to the High Court?

Margaret Hodge (Labour, Barking)

The tribunal order must be specific. The school will have to take action. If not, the Secretary of State will direct it to do so, as he has done in the past. Of course, the school or the LEA would be able to appeal to the High Court if it were felt that the order was inappropriate or wrong.

In considering specific cases, the tribunal has the power to order a school or an authority to change its policy—for example, on bullying. If a school has been found to discriminate against a child over bullying, the tribunal can instruct the school to change not only its behaviour towards that child but its wider policy on bullying. The tribunal can also order the discriminator to apologise to the child. Amendment No. 19, which inserts an express power to that effect, is therefore unnecessary.

Amendment No. 20 raises the question of whether the tribunal should have the power to invite LEAs and schools to reconsider their procedures for dealing with matters of wider application that may emerge during the hearing of a case. We resist the amendment on a number of grounds. First, it does not place a duty on a school or LEA to comply. Secondly, we do not want the tribunal to be diverted from focusing on the needs and circumstances of the child. Thirdly, nothing in the Bill prevents the tribunal from recording the wider issues in its written decision, but it is not appropriate to give the tribunal that specific power. However, several other mechanisms are in place to ensure that the wider implications of a case are taken on board.

First, schools and LEAs have an anticipatory duty to ensure that their policies and practices do not discriminate against children. It would be a rather short-sighted school or LEA that did not have proper regard to that when considering the wider implications of a case that was being considered by a tribunal. If they failed to do so, the LEA or school would be open to further successful claims of discrimination.

Secondly, if the school or LEA refuse to have regard to the wider implications of a specific case, the DRC has the power to investigate the LEA or school and to seek an injunction—or, in Scotland, an interdict. The DRC can seek an injunction against an education provider that persistently discriminates, if it believes that without it the provider would continue to commit further unlawful acts. That would apply also to a provider against whom a non-discrimination notice had become final in the previous five years. The Secretary of State has the power to intervene, as alluded to by the hon. Member for Daventry; he has done so in the past, although not frequently.

The Bill imposes an express duty on the school and the LEA to implement their plans and strategies on disability and discrimination against children in their schools. There are other ways of monitoring whether schools are complying with the legislation. For example, the schools access initiative will be vetted, and if it is found that schools are not complying with their duties, the Secretary of State will be able to deal with it.

Tim Boswell (Conservative, Daventry)

One of the by-products of the recent study on the schools access initiative was the discovery that it was only partially taken up, according to whether schools or LEAs were aware of it. Will the Minister ensure that, to borrow a phrase, it is rolled out across the country and that it benefits all local authorities that need it?

Margaret Hodge (Labour, Barking)

In our funding plans, we have for the first time given local authorities three years' certainty. That has been widely welcomed, as has the increase in resources that we have made available to LEAs. Under the Bill, LEAs will have to submit their school access initiative plans, and officials will be able to use those reports to trigger a call-in if they are concerned that the strategy is not being implemented. The hon. Gentleman may like to know that all LEAs have taken advantage of the school access initiative resources made available for 2001-02.

We have other mechanisms to ensure that schools comply with the legislation. Asset management plans will be inspected by departmental officials. Amendments made in the other place will allow issues of disability to be inspected by Ofsted. Parents and others with an interest will be able to inspect the LEA's or the school's strategy, which will form another check. If parents are unhappy with how a school or an LEA is carrying out its duties, they will be able to complain to the Secretary of State or to the National Assembly of Wales, and such complaints will be investigated.

We have put in place a multi-layer, multi-agency set of mechanisms to ensure that lessons from individual tribunal cases will be applied in the wider context. They will put additional pressure on LEAs and schools to comply with the legislation. I hope that I have reassured Opposition Members, and that they will feel able to withdraw the amendment.

Tim Boswell (Conservative, Daventry)

I thank the Minister. In summary, her answer was good but not good enough. The Opposition attach great importance to the two elements embodied in the amendments. The hon. Lady has probably given sufficient answer to amendment No. 19, and I am minded to withdraw it in due course, but she gave a long, opaque answer to amendment No. 20, in which she deployed a complex set of remedies. I am not as happy with that answer, partly because, if the remedies are real, I do not see why they should not be included in the Bill.

As we have shown, we are concerned not only about redress for individual children, but about the more difficult cases in which individual LEAs set their faces against making systematic improvements in the sensitivity of their provision, and are happy to take the occasional reverse by the tribunal on the chin and go on to the next act of discrimination or unsatisfactory provision.

For that reason, we think that the Bill should include a provision to address that problem. It would provide an invitation that could ultimately be cashed in through the intervention of the Secretary of State, if no one else, on the ground of unreasonable behaviour. It would not only apply to individual LEAs that the tribunal had found delinquent in individual cases, but would require other LEAs to pick up on acceptable practice. That would follow the line taken when concerns about institutional failures in the police and other public services have been transmitted through the system.

It is important to make the tribunal mean something by intervening to change provision over the years. We are also concerned that the remedies are opaque, buried and not easily available to the average lay person encountering the tribunal for the first time. Therefore, I shall withdraw amendment No. 19, but am minded to test the Committee's opinion on amendment No. 20.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 20, in page 17, line 29, after `relates;', insert—

`(aa)includes power to invite local education authorities and education providers to re-examine their procedures and provisions for dealing with matters of wider application raised by the resolution of the particular case;'.—[Mr. Boswell.]

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 10.

Clause 19 - Procedure

Tim Boswell (Conservative, Daventry)

I always think that a Division in Committee is rather like a good brisk run. It turns everything up a little, but we do not have to continue at the same sprinting pace all the time. Clause 19 is long, complex and mainly procedural, and I reassure hon. Members that I do not want to generate heat or to divide the Committee. However, I want the Minister to respond to some points.

The co-hearing of claims under the special educational needs provisions and the disability discrimination provisions was touched on in another place and in the explanatory notes. There should be a single forum wherever possible, if only to spare individual families from hassle, distress, difficulty and even expense. That is a good and sensible aspiration. On occasion, a family may have good reason to think that two matters are discrete, even if others—an LEA, for example—think that they are the same. In other cases, the tribunal may feel that the issues are separate, although closely related.

I should be grateful for the Minister's guidance on whether separate hearings would be possible, with the same base data. How would that work, and would it satisfactorily cover the field? My day-to-day preference would be one hearing for all concerned, where a determination could be reached on both matters at once. However, it is possible that that would not be appropriate in certain circumstances.

My other points touch on my tribunal experience of some years ago. There is provision for hearings to be conducted in the absence of any member other than the chairman. That seems sensible in cases of indisposition, in which it would be a pity to have to wait for the person concerned to be available again. I was once empanelled on a tribunal in an incredibly unusual case, which had gone, in a manner of speaking, to the full arms race. Leading counsel had been briefed, at great expense. I shall mention, to cheer the Minister up, that the counsel concerned was an extremely distinguished planning silk, who is a leading light of the Society of Labour Lawyers and head of an Oxford college. The Minister may be able to guess who it was.

We listened with amazement to counsel's eloquence for several days, but I was then appointed as a special adviser at the Ministry of Agriculture, Fisheries and Food and immediately disqualified myself from the tribunal. That is about the next worst thing to a judge dying, and the huge expense of the proceedings raised concern. By way of a solution, the parties agreed that I could continue to sit for what was, at that stage, effectively a formal procedure.

Bearing in mind that members of the tribunal, as distinct from the chairman, have experience in special educational needs and disability issues, it may sometimes be sensible for them to carry out an investigation when the chairman is not available. I appreciate that the chairman's presence may be necessary when it comes to judgment. However, I remember a case in which two members with farming experience were sent to study how some agricultural procedure was conducted, or a drainage problem—I cannot remember exactly what. The chairman said, ``You know about those things. Give us a report, I will consider it and it can be included in the judgment.'' I do not think that that is inherently unreasonable, and it would be useful to make provision for it.

Proposed new section 28J(2)(m) provides for

``taxing or otherwise settling costs or expenses''.

The Minister has helpfully explained that the arrangements are supposed not to encourage litigiousness and that they should not, wherever possible, involve the use of lawyers to break the informality of the tribunal. There is a danger that some families may be denied justice if they fear that, in accordance with the British legal principle that costs follow the event, they might suddenly receive a bill for local authority costs in relation to a discrimination case, as opposed to a special educational needs case.

I recall from my tribunal work that, although we were empowered to make an order for costs, and were tempted once or twice to do so, that could be done only when someone had brought a frivolous, vexatious or otherwise inappropriate case. It had to be very extreme for us to proceed in that way. However, people who feel strongly about the way in which their child is taught or provided for should not be deterred from attending a tribunal because the full weight of the law and costs might fall on them if they were unsuccessful. That would add insult to injury.

Proposed new section 28J(5) deals with allowances. It has always been a cause of modest rancour with me that the tribunal on which I served did not pay its members a fee, although it paid expenses. I think that the usual practice that has developed, for example in employment tribunals, is to pay a reasonable rate for the day. If the Minister wants to find good people for the tribunal, she should expect that to be necessary. My recollection is that the special educational needs tribunal operates in that way. However, it might be helpful if the Minister could say something about that when she rises to respond to my points.

John Hayes (Conservative, South Holland and The Deepings)

I have a small and detailed point, not made by my hon. Friend, which I hope can be dealt with easily. Proposed new section 28J(3) stipulates that the proceedings of the tribunal are to be held in private. We all welcome that, as it would be inappropriate to do anything else. However, it would be helpful to have an assurance from the Minister that it will be considered appropriate, when the tribunal publishes its conclusions, to refer to some aspects of the proceedings, as long as all parties are happy with that. Some issues that arise during the course of the tribunal's proceedings will have a direct bearing on its conclusions, and it may be appropriate to air them.

If all parties are happy with such references, it is appropriate for such aspects of the proceedings to be made public. It may be implicit that that will happen, in which case there is no problem. However, if that is not implicit, will the Minister say something about the matter?

Margaret Hodge (Labour, Barking)

I hope that I can respond to the good, detailed and technical questions that hon. Members have asked. The first point raised by the hon. Member for Daventry concerned whether separate hearings could take place. I hope that he agrees that the structure that we are attempting to set up is designed to bring everything together into one hearing. That is why we have chosen the format of the SEN tribunal.

Following the passage of the legislation, we will make regulations that set out the precise circumstances in which a hearing can be a joint hearing on issues of discrimination and SEN. We will hold consultations on the issue, so there should be some clarity on it. Of course, nothing in the legislation would prevent two hearings from being held, if that were appropriate.

Tim Boswell (Conservative, Daventry)

I am grateful to the Minister. In cases where the interests of justice demand it, or in which, although they are closely related and may converge in the treatment of the individual child, the issues are separate, it is important to provide that separate hearings can occur—even if the normal, sensible practice is for them to be conducted together.

Margaret Hodge (Labour, Barking)

I hope that I have given the assurances that the hon. Gentleman sought.

I am delighted that the hon. Gentleman approves of the provisions in proposed new section 28J(2)(d), which will enable hearings to be conducted in the absence of any member other than the chairman. That has happened occasionally in SEN hearings, but always with the consent of all the parties involved. Obviously, it would occur only in exceptional circumstances, for example where a member had been unavoidably delayed.

Tim Boswell (Conservative, Daventry)

In that context, will the Minister assure the Committee that the consent of all parties will be required for that to happen? It is a matter of the vires not overriding the individual's rights.

Margaret Hodge (Labour, Barking)

Yes, I can assure the Committee of that.

The hon. Gentleman's third point related to costs. Under the current system for the SEN tribunal, the regulations state that costs will be awarded only in exceptional circumstances. Indeed, they have been awarded in a handful of cases during the five years since the tribunal's creation. The regulations that we intend to make for the new tribunal will be replicated in disability cases. We do not want parents to be deterred by the prospect of costs.

The hon. Gentleman asked whether members would receive allowances, and we already pay fees to members, as well as travel and subsistence expenses. We will do so for new members.

Tim Boswell (Conservative, Daventry)

The Minister may not want to answer this question substantively, and I do not want to cause a flurry of briefing. On the matter of hearings being conducted in the absence of any member other than the chairman, will she, in due course, consider situations in which it might be sensible for the lay members of a tribunal to examine potential provision in a particular place even when the chairman is unavailable?

Margaret Hodge (Labour, Barking)

We shall obviously have to consider the implications of that, and I shall write to the hon. Gentleman to give him a proper answer.

The hon. Member for South Holland and The Deepings asked about the tribunal's ability to comment in its summing up on any issues that arise in a particular case. I thought that I had given the Committee some reassurance on that during our previous debate. The tribunal may comment on any issue that it feels is pertinent and that may have arisen as a side issue to the one that impacts directly on the child. We do not want to extend that provision beyond the power to comment. Our view is that the anticipatory powers provided for elsewhere will be sufficient to allow the wider implications of any case to be taken into account.

Question put and agreed to.

Clause 19 ordered to stand part of the Bill.

Clause 20 - Admissions

Tim Boswell (Conservative, Daventry)

We are moving into the territory of useful assurances on how the provisions will operate, but I want the Committee to pause briefly to consider three points on admissions. First, because the Minister, understandably, does not want to subvert the powers of appeal—either on admissions or exclusions, which, for this purpose, we can regard as raising similar issues—she has excluded them and left them to the competent authorities. I understand her reasoning, although that creates a strange situation, particularly in relation to exclusions, for which a temporary exclusion would be within the power of the tribunal and the more indelible permanent exclusion would be within the power of the appeals process. Will the Minister say something about that?

My second point is a juridical one. The arrangements for admissions and exclusions appeals will operate in a different context. They will operate not simply to make administrative decisions about admissions and exclusions, but to determine the operation of the Bill in relation to disability discrimination, which is a wide context. They are not, therefore, ancillary to the activities of the LEA and designed to provide an independent focus and natural justice, but will operate, in a sense, as a court of law. I doubt whether the persons involved in appeals are necessarily legally qualified. Nor am I sure whether they should be, because their normal traffic will not be in that area. I imagine that the Minister will say that the circumstances that I have outlined will be exceptional, but, sadly, they are neither unique nor inconceivable. People should, therefore, have access to legal advice.

Let me quote an anecdote from my experience on a tribunal. We once needed to subpoena someone, but the tribunal had never done so before, and we had to telephone the Lord Chancellor's Department to find out what to do. That raises the issue of training. The rules of evidence are extremely important in these matters. In other words, the appeals will take on a different character from that which they had previously, and they may be challenged in the High Court or referred eventually to the Secretary of State.

That raises the question of whether a decision will be reported and, if it has a wider implication, whether published and noted by other LEAs. A matter may not be just a one-off disappointment for an individual child, who feels that he or she has been unfairly excluded from a particular school—or not admitted, or excluded after admission. A case may have a bearing on the behaviour of the LEA. Although I do not propose to wrench specific powers from the LEA or from the new framework that has been set up to deal with local admission and exclusion policies, the Committee must ensure that those powers are being handled within the framework of natural justice and that the bodies concerned and their procedures are up to the job of handling these new, and rather onerous, duties.

Margaret Hodge (Labour, Barking)

Again, I stress that we have gone for the existing appeals and exclusion procedures because we wish to retain a procedure that works well and is informed, quick and effective. Where we have considered the existing appeal mechanisms to be suitable and robust, we have put new duties in place within them. The simple reason why temporary exclusions have had to go elsewhere is that there is no existing mechanism for them. Most parents who submit an appeal against admission are likely to submit it on more grounds than just disability. That is why it seemed sensible to deal with the relevant matters together.

We shall provide appropriate training for members of the appeals panels to ensure that they are aware of their new duties. We intend to revisit the training pack currently provided to lay members of appeals panels, with a view to providing guidance on the new disability duties. I shall write to the hon. Gentleman as soon as I can about whether members of appeals panels have recourse to the advice of a qualified lawyer.

We had not thought about any circumstances in which wider dissemination of the information arising from the proceedings of an appeals panel would be necessary or would add value in terms of preventing discrimination in other situations. We certainly do not feel constrained, but if schools had to receive that advice, it would add to their bureaucratic burden, unless there was clear value in ensuring that more bits of paper reached head teachers' in-trays. I know how anxious Opposition Members are for us to minimise bureaucracy. If the hon. Gentleman wishes to pursue the matter, perhaps he will come back to me.

Tim Boswell (Conservative, Daventry)

The Minister gives me an unavoidable challenge by taunting me about the need not to create additional paperwork. She is right about that, but I am not as sanguine as she is about the wider implications. If a child is disruptive, the nature of the disruption and the damage caused to other pupils might be entirely germane to what happens. If, for example, the behaviour of a child in year 11, whose parents were worried about the conduct of GCSEs, became intolerable and prejudiced the performance of other children, the school might decide to exclude him or her. A sibling in year nine might display similar behaviour—there are often family rivalries; I have a local case in mind—and it would be entirely relevant to know something about it.

Against that—and I make the point only because the Minister needs to debate it in drawing up the regulations—we do not, of course, want to wash in public the dirty linen of the behaviour of individuals. In matters of exclusion, particularly in the context of discrimination, it must be shown to the satisfaction of the general public and of the individual minority communities that there is a fair and principled basis across the piece. That would be relevant if, in a local LEA with maintained schools, one school made many exclusions but had successful appeals, while another with a broadly similar population did not.

I am not asking for a weekly law report of every decision. Nor do I need a final answer on the training pack today, but the Minister might consider whether chairmen of appeals panels who think that something has a wider application—a phrase used already in one of today's amendments—might be encouraged to report it and share it with others.

Margaret Hodge (Labour, Barking)

I can perhaps provide some reassurance to the hon. Gentleman. The DRC will produce guidance on how the appeals panels should operate. I am sure that he has seen our guidance so far on the DDA, which contains examples of good practice and possible discrimination issues to which members of the panel should have regard. That guidance is a helpful way to disseminate information on previous cases. An anonymous digest of decisions, not case reports, is published annually. That is a better way in which to disseminate knowledge from previous appeals.

Overall, we are giving new powers to the DRC and others to mount formal investigations if they feel it appropriate. If an institution's appeals are persistently overturned or if it persistently has children admitted through the appeals mechanism, there might be something wrong with the procedures undertaken by that school. Such a case could be subject to the appeals mechanism. Schools and LEAs have an anticipatory duty not to discriminate, and that duty is crucial. I hope that that will deal with many of the issues raised by the hon. Gentleman.

Question put and agreed to.

Clause 20 ordered to stand part of the Bill.

Clause 21 - Exclusions

Tim Boswell (Conservative, Daventry)

I shall be brief, as many of our concerns were aired in the previous debate. I want simply to ask the Minister whether there are any financial implications for individual schools in relation to the exclusion provisions on disability discrimination. As she rightly says, the purpose of exclusions and admissions appeals is to provide a quick and relatively straightforward means of resolving issues locally.

As I said on the previous clause, the panels will have to consider greater complexities in disability discrimination issues, and I hope that they have sufficient legal firepower to deal with them. It is almost certain, a priori, that the panels will take longer, as the issues are complicated and will have to be considered carefully. Advice may have to be taken from the Disability Rights Commission, which may want to be joined as a party with individual applicants, as we shall discuss under a later amendment. There will certainly be more difficulty than in simple cases of bad behaviour leading to exclusions and an appeal.

There are several sanctions on schools, of a financial or another nature, such as the pupil retention grant and whether pupils are counted as members of the school for the purposes of performance tables. The latter is not a financial sanction, but is sometimes felt to be. Such matters are frequently raised in a wider context by head teachers who do not think that the present arrangements fit fairly.

I have two more points. First, will the rules on exclusions appeals for disability discrimination have any impact on the grants? Secondly, will matters be reopened ex post facto? If schools know where they are financially, they can cope with it, even if they do not like it. If they suddenly find unanticipated, uncovenanted raids being made on their finances through the withdrawal of a grant—something that may take two or three years to resolve—they would have something to complain about.

Margaret Hodge (Labour, Barking)

I accept that these are complex issues, but I remind the hon. Gentleman that they must still be dealt with within 15 school days after they are lodged, and that the full exclusion appeal procedure is usually completed within 45 days. It is important to reassure parents and children who may want to take advantage of the appeal mechanisms that they should be dealt with within that time, even though they are complicated. Schools will also be expected always to act within the reasonableness criteria that underpin much disability discrimination legislation, and they will always have to justify their actions in excluding or not excluding children.

Those key aspects of the Bill underpin the rights of the child at school, but protect the school from having to do anything unreasonable or that cannot be justified. The hon. Gentleman is probably aware that the Under-Secretary, my hon. Friend the Member for Redditch, has devolved the pupil retention grant to schools, so there is no question of schools losing access to those resources.

Question put and agreed to.

Clause 21 ordered to stand part of the Bill.

Clause 22 - Roles of the Secretary of State and the National Assembly

John Randall (Conservative, Uxbridge)

I confess to being slightly confused. Subsection (8) states that the ``Appropriate authority'' is, for England, the Secretary of State and, for Wales, the National Assembly. The explanatory notes, however, state on pages 19-20 that the clause

``gives the Secretary of State or, as appropriate, the NAW the power to direct an LEA or school''

and then that it

``gives the Secretary of State the power to direct LEAs and schools in England and Wales''.

What is the reason for that difference? I am sure that it must be obvious, but I would be grateful for clarification.

Margaret Hodge (Labour, Barking)

I shall have to read the clause and the explanatory note. It may save the Committee's time if I respond in writing. On first reading, I do not understand the hon. Gentleman's problem, but may be able to help if he can explain it again.

John Randall (Conservative, Uxbridge)

I am sorry for being obtuse; it was not deliberate. It seems to me that the Secretary of State deals with matters regarding England and the National Assembly for Wales deals with matters in regard to Wales. The explanatory notes, however, seem to give the Secretary of State the power to direct LEAs and schools in both England and Wales.

Margaret Hodge (Labour, Barking)

I may be able to help. There are two different powers: the planning duty is a matter for the Secretary of State for Education and Employment and for the National Assembly of Wales; a failure to comply with a tribunal decision is a matter for the Secretary of State only. I hope that that assists the hon. Gentleman.

Tim Boswell (Conservative, Daventry)

I think that that was exactly the point made by the hon. Member for Bridgend. One is a reserved matter, and one devolved, and that is why there is a difference in the explanatory notes. However, the Minister may still want to give the matter more leisurely consideration.

Question put and agreed to.

Clause 22 ordered to stand part of the Bill.

Clause 23 - Enforcement procedure: Scotland

Tim Boswell (Conservative, Daventry)

I shall try to follow the masterful intervention on the previous clause of my hon. Friend the Member for Uxbridge (Mr. Randall). He reminded me of the person who expressed confusion on a difficult matter, consulted his friend and was advised to go to a conference. On returning from the conference, he was debriefed by his friend and declared himself to be still confused, but at a somewhat higher level.

With great trepidation, I dip a toe in the water not only of English, but of Scottish law. Although I am aware that there is a Parliamentary Private Secretary in the Committee who will, no doubt, support the cause of Scotland in a silent capacity, I am sorry that the hon. Member for Aberdeen, South (Miss Begg) is unable to be with us.

The Scots have not had a special needs tribunal, and it was implicit in the arrangements drawn up by the Conservative Government that they felt that they did not need one. Victims of disability discrimination of all ages must go to the courts to obtain redress in Scotland. That differs from the position in England and Wales, except in the case of post-16 education, where England and Wales are more like Scotland. I am not saying that the situation in Scotland is wrong. Essentially, and not just within the new structure but already, that is a matter for the Scots to decide. However, I am anxious to secure what could loosely be called equality of redress.

The Minister will say—rightly—that the Government have provided for everybody to have redress. Obligations under the Human Rights Act 1998 apply across the United Kingdom. An hon. Member representing a Northern Ireland constituency made the point during an intervention on me during a debate on the programme motion, when I was less well-briefed than I am now, about the application of the legislation to Northern Ireland. I could have disabused him, if I had read the explanatory notes with more care. The provisions are not designed to apply to Northern Ireland. No doubt Northern Ireland will have its own procedures for dealing with these matters.

Although I do not object to the use of different legal forms or forums for determining people's rights, it is important that people should in general enjoy the same kind of redress. The Minister has made much of the relative informality of the special educational needs tribunal, and, on the basis of experience, we welcome that. However, parents in Scotland have to go to court to claim their rights. It is not difficult to construct a hypothetical case in which a marriage had been dissolved and one sibling had gone to live with a parent in England while the other had gone to live with a parent in Scotland. It may be that, as identical twins, they might suffer from the same special educational need. There would be potential for discrimination.

I am, I admit, building circumstance on circumstance, but such a situation is statistically likely to arise. There would be different provision for the two siblings. Whatever happens, people would have to go down different routes to obtain redress. I do not mind that, but if it meant that fewer Scottish parents than English or Welsh parents were able to avail themselves of the right, or if there were particular differences within natural families such as those that I have mentioned, we would not have done ourselves a lot of good.

A recent Royal National Institute for the Blind survey cogently pointed that while as many as 25,000 cases were heard by employment tribunals under section (2) of the Disability Discrimination Act, only a handful of cases—between 40 and 50—brought under part III for England and Wales went to court. It is a big assumption to make, but differences in application or compliance between part II and part III duties suggest that whatever the legal form, the avenues of redress are not the same. Whatever else we can say, discrimination on special educational needs in England and Wales is not likely to be hugely different from that in Scotland. I put down a marker that the Bill might not operate in the same way in Scotland, and that it might not afford the same rights there that it does in England and Wales.

John Hayes (Conservative, South Holland and The Deepings)

For clarity, my hon. Friend might invite the Minister to consider that children living in Scotland being educated in England, or children living in England being educated in Scotland, could throw up all sorts of potential conflicts.

Tim Boswell (Conservative, Daventry)

My hon. Friend is entirely right. None of us wants the United Kingdom Government to be arraigned under the European convention on human rights for systematically failing to provide the same pattern of recourse in the various countries of the Union. Nor do we want people going to court in Scotland to say that it is not fair that people in England can go to the tribunal. We should raise such matters, but the Minister may want to say something about the Disability Rights Commission, which is a United Kingdom body, albeit with Scottish representation. For the record—I do not like speaking inaccurately—I do not know whether that is a United Kingdom body or a Great Britain body.

Harry Barnes (Labour, North East Derbyshire)

It is a British body. Northern Ireland has a general committee on rights, which covers various provisions including disability.

Tim Boswell (Conservative, Daventry)

The hon. Gentleman is helpful. I remember that the DRC is a Great Britain body—a three-country body. It is important that the rights of Scottish parents should be broadly comparable with those of English or Welsh parents. That is all that we ask. I hope that the Minister can assure us.

Margaret Hodge (Labour, Barking)

The hon. Member for South Holland and The Deepings asked about Scottish children being educated in England and vice-versa. The Bill is clear on that. It depends who has discriminated. If it is a Scottish child in an English school, the case will go to the special educational needs and disability tribunal; if it is an English child in a Scottish school, the case will go to court. That is one of the interesting facets of devolution.

The Under-Secretary, my hon. Friend the Member for Redditch, suggests that if the Committee agrees, we should note our concern about what happened to my hon. Friend the Member for Aberdeen, South at the weekend. I understand that she fell out of her wheelchair when trying to cross a road, which is why she is not here today. From the work that she and I have done together, I know that she is utterly dedicated to getting the Bill on the statute book. She feels most strongly about it, and is personally involved in it. She will be distressed at not being able to be with us today, and it would be appropriate if the Committee were to send her its good wishes.

Tim Boswell (Conservative, Daventry)

I am distressed to hear what the Minister said; I was not aware of what had happened to the hon. Member for Aberdeen, South. She is a redoubtable fighter and has made a considerable personal contribution, and I acknowledge what the Minister said about her. We are all mortified, as the Minister must be, to hear the reason for the hon. Lady's absence. I warmly endorse the Minister's suggestion that the Committee send its best wishes to the hon. Lady and our hope that she can return soon.

Margaret Hodge (Labour, Barking)

Under clause 23, a claim made in Scotland by a disabled pupil who has been discriminated against will be dealt with by civil proceedings in the sheriff court. Under subsection (1), the alleged discrimination may be committed by the responsible body, by its employees acting in the course of their employment or by its agents. Under subsection (3), all remedies available in the Court of Session are available other than the award of damages. Subsection (5) adjusts the application of the relevant provisions in schedule 3, which makes further provision on enforcement in Scotland. As with the equivalent provision in England and Wales, a claim has to be made within six months of the act in question.

We come to the issue of redress. As the hon. Member for Daventry pointed out, the situation in Scotland is not exactly the same as it is in England and Wales. Scotland does not have a tribunal, and cases of alleged discrimination will be heard in the sheriff court. Nevertheless, the sheriff will have a range of remedies at his disposal, including the power to order a responsible body to refrain from discriminatory practices. The sheriff will also be able to order positive measures to be set in place to rectify shortcomings in the educational provision made for disabled children. They are strong measures and we believe that they provide an appropriate means of redress.

Tim Boswell (Conservative, Daventry)

With the greatest respect, the Minister is missing the point. The issue is not whether the sheriff court has powers comparable with those of the tribunal, but whether the complexity and formality of the proceedings in the sheriff court will make it less easy for parents to make application to the court.

Win Griffiths (Labour, Bridgend)

Will the hon. Gentleman give way?

Tim Boswell (Conservative, Daventry)

I would readily give way, but it is the Minister's speech, so I shall end my intervention there.

Bill O'Brien (Labour, Normanton)

Order. Can the Minister respond to the hon. Member for Daventry?

Margaret Hodge (Labour, Barking)

If I respond quickly, I shall gladly take the intervention from my hon. Friend.

We have held discussions with a number of voluntary organisations and several Scottish Members of Parliament. My hon. Friend the Member for Aberdeen, South has also raised many of the issues mentioned by the hon. Member for Daventry. It is a matter for the Scottish Executive. The Under-Secretary, my hon. Friend the Member for Redditch, has been in correspondence with her counterpart in the Scottish Executive about reviewing some of their processes and procedures. They are currently reviewing the process by which they record needs, including the appeals mechanisms. It will be for them to introduce proposals to establish something like the special educational needs tribunal that we have in England and Wales.

Win Griffiths (Labour, Bridgend)

I thank my hon. Friend for giving way. She has answered the point that I was going to raise, so I shall sit down.

Margaret Hodge (Labour, Barking)

I give way to the hon. Member for South Holland and The Deepings.

John Hayes (Conservative, South Holland and The Deepings)

I am grateful to the Minister for giving way again. Am I right in assuming that children can appear before the sheriff court? The Minister argued against my earlier point about the worry of children appearing before tribunals. If they can appear before tribunals, might that not create a perverse situation in which the informal tribunals are less child friendly than formal courts? I do not know the answer to that question, but it is an important point.

Margaret Hodge (Labour, Barking)

Yes, children can appear before sheriff courts. That is one reason why Scottish Members of this Parliament, voluntary organisations in Scotland that deal with such issues and the Government, in discussions with the Scottish Executive, have been considering whether a review is appropriate. I am delighted that the Scottish Executive is considering such a review, but they will have to make the final decision.

Question put and agreed to.

Clause 23 ordered to stand part of the Bill.

Clause 24 ordered to stand part of the Bill.

Clause 25 - Interpretation

Tim Boswell (Conservative, Daventry)

I beg to move, amendment No. 21, in page 23, line 24, leave out from beginning to end of line 25.

This is a probing amendment to deal with a King Charles's head, or friendly obsession that I have had throughout our proceedings, that the Bill should deal as comprehensively as possible with different types of schools. We have not talked much about the independent sector, but the explanatory notes confirm that the independent sector will be covered. It is estimated that a comparatively small compliance cost of less than £1 million a year will apply to the independent sector, although the sector feels the impact of various other costs, including boarding and housekeeping costs in boarding schools. Perhaps the Minister will say whether the independent sector has made any representations to her on its inclusion in the Bill. It would be inappropriate to exclude independent schools, because, as I know from my experience of several such schools, their ability to demonstrate disability-friendly policies is a positive selling point.

The purpose of the amendment is to tease out from the Government whether the legislation will include all kinds of schools. More specifically, it seeks to discover whether it will include all kinds of maintained schools that might be established in the future. It would be nice if a different Minister could give exactly the same assurances—

Jacqui Smith (Labour, Redditch)

No, it is me.

Tim Boswell (Conservative, Daventry)

It is the same Minister, who, I hope, will give me precisely the same assurances, in her charming way, that if the Labour Government—or a Conservative Government, in due course—invent a new sort of school, we will not have to legislate especially for that situation. I am sure that she does not want to spare my labours, and we look forward to long debates in Committee on that matter, but will she clarify the situation?

My third point relates to Scotland. I notice that proposed new section 28Q(4) provides for an exception relating to Scotland—or does my proposal amend the section that relates to Scotland? One always reads these clauses upside down. Will the Minister give us the following assurances: first, about the situation regarding independent schools; secondly, about the position regarding new types of school that do not yet exist; and, thirdly, will she say whether the interpretation section is comprehensive as between England and Wales and Scotland? It is the common interest of the Committee that we should show a united front towards the component parts of Great Britain, although not, as the hon. Member for North-East Derbyshire (Mr. Barnes) reminded us, Northern Ireland, which is handled slightly differently.

Jacqui Smith (Labour, Redditch)

I can, I hope, reassure the hon. Member for Daventry on all three of his points. It is probably worth while saying that the purpose of the interpretation provisions under proposed new section 28Q is to help the reader to interpret the new chapter I of part IV of the Disability Discrimination Act. That is why his questions are justified. We place duties on schools in chapter I and therefore need to be specific about the types of schools to which they apply. Otherwise there would be confusion, which would undermine the Bill's intentions.

Tim Boswell (Conservative, Daventry)

I do not like to derail the Minister so early in her remarks, but I want to mention something that I did not raise previously, which is information to schools. She rightly points out that the provisions will impose duties on schools. School staff are not sophisticates in the details of discrimination legislation, and they will not have the human resources back-up of local authorities, although they will be able to draw on it. Will the Minister assure us that a simple, user-friendly, intelligible guide will be sent out to head teachers and governors—not another piece of bureaucracy but something that will make them go about doing what is needed effectively?

Jacqui Smith (Labour, Redditch)

Of course, codes are to be prepared by the Disability Rights Commission, and I am sure that those will be accessible and easily readable, but we shall also ensure that information to schools sets out clearly what is expected of them under the relevant provisions. It will not be bureaucratic or difficult to understand. Furthermore, the Disability Rights Commission will be able to provide advice to providers who have specific questions about how the duties relate to them.

The hon. Gentleman is right to think that in our view—with which he seems to agree—independent schools should be covered by the same provisions as other schools. Several organisations have responded to our consultation. Most independent schools organisations have raised queries about the Bill's application to them, but in general we are reassured about the notion of reasonableness. That is important with respect to the hon. Gentleman's point about costs. I agree that it is a positive selling point for any school if it can show that it is accessible and does not discriminate against students on grounds of disability. However, we expect that to fall within the notion of reasonableness.

I am happy to give the hon. Gentleman a commitment that if any future Government were to determine new forms and categories of schools, the appropriate way to apply these duties to those schools would be through the legislation passed at the time. I am sure that, given the hon. Gentleman's diligence in pursuing this matter in Committee, officials will make even more sure in future that that is so.

As to Scotland, I reassure the hon. Gentleman that the definitions in the proposed new section are, regardless of the legal frameworks of England and Wales or Scotland, intended to ensure full coverage in Great Britain for the relevant duties in all schools.

Tim Boswell (Conservative, Daventry)

The Minister has given a helpful assurance. My only reservation is that it will be for the Scottish Parliament to determine whether it wants to restructure or re-title schools in Scotland. The Minister will have to ensure that it is aware of that, if it legislates on the matter.

Jacqui Smith (Labour, Redditch)

I feel sure that splendid officials deal with the legislation before both this Parliament and the Scottish Parliament.

Tim Boswell (Conservative, Daventry)

I hope that the Committee will adjourn in a moment, so let us end on a conciliatory note. Before we descend into consensus, we are obliged to have a rattle on such matters, but we do not want the Bill to fail because someone has slipped up. It is important to have the Minister's assurances, which on this occasion have been entirely satisfactory, although I am sad to say that they have not been so on all occasions. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 ordered to stand part of the Bill.

Further consideration adjourned.—[Mr. Betts.]

Adjourned accordingly at fifteen minutes to One o'clock till this day at half-past Four o'clock.

Standing Committee B

Clause 26 - Discrimination against disabled students and prospective students

Tim Boswell (Conservative, Daventry)

This is a pleasing opportunity for me to welcome you to the Chair for the first time, Sir David, and I am sure that the Minister will also do so. Unless things go awry this afternoon, you will find that we have good-natured debates. We have been able to explore important issues that deserve our attention, even though they do not always generate extreme political heat. We have been lucky to have had Mr. O'Brien in the Chair, and with you, Sir David, as someone interested in education, we are carrying on as we started.

We are moving on to a new chapter as we discuss further and higher education. However, it is not entirely new territory. Methods of dealing with disability discrimination in this slightly different context should be broadly equivalent to those applicable in schools. We should not relax our attention as we progress through the Bill, because this is an important area. I have specialised in it, and take a continuing interest in it, as the Minister knows.

There are two reasons for paying special attention to the topic. First, the Government are closely connected with the funding of further and higher education. I appreciate that Ministers do not fund such education directly. Even this week, the Learning and Skills Council has taken over from the Further Education Funding Council, and the Higher Education Funding Council for England and its Welsh and Scottish counterparts are hardly touched by the Bill. However, since the Further and Higher Education Act 1992, the Government, through those funding bodies, have been the basis of funding. They have, therefore, a more hands-on connection with the funding of further and higher education than with the funding of schools, which is delivered and moderated through the deliberations of local authorities and local education authorities.

Secondly, we must remember that post-16 students are volunteers. That cuts both ways. If they are not properly treated, they will not stay in education. A major concern is that, if there is not a good regime for disabled students—to provide access, support and general encouragement—they will be dissuaded and deterred from going into further and higher education. They will not then pick up the skills for which they have the ability, and they will not have many of the employment opportunities that should be open to them.

We should approach debates on the issue in a spirit that recognises its importance. We could have concocted various probing amendments, but it is better to orchestrate discussions, as we did this morning, around clause stand part debates, with a limited reference to the amendment paper.

Clause 26 inserts into the Disability Discrimination Act 1995 new section 28R. There is an essay to be written about the different philosophies of the British and the French in constructing acronyms such as NATO and OTAN. I shall not bore the Committee with that, but it is a matter of moving from the particular to the general or the general to the particular. I shall follow the British model—the Opposition Whip is relieved about that—by raising a couple of particular points before moving on to a more general point.

We have discussed schools and I am not seeking to reverse my opinions in relation to further and higher education, but my first point is this. The explanatory notes and the Bill make it pretty clear that private providers will be caught by the clause. The Under-Secretary nods. Will she provide some elucidation about private providers of tuition? Subsection (6) refers to

``the higher education sector . . . the further education sector''—

or educational institutions—

``designated in an order made by the Secretary of State.''

If, for example, a member of the Committee gives part-time Latin lessons, or a more musical Member gives piano lessons—

John Hayes (Conservative, South Holland and The Deepings)

I taught Latin once.

Tim Boswell (Conservative, Daventry)

My hon. Friend has been hiding his light under a bushel. Given the exigencies of the parliamentary timetable, some of us may be driven to those activities in due course—who knows? That is a jocular point, but a serious one too.

The mainstream provision in publicly funded further and higher education is easily recognisable. It is slightly less easily identifiable, but can nevertheless be conceptualised, in private further and higher education. The same duties extend, although they may not work in quite the same way. The question of tuition then arises. I am tempted to say that it is a minor issue, but it may not be. If, for example, my hon. Friend the Member for South Holland and The Deepings were to start offering Latin lessons, perhaps to members of the Committee, and were to discriminate on grounds for which there was no good justification in human rights terms, such as gender, ethnic origin, disability—

Margaret Hodge (Labour, Barking)

Or political allegiance.

Tim Boswell (Conservative, Daventry)

The Under-Secretary took the words out of my mouth. However, as far as I know it is not yet a crime to be a Conservative, although some Labour Members may wish otherwise. It would not help the Committee's deliberations if we were to get into a discussion of whether people's political allegiances should be protected under the Human Rights Act 1998.

To sum up my first substantive point, someone who legitimately offers tutoring as a business may wish to discriminate. My understanding of the provisions is that they would be caught under part III of the 1995 Act. The Under-Secretary nods, but it would be helpful to have a full response. Are the duties any weaker, or are they just as binding, albeit that they are expressed in a different way?

My second point sits across both further and higher education. Here I return to some extent to the publicly funded sector—although they are autonomous institutions—to look at the position of student unions. From time to time, we discuss the provision of education. This is a new chapter in an expanded part IV dealing with education and related services. Student unions are not in fact part of the same foundation in either further or higher education. Many long and tortuous discussions about their regulation took place in respect of legislation that I myself took through this place. With the help of a number of then Government and Opposition Members, we eventually got the balance about right.

Not for one moment do I want to signal any interest or wish on the part of student unions to adopt overtly discriminatory policies. The only area in which there may be some difficulties—which I should perhaps flag up and then pass hastily on—is freedom of speech clauses. I wonder whether those who are regarded as particularly militant in political or ethnic terms might be excluded from deliberations. Such a matter is on the margins of this provision, but I am particularly concerned about where the Act will bite. It would be useful if the Minister could elucidate whether part III or part IV duties will apply in that regard, and whether there will be a material difference. To balance things up a bit, I shall, for a change, invoke Deng Xiaoping, who said that it does not really matter what colour the cat is as long as it catches mice. In other words, I do not mind which part of the Bill will apply, so long as the effect is the same.

Finally, I want to say a word or two about the real world issue of resources. The helpful explanatory notes, which make it clear that the total amount available to post-16 providers will be £172 million in the financial years 2002-03 and 2003-04, state:

``Before commencement of the new provisions''—

a matter for a later debate—

``providers will be strongly encouraged to make voluntary adjustments to improve physical access.''

They then make the following point, on which the Minister needs to comment:

``Funding for access projects in England will be made available on a 50 per cent. match funded basis in the further education sector.''

My immediate reaction is to ask from where the other 50 per cent. will come. How, and how easily, will such finance be provided?

When the further education sector was incorporated in the early 1990s, a kind of Domesday survey, known as the Hunter survey, was undertaken. Money was allocated for capital works in further education, all of which had to be spent on essential health and safety work in the first year or two, so bad was the inherited physical stock at that time. I am not saying that that is still the case, but there are certain inevitable knock-on effects. Even if Ministers were to sweeten the pill by saying that additional expenditure post-16 will decrease recurrent costs—I am not sure that that is easily demonstrable—the fact remains that there will be up-front costs, not all of which will be met by the Government. Ministers need to respond to that point.

Turning to higher education institutions, I have received representations about the Bill from Universities UK, which says:

``The compliance costs for the higher education sector need to be carefully assessed. The Government has stated that £56 million will be provided to improve access for disabled students to higher education institutions''

in the same financial years that I have mentioned. Universities UK continues:

``Although that is very welcome, work undertaken with a small number of pilot institutions suggests that the costs might be as large as £250 million.''

That is a big hit on the universities sector. Universities UK says:

``We urge the Standing Committee to look very carefully at the figures to ensure that the success of the Bill is not compromised by pressure on resources.''

That is from an organisation which is no more hostile than I am to the intentions of the Bill. However, it is aware from the Bett report of the substantial potential liabilities in relation to pay in the higher education sector that could occur as a consequence of equal opportunities. It is concerned that those aspirations will not be met because resources will not be available.

Those are serious matters, and there are several specific issues. First, there is the interaction of the clause with part III duties for any institutions, organisations or activities that are, by their nature, educational, but are not necessarily covered by part IV duties. Secondly, how will student union activities be covered? Thirdly, although we do not object to the principle of the clause, throughout the six years since the exclusion of education from the Disability Discrimination Act 1995, there have been concerns, which still remain, about whether the resources are available to do the job. We look forward to the Minister's reassurances on that issue.

John Hayes (Conservative, South Holland and The Deepings)

I am grateful for your indulgence, Sir David, as I joined the Committee one minute late. That prevented me from hearing my hon. Friend's opening remarks, but I am sure that I am none the worse for that. I do not want to stretch your indulgence to its famously broad limits, but if I had been here I might have heard a quote from an even more obscure source than Deng Xiaoping.

The clause brings us to the issue of further and higher education. My contribution is, once again, in the form of a series of questions. We are rightly addressing the issue of access, which is clearly of fundamental importance if we are to avoid discrimination. It is an even more complex issue than in schools because of the nature of the experience that people enjoy in further and higher education. There is a need to access more buildings because the nature of the educational process demands more movement on the part of students. Those issues can be addressed with the right sensitivity and the right will, both of which are increasingly apparent.

However, I am concerned by issues that are implicit in any view of discrimination in further and higher education. My questions revolve around four or five particular matters. What judgment has been made about the need to adjust arrangements for work placements, which can form an implicit part of students' courses? What judgment has been made about the need to address the issue of transport, which, given the nature of further and higher education, seems to be vital? As I said, students may have to move between many sites or be required to carry out fieldwork. What view are the Government taking on that subject? How will materials that are implicit to students' courses be provided in alternative formats?

Tim Boswell (Conservative, Daventry)

My hon. Friend's reference to moving around sites interested me. It would be helpful if the Minister would consider a situation in which work is being done outside formal education provision, for example, on a building site. Which duties, if any, would cover that?

John Hayes (Conservative, South Holland and The Deepings)

I alluded to that problem when I discussed work placements, because there are many vocational courses in further education. Whether facilities will be constructed to allow disabled students to benefit in the same way as non-disabled students is worthy of further comment.

The provision of information materials in appropriate formats for people with a range of disabilities has cost and legal implications under the Bill. I am interested in hearing from the Minister about the judgment that has been made on that and on the more straightforward matters of communication support and special equipment. If those facilities are not provided, that could be considered cause for a legitimate claim of discrimination. It would be discriminatory to put a student in a position in which they could not fulfil their potential, and were not able to take advantage of a college place or make best use of it. I am sure that Ministers have considered such issues, but they are highly pertinent to this part of the Bill. One would not want cases to be brought unduly, but if we are to make the intentions of this part of the Bill a reality to people in further and higher education, we need to explore those fundamentally important matters. Lord Rix raised some of those issues when the Bill was debated in the other place. I have not dealt with them as fully as he did, but I hope that the Minister will have had a chance to consider his comments and has arrived at the Committee with reasoned responses.

John Randall (Conservative, Uxbridge)

Along the same lines as my hon. Friends, I would like to ask the Minister a question. She, like me, is a skilled linguist. As a former student of Serbo-Croat and Russian, I have a great interest in language teaching at university. As Ministers will appreciate, an integral part of language teaching is often that students spend a year—or three months— away in another country? What provisions will a university, or other institution, have to make to ensure that the correct facilities are available to a disabled people in such a situation. That may not be a problem in western European countries. However, I do not remember from my time at Belgrade university that disabled facilities were high on the list of priorities—perhaps they would be even lower today. My college sent students to Minsk, Moscow, Bucharest and Budapest. How far do universities and colleges have a liability in that respect? The matter may be dealt with by clause 28, and I apologise if that is the case. However, I wanted to raise the issue because if a year abroad were denied to a language student, it could be argued that they were being disadvantaged.

Jacqui Smith (Labour, Redditch)

I welcome you, Sir David, to your position presiding over the Committee. The hon. Member for Daventry (Mr. Boswell) was right when he said that, on the whole, the proceedings have been carried out amicably, so I hope that you will not be called on to be firm with us. I think that potentially this could be your last opportunity to chair a Committee.

David Madel (Conservative, South West Bedfordshire)

It could.

Jacqui Smith (Labour, Redditch)

I hope that it will be an enjoyable experience that will leave you with happy memories.

As the hon. Member for Daventry pointed out, we are now discussing the clause relating to post-16-year-olds. It is an important part of the Bill that extends the need not to discriminate against students in further and higher education institutions to the arena of lifelong learning. We have covered all the issues concerning schools, but the purpose of the Bill is to increase the civil rights of students with disabilities, and that could not be achieved without widening the scope to cover all post-16 activities, including further and higher education institutions, adult education and youth services.

The clause introduces a new section into the DDA making it unlawful for further and higher education institutions to discriminate against disabled students in the arrangements for admission, exclusion or suspension of students, and in the services that they provide to students. The hon. Member for Daventry referred to the scope of part III of the DDA and of the Bill. The important point is that the Bill makes the position much more comprehensive. The hon. Gentleman was right in saying that the problem is that some of the activities experienced by post-16 students are exempt from any legislation to prevent discrimination. The important point about the Bill is that we can be confident that the activities of post-16 students will be covered by part III of the DDA or the Bill. I shall respond later to some of the detailed questions about those provisions.

Subsection (11) defines student services, and it worth reminding the Committee of the breadth of that definition in response to some of the concerns expressed. Student services are

``services of any description which are provided wholly or mainly for students.''

They include the provision of education and services related to teaching and learning as well as wider services such as accommodation, careers and welfare services, and leisure facilities that institutions offer mainly to students. The Secretary of State has a power under subsection (12) to clarify by regulation what is a student service and what is not.

The clause also identifies the institutions covered by those duties which are defined in subsection (6) and, for Scotland, subsection (7). The relevant institutions in England and Wales are those in the publicly funded higher education and further education sectors as defined by the Further and Higher Education Act 1992. Relevant publicly funded institutions in Scotland are defined by reference to the Further and Higher Education (Scotland) Act 1992 and the Education (Scotland) Act 1980.

The hon. Gentleman referred to private institutions and began to answer his own question. They will generally be covered by part III of the DDA rather than the new duties introduced by the clause.

Tim Boswell (Conservative, Daventry)

I assure the Minister that I am not trying to trip her up on a quibble, but when institutions, albeit private in the sense that they are not within the normal remit of the higher education sector, are in receipt of some public funds--for example, the Learning and Skills Council--it may be not be clear which student is receiving what and whether a contribution is made to overheads and so on. Will it be possible to work out which duties bind, or will an understanding have to be reached in borderline cases?

Jacqui Smith (Labour, Redditch)

It is the institution that is important and I was coming to the point that subsections (6)(c) and (7)(e) give the Secretary of State power to designate by order institutions that receive some public funds in England and Wales and, after consulting Scottish Ministers, in Scotland. Those subsections cover some institutions that might not fall clearly into the previous definitions that I outlined but which would be wholly or partly funded by public money. Considering the legislation's intentions, such institutions should be covered. I hope that that reassures the hon. Gentleman.

I come now to some of the specific points about services. Many hon. Members will be sorry that they never had the opportunity to learn Latin from the hon. Member for South Holland and The Deepings (Mr. Hayes). However, were he to have provided his services to the public, I can reassure him that he would have been caught, as a private provider of tuition, by part III of the Disability Discrimination Act 1995. The point is that he would have been offering a service to the public.

Tim Boswell (Conservative, Daventry)

First, even if someone were to offer something to the public and not charge, as I am sure that my hon. Friend, out of the kindness of his heart, would do, there would be a potential duty. Members of Parliament do not normally charge the people who come to our surgeries, and we would still be bound. Unless I missed it, the second point that the Minister owes the Committee is to say whether, in practice, the part III duties are more, less or equally onerous than those under part IV. Do they have the same effect?

Jacqui Smith (Labour, Redditch)

I am sure that people would be willing to pay good money to be taught Latin by the hon.Member for South Holland and the Deepings, but the point is that, even if they were not charged, the services that he would be offering would be covered by part III. On the point about comparing part III with part IV, the duties are different. The trigger for the part IV duty in the Bill is that students must not be subjected to substantial disadvantages; the trigger in part III is that the member of the public must not find it impossibly or unreasonably difficult to access the service. To that extent, the new provisions in part IV are stronger.

The hon. Member for Daventry mentioned student unions. If the unions provide a service, they will be caught by part III; if they hire employees, they will be caught by part II of the 1995 Act. It is worth while pointing out that the Bill's definition of student services is broad. For example, it would cover leisure and social facilities primarily for students provided by an institution, such as student restaurants, common rooms, clubs and associations, and sports facilities.

The hon. Gentleman also raised the issue of funding for post-16 requirements. I am sure that all Committee members were heartened to hear that, once again, the Government were investing in their responsibilities in post-16 access. Additional Government funding of £172 million has been made available over two years. That is, of course, supplementary to the big increases in overall budgets for post-16 learning, which are already distributed in ways that are sensitive to disabled learners' needs. The hon. Gentleman asked whether that was capital or recurrent funding; to break it down, £151 million is for capital funding—equipment and adjustments to physical features. We recognise that those are potentially costly, and the money will make a significant difference to the ability of institutions to make those changes. We also expect institutions to contribute to the cost of change from their wider resources, hence the match funding approach to which the hon. Gentleman referred. It is not unusual or unexpected, despite having been raised on Second Reading by the hon. Member for Harrogate and Knaresborough (Mr. Willis). The matched contribution that the Learning and Skills Council will require from the other resources available to further education colleges will be 50 per cent., an argument for which is that it will lever out substantial additional funds for delivering the objectives. However, it is less than the normal matched contribution expected for FE capital funds, which is 75 per cent. In that respect, this is not a new principle; it is entirely consistent with the way in which the FEFC has allocated—and the LSC will allocate—other capital funds to FE colleges.

From the £172 million, £21 million will be for recurrent funding, particularly for training staff and for proper support for changing practices and procedures, which, although not very costly, may incur a small administrative cost. Most recurrent costs of meeting the additional needs of students with disabilities are already met through the FEFC's—now the LSC's—funding methodology. As I said earlier, the distribution of those funds is sensitive to the needs of disabled learners, and is done through the disabled students allowance in higher education, which contributes towards the provision of auxiliary aid, for example. Broken down for each sector, the £172 million means £66 million for further education, £56 million for higher education, £35 million for adult and community learning and £15 million for the youth service.

We have discussed resources on several occasions, and I hope that members of the Committee recognise the Government's significant investment in ensuring that resources are available successfully to carry out the legislative proposals.

The hon. Member for South Holland and The Deepings raised the issue of work experience, which the Bill covers, although indirectly. If a student on work experience is in paid employment he is covered by part II of the Disability Discrimination Act 1995 as an employee. Whether or not a student on work experience is in paid employment, the institution providing the course is likely to be providing services in respect of work placement that are caught by the Bill: for example, by helping the student to organise the placement, or because it has set the rules that a placement must be part of a course.

Tim Boswell (Conservative, Daventry)

The Minister saw my burgeoning distress, so I hope that she will clarify something for me. What would happen if an institution, in good faith, had negotiated an arrangement with a sub-contractor to provide the work experience and there was an act of dereliction by the employees of that sub-contractor, or there was disability, racial or gender discrimination at a level that was not under the direct control of the institution? Does that wash back on to the institution itself, which is then guilty of an offence?

Jacqui Smith (Labour, Redditch)

The duties on an institution to arrange the work experience, including evaluating whether the placement is suitable for the student—

Sitting suspended for a Division in the House.

On resuming—

Jacqui Smith (Labour, Redditch)

I was reassuring the Committee about the provisions relating to work experience. The hon. Member for Uxbridge (Mr. Randall) also raised the issue of placements for language courses. Those would be covered by arrangements similar to those that I was outlining for work experience. As I was saying, the services that an institution carries out in arranging a work experience placement will be caught by the very wide definition of services under the Bill. Education providers must fulfil their statutory duties in carrying out those services.

John Randall (Conservative, Uxbridge)

Does that mean that the educational institution should check that the foreign facilities are up to scratch? What would be the position of the British Council, which often funds such placements?

Jacqui Smith (Labour, Redditch)

Yes, it would part of the responsibility of an institution, as I was suggesting in relation to work experience placements, to carry out reasonable checks on the appropriateness of placements, whether they were for work experience or overseas. As it offers services to the public, the British Council would be covered by part III of the Disability Discrimination Act 1995.

On the issue of reasonableness, the institution might also have to consider helping to find a reasonable alternative placement. In the case of work experience, it might be reasonable, and it would certainly be good practice, for the institution to take steps to raise the employer's awareness about meeting the needs of a disabled student. However, over time, employers will become more used to their responsibilities under part II of the Disability Discrimination Act 1995 and that will impact on the quality of work experience placements for disabled students.

Tim Boswell (Conservative, Daventry)

I do not want to put words into the Minister's mouth, but listening to this discussion, which has been helpful, I would construe her remarks to mean that educational institutions based in the United Kingdom have a duty of care to make reasonable inquiries as to the likely situation in the receiving institution. That receiving institution might be abroad in the case of a language placement, or in the UK in the case of a work placement. UK institutions will be obliged to check the lie of the land, and that cannot necessarily be done by a purely formal check or undertaking—they might need to undertake physical investigations.

I also construe the Minister's remarks to mean that an institution's duties would be enhanced in cases where it knew that its student had a disability that might need some special attention. It would then need to ask specific questions of the receiving institution, such as whether the student would have to cope with flights of stairs, or whether he or she would be able to gain access to particular buildings. I am not necessarily asking the Minister to make a definitive judgment, but is that the sort of area that the obligations will cover?

Jacqui Smith (Labour, Redditch)

The hon. Gentleman is helpful, because an institution would, for any student, have to carry out research into the appropriateness of a placement overseas. It would be within the scope of reasonableness for that research to include establishing whether the placement was appropriate or could easily be adapted for a student with disabilities. However, as I was saying, if it proved impossible to impose on, for example, a foreign university, standards to which the UK institution had to conform under this legislation, it would be incumbent on the UK institution to offer an alternative placement. It would be reasonable for the institution to make such an alternative arrangement.

John Randall (Conservative, Uxbridge)

Presumably, the Minister would not consider an assurance in writing from a foreign institution to be acceptable. Would it then be necessary for the specific British institution to examine something physically? I am not thinking of places in western Europe, but in other countries, such as Moscow, Minsk, Belgrade and Zagreb. Some of those would not be suitable alternative placements. Where do the Government stand?

Jacqui Smith (Labour, Redditch)

It would be difficult to say that, as a blanket provision, a representative of an institution would have to visit a university physically. It is important that reasonable steps be shown to have been taken. Individual cases would vary depending on what the institution knew about the extent to which a foreign placement could deal with students with disabilities, based on experience. On a case-by-case basis, we want institutions to act reasonably, and to provide alternative placements if necessary.

Tim Boswell (Conservative, Daventry)

The Minister is being very reasonable and helpful, I want to add two points for consideration.

First, although I could not possibly suggest that the Minister commit colleagues from another Department to any specific course of action, it might be helpful to make use of the post in the country, and perhaps the British Council, which I have always found excellent on such matters abroad, to check situations out. That is intended as a constructive comment.

Secondly, I hope that the Minister will bear in mind, in any guidance that she gives to institutions on the subject, the sensitivities of students with learning difficulties. They may be in physical danger as well, which is not strictly an educational problem, in some overseas countries. She must also bear in mind the sensitivities of students with mental health problems, which might be recurrent rather than continuous. It is important to have back-up cover for such students if they become depressed in a foreign environment.

Jacqui Smith (Labour, Redditch)

The hon. Gentleman makes sensible suggestions that highlight my point, which is that we need a common-sense approach on how institutions deal with such problems. I shall move on to how we might support them, but first I shall respond to his earlier question about whether institutions will be held responsible for everything that happens to disabled students during their work experience or placements. If an institution takes the steps that I have outlined, it will not be responsible. As I emphasised, it will have a duty not to discriminate against disabled students in the work experience services that it provides.

Given the serious issues raised on work experience, it is worth saying that, in another place, we made a firm commitment to make a regulation to define what institutions do in respect of work experience as a student service. Officials in my Department are working on a statement of the practical steps that we think the duty should involve. We will work together to ensure that that shared understanding is reflected in the Disability Rights Commission's code, which will also inform what institutions do.

In the meantime, we will work with the Association of Colleges and the Learning and Skills Council to develop good practice guidance for further education institutions on work experience placements for disabled students. It will be published in the late spring, which will be in time to influence action on the arrangement of placements for students that start in the autumn. The Quality Assurance Agency for Higher Education has produced a code of practice that covers students with disabilities. It contains a paragraph on academic and vocational placements, including those linked to language courses. Once the Bill has been enacted and the accompanying codes are in place, the QAA will undoubtedly want to revise its own guidance. Until then, we will keep it in touch with our emerging thinking, which I am sure will be inspired by our debate today.

I shall move on to a point that concerns the hon. Member for South Holland and The Deepings—and others, I suspect—about transport. The provision of transport is exempted from the provisions of the DDA, but I think that I can help the hon. Members on some other specific issues.

A further education college in my constituency is on two sites about 10 miles apart, and a bus takes students from one site to the other. That service, which is provided for students by the institution, will be covered under the definition of student services. The Bill will also place a duty on education providers to make reasonable adjustments to policies, practices and procedures or any arrangements for services that place the disabled person at a substantial disadvantage compared with non-disabled people.

In operating their transport policies, institutions will have to be sure that they do not treat disabled students less favourably than non-disabled students. They will also have to consider making reasonable adjustments. For example, a college with a policy to provide all students eligible for access funds with the same financial support for transport, regardless of whether they have a disability, will need to consider the impact of that policy on disabled students with transport needs which, as hon. Members have pointed out, are more significant than those of eligible non-disabled students, especially if the only accessible form of transport is a taxi. In that case, it will probably be appropriate to adjust the policy to ensure that the extra costs for disabled students are taken into consideration.

With those reassurances and points of information, and given the cross-party recognition that clause 26 is the start of an important section of the Bill that broadens the scope for students and people engaged in post-16 learning, I hope that the Committee will agree to the clause standing part.

Question put and agreed to.

Clause 26 ordered to stand part of the Bill.

Clause 27 - Meaning of ``discrimination''

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 22, in page 26, line 33, leave out subsection (6).

David Madel (Conservative, South West Bedfordshire)

With this it will be convenient to discuss amendment No. 24, in page 26, leave out lines 37 to 41.

Tim Boswell (Conservative, Daventry)

We have had a good discussion on earlier clauses. I assure the Minister, the hon. Member for Barking, that I do not intend to replicate the length of previous exchanges, because we have been given important assurances. It is nothing personal if we are now more perfunctory when speaking to the hon. Lady than when speaking to the Under Secretary, the hon. Member for Redditch.

The purpose of my amendment and, I suspect, of the Liberal Democrat amendment—it is geographically challenged, which is why it comes after mine—is to probe the meaning of discrimination. Given the consensus that has emerged in Committee that we do not want discrimination of any sort, we now need to discover in what circumstances less favourable treatment might be justified.

Ministers clearly think that there may be such circumstances. This may be a get-out clause, rather like the famous section of the Army Act that catches anyone who has not thought of anything else. It would enable Ministers to exempt something that they thought was reasonable or even something unreasonable that might give rise to undesirable consequences. I am sure that Ministers do not intend it as a means of subverting their intentions, but it would help if the Minister could tell us something about it. On the other hand, there will not be many members of the Committee who are against academic standards, or any other prescribed standards.

On the whole, we are in favour of standards, but we need to know how the clause will work and what the potential difficulties might be. Thinking ahead to a later amendment tabled in the name of the hon. Member for St. Ives (Mr. George), I can see that the Committee would be interested in the matter of academic qualifications. Hon. Members will share the view of Lord Dearing on the importance of bite-sized chunks. Some Committee members might have heard me make impassioned speeches about my preference for glasses that are half full rather than half empty. That is particularly relevant to people with learning difficulties. If we want them to achieve something—it is important that they should be able to do so—we must offer them achievable qualifications, even if those qualifications are not available to other people in that institution. That difficulty must be considered—perhaps that is what the Minister has in mind. As it is a probing amendment, I rest my case and await the Minister's response.

Andrew George (Liberal Democrat, St Ives)

In welcoming you to the Chair, Sir David, I offer my commiserations to the hon. Member for Aberdeen, South (Miss Begg) who, as we heard this morning, has had an accident and is unable to be with us. I add my name to the list of those who wish her a speedy recovery.

The hon. Member for Daventry is probably right to say that my amendment is geographically challenged if he means that it is the second amendment on the page; perhaps it is sequentially challenged given where it has fallen in the scheme of things. Subsection (6) attempts to define when less favourable treatment is legitimate.

Tim Boswell (Conservative, Daventry)

I should have said that it is possible that there is a link between this provision and the provision of efficient education for other pupils, which we debated in the context of schools on clause 1.

Andrew George (Liberal Democrat, St Ives)

I am grateful for that intervention. We are attempting to tease out further amplification of an earlier debate, but in a different context. Amendment No. 24 would limit the justification for discrimination to the need to maintain academic and other standards, and not simply to give the Minister the leeway to introduce regulations that would allow a wider spread of less favourable or discriminatory treatment of students. Sometimes it is necessary and proper for colleges and universities to give less favourable treatment to disabled applicants and students—for instance, when the academic and other requirements of a course necessitate that disabled students are not admitted, or that adjustments are not made. I am sure that hon. Members would agree that medical and dental students need good vision, and that students with a visual challenge might not be able to meet the academic or professional standards necessary to complete the course. Perhaps we could debate the matter.

Although it might be possible to justify subsection (6) in tightly defined circumstances, it is less easy to justify subsection (7). That subsection refers to prescribed treatments, and to less favourable treatment in prescribed circumstances that have to be justified. What are those discriminatory treatments? What are the circumstances in which discrimination is justifiable? The Bill gives no indication, nor do the explanatory notes. Once the needs of a particular course have been allowed, what other possible justifications are there for discrimination, if the reason for less favourable treatment cannot be justified in terms of academic standards? Can it be justified because the efficient education of other students will be affected, or because the student or other students might be put in some danger? We need examples of justifications for less favourable treatment that are not encompassed in subsection (6).

The leeway given for discrimination in subsection 7 is far too broad and leaves too much to the whim of those who write the regulations. Perish the thought that anyone would doubt the good intentions of the present Administration, but there is no certainty that some future Administration will not write regulations that are unhelpful and clearly discriminatory towards disabled people. Why leave it to chance? There is no need for subsection (7); subsection (6) does everything that is necessary, unless the Minister is able to elucidate the circumstances in which subsection (6) does not encompass all other possible circumstances. I cannot envisage them. Will the Minister give the Committee one example—or several, if possible—to elucidate why it is necessary to provide such a widely drawn right through regulation to allow less favourable treatment to disabled people?

Margaret Hodge (Labour, Barking)

This is the first time that I have appeared in a Committee under your chairmanship, Sir David, and possibly the last. I hope that it will be a memorable and enjoyable occasion for both of us.

Tim Boswell (Conservative, Daventry)

A brief encounter.

Margaret Hodge (Labour, Barking)

But a significant one.

I reassure Opposition Members that the purpose of the clauses that the probing amendments seek to clarify is not to subvert our intention to outlaw discrimination. The clauses provide a common-sense solution to institutions that will implement the new duties proposed by the Bill, and a common-sense interpretation for individuals who will try to exercise their rights in the Bill.

I shall deal with the amendments separately. The amendment of the hon. Member for Daventry would delete subsection (6) of clause 27. He will recall that we consulted widely on our proposals for the Bill. We received many representations, especially from universities, that expressed a concern that academic standards would be lowered if the Bill forced the admission of students without reference to academic ability. We inserted the clause because of those representations. The discussions of the disability rights taskforce, which I had the privilege of chairing, also emphasised that the need to retain standards in courses and qualifications was important.

Tim Boswell (Conservative, Daventry)

I am grateful to the Minister for that elucidation. I wondered whether it was along those lines, and I am reassured that it is. For the record, Universities UK makes it clear in the communication to which I have referred that the ``balance'' in clause 27 is now as it would wish it to be.

Margaret Hodge (Labour, Barking)

I am delighted to hear that, because the Government share the view that further and higher education institutions must maintain all entry requirements and academic standards to which all students, whether or not they have a disability, and prospective students are subject. Removing that justification would undermine the quality of the education that those institutions offered.

The amendment would also remove subsection (6)(b), which makes provision for regulations to prescribe the standards other than academic standards that justify less favourable treatment. Again, the overriding factor in determining whether an applicant is admitted to an institution or on to a course is their ability, or potential to develop ability, in areas relevant to the course of study. For example, admission to a music course whose purpose is to develop musical ability will depend on the applicant's level of attainment in music. Less favourable treatment would be justified in those circumstances if objective standards were in place but an applicant did not meet them.

As with the need to maintain academic standards, some institutions, such as drama schools and art colleges, were worried that the Bill's provisions would undermine their standards. The regulation-making power is needed to allow such institutions to maintain some non-academic standards, such as artistic, dramatic and musical standards.

John Hayes (Conservative, South Holland and The Deepings)

I will intervene briefly, Sir David, not to interrupt your brief encounter—as my hon. Friend said, it has become a menage a trois—but simply to strike a note of caution on the previous two points. One thinks, for example, of the percussionist Evelyn Glennie, who might well have been discriminated against because of her handicap when she trained and, in a rather less liberal-minded institution, might not have gained the opportunity that she did. One thinks of people in a range of areas with emotional, behavioural or mental health difficulties. Any dynamic disadvantage or special need could well be used as a means of discriminating against someone, but not necessarily on justifiable grounds. I have a concern, but I put it no more strongly than that.

Margaret Hodge (Labour, Barking)

I am rather pleased, because that intervention enables me to clarify how an institution could justify excluding or including a student. In the instances to which the hon. Gentleman referred, there would be no justification for having regard to a disability to exclude a person from participating in a course, because his or her musical or other ability would be of a high standard. Evelyn Glennie is a great percussionist. As long as the musical or dramatic ability is demonstrated, it is illegal for an institution to have regard to a disability in judging that musical or dramatic ability.

John Hayes (Conservative, South Holland and The Deepings)

The Minister is really saying that each case will be judged on its merits.

Margaret Hodge (Labour, Barking)

Yes.

John Hayes (Conservative, South Holland and The Deepings)

So it would not be satisfactory for an institution to say that a group of people fall into a category that is apparently not conducive to their prospering in drama, theatre, music or whatever. That would not be sufficient or proper grounds to discriminate against them under this part of the Bill.

Margaret Hodge (Labour, Barking)

Of course, one must make judgments on a case-by-case basis. That is absolutely right. Equally, any individual who meets the standard required by a course will be entitled to participate in it. The institution may then have to make a reasonable adjustment to enable him or her to participate fully, depending on the disability. The institution sets the standard for a specific specialism, and anyone who meets it will be entitled to participate in it.

Andrew George (Liberal Democrat, St Ives)

Does the Minister share my concern that much drama does not properly reflect the broad span of real life, particularly in relation to disability? If drama is about the suspension of disbelief and the presentation of a wider life beyond what much of us see in our smaller lives, drama courses should be encouraged to accept disabled students. If standards are being set, they should be set in a way that encourages disabled applicants. If they reflect the nature of theatre in the public eye, that may be discriminatory.

Margaret Hodge (Labour, Barking)

If, in admitting a student, an institution set a standard whereby people were discriminated against simply on the grounds of their disability, it would be illegal under the Bill. However, the hon. Gentleman is correct that there is a widely prevailing attitude within the community, which is reflected in the media and drama, that disabled people cannot play a whole range of roles, simply because of their disability. Far too often we see disabled people playing only a role that reflects their disability.

One of the delights for me of going to the millennium dome—[Interruption.] I was one of those people who had a good time there. Other hon. Members may not have enjoyed what I am about to describe. Wheelchair users participated in the acrobatic display on the central stage and it was one of the few occasions when I have seen disabled people as mainstream participants in an activity. It was warm and welcoming and displayed a proper inclusive attitude that exists all too rarely in our society. Certainly it is an issue about which I constantly try to talk to all sorts of people in the media.

Tim Boswell (Conservative, Daventry)

I rise to give the Minister another accolade without getting on to dome territory. I know that she has worked with the actor's union Equity with whom I have also been in touch about the inclusion of disabled actors in a wide range of roles. The essential point that we are all trying to make in this Committee is that we do not want disabled people to be type cast. As my hon. Friend the Member for South Holland and The Deepings has challenged me to bring Sophocles into this afternoon's proceedings and look at ancient Greek tragedy, I would only opine that, even if the cast do not start with disabilities, by the end of the tragedy, most have usually acquired some.

Margaret Hodge (Labour, Barking)

I am not sure where that leaves us in disability discrimination terms, but I shall reflect on that when I read the hon. Gentleman's contribution in Hansard.

I come now to amendment No. 24. The example given by the hon. Member for St. Ives of someone with a visual impairment not being able to enter the dental and medical professions is false. As a spectacle wearer myself, I know that adjustments can be made that probably mean that it would be discriminatory not to allow someone with a visual impairment to participate on a course.

Subsection (7) is much more difficult. I can see why hon. Members might be concerned as it appears to give institutions a get out, but I assure the Committee that it is not our intention to use the power extensively, only in limited circumstances.

There are similar, though not identical, provisions in section 5 of part II of the DDA to make regulations about less favourable treatment in respect of its employment provisions. Those powers have been used in several detailed matters without attracting controversy in the Disability Discrimination (Employment) Regulations 1996. They were used, for example, to justify the application of performance pay systems to a disabled person and to justify not paying a disabled person a benefit for an occupational pension scheme on grounds of substantially increased costs. I could provide other examples, but those two may suffice.

The benefit of this type of provision is that it provides, by way of a reserve power, the ability to clarify the effect of the legislation in response to unforeseen circumstances or developments as they arise. One area where we envisage using the power would be to permit institutions to refuse an individual entry to a course leading to professions where there were medical requirements that an individual could not fulfil. For example, a person with throat cancer who is unable to speak might be able to undertake a course of study to train to become a teacher, but might not subsequently be able to teach in a classroom. Similarly, a person who has been diagnosed with schizophrenia might be able to study medicine, provided they met the academic entry requirements, but might not be able to become a doctor if they posed a safety risk to future patients.

Andrew George (Liberal Democrat, St Ives)

That is interesting in view of my example of a dental or medical qualification leading to a profession. The Minister now provides examples from other professions in which disability might call into question the ability to perform the requisite professional procedures. Does the Minister not accept that those concerns—about teaching and the medical profession—are already adequately covered under subsection (6)(a)? The student could be given less favourable treatment in relation to academic standards achieved on the course.

Margaret Hodge (Labour, Barking)

No, because subsection (6)(a) refers to academic standards and subsection (6)(b) to other prescribed standards. Subsection (7) deals with the standards required within the profession. That is the difference: the course and the institution on the one hand, and the profession to which the course leads on the other.

Let me provide two further reassurances for the hon. Gentleman, whose concerns I understand. First, if further regulations were necessary, they could be debated in the House, and would probably be subject to negative resolution procedure. Secondly, in our response to the disability rights taskforce recommendations, we made it clear that we intend to ensure that the public sector has a duty to promote equality of opportunity for people with disabilities. We have just introduced similar measures with respect to race. That should provide added pressure and help to ensure that the power is used only in circumstances where it is essential.

With those reassurances, I hope that the hon. Member for Daventry will withdraw the amendment so that we can proceed to the clause stand part debate.

Tim Boswell (Conservative, Daventry)

The Minister has made a fair attempt to answer the matters raised. She has responded to the feeling on both sides of the Committee that the clause should not be operated as a get out from the main intentions of the Bill, which were the reason for our probing amendments. The hon. Lady needs to remember that standards and what is feasible may change over time. I mention that only in the context of a particular constituent who came to see me. As well as having a tendency to fits, she had a diabetic condition that might have compromised her sight. Her immediate wish was to train as a social worker. She was already employed by the county council, but it was reluctant to allow her to undertake such training on the grounds that she might pass out and, during a period of unconsciousness, be unable to deal with a client.

I understand such a difficulty, but in most cases that situation can now be overcome. I want such cases to be an exception rather than the rule. Such a matter needs prescription and, as the Minister said, it needs regulation, which should be subject to debate. I hope that such a regulation will not be tabled until it had received a jolly good period of consultation and had rattled around the various interests. As we said earlier, we are not theologians. I concede that there might be a case for exception and, if so, it should be clearly outlined.

Andrew George (Liberal Democrat, St Ives)

This has been a useful and—as the amendments have implied— a probing debate to find the limitations of how and when the two subsections might be used to provide for less favourable treatment to disabled students. The debate has been helpful in relation to subsection (7) on which I want to focus particularly. It has helped to identify the need to constrain the possibility for that subsection to be abused, although simply saying that it would be left to regulation and be subject to negative procedure is something that I am not sure about. One always hopes that some of the hysterical and outrageous statements made in public by certain politicians will not in fact gain credence with the majority.

Hilary Benn (Labour, Leeds Central)

Does the hon. Gentleman accept that there are other reasons why it is important to keep the provisions in the clause under review? The Minister referred to someone with throat cancer who was not able to speak. Given the developments, for example, in voice synthesising technology, it may be possible for someone to undertake a profession using such aids and adaptations in the future in a way that people may currently find difficult to imagine.

Andrew George (Liberal Democrat, St Ives)

The hon. Gentleman makes a helpful intervention, because in a sense that pushes back the frontiers in the other direction. We must keep our eyes open for opportunities to ensure that less favourable treatment is reduced as a result of technological improvements over time. Subject to my misgivings, although I am reassured by the Minister's comments, I shall not press the amendment.

Amendment, by leave, withdrawn.

Clause 27 ordered to stand part of the Bill.

Clause 28 ordered to stand part of the Bill.

Clause 29 - Further education etc. provided by local education authorities and schools

Tim Boswell (Conservative, Daventry)

I promise not to speak at length. I understand that local authority services and adult and community education—the old non-schedule 2 formulation that has now changed because it is no longer under the umbrella of the Learning and Skills Council—will be covered by the clause. I have no difficulty with that, although I would grateful if the Minister's would confirm it.

I shall address further education that is secured by a local education authority. The 1996 Act states that the superior authority is the local education authority, whether or not there is an LEA or education committee as such. Therefore, there will always be continuity while there is a local authority that is designated as a local education authority. I am not trying to be difficult, but a case in which a local authority has decided to merge its education function with another committee should not be overlooked.

My understanding is that the clause would cover further education

``secured by a local education authority; or provided by the governing body of a maintained school''.

That would deal with the situation of a post-16-year-old who wished to go to school to do A-levels, which might be a sensible decision. Would such an event be defined as further education and caught under these duties, rather than within the school and the tribunal?

Many people would also find the following a desirable practice. It may be sensible for potentially disaffected young people who are within the school setting, registered in the school and within the compulsory school age group to carry out some activities in a further education college. Will the Minister clarify whether the Bill treats such people as treated? Do they fall, therefore, within the provisions that relate to schools, or are they further education students? We want to ensure that no one slips through the net, and that the body responsible in law is fully defined.

Margaret Hodge (Labour, Barking)

The clause seeks to sweep up all that used traditionally to be known as adult education provided by education authorities.

Tim Boswell (Conservative, Daventry)

And the youth service.

Margaret Hodge (Labour, Barking)

Indeed, and the youth service.

I shall deal with the situation of a 16-year-old doing A-levels. The principle that underpins the Bill is that duties should follow the institution. Therefore, if a person takes his or her A-levels in a school building, he or she would be covered by the duties that pertain to the school. A 14-year-old in a further education college would be covered by part IV general powers. All people are covered by the institution in which they receive their education, rather than by the category into which they fall.

The superior authority will have responsibility. However, I reassure the hon. Member for Daventry that nobody will escape. If a local authority has the choice to organise itself differently, all people will be caught, either by the local education authority or social services, which come under the remit of the clause.

I hope that that will reassure the Committee about the clause, which is intended to capture the diverse nature of adult education, which we all recognise. Differences from the formal further and higher education sector will be accepted. We all know that LEA provision is organised in a wide variety of community-based settings, many of which are intended primarily for other purposes. The range of venues is likely to vary year by year. For that reason, the duties rest on the LEA rather than the individual provider, so that the authority can draw on its full range of providers to ensure compliance. LEAs are caught only when they provide educational services to people who have enrolled on their courses. I hope that, with that explanation, the Committee will accept the clause.

Question put and agreed to.

Clause 29 ordered to stand part of the Bill.

Clause 30 - Right of redress

Tim Boswell (Conservative, Daventry)

In the same spirit as before, I put down a marker by pointing out our continuing concern about the functional distinction between a child of school age going to the tribunal and having to make an application through the court. A reasonably careful reading of the clause has left me with another doubt, and I should be grateful if the Minister could alleviate it. The clause provides that the right of redress should be through the court for further and higher education students. I understand that. However, among other things, the clause refers to damages and the notes to the possibility of hurt feelings. As I understand it, what may be loosely termed ``full civil rights''—including rights to compensation in relation to part II duties, when the individual student is employed by the institution as part of a work programme, or in relation to part III duties, with regard to services—might lead to a cash settlement. What are the bounds to that?

I want to flag up the hypothetical example, on which I touched on Second Reading, of two students of the same age, perhaps siblings or identical twins, who are placed in different positions—one in a further education college, and the other, post-16, in a school. Their routes of redress would be different, and so would be the nature of the redress, even if the discrimination were substantially the same. That troubles me, and I should be grateful if the Minister would elucidate.

Margaret Hodge (Labour, Barking)

In our earlier debate on redress in schools, I discussed the difficult conflicts that we faced in considering how best to deal with redress for children in schools and adults in further and higher education. I recognised that there were bound to be anomalies. After full consideration and wide consultation—the views of the voluntary sector organisations most concerned about such issues weighed heavily with the Under-Secretary, my hon. Friend the Member for Redditch, and with me—we decided that we would have to live with those anomalies. There was no way to square the circle and ensure that everybody, at whatever institution that they happened to attend, would have access to the same process of redress.

In relation to FE and HE, we decided to stick to the court procedures, which, as the hon. Gentleman suggested, would provide financial compensation to individuals studying in a school or FE college. That situation will inevitably arise. If the individual is at an FE college, financial compensation will be provided, including for hurt feelings, whereas if the individual is at a school, an educational remedy will be sought. We took that decision in response to discussions with FE and HE institutions about what they were most comfortable with. I shall speak briefly about those representations.

As the hon. Gentleman will know, FE and HE institutions value and guard jealously their independence. They feel that their autonomy as post-16 institutions would have been undermined if we had brought them under the special educational needs and disability rights tribunal system. They are accustomed to dealing with the courts on a number of issues that arise out of their past work, and the courts therefore seemed the appropriate forum for redress in cases covered by those parts of the Bill.

They also made the point that the tribunal would have to create a new body of experts to deal with post-16 issues, which would add to the complexity of the already complex and expanded role of the special educational needs and disability rights tribunal.

Post-16 learners make great use of facilities intended to benefit of the general public. Therefore, post-16 institutions tend to be more liable to be covered by the part III obligations of the Disability Discrimination Act 1995, which are handled by the court system. That provides an element of consistency, as those institutions will use the same system of redress with regard to their obligations under part III of the Act and their new obligations under part IV. It would have placed a huge onus on them if we had obliged them to appear on certain before an expanded special educational needs and disability rights tribunal, and on others to go through the courts.

I hope that the hon. Member for Daventry noticed that, when the matter was discussed in the other place, Baroness Blackstone said that she had received a letter of support for our approach from Baroness Warwick. The hon. Gentleman will know Baroness Warwick in her capacity as chief executive of Universities UK—formerly the Committee of Vice-Chancellors and Principals of the Universities of the United Kingdom. The vice-chancellors believed that the courts were the most appropriate forum in which to hear such cases.

We have introduced conciliation arrangements in relation to discriminatory actions that might occur within the new part IV of the DDA. Those arrangements are intended to ensure that minimal use is made of the tribunal and court system. That should happen if they work well, and I hope that they do. Therefore, the anomalies, which, I accept, inevitably exist. should not often occur, as arrangements will have been reached outside the judicial system.

Tim Boswell (Conservative, Daventry)

I welcome the spirit of the Minister's remarks. Her clarification has been helpful, and she has levelled with the Committee by acknowledging that anomalies exist. They have occurred in legislation before, but in this instance there are good underlying reasons for them, and she has done her best to explain those reasons to the Committee.

My main purpose in rising is to affirm that it was appropriate to probe such issues. However, I accept the Minister's assurances, and the feelings of the higher education sector. I do not think that the route chosen is wrong, but it was necessary to pause to find out why it is right, and we have done that.

Question put and agreed to.

Clause 30 ordered to stand part of the Bill.

Clauses 31 to 33 ordered to stand part of the Bill.

Clause 34 - Removal of certain duties of funding bodies

Tim Boswell (Conservative, Daventry)

We have already had exchanges on this matter, and as the proposals have been productive, it is unnecessary to escalate our proceedings into a bickering match about the duties in the 1995 Act and their effect on higher and further educational institutions.

The Minister wished to take the matter further, as did the disability rights taskforce. I do not object to that: I am glad that we are able to take the matter forward. However, given that the clause concerns local authorities' policies and statements on disability and that we do not wish to overload those bodies with unnecessary bureaucracy, does she feel that their attempts to have bodies consider their policies may be lost in the wash? Will that be secured in other ways? Have we not thrown out a small baby—or drowned it—with a lot of bath water?

Margaret Hodge (Labour, Barking)

I do not wish to spoil the Committee's proceedings by entering into political bantering when a general election is so distant, but I recognise that the hon. Gentleman believes that the original clauses had some impact. My experience, especially in the further and higher education sectors, was that that impact was limited. I was shocked by some of the cases brought to my attention of people who experienced outrageous discrimination in access to courses, especially in FE and HE. HE has probably been the most difficult sector with which to deal in its acceptance of both moral pressure or pressure from existing legislation to ensure civil rights for disabled people in education.

Tim Boswell (Conservative, Daventry)

Does the Minister concede that disabled employees in higher education—lecturers—have expressed genuine concern about whether their treatment has been appropriate?

Margaret Hodge (Labour, Barking)

I certainly accept that, and it shows what I often point out: with the law, we can provide a floor of basic rights, but we need to engage in the final task of challenging attitudes and preconceptions to ensure that people act according to the spirit as well as the letter of the law and do not act discriminatorily.

We are removing the provisions not out of political spite but because they have become redundant and we no longer require them. It would be unnecessary, and burdensome on the authorities, to retain them. The duties in part IV are anticipatory, and institutions will have to keep their policies and practices under review. Under the new part IV, deeds, not just words, will test whether institutions comply with the new duties.

Question put and agreed to.

Clause 34 ordered to stand part of the Bill.

Clauses 35 to 37 ordered to stand part of the Bill.

Clause 38 - Relationship with other parts of the 1995 Act

Andrew George (Liberal Democrat, St Ives)

I beg to move amendment No. 25, in page 33, line 9, at end insert—

`(5A) In section 19(3), at the end insert—

``(i)the provision of examinations in respect of education and training.''.'.

The hon. Member for Daventry provided a prelude to the amendment by referring to it earlier. As this sitting has been long and it seems likely that we shall have another, I shall not detain the Committee unnecessarily. I shall humour the hon. Member for South Holland and The Deepings, although not as entertainingly or articulately as the hon. Member for Daventry did.

The amendment parallels a Greek tragedy. The Antigone behind that rather sad tale is suffering as a result of the clauses from a rather harsh, Creon-type interpretation of the Bill. The amendment would ensure that examinations undertaken as part of education could not place unnecessary barriers in the way of disabled candidates. A major anomaly exists between examinations used as part of training and those used following a course of education. Examining and awarding bodies are exempted from the DDA when, and only when, their examinations are used at the end of a course of education. When an examination is used for the assessment of a course of training, it is not exempted from that Act but must comply with part III, which covers the provision of goods and services. In some cases, that means that the same examination may be covered by the 1995 Act and may sometimes be exempt, depending on whether the learning that preceded it was training or education.

The national vocational qualifications and the Scottish vocational qualifications are especially affected by that anomaly, which could lead to an inequality between learners in different groups and make a mockery of the Bill. What is the point of an institution, whether it is a school or a college, being prohibited from discriminating against disabled pupils and students when the examination boards that provide examinations can discriminate with impunity? How can colleges be expected to ensure that disabled students receive the reasonable adjustments that they require when the examining board, which is the final arbiter of whether an adjustment to an exam is allowable, is not subject to the same rigorous requirements not to discriminate?

Recent research by the Royal National Institute for the Blind demonstrates that examinations pose particular difficulties for blind and partially sighted learners, typically because they cannot rely on receiving examination papers in the correct format and on time. The research shows that one in four of the pupils questioned did not always get test or answer papers in the right format. One in five said that test or exam papers had not always arrived on time. One third of the university students had received late exam papers on at least one occasion, as had at least 11 per cent. of further education college students.

The problem sometimes lies with the school or college for failing to notify examination boards of students' needs or make adjustments. At other times, however, the examination boards are at fault for failing to make proper arrangements. Examining boards, in addition to agreeing to candidates having exam papers in their preferred format, arranging transcription and ensuring that the papers are sent out on time, need to agree a host of other reasonable adjustments in advance, if blind and partially sighted candidates are not to face substantial disadvantage in the examination process. Those adjustments include allowing candidates extra time because it takes longer to read large print or Braille; arranging for candidates to present their answers in a preferred format, whether it is hand-writing, word processing, dictation or in Braille; and agreeing that candidates can do the examination in a separate room with a separate invigilator if need be.

Most blind and partially sighted students are given extra time for exams and other forms of reasonable adjustments, but there are too many who do not. The Royal National Institute for the Blind tells me that one in 10 of university and two in 10 of further education students told the organisation that they were not given enough extra time.

The main reason for examination boards failing to meet the needs of blind and partially sighted students in a uniform fashion is that the guidance that they receive is not strong enough and no clear actionable duty is placed upon them. The Qualifications and Curriculum Authority, for example, has bemoaned its inability to force standards on examining boards. Any failure on the part of examining boards could have a major impact on the future of educational and career prospects of blind, partially sighted and other disabled learners. At present, there is not a sufficiently powerful incentive for them to get the process right or to provide effective redress for a disabled learner if things go wrong. The obvious solution is to bring examining bodies within the scope of the DDA so that they are all covered by part III, whether they provide examinations for learners in training or in education.

I hope that the Minister will respond to that technical interpretation which, if I am correct, could provide a get-out and result in less favourable treatment for disabled students who are welcomed to courses but find that they are discriminated against when it comes to examinations.

Tim Boswell (Conservative, Daventry)

The hon. Member for St. Ives has performed a service to the Committee in raising the matter. We all want the fairest possible arrangements in examinations so that any functional difficulties encountered by disabled people, let alone anomalies between various sectors, are redressed. There is also concern about equal opportunities in certain rigorous examinations in universities and the higher education sector—for example, whether women have sufficient stamina when they must cope with menstruation and so on to achieve well in examinations.

At the opposite end from the examining bodies, I have been in correspondence with the Qualifications and Curriculum Authority on statutory standard assessment tests in schools concerning a child with a severe sight problem. The matter was drawn to my attention by the special needs co-ordinator in the school and I then corresponded at the top of QCA and eventually got its ruling on the time provided and the provision of computer alternatives reversed. I was pleased about that because I was told that it was a test.

In another context, the awarding bodies want to be fair and they set out to be fair. That is not window dressing and they are anxious to adjust their procedures to secure fairness. I believe that we will eventually secure that, but there is a problem, which needs attention, and I look forward to the Minister's response.

John Hayes (Conservative, South Holland and The Deepings)

I want to add briefly to the comments made by my hon. Friends the Members for St. Ives and for Daventry.

There is an issue concerning pressure on people with disabilities who want to pursue further or higher education. We have discussed access and the importance of ensuring that the admissions process does not discriminate against disabled people. However, if at the end of a course of study students are aware that they will face an examination or test that is more onerous for them than for others because they are particularly disadvantaged, they may not embark on the course in the first place. The examination process at the end of a course of study could be a disincentive that may contradict everything else that we have tried to achieve in ensuring that people have the confidence actively to pursue higher education and further education courses.

I have some sympathy with the matter that the hon. Member for St. Ives brought to the Committee's attention. We should be consistent and coherent from the beginning to the end of the process to ensure that people with a range of disabilities are not disadvantaged.

In introducing the topic, my hon. Friend the Member for Daventry has done us a service of Greek proportions—I mean heroic, not tragic. I do not wish to detain the Committee, and emulate Pericles in the process, so I will leave the matter there, and ask for the Minister's response.

Jacqui Smith (Labour, Redditch)

I never passed an examination in Greek, so I feel at a slight disadvantage. I assure the hon. Member for Daventry that that was not because I was a woman, bogged down with the difficulties of menstruation.

The hon. Member for St. Ives has rightly identified the area as complex. I agree with the clear objective that Committee members wish to achieve. Examinations are an important part of an education course and students with disabilities must be able to access assessment, while the standards of examinations are maintained. I shall return to that.

On the legal position, as the hon. Gentleman recognised, awarding bodies will be covered by part III of the DDA when they are providing a service to the public. Whether they are doing so will be decided on a case-by-case basis. The hon. Member for St. Ives highlighted the distinction between education and training. That distinction exists under 1996 regulations that we will revoke when we implement the Bill. The issue is not straightforward, as the disability rights taskforce recognised.

I have made it clear that bodies that can be defined as qualifying bodies are covered by part III of the DDA when they provide a service to the public. However, they are covered under the legislation's employment provisions relating to sex discrimination and race discrimination, rather than under its education provisions. The distinction between employment and education is important because the Bill deals with the DDA's education provisions. As I mentioned earlier, the disability rights taskforce included its recommendation on qualifying bodies in its employment, not its education, chapter. The implications of that need further consideration and, in due course, consultation, but the taskforce's approach to the qualifying bodies seems to reinforce our arguments.

Exams, and access to them, are important, and I will clarify where the Bill will positively affect assessment arrangements. It includes arrangements made by schools and by higher and further education colleges under the wide definitions of ``education and associated services'' and ``student services'' respectively. Part IV will cover internal and admissions examinations set by the institutions subject to the legislation. It will also cover arrangements made for pupils and students sitting externally set examinations. The Bill will impose a duty on institutions in which such examinations take place to ensure that disabled people are not treated less favourably. The institutions will also be subject to the reasonable adjustments duty, which means that they might have to make adjustments, for example, to seating, lighting or timetabling to meet the needs of disabled pupils and students.

I have already covered part of the issue, raised by the hon. Gentleman, of the examination body.

As I suggested, the examination body may take responsibility for the way in which papers are produced and for arrangements for accommodating candidates' special needs. Whether that is caught by part III of the DDA will depend on whether it provides a service to the public. Our objective, which is clearly stated, is to ensure that arrangements are in place to protect the assessment needs of disabled candidates, and I hope that I can reassure the Committee that those exist. For example, the regulatory authority's arrangements for accreditation of external qualifications require an awarding body to ensure that no unnecessary barriers to assessment prevent candidates from effectively demonstrating attainment. That covers special arrangements to meet particular assessment requirements caused by disability and special consideration for those with a temporary condition or illness.

The hon. Member for St. Ives highlighted concern expressed by the RNIB about the availability of examination papers and the formats in which they are produced. I am reassured by the fact that in England, Wales and Northern Ireland the joint council for general qualifications has published regulations and guidance relating to candidates with particular requirements that covers, for example, the delivery of GCSEs, GCEs, AVCEs and GNVQs. It is an excellent document, and I assure hon. Members that it contains the kinds of special arrangements that the hon. Gentleman rightly suggested might be appropriate for students with a range of disabilities. Indeed, it is an exemplar of best practice.

That document sets out arrangements that should be followed when a candidate considers that special provision was not made or was so inadequate that it did not allow him or her to demonstrate attainment. In other words, it sets out what a school or—if a school contacts it—an examination body must make available. It also sets out arrangements in case there is concern whether special provision has been made.

Of course, some awarding bodies will not have similarly rigorous arrangements. However, the QCA and Awdurdod Cymwysterau, Cwricwlwm ac Asesu Cymru in Wales have set out clear principles on the statutory regulation of external qualifications. The QCA and ACCAC published those principles in a document in summer 2000. The criteria, which are clearly set out in section C of that document, cover what awarding bodies are expected to do in relation to candidates with particular assessment requirements. Section E sets out the sort of processes that awarding bodies should have for inquiries and appeals.

By the autumn, the QCA expects to complete its programme of accrediting qualifications, which will go up to and include level 3, on the basis of those criteria. Accredited qualifications will be subject to monitoring and from 2002-03, in terms of ensuring that those things happen, we expect that only accredited qualifications that have fulfilled those criteria will be approved and eligible for public funding by LEAs and the Learning and Skills Council in England.

I accept that this is not an easy area to regulate. The number of awarding bodies, the vast range of qualifications that they offer and the nature of what they do make it difficult to achieve clarity and simplicity. However, I hope that hon. Members are reassured that the needs of disabled people in examinations are already covered. We can achieve our objective of ensuring that disabled people are not disadvantaged by virtue of their disability in obtaining access to important assessment arrangements.

Andrew George (Liberal Democrat, St Ives)

This debate has been very useful, in that my probing amendment has clarified the way in which less favourable treatment will be avoided in the examination process—a matter of particular concern to me and certain disability organisations. Like me, the hon. Member for South Holland and The Deepings will doubtless be pleased to learn that that particular tragedy can be averted. In that sense, I am reminded of the need for Creon to show some capacity for interpretation to avoid Antigone's meeting her maker.

The Minister has helped to clarify guidance from the joint council for general qualifications on the format of examination papers, the way in which employment provisions in the DDA will affect the examining bodies and the examination process, and other special arrangements. I also pleased to put my concerns on the record. As the Minister said, we must monitor progress to ensure that possible loopholes in the regulations and guidance do not lead to the meting out of less favourable treatment to disabled people. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 38 ordered to stand part of the Bill.

Clause 39 - Application to the Isles of Scilly

Andrew George (Liberal Democrat, St Ives)

As the Member of Parliament for the Isles of Scilly, I am grateful for the opportunity to comment on the clause, which I welcome, because the Isles of Scilly are indeed a special case. They are often referred to as the Fortunate Isles, and they were certainly fortunate in 1997, when I was elected as their Member. I am confident that they will continue to be so for many years hence. The Isles consist of five inhabited islands with a population of about 2,000, although they are visited by many thousands of people each year. I hope I am not straying from the terms of our debate in saying that, despite foot and mouth, they remain open for business—a point relevant to the question of education on the Isles.

The Isles of Scilly present particular challenges. They perform all the functions of a county council and a district council. They provide a water authority, which was never privatised, a sea fisheries committee, an airport authority and a number of other authorities. In fact, despite their small population they have more statutory functions than most county councils and metropolitan authorities.

On reading the clause, I was surprised to discover use of the phrase ``as if''. The fact is that, rather than operating as if it were a county council, the Isles' small authority operates as a local education authority and a county council, providing a number of functions that extend far beyond those provided by many other UK authorities. I would therefore question the use of the phrase ``as if''. I am sure that the Minister is right to ensure that the provisions of the DDA apply fully to the Isles of Scilly, despite the obvious geographical challenges that arise from their island setting.

I am grateful to have had the opportunity to welcome the clause and to refer to the success of the Isles of Scilly. They are indeed fortunate isles, and I am sure that they will be fortunate to receive visits from many other hon. Members present and not present.

Question put and agreed to.

Clause 39 ordered to stand part of the Bill.

Clauses 40 to 42 ordered to stand part of the Bill.

Clause 43 - Short title, interpretation, commencement and extent

Jacqui Smith (Labour, Redditch)

I beg to move amendment No. 13, in page 36, line 26, leave out subsection (13).

Members of the Committee will be familiar with the procedures of the House and therefore know that the Lords amendment that added the words in subsection (13) is a standard provision in Bills that are introduced in the other place, protecting the privilege of this House to control charges on public funds. Before I am challenged by the hon. Member for Daventry, I point out that it is equally a standard procedure for the Committee that considers the Bill to remove it, and that is the purpose of amendment No. 13.

Tim Boswell (Conservative, Daventry)

Oh dear, Sir David. Normally, as the Minister suggested, the amendment would pose no problem for me. Hon. Members on both sides of the Committee are most jealous of the privileges of this House and should not want to cavil at all. Indeed, I would not have wanted to say a single word about it had not the Minister unfortunately said, when she moved the programme motion on 20 March:

``I can say that the Government do not intend to table further amendments to the Bill.''—[Official Report, 20 March 2001; Vol. 365, c. 290.]

I have been debating how this situation might have arisen, and I see four possibilities. The first scenario, which I hope is the least plausible, is that some person unknown, perhaps even an Opposition member of the Committee, donned drag, went into the Public Bill Office at dead of night, and tabled the amendment in the name of the Minister without her knowledge or consent.

The second possibility is that Ministers did not intend to table an amendment—I will accept their bona fides on that—but were so used to doing so that they could not help themselves. The third possibility—this is a little more plausible, especially at a time when our minds may be moving to other things, and given that we have used a variety of classical analogies in the Committee—is to cite a Biblical reference to the situation in Babylon, and to say that the Assyrian words ``Mene, mene, tekel, upharsin'' must have spontaneously appeared as the writing on the wall behind the Chairman. That really meant, ``Nasty things are going to happen to the present Government,'' and, believe it or not, they did.

However, given the circumstances, the most plausible interpretation of events is that the Government knew all along that they were going to have to do this. Within an hour of the Minister's assertion—I shall not embarrass her by repeating it—the other Minister moved a money resolution that would be incompatible with the continuation of the saving provision in the clause, so they had to remove it by tabling the amendment. That is the most likely scenario.

The only advice that I can give the Minister in the circumstances is that she should watch her language. She is a Minister who has been in the Commons for a year or two, and if she does not know how to put material saving and qualifying adjectives into her assertions, she should learn.

John Hayes (Conservative, South Holland and The Deepings)

I merely ask my hon. Friend to be a little more gracious, because the Minister has been the model of charm throughout our proceedings and tolerant with Opposition Members. I hope that he will equal her charm, not by patronising the hon. Lady but by giving her the paternal advice that I know that he is well placed to give.

Tim Boswell (Conservative, Daventry)

Oddly enough, at that precise moment, I was about to make the Minister an offer. It is the kind of criticism that the right hon. Member for Manchester, Gorton (Mr. Kaufman) would have made to Ministers of any party in his excellent book, ``How to be a Minister''. She needs a short crash course in how to use words that can get her out of difficult situations, words such as those that are in the Bill and that we have been debating today—``substantial'', ``material'', ``relevant'', and ``adjustment'' for example. All those words could have been deployed to avoid this unfortunate situation, but were not. The fact is that the hon. Lady and the Bill team knew perfectly well that they would have to move a money resolution and, given what was implicit in her remarks, I am sure that she knew, rightly, that she would have to remove the subsection.

My worry is not so much that the Minister is adjectivally challenged, but more materially that the pursuit of the perfection of not amending the Bill might have led to mistakes of which we know not. We are about to debate—I hope not at length—many schedules, which are difficult and awkward matters. It is possible that a Government lawyer rehearsing the legislation may not come to her with an awful confession and say, ``Minister, I am afraid I have to tell you that, on page 37, there is a comma missing.'' It would be unfortunate if the Minister has trapped herself into a position in which she cannot amend the Bill. Luckily, she might have been saved from that.

I entirely concur with the general sentiments about the Minister's conduct that were expressed by my hon. Friend the Member for South Holland and The Deepings, because it now looks as if, despite all the odds, we shall have a proper Report stage. Even if she has not felt inclined to amend her Bill by then, except with the single falling from grace that she has shown tonight, I hope that she will have the courage to return on Report to level with the House and amend the Bill if, for example, a comma is in the wrong place.

I must tell the Minister, more in sorrow than in anger, that she has put my hon. Friends in a difficult position. Of course I want to help her to carry out her assertion. To do so, I should vote against the amendment. However, I am also conscious of the rights and privileges of the House, which I think should be asserted, so I am faced with a dilemma and clash of principles. My hon. Friends might well take a different view from mine, and I could not possibly object, or reprove them if they did. On the whole, and by a short head, despite the deplorable situation that has been created, I would have to advise the Committee, with a heavy heart, to condone and tolerate the amendment, which the Minister, despite her pledges, has got round to moving.

Jacqui Smith (Labour, Redditch)

I hope that I can reassure the hon. Gentleman after that—shall I call it a master class—

John Hayes (Conservative, South Holland and The Deepings)

Self-indulgent diatribe?

Jacqui Smith (Labour, Redditch)

Far be it from me to agree with the hon. Gentleman.

I can reassure the hon. Member for Daventry that, when I made those comments on Second Reading, I was fully cognisant of the experience represented by the hon. Gentleman and others, who I assumed would understand that a Bill coming from the Lords would need such an amendment. Given that reassurance, I hope that the Committee will support the amendment.

Amendment agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

Tim Boswell (Conservative, Daventry)

I promise not to replay the previous debate. In your wisdom as Chairmen, Sir David, you and your colleague did not select amendment No. 10, which related to commencement. However, I should like the Minister's assurance that we are on track to have the code of practice done and dusted by September. We all understand that the Bill is one thing and the code of practice is another. That code is the serious operational part and has a huge impact on the conduct of SEN cases. It matters to the individuals, the parents and the local authority and we need to have it as soon as possible. I hope that the Minister will change from a perhaps slightly flippant tone to a deadly serious one. We were very grateful when the Government decided to return to the old formulation of specifying matter in a statement. That is the kind of assurance that we will seek in the code of practice. Will the Minister reaffirm the timetable and her readiness to debate the issue, and reassure us about the current state of play before the end of today's proceedings?

Jacqui Smith (Labour, Redditch)

The hon. Gentleman is right to say that we want the final version of the revised code of practice to reflect and provide guidance on the relevant provisions of the Bill, and on the ensuing regulations. The code must therefore follow on from the debates on the Bill. I give him my assurance that it is our intention to introduce a final draft of the revised code of practice, together with the revised education SEN regulations and the education SEN information regulations, soon after the Bill has received Royal Assent. These will be laid before both Houses as soon as possible and the new code of practice debated so that the final version can be made available to local education authorities and schools before the SEN element of the Act comes into force this September. As the hon. Gentleman said, they will then know exactly what the new duties and regulations are.

Question put and agreed to.

Clause 43, as amended, ordered to stand part of the Bill.

Schedules 1 to 9 agreed to.

Further consideration adjourned.—[Mr. Betts.]

Adjourned accordingly at eight minutes past Seven o'clock till Thursday 5 April at Nine o'clock.