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Disability Discrimination Act 1995 (Amendment etc.) (General Qualifications Bodies) (Alteration of Premises and Enforcement) Regulations 2007

Volume 694: debated on Wednesday 25 July 2007

rose to move, That the draft regulations laid before the House on 26 June be approved.

The noble Lord said: My Lords, these regulations, which are made under the Disability Discrimination Act 1995 using provisions inserted by the Disability Discrimination Act 2005, seek to eliminate discrimination from the examination system. They are a final step towards making prejudice against disabled people illegal in Great Britain, and they had all-party support when they passed through the other place on 17 July.

We expect exam regulators and the awarding bodies to ensure that their qualifications offer all candidates the opportunity to demonstrate their skills and knowledge. The regulations are one of two sets of linked regulations. The other is the Disability Discrimination (General Qualifications Bodies) (Relevant Qualifications, Reasonable Steps and Physical Features) Regulations 2007, made on 23 June, which contain two main provisions. First, they prescribe the list of relevant qualifications covered by the legislation. Secondly, they contain a provision that makes it clear that the practice of exemptions, and the resulting certificate indications, will continue to be lawful after September 2007. They also define “physical features” and “lease” for the purpose of making reasonable adjustments.

The other regulations are subject to the negative procedure and were signed by my honourable friend the Minister for Schools and Learners on 23 June. The regulations before us this evening cover both the enforcement mechanisms for making a claim and the physical feature duty to make reasonable adjustments when awarding bodies occupy premises under a lease. They will reinforce the excellent practice that the awarding bodies have already developed, but where disabled people are treated unfairly, they will provide them with a clear legal foundation for their appeals.

Part 1 contains necessary introductory clauses, while Part 2 of the regulations describes their enforcement. Enforcement of DDA legislation in respect of employment and professional and trade qualifications is through employment tribunals. However, as these are academic rather than employment matters, we believe that the county court system—or sheriff court, in Scotland—is the most appropriate place to enforce any claims against qualification bodies.

Resort to the courts will be very much a last option for claimants. The Joint Council for Qualifications, which represents the awarding bodies offering GCSEs and A-levels, is setting up a resolution procedure that will aim to settle disputes at an early stage. The new Commission for Equality and Human Rights may also play a role in offering conciliation services to claimants. We will continue to work with the awarding bodies, the Qualifications and Curriculum Authority and groups that represent the disabled—including the new commission and the Disability Rights Commission, while it is still in existence— to minimise the need for enforcement through the courts.

The Disability Rights Commission requested Regulations 5 and 6 to harmonise disability legislation. Duties relating to physical features of a building under the DDA make provisions for circumstances where premises are occupied under lease, and already apply to employers, trade organisations, trade and professional qualifications bodies, service providers and post-16 education institutions.

These regulations apply those provisions to general qualifications bodies and specify: the period within which any landlord’s consent to make reasonable adjustments to the premises should be sought; the information that should be provided; the period within which a response from the landlord should be forthcoming; and the means to challenge unreasonable refusals to give consent, possibly adding the landlord as a party to proceedings, if necessary. These regulations therefore bring the duties on general qualifications bodies into line with provisions elsewhere in the DDA. I commend the regulations to the House and I beg to move.

Moved, That the draft regulations laid before the House on 26 June be approved. 22nd report from the Statutory Instruments Committee.—(Lord Adonis.)

My Lords, I thank the Minister for his customary clear and informative explanation of these regulations, which we support. In doing so, I declare my interest as a trustee of the Disability Partnership.

It is vital that the disabled are not put at a disadvantage in the pursuit of educational qualifications. I therefore welcome the general qualification bodies being brought into line with their vocational counterparts. Indeed these regulations represent a clear confirmation that the Government have taken on board the QCA’s recent curriculum review, which identified that constraints imposed by exam boards are one of the main barriers to inclusion. It is right that these regulations seek to eliminate discrimination from the exam system, and I wish them every possible success. However, I am concerned that these regulations do not seem to cover the new 14 to 19 diplomas. I hope the Minister can reassure me on that point.

It is right that leasehold premises will now be required to undertake alterations in order to secure access for disabled exam candidates as well as those who hold the freehold on premises. While I am pleased that the Government have taken the Disability Rights Commission’s recommendations on this matter, I would be grateful if the Minister would describe in a little more detail what “alterations” might entail.

Effective implementation and enforcement of these regulations will be vital to their success. What extra training will be provided to magistrates and clerks, who will have new duties of enforcement? Moreover, the impact on qualification institutions cannot be ignored. Has the Minister established what the extra cost will be of the increased administrative burden of these regulations? It is an important point, because without effective management of the regulations their implementation may be compromised. I am pleased to see the introduction of these reasonable recommendations and look forward to the Minister’s response to my questions.

My Lords, it would be ridiculous of me to say anything negative about these regulations. When we were doing the pre-legislative scrutiny on what became the 2005 Act, I clearly remember that it was asked whether exam bodies should be brought within the scope of the Act, because they have an excellent record for meeting the standards of people who are taking exams. I think that I was the first person in that committee to say “yes”. The fact that they had a good record in the past does not mean that legal protection for the future should be removed. Indeed, successor bodies under previous regulations have.

I think I know what the noble Baroness, Lady Morris, was saying. The system that we have to enforce disability legislation with a heavy legal test probably is a fault that we cannot correct now. I have never really liked it. I hope that the Minister can reassure the noble Baroness on her point and confirm that the defence of reasonableness, which has always been behind the legislation, is embodied in these regulations and the negative procedure that goes with them and that, basically, we now have one legal test or process running across the whole sector. We should not have the usual potholes in the road of getting a disabled person through, and these regulations fill a few more of them in.

I support the general thrust of the amendments and hope that I will hear favourable comment.

My Lords, I am grateful to the noble Baroness and the noble Lord for their support for the regulations, which we believe will make a further contribution to eliminating discrimination from the examination system and, therefore, more generally from the education system at large.

The noble Baroness, Lady Morris of Bolton, asked me three questions. The first was about the inclusion of diplomas, why they were not listed in the regulations and whether we would seek to do so in due course. Diplomas are not listed in the regulations because they are not yet qualifications that are being studied and it is not possible to regulate for qualifications that do not yet exist. However, I can assure the noble Baroness that, as and when they exist, we will add them to the list and, therefore, they will be covered.

Secondly, the noble Baroness asked about costs. We have not done a regulatory impact assessment specifically for these sets of regulations on the basis that we anticipate that there should be a negligible impact on general qualifications bodies in terms of cost and burden. There are three main reasons for that. First, awarding bodies operate already an extensive system of special arrangements for disabled students. For GCSE and A-level bodies, annual regulations are made by the Joint Council for Qualifications. Secondly, most examination centres, schools and colleges already operate under the provisions of the DDA. Therefore, the duty to make adjustments to physical features of premises which can carry a cost already bites on them, not the awarding bodies.

Thirdly, we believe that we have met awarding bodies’ concerns about the possibility of increased claims for certificate indications with the extra administrative burdens that that would bring by both the wording of the regulations and the proposed mechanism of QCA agreeing with awarding bodies operating principles to restrict their use. However, it is difficult, pre-implementation, to predict the exact impact of any extra burden and cost on the awarding bodies and disability groups. We have therefore proposed to the awarding bodies that we set up a group, including QCA and awarding body representatives, to monitor the impact of the legislation and to review it fully after one year.

Finally, the noble Baroness asked me what constituted reasonable adjustments. The term means what is reasonable in all the circumstances of the particular case in question, a definition that runs through the Disability Discrimination Acts. Of course, it is important to be practical in giving guidance to the bodies that will be affected. I can assure the noble Baroness that guidance will be provided in the code of practice that will be published later this year. On that basis, I hope that the House is content to approve the regulations.

On Question, Motion agreed to.