Equality Bill

My Lords, I had thought that the Minister would speak to her Amendment 106B, but perhaps she will come to that later. In the mean time, I will speak to Amendments 106AA, 106AB and 106C. They relate to a concern that I raised at Second Reading. The amendments are to Clause 96, which provides that qualifications bodies must make reasonable adjustments for disabled candidates such as a large-print exam paper for partially sighted candidates, extra time for dyslexic candidates or lip-speakers for deaf candidates in oral exams. It also provides that Ofqual or the Scottish or Welsh regulators can specify matters that are not subject to the reasonable adjustment duty and decide whether certain reasonable adjustments should not be made. Disabled people’s organisations are concerned that the Bill permits the regulators to take these decisions too lightly and with the wrong factors in mind. I declare an interest as president of SKILL, the National Bureau for Students with Disabilities. Qualifications are vital for disabled people no less than for non-disabled people. Having a qualification opens the door for disabled students to go on to further study or employment. It is therefore vital that the examination system is fully accessible to them. From that point of view, disabled people and their organisations have not had a happy experience. In 2005, the qualifications regulators withdrew much of the support available to disabled students in examinations on the basis that reasonable adjustments were unfair to those who did not need them. That led to cases where, for example, deaf students were forced to undertake oral components of exams without any support. Disability charities successfully campaigned to reinstate the support and have since been working with the Government, qualifications bodies and regulators to encourage them to go further and make sure that all qualifications are fully accessible to disabled students. However, improvements are still needed to ensure access. In particular, the legal framework governing the powers and duties of qualifications bodies and regulators needs clarifying and strengthening to ensure that they fully implement the principles of disability equality with a view to ensuring that the mistakes made in 2005 are not repeated. As stated, that legal framework is set out in Clause 96. Subsection (8) provides: ""For the purposes of subsection (7)"—" which disapplies the duty to make reasonable adjustments— ""the appropriate regulator must have regard to"," three factors. These are: the desirability of minimising the disadvantage to disabled students; the need to secure the reliability of qualifications; and the need to maintain public confidence in qualifications. These have caused concern on the ground, broadly, that they subordinate the needs of disabled students to the goal of maintaining public confidence in qualifications. The amendments seek to address that concern. Let me say straight away that I am grateful to the Government for tabling Amendment 106B which changes in paragraph (a) the "desirability of minimising" the disadvantage to disabled students to the "need to minimise" that disadvantage. Concern had been expressed that the language of the Bill gave rise to the impression that, whereas it was "necessary" to secure the reliability of qualifications and to maintain public confidence in them, it was only "desirable" to minimise the disadvantage to disabled students. I have had constructive discussions with the Bill team, Ofqual and Iain Wright MP, the Minister in the other place with responsibility for this area of policy. I am grateful that they have responded so positively to my suggestion that they should put the three factors in Clause 96(8) on an equal footing whereby it is necessary for the regulator to have regard to them. In particular, I have had positive discussions with Kathleen Tattersall, the chair of Ofqual, who made it clear that Ofqual sees ensuring that the need for disabled students’ qualifications to be fully accessible as being at the heart of its concern—more or less irrespective of the precise wording of the statute. However, that is no reason not to get the wording as right as we can. At the risk of appearing to look a gift horse in the mouth, which I certainly do not want to do, I am afraid that disability organisations, particularly Skill and the National Deaf Children’s Society, have told me that they are still very unhappy that the wording of the paragraph, even with the government amendment, does not give disabled students the assurance or the protection they need. The problem is that they feel that their fingers were badly burnt by the experience of 2005. A lot of work will be necessary to rebuild trust. For that reason, I very much hope that the Government will give serious consideration to the further changes that those organisations seek. Before I mention the charities’ specific concerns, I shall explain Amendment 106AA. It would change the obligation in Clause 96(8) for the regulator to "have regard" to the three factors to an obligation for the regulator to "have due regard" to them. That would align this provision with the wording of the integrated public sector equality duty, which incorporates the current disability equality duty. The EHRC believes that this would strengthen and clarify the regulator’s duty under Clause 96(8), not least because case law already supports and interprets the meaning of "due regard". Beyond that, the charities’ concerns are twofold. First, they are concerned that the need to which the regulator should have due regard in paragraph (a), even with the Government’s amendment, will only minimise the disadvantage to disabled students. That seems to accept that disabled students must suffer some disadvantage. The aim should surely be to avoid any disadvantage altogether. Hence, I have tabled Amendment 106AB, which proposes the need to, ""avoid any substantial disadvantage to disabled students"," and follows the language of "substantial disadvantage" used throughout the Bill in relation to reasonable adjustments. Secondly, and most importantly, the organisations are worried about the reiteration of the public confidence objective in paragraph (c)—hence, I have tabled Amendment 106C, which would delete that paragraph. Why reiterate the objective of maintaining public confidence in qualifications specifically in the context of making reasonable adjustments for disabled students? Does this not have the negative implication that making reasonable adjustments for disabled students may somehow undermine public confidence in the qualifications conferred on them and on students generally? Does it not smack of the very mindset which was betrayed in 2005 when the regulator withdrew support on the ground that providing extra time for students who had physical difficulty with reading the exam paper or writing their answers, or an interpreter for a deaf student in oral exams, would be unfair to people who did not need this kind of support? At the very least, does it not appear to collude with such ill-informed assumptions? This is what organisations such as NDCS are worried about, and you can see their point. You can especially see their point when it is not even necessary. What does the objective of maintaining public confidence in a qualification add to the objective of securing its reliability? If, in the language of the Bill—this is paragraph (b)—you have secured that a qualification gives a reliable indication of the knowledge, skills and understanding of the person upon whom it is conferred, what more do you need to do to maintain public confidence in the qualification—unless, of course, it is to make sure that it is not undermined by making reasonable adjustments for disabled students? Ofqual already has the objective of maintaining public confidence in qualifications as one of its governing objectives in the legal framework establishing it—the Apprenticeships, Skills, Children and Learning Act, passed last year. It is hard to see why it should be reiterated here in the context of making reasonable adjustments for disabled students unless it is to counter the suggestion that making such adjustments is somehow incompatible with the objective of ensuring public confidence in qualifications. It would be better and would cause less anxiety and heart-searching all round if it was simply removed from the Bill at this point. After all, the Bill is about ensuring equality and not about the governing objectives of a body such as Ofqual. I understand that Ofqual would not have any difficulties with the amendments.