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Page 96, line 28, at end insert ("and
(m) Part IV of the Education Act 1996.").

The noble Baroness said: My Lords, this is a simple amendment which stands in my name and that of a number of other noble Lords, of whom I think the only one present is the noble Baroness, Lady Darcy de Knayth. I apologise because I had not noticed that the noble Lord, Lord Swinfen, had entered the Chamber. The amendment simply states that the provisions of Part IV of the Education Act 1996--namely, the policies on SEN--should be included in the Bill. I have a note here from the noble Lord, Lord Rix, who is unable to attend today.

Noble Lords: It is because of the semi-finals!

Baroness Thomas of Walliswood: My Lords, it is not because of the semi-finals. I think I am right in saying that the noble Lord has to attend a Mencap event. That suggestion about the semi-finals was quite malicious. The noble Lord is--as we all are--encouraged by the support of Members of your Lordships' House in seeking to raise the concerns of children with special educational needs. We received considerable encouragement from the Minister in her responses on the previous occasion we discussed this matter. The noble Lord and I hope that the Minister will be able to accept this amendment, or at any rate the spirit of it. As regards the code of practice for securing effective relationships between LEAs and maintained schools, the amendment would include the functions of an LEA with respect to children with special needs. I beg to move.

Baroness Blackstone: My Lords--

Lord Swinfen: My Lords, I apologise to the Minister. I know that the noble Baroness, Lady Darcy de Knayth, wants to speak. I thought she might wish to speak before I did. This amendment is extremely important. As we have heard during discussion on this Bill, 20 per cent. of pupils have special educational needs. That represents six pupils out of a class of 30. It is just as important that their needs are properly catered for as it is for those who do not have special educational needs. I refer even to those without statutory assessment.

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On the previous occasion we discussed this matter, the noble Lord, Lord McIntosh of Haringey, suggested that this matter was covered by the SEN code of practice. As I understand it, that is a different matter altogether. It does not cover co-operation between schools and local education authorities, but the working of the special educational needs assessment. I could speak for a long time on this matter but I shall not do so because of the lateness of the hour. As I said, this amendment, which has been moved by the noble Baroness, Lady Thomas, is extremely important. If the Government will not accept it, I hope that they will bring forward their own amendment in exactly the same vein at a later stage.

Baroness Darcy de Knayth: My Lords, I am sorry for the hiccup as regards the order of speaking, but I know that the noble Lord, Lord Swinfen, knows a great deal more about the measure than I do as he spoke to it on the previous occasion. I give my warm and extremely brief support to the amendment. It is important that schools should be clear from the start about how they will work with LEAs on SEN matters, rather than for that to be incorporated at a later stage.

On 16th June in Committee, the noble Lord, Lord McIntosh acknowledged (col. 1456) the important part that SEN played in the role of LEAs and said he recognised the need to get the arrangements absolutely right. Furthermore, he said that the list in subsection (6) is not intended to be exhaustive. It is therefore already open to us to include SEN issues in the code of practice in whatever ways are considered most appropriate. I hope that on reflection the Minister may be persuaded, like the Special Education Consortium, that the most appropriate way is to list the special educational needs code of practice in subsection (6).

Baroness Blackstone: My Lords, the House will recall that when the noble Baroness, Lady Thomas, tabled this amendment at Committee stage we made clear our intention that the code of practice should take account of the relationship between LEAs and special schools and the provision that mainstream schools make for children with special needs. That is still the case. However, we are still not convinced that the amendment is necessary or helpful.

The duty we are giving local education authorities to promote high standards applies to all children. We have made a number of changes, in response to concerns raised in this House, to make that explicit on the face of the Bill. In particular, we have amended Clause 6 to ensure that the requirements for educational development plans include an express reference to special educational needs. That means, in practice, that all LEAs will be required to have regard to SEN issues when planning action with a view to supporting the raising of standards in their schools.

I am advised that all the other provisions referred to in the list of relevant functions in Clause 125 implicitly cover special schools and pupils with special needs being educated in mainstream schools. Amendment No. 197 would not therefore add anything to the existing requirement for the Secretary of State to include appropriate guidance in the code on these issues.

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There are also a number of difficulties with the proposed amendment, which could possibly result in the opposite of what the noble Lords are hoping to achieve. Much of Part IV of the 1996 Education Act relates to the responsibilities of LEAs in relation to pupils with special needs. These are either irrelevant--for example, some deal with the establishment of the SEN tribunal--or they deal with processes relating to individual pupils that are already covered by the SEN code of practice. We think that it is important to avoid confusion between the two codes. But there is a real risk of that happening if they cover the same ground.

I know that the noble Lords are seeking an assurance that special educational needs issues will not be overlooked. I repeat that assurance now. The code of practice will include appropriate references to SEN issues. Our present intention is to include some practical examples of SEN issues in the revised version of the code. But I should also emphasise that the main purpose of the code is to provide guidance on the relationship between LEAs and schools generally. Given the largely warm reception for the first draft of the code, we would want to avoid making any revisions which would change the overall balance or tone of the document.

We shall, however, be having further consultation with the relevant parties--including special educational needs organisations--on the detail to ensure that we get this important element of the code right. I should welcome any further input that noble Lords would like to make when we are revising the text of the code.

In the circumstances, I hope that the noble Baroness will be able to withdraw her amendment.

Baroness Thomas of Walliswood: My Lords, I thank the Minister for that reply. We discussed this matter at some length at an earlier stage of the Bill. I should have been more reassured if the Minister had said that the code would do more than merely take account of the special educational needs policies of local education authorities and if it had gone further to include those policies. There is a special relationship which needs to be developed between LEAs and schools on this subject owing to the new balance of responsibilities that the Bill brings into the relationship between LEAs and schools and the difference that makes with the downloading of budgets in their entirety to local schools. However, I know that the noble Baroness and her fellow Ministers have to a large extent taken on board the things which I and many other people have said with regard to special educational needs. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness David moved Amendment No. 197A:

After Clause 125, insert the following new clause--

Consideration to be given to views of pupils

(" . The governing bodies of schools and local education authorities shall use their best endeavours to secure that--
(a) due consideration is given to the views of pupils on any matter relating to the school or their education which

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affects them, having regard to the pupils' age and understanding, and
(b) where reasonable, steps are taken to ascertain these views.").

The noble Baroness said: I come back to a theme I have tried to push on various occasions in the course of the Bill; it is that the views of pupils should be considered. The amendment places schools and LEAs under a duty to consider the views of pupils. The new clause seeks to bring the education system in line with the UN Convention on the Rights of the Child, with other European countries' education legislation, and with the other professional sectors dealing with children--social services, health and judicial.

The new clause does not require schools or LEAs to act on the child's wishes, even when a child has a fully mature understanding of the issue in hand. It does not require teachers to ask every pupil what his or her views are on every matter. It is not a dirigiste provision; quite the reverse. It is extremely mild and discretionary in its formulation. It is therefore extremely unlikely to be the subject of litigation, despite the Angst of the noble Lord, Lord Pilkington. The noble Lord is not in his place, but he had criticisms earlier. As the noble Lord, Lord McIntosh, admitted in Committee, it represents current good practice. It already happens in good schools, but not, unfortunately, in poor schools.

When the Committee on the UN Convention on the Rights of the Child considered the UK's progress in 1995, it regretted that the child's rights under Article 12 were not recognised within the education system. Article 12(1) provides:

    "States Parties shall assure to the child who is capable of forming his or her own views the right to express those views in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child".

During the passage of the 1993 Education Act, Allan Levy, QC, gave an Opinion which advised that UK education law was in breach of Article 12. The Committee's recommendation to the UK was that,

    "procedures be introduced to ensure that children are provided with the opportunity to express their views on the running of the schools in matters of concern to them".

The Government are due to provide the Committee with their second report at the end of this year. The Bill therefore represents the last chance for the Government to remedy the failure of the previous government to implement Article 12 in the education system. I hope that, in replying, the Minister--I believe it will be my noble friend Lord McIntosh--will give me some thoughts about what the Government intend to do with regard to the UN convention.

Those who work in social services have since 1975 been obliged by law to ascertain, and give due consideration to, the views of children in their care. The 1989 Children Act places the civil courts under equivalent duties. Health practice and health law, such as the landmark Gillick case in 1984, ensure that health professionals take account of children's views. The education system is the only professional service for children which does not recognise that children, as well as parents, are the consumers.

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Many European countries have mandatory pupil councils in schools. Some--for example, Spain--have legislation requiring teachers to take pupils' views into account. Some--for example, France--have pupil participation built into every stage of education administration, including the Ministry of Education in Paris. Some--for example, Poland--have education ombudsmen to protect pupils. The UK is lagging a long way behind but, on the other hand, has the reassurance that the sky does not fall if pupils are recognised as partners, not subjects, in the education system.

Those are powerful arguments. I hope that the Minister is impressed by them and will give a sympathetic response. I beg to move.

10.15 p.m.

Baroness Maddock: My Lords, perhaps I may say how much I support the words of the noble Baroness, Lady David. As she pointed out, we must recognise the importance of taking children's views into account.

We often complain when children and young people are obstructive in society. This is one of the ways of enabling them to understand what it is to take part in a community, the discipline of that community and the way in which the community lives and runs. It is ridiculous for people to be frightened of this, as the noble Baroness stated. My experience of involving young people is that it always brings out the best in them. That is true not only of young people, but of all people in society. As a nation, we are far too frightened of involving the public and young people in our decisions.

I give the amendment my wholehearted support and, if the Government will not accept it, I hope that they will at least come forward with a recognition of the valid case the noble Baroness made to us tonight.

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