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Lord McIntosh of Haringey: The noble Baroness, Lady Buscombe, is of course quite right that there is a difference between, for example, tax legislation--the Finance Bill--which undoubtedly imposes financial burdens on some people, and regulatory reform orders whose whole raison d'etre is otherwise.

Baroness Buscombe: I believe that the Minister can see where I am coming from. This amendment was tabled purely for the purpose of probing and the need to question how we intend to review the workings of the order. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Lord Burlison: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

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23 Jan 2001 : Column 1

Official Report of the Grand Committee on the

Special Educational Needs and Disability Bill

Tuesday, 23rd January 2001.

The Committee met at half past three of the clock.

[The Deputy Chairman of Committees (Viscount Allenby of Megiddo) in the Chair.]

The Deputy Chairman of Committees (Viscount Allenby of Megiddo): Before I put the Question that the Title be postponed, it may be helpful to remind your Lordships of the procedure for today's Committee stage. Except in one important respect, our proceedings will be exactly as in a normal Committee of the Whole House. We shall go through the Bill clause by clause; noble Lords will speak standing; all noble Lords are free to attend and participate; and the proceedings will be recorded in Hansard. The one difference is that the House has agreed that there shall be no Divisions in the Grand Committee. Any issue on which agreement cannot be reached should be considered again at the Report stage when, if necessary, a Division may be called. Unless, therefore, an amendment is likely to be agreed to, it should be withdrawn.

I should explain what will happen if there is a Division in the Chamber while we are sitting. The Committee will adjourn as soon as the Division Bells are rung and will resume after 10 minutes.

Finally, I should inform the Committee that, to enable the noble Lord, Lord Ashley of Stoke, to participate, his personal transcriber will sit beside him for the duration of proceedings on this Bill. I hope that is acceptable to the Committee.

Title postponed.

Clause 1 [Education in mainstream schools of children with special educational needs]:

Lord Ashley of Stoke moved Amendment No. 1:

    Before Clause 1, insert the following new clause--

(" .--(1) Section 316 of the Education Act 1966 ("the 1996 Act"), is amended as follows.
(2) In subsection (1), leave out "if the conditions mentioned in subsection (2) are satisfied".
(3) Leave out subsection (2).").

The noble Lord said: In the absence of the noble Lord, Lord Beaumont of Whitley, I shall move Amendment No. 1, and speak also to Amendments Nos. 13 and 14, which are linked together. The objective of the Bill is to provide mainstream education for all children, wherever possible. These amendments seek to block the loopholes and to prevent any abuse of the legislation.

23 Jan 2001 : Column 2

We all know that some local education authorities abuse the provision for "efficient" education of other children and they have utilised that to exclude disabled children and SEN children from mainstream schooling. That is a very easy loophole for those local education authorities which are either ignorant or prejudiced, or those who want to avoid making special provision for these children. That attitude is very damaging to children with special educational needs and, apart from the actual exclusion, the potential for unfair exclusion hangs over parents and children. That simply cannot be right.

It is ironic that a Bill which seeks to end discrimination itself discriminates against children with SEN. In other words, it favours "other" children and excludes the child with SEN, which simply cannot be right.

The phrasing discriminates against SEN children in the sense that it implies that children with SEN are disruptive--which, of course, is absolute nonsense. It creates an unfortunate atmosphere. Rare cases hit the headlines of children making a nuisance of themselves, but they are rare and other remedies exist.

When the Minister replies, will she comment on the fact that there are non-SEN children who are unruly, abusive, bullying and arrogant? They are far more likely to be disruptive in the classroom than any number of children with SEN. What provision are the Government making to deal with them?

I recognise that the Government may claim that Clauses 5, 6, 7 and 8 prevent misuse and abuse. I am not really impressed by that. Let us take Clause 8 as an example. The authority only has to "have regard to guidance". Those authorities I have in mind will simply brush aside guidance. If there is no instruction, the guidance will not interest them at all. If they simply have good guidance they will say that they have had regard to that provision, but, after considering it, decided to ignore it. If the Government want this provision, they have to demonstrate that it is needed. I suspect they cannot.

Amendment No. 14 would leave out the word "other" and insert the word "or". It would be incredible if the Minister objected to Amendment No. 13, which is very reasonable, but if she is uncharacteristically unreasonable and does not accept it, Amendment No. 14 is a last-ditch fallback. I believe it is wrong to elevate "other" children above those with SEN. It is remarkable discrimination and it is totally unacceptable. The least we can do is to write on the face of the Bill that the efficient education of all children is the aim. Anything less is laughable.

I do not want my noble friend the Minister to think I prefer Amendment No. 14. I would prefer Amendment No. 13, but I tossed in Amendment No. 14 to show how reasonable I always am. I beg to move.

Baroness Sharp of Guildford: I wish to support the noble Lord, Lord Ashley, in proposing Amendments Nos. 13 and 14, partly because my Amendment No. 7 includes elements of Amendments Nos. 13 and 14.

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I wish to make it quite clear that from the Liberal Democrat Benches we have very great support for the Government's interest in the inclusion agenda. We feel there is now sufficient evidence to show that, where children with special needs and disabilities are included in mainstream schooling, it is to their advantage and to the advantage of the children in the mainstream schools. Where this can be achieved, we would very much like to see it.

There is a great deal of concern in the special educational needs community that the use of the words,

    "the provision of efficient education for other children"

in the Bill might be a caveat that could be used as a general excuse for exclusion. I put forward my amendment and support the amendment of the noble Lord, Lord Ashley, because it is important for us to have a clear view of what is meant and what the parameters are.

Various cases have been quoted, including the famous case of Nicky Crane, who was excluded from a mainstream school because he needed to have support in his classes. There are enough cases for us to be concerned that the provision is not used as a general excuse for excluding children who have special needs that may not conform to what the majority see as normal behaviour.

The Government have, to some extent, provided a definition of the caveat in the Explanatory Notes. They say that an LEA does not have to provide a mainstream place where parents do not want one. In practice, incompatibility with the efficient education of others is likely to be where pupils present severe challenging behaviour that would significantly disrupt the learning of other pupils or place their safety at risk.

That seems a fair enough definition. It clearly puts a lot of emphasis on those with emotional and behavioural difficulties. However, although that will be included in the code of practice, would it not be better to have it on the face of the Bill? How far do the Government see it as a definition of what is incompatible with the education of others? Could it not be taken further in this rather more specific definition that we see incorporated in the Explanatory Notes? It will, as I understand it, be in the code of practice.

I should like to take a little of the Committee's time to explain further the views from these Benches of the specific roles of special schools and mainstream education. My amendment, Amendment No. 7, talks about being in the best interests of the child. All of us recognise that there is a place both for special schools and for mainstream education. As I have made clear, the preference from these Benches is to have children included in mainstream education whenever possible.

However, these two roles are seen as being complementary to each other. In particular, we should like to see the role of special schools develop so that they become sources and centres of expertise for the system as a whole. An example that has been quoted is that of Abbot's Lea special school in Liverpool, which

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has operated an inclusion programme with the Speke mainstream school since 1991. The two schools operate parallel timetabling; the students wear the same uniform; and one member of Abbot's Lea special school is permanently on site at Speke to offer support. The mainstream school has allocated a room as a permanent autism resource base for autistic children. In 1999, 11 children were attending Speke for between 10 and 75 per cent of their time. Examples of their successes include a girl with autism who now attends her local comprehensive, after being able to prove that she is ready to return to mainstream education on a full time basis through her success at Speke. Another former pupil attends Liverpool University, and another full time mainstream further education college.

This is precisely the way in which we should like special schools to be integrated into the system of education. It is very much the vision that we have of the way the system might develop. However, it is necessary to make clear at this point the role of special schools. One friend of mine, who has been involved as a governor of a special school for many years, told me that in some cases, in such special schools there are pupils who are slower learners. There is a tendency to think that those who are slower learners can easily be accommodated, with help, in the mainstream schools. Sometimes they cannot because they do in fact need the environment of the smaller schools in which to develop and expand themselves. There is now a tendency to put into these special schools those with emotional and behavioural difficulties, who are disturbed children. This has created great problems in some of these special schools, which are in effect for the slower learners rather than for those with emotional difficulties. One has to be very sensitive to this.

Finally--and we shall come on to this later--it is very important that, in addition to the two caveats that these two amendments seek to delete, we ensure that we include the caveat that the wishes of the child should be taken into account.

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