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Lord Baker of Dorking: I have misgivings about these amendments, so I find myself in support of the noble Baroness, Lady Blatch. I suspect that she is speaking on behalf of the Government in opposing the amendments, because the Government have already gone a considerable way by removing the condition concerning public expenditure. I should also declare an interest: as the Committee probably knows, I am

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President of the Royal London Society for the Blind, which maintains one of our country's leading blind specialist schools.

The problem here has been correctly identified by the Government in paragraph 46 of the Notes on Clauses, to which the noble Baroness, Lady Sharp, referred. The Government are most concerned about those pupils who present severe challenging behaviour, because they have the greatest power to disrupt the classroom, which is the real problem. A child who has quite severe physical disabilities, who is visually impaired, deaf or partially deaf, will not be targeted by that exclusion. The problems of those children can be met, provided the resources are there. It is much more difficult to deal with the problems of the emotionally disturbed child who can engage spontaneously in disruptive behaviour and disturb the class. That is what the Government are getting at. The teachers or the LEA should have discretion and judgment left to them. Anybody concerned with the administration of the education system would take that view.

We have had a brief from the National Union of Teachers. In the past I have not often agreed with everything--or indeed, with anything--that the NUT has said. However, while the NUT welcomes the thrust of the Bill, which is inclusive, the brief makes it clear that the professional judgment of teachers has to be taken into account when deciding whether educating a particular child in a mainstream school would be incompatible with the provision of efficient education for other children. That is probably right and it would be imprudent for the Committee to support the amendments.

Baroness Darcy de Knayth: I should like to comment briefly. I understand the point of the noble Baroness, Lady Blatch and the noble Lord, Lord Baker, that the other children need to be protected, but how do we protect the needs of children with special educational needs who are unjustifiably being excluded? Or is this just an excuse? The Minister well knows that an attempt was made to sort the problem out in the School Standards and Framework Act 1998. We went to see the Minister, Charles Clarke, who wrote to the local authorities about the issue. We are constantly trying to safeguard the interests of the children who are unjustifiably excluded. I hope that the Minister will be able to produce some positive answer even if she does not feel able to accept the amendment.

4 p.m.

Baroness Blackstone: We have rather an interesting situation on these amendments, because everyone on this side of the room has spoken in favour of them, along with Liberal Democrats, and everyone on the other side has spoken against them. Members of the Committee will not be surprised that on this occasion I am going to take the other side's position. I am grateful for their support.

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Amendments Nos. 1 and 13 are, in essence, driving at the same point, although they do so in slightly different ways. Both try to secure an absolute right to a mainstream place for children with special educational needs, if that is what parents want.

In discussing Clause 1, it is important to recall the thinking behind the existing Section 316 of the 1996 Education Act. That provision was designed to enhance inclusion and to act as a positive force for inclusion. However, I accept that that section has all too often been used to prevent children who could benefit from being educated in a mainstream school being placed in one. Section 316 has unfortunately taken on a somewhat negative stance, which is why this Bill seeks to strengthen the right to a mainstream place for children with special educational needs.

The Government have always taken a pragmatic approach to inclusion and, frankly, we shall go on doing so. This is in order to ensure that the interests of all children are safeguarded. We simply must guarantee that inclusion is always based on a sound foundation, but I really do not think that a dogmatic approach would work. It would alienate parents and teachers and, even worse, it could end up sacrificing the interests of all children.

Amendments Nos. 1 and 13 would secure an absolute right to a mainstream place where this is what parents want. That would mean that no consideration whatever could be given to the impact that a child's inclusion would have on the learning and indeed, from time to time, the safety of others. Even some radical supporters of inclusion accept that it is not always right to place a child in a mainstream school, because of the danger that they may present, not only to others but also to themselves. We believe that the impact on the learning of others must be considered.

For inclusion to work, there must be confidence that pupils' needs can be provided for appropriately in the mainstream, without a detrimental effect on other children. An absolute right, dependent on parental choice, could jeopardise that. It could lead to a headlong dash towards total inclusion that would undoubtedly undo much of what has been achieved up to now, through hard work and commitment. The Government want an inclusive education service to offer excellence and to offer choice, but one size does not fit all and some children need the support that special schools provide.

Perhaps I may pick up what the noble Lord, Lord Baker of Dorking, said, in mentioning the briefing from the NUT. We must not ignore the concerns of teachers. After all, it is the teachers who must take up the challenge that inclusion presents. I am pleased to say that they support inclusion and want to make it work, but they know that inclusion can sometimes be far from easy. Like us, they believe that inclusion would not work if it were to jeopardise the interests of all children because of a doctrinaire position.

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When we consulted on the Bill last year, we deliberately sought the views of children too. Some children who have statements told us that they would have preferred to attend a mainstream school, but not if that had set them up to fail. Others felt strongly that special schools were needed.

I should like to reassure the noble Baronesses, Lady Sharp and Lady Darcy de Knayth, and my noble friends Lord Ashley and Lord Morris, as well as the noble Lord, Lord Rix, that we shall use the guidance that will back up the new inclusion framework to which schools and LEAs have to have regard, to underline that a mainstream place should be refused only in a very small minority of cases. Maintained schools and LEAs will only be able to argue that a child's inclusion would be incompatible with the efficient education of others if they can also show that there are no reasonable steps they can take to prevent their inclusion from having that effect. They will have to demonstrate clear evidence as to why that could not be done. The guidance will ensure that schools and LEAs cannot abuse the inclusion framework and close their doors to pupils who would benefit from a mainstream place.

In seeking to reassure the Committee that we shall not allow the inclusion framework to be abused, it is worth spending a few moments looking at the type of pupils for whom we believe inclusion may not be appropriate. In doing that, I hope I answer the point raised by the noble Baroness, Lady Sharp. We believe that where it can be clearly demonstrated that a child's behaviour is so challenging that the safety of other children cannot be guaranteed, a mainstream place should not be provided. Also, where a child's behaviour significantly disrupts the learning of others, his inclusion would be incompatible with the efficient education of others. I am not talking here about children who have an occasional temper tantrum or outburst. Rather I am focusing on pupils who persistently and systematically disrupt the learning of other children.

Where a child has been abused and is himself an abuser, again his presence in a mainstream school would, in our view, place other children at an unacceptable risk. The only way that other children could be protected would be for that child to be chaperoned continuously. That is not inclusion. I hope that Members of the Committee agree that it is unlikely to be in anyone's interest.

Where a child's inclusion would mean, even with other support, that the teacher had to spend a greatly disproportionate amount of time with the child in relation to the rest of the class, it would be possible to demonstrate that the efficient education of others could not be safeguarded.

I remind the Committee that our proposals received broad support when we consulted on them last year when 60 per cent of those who responded on inclusion felt that we had the balance right between promoting it and safeguarding the interests of all children.

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Our plans are also very much in line with the Disability Rights Task Force's recommendation in its report which stated that,

    "in reviewing the statutory framework for inclusion, the Government should strengthen the rights of parents of children with statements of SEN to a mainstream placement, unless they want a special school and a mainstream school would not meet the needs of the child".

Our proposal to strengthen the right to a mainstream place for children with statements represents a significant step forward. We believe that we are striking the right balance.

I now turn to Amendment No. 14 and respond to what my noble friend Lord Ashley of Stoke said. The amendment seeks to alter the qualification of the second caveat: rather than the test of securing a mainstream place being that it would not be compatible with the "efficient education for other children", the test to secure a mainstream place would be that inclusion would not be compatible with the "efficient education of all children". It is my belief that such an amendment would result in fewer children with statements of special educational needs securing a place in a mainstream school, not more, as I believe the noble Baroness, Lady Darcy de Knayth, has recognised. It would end up being an anti-inclusion, not a pro-inclusion, provision.

The Government are clear that the "efficient education of other children" caveat is about looking sensibly at the impact of a particular child on the learning and safety of other children alongside whom he or she might be educated. It is the other children in the class, or perhaps in a year group, whose interests we are seeking to preserve. The interests of the child with SEN are protected by the SEN framework, including the other provisions of Section 316. That will be set out in our guidance and I have already given the Committee some examples of how the provisions would work in practice. If we were to use the word "all", the scope of children that it would be necessary to consider would be much wider. The result would be fewer children with statements of special educational needs in mainstream schools. I am sure of that.

Does the word "all" refer to all the children in a school, or perhaps all the children in an LEA, if we took it to the ultimate conclusion? The Government do not want a school to be able to refuse to admit a child in year seven simply because that child might at some point in his school career have a negative encounter with a child in year 12. The provision is about assessing the impact of a particular child on the learning and safety of his direct peers. It is not about assessing every possible interaction that a child might have with any other pupil at a school and using that as a reason for refusing admission to the child. I know that my noble friend Lord Ashley of Stoke wants to see more children in mainstream schools and I hope that he will accept that the present wording is more likely to achieve that aim. I agree with the noble Lord, Lord Northbourne, and with the noble Baroness, Lady Blatch. We do not always agree, but I strongly agree with her on this occasion that we need the kind of

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flexibility to which she referred. In the light of what I have said, I hope my noble friend, Lord Ashley of Stoke, will feel able to withdraw his amendment.

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