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Lord Campbell of Alloway: My Lords, perhaps the House will allow me to make a short intervention. I introduced the Private Member's Bill which was concerned with the amendments of the 1991 Act in the context of special educational needs. It was withdrawn on Report at the request of my noble friend Lady Blatch and subsumed in the 1996 Act. As it stands, this

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clause derogates from the spirit of the Private Member's Bill and from what was put into the 1996 Act.

From a practical point of view, as a lawyer who was concerned, as I was then, in many such cases, I can tell your Lordships that very often the best interests of the child are in conflict with the evidence given as to the wishes of parents or as to the provision of efficient education for other children. It is idle to pretend that that is not the case. In effect, that is what this draft asserts, and it is an inhumane nonsense.

Perhaps your Lordships will forgive me, but I have been involved in three other Bills in the Chamber and could not attend to this one. However, my noble friend Lady Blatch will tell the House that I took up this point with her at the outset. It stands out immediately as one of the most important defects in the Bill.

One has only to think of the position in which one found oneself when dealing with these cases in practice at the Bar. The LEA must consider the evidence of the experts--the educational psychologists and educational "this and that". If reports are produced which support A and B but a report from an expert states that certain recommendations are not in the interests of the child, that puts the local education authority in an impossible position and it also puts the courts in an impossible position because of the Children Act. The whole thing is an errant nonsense. I beg the Government to attend to this matter and to do the right thing by the children.

Baroness Sharp of Guildford: My Lords, my name has already been used in support of this amendment but it has been noted that it has not been added to the list of those who support the amendment. In Committee I argued strongly that we should include an extra caveat in Clause 1(3)(b). Having read the Bill, and taking what I consider to be a commonsense view of it, it seemed to me that the issue at the centre of this matter--that of inclusion--required that the best interests of the child should be considered.

After I had spoken out so clearly in Committee, I was somewhat disconcerted to discover that that was not the view of the consortium. Indeed, the consortium lobbied hard and put it to me that the phrase "the best interests of the child" had been abused by local education authorities, which pushed children into education that was not suitable for them.

I listened to what they had to say. Nevertheless, I returned on Report and argued that we should support the concept of "the best interests of the child". On that occasion I put forward three arguments. First, I said that I was, as the noble Lord, Lord Campbell of Alloway, mentioned, concerned that the two caveats that were included could be diametrically opposed. I said that we needed what one might call an "intermediating" caveat and that "the best interests of the child" was the appropriate one.

Secondly, I argued--here I picked up the argument of the noble Lord, Lord Baker; I was, and still am, in agreement with him--that we do not believe that

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sufficient resources are being put into financing special needs in schools. Therefore, if resources were insufficient, it was again necessary for the best interests of the child to be considered.

Lastly, I was worried by the issues raised by the noble Lord, Lord Northbourne, in relation to vulnerable children, many of whom would perhaps benefit from a special education. If there were to be a presumption in favour of mainstream schools, such children would be overwhelmed in those schools.

Yes, we have shifted our position, and there are three reasons why we have done so. First, we have received assurances from the Minister, which I hope she will repeat today, that the agenda behind these subsections is not to shut down special schools and special support units for those who need them. The interests of vulnerable children, referred to by the noble Lord, Lord Northbourne, are best served by a more sheltered educational environment.

Secondly, from the discussions that I have had with lawyers, I understand that this Bill is overridden by the Children Act and by Schedule 27 to the Education Act 1996, which deals with the statementing process and puts the best interests of the child at the forefront. Therefore, it is unnecessary for the issue of the best interests of the child to be included on the face of this Bill because--

Lord Campbell of Alloway: My Lords, I should be obliged if the noble Baroness would give way for a moment. Yes, technically it is overridden. But cannot the noble Baroness see that a conflict arises and that that conflict creates a practical problem to which I rather ineffectively sought to refer? That is the difficulty.

Baroness Sharp of Guildford: My Lords, the advice that I have received is that there is no conflict. As I said, this Bill is overridden. We should also take into account the fact that this issue is overridden by the implications for the interests of the child as set out in the European Convention on Human Rights. Given the weight of legislation which points in this direction, from a totally practical point of view I still find it somewhat illogical that we cannot have the issue set out on the face of the Bill. However--this brings me to the final, and, so far as I am concerned, clinching, point--the advice that I have been given from the consortium and from the disabilities lobby is that this clause has been used as a let-out time and again by local education authorities and has been abused--

Baroness Blatch: My Lords, I am grateful to the noble Baroness for giving way. Does she agree that some parts of the disability sector, particularly the RNIB, have supported quite strongly, and have appealed to us all to support so far as possible this afternoon, the best interests of the child and have urged us to ensure that that is included on the face of the Bill?

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Baroness Sharp of Guildford: My Lords, I agree that the RNIB is anxious that we support this amendment. However, that is not the case in respect of other parts of the disability lobby.

A considerable majority of those who were consulted in the consultation process that the Government undertook felt that the "needs of the child" caveat should be dropped. I cannot say that the decision to shift our ground has been easy because there are strong arguments on both sides that have to be balanced. The balance that we reached is that we are not going to support the amendment because the Government have given appropriate assurances--the relevant provision is already in place to ensure that the best interests of the child will be taken account of; that will be the paramount consideration when decisions are taken. There is not an unwritten agenda in the provisions to get rid of special schools.

4 p.m.

Lord Marsh: My Lords, I had intended not to take part in this debate but I sat through the first part of it. I will not comment on the merits of the case because I have insufficient knowledge of it but I am bound to say that having spent 20 years in this place, I have never heard such a total recantation from a Front Bench spokesman in relation to an issue as important as this between Committee stage and Third Reading. Frankly, the complete change of view is bewildering.

Lord Baker of Dorking: My Lords, I thank the noble Lord, Lord Northbourne, for tabling the amendment and congratulate him on moving it so eloquently. I also thank the Minister for the letter that she sent me after the Bill's Report stage. Her letter dealt with some of the anxieties that I had raised in Committee and on Report.

I wish that I could be as grateful to the Liberal party. Few noble Lords spoke more eloquently in Committee about the best interests of the child than the noble Baroness, Lady Sharp. On Report, she surpassed herself and spoke with even greater eloquence about the best interests of the child. Why this sudden change? She said that she met some lobbyists who said that the proposal would be a major source of abuse and that if the amendment were agreed to, local education authorities would resist inclusion in schools. What evidence does she have to support that claim? I was a Member of Parliament for 30 years and in all of the cases involving special educational needs that I dealt with, the situation was always the other way round. Parents used to come to me and say, "I have not got my child into a special school". I did not come across one case in more than 30 years in the three constituencies that I represented in which the situation was the other way round; parents did not ask, "Could I please have my child sent to a mainstream school?".

I do not know what evidence persuaded the noble Baroness or how many cases she came across that convinced her that a major area of abuse was involved. I can only echo the words of the noble Lord, Lord Marsh. The House inevitably has the impression that the Government have whistled and that the Liberals

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have come to heel. We expected them to support this amendment on Third Reading. Was not it Lloyd George who referred to a person who had sat for so long on the fence that the iron had entered the soul? Such leadership on the part of the Liberal party is simply dither and wither. The noble Baroness has not shifted her position slightly; she has totally reversed it.

I want to explain why it is important to agree to the amendment. Those of us who raised this matter in Committee and on Report are particularly concerned about seriously disabled children; that is, those who, in the jargon, suffer from low-incidence disability. That refers to those who are hard of hearing to the extent of being deaf, those who are visually impaired to the extent of being blind, those who suffer from congenital diseases such as cerebral palsy or Asperger's syndrome and those who are very severely physically disabled. By any standard, those children need special education of one sort or another. In Committee and on Report, I set out the degree of support that such children need. It involves very expensive education. Those children tend to be statemented--nearly all of them are--and about half of them are provided for by special schools. It is the other half--those who are provided for by LEAs--with whom we are concerned.

I am not against inclusion so long as LEAs provide the support and help that those children need. Some LEAs can provide that, but I say to the Minister that there is a mass of evidence to show that many do not do so. She knows that that is the case. I suspect that the Minister will resist that consideration on two grounds. First, she will say that it is unnecessary to include in the Bill the phrase,


    "the best interests of the child".

She is nodding, so I anticipate that that will be one of her arguments. She will point to the code, which is infused with the phrase. In that case, why cannot it be in the Bill? Page after page of the code is about the best interests of the child. However, the code is only a code, and it does not have a statutory obligation attached to it. Our approach--we have argued this before--is to give a statutory entitlement to the parents of a severely disabled child to take into account the best interests of that child. I cannot see why the Minister does not want to agree to the amendment. I hope that she will jump up and say, "Of course I accept the proposal", but I doubt whether she will. Her failure to do so conflicts with the rest of her policy.

We must secure a statutory obligation in the Bill to support the code. The Minister knows perfectly well that a code is only a code and that LEAs are expected to observe it. If they fail to do so, there is an elaborate procedure--it amounts to a great palaver--which eventually involves complaining to the Secretary of State. Most parents of disabled children would not want to take that on. The amendment would be an added protection to severely disabled children and their parents.

The second argument that the Minister will use is that used by the noble Baroness, Lady Sharp; namely, that abuse of the Bill will be involved. I do not think that that will happen. The procedures that the Minister

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will set up under the code, which has no statutory significance, will give parents the right to appeal and complain and to go to a "newer" person--an IPS or parental support adviser.

I fail to understand why the Minister cannot agree to the amendment. It is clear to many people in the disability lobby that it contains a necessary right that all children should have. I hope that we shall win today and that the Government will have a change of heart in this regard. I fail to see why they object to the proposal. The Minister knows as well as I do that we share the same interests; we both want to secure the best interests of the child. However, we want the amendment to be added to the Bill.


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