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But if that happens, the courts have jurisdiction and have exercised that jurisdiction in many cases in which I have been concerned. If the phrase appears on the face of the Bill, parents have the prerogative to take the matter to the courts. That is why we want it on the face of the Bill.
Lord Ashley of Stoke: My Lords, the noble Lord raises a fine technical legal point. Trust a barrister or solicitor to bring up such a point. In fact, when children's rights are abused, the parents are afraid of the law. They often do not go to the law and the abuse stands. It does not help to point out the fine legal definitions. The fact is that abuse takes place and it is up to us to stop it. If this amendment helps that abuse to take place, we should not accept it.
Baroness Blackstone: My Lords, I want to begin by reiterating what the noble Baroness, Lady Darcy de Knayth, and my noble friend Lord Ashley of Stoke said. I greatly admire the contribution that the noble Lord, Lord Northbourne, makes to this House generally on this kind of issue, and in particular the contribution that he has made to the passage of this Bill through this House. I hugely respect the passion and conviction with which he spoke on this amendment. However, I am afraid that I shall disappoint both him and noble Lords on the Conservative Benches.
The Government will resist this amendment. We have given a huge amount of thought to this issue. It is not a matter we have simply entered into without considering the pros and cons. It is deeply unfair of the noble Lord, Lord Lucas, to suggest that the best interests of the child can go for nothing. Of course they cannot and of course they should not; nor do they.
The whole of this Bill is about the best interests of the child and meeting them. It is about making special educational needs provision better. It is about improving the tribunal system. It is about ensuring that more resources are available in our schools for children with disabilities or special educational needs.
As was said by the noble Baronesses, Lady Sharp and Lady Darcy de Knayth, that particular caveat has been gravely abused. If we accepted the amendment, we believe that the practical impact on the ground would be that children who should and could benefit from inclusion will be prevented from gaining a mainstream place. My noble friend Lord Ashley of Stoke was absolutely right in making that clear.
Perhaps I can also say at this stage of the debate that I support my noble friend Lord Ashley in what he said on the Liberal Democrat position. It is grossly unfair when we go through debates in this House--it is a courteous institution--we listen to each other, we consider the arguments and we sometimes change our position, and then are derided for so doing. I have changed my position on a number of matters in relation to this Bill and brought forward concessions. That is how we operate in this House. It is unfortunate that a political party which changes its mind should be derided for so doing.
It is wrong to suggest that we are pursuing an aggressive inclusion policy that fails to safeguard children with SEN. Our proposals provide for both excellence and choice; they ensure that inclusion is based on sound foundations; they protect the interests of individual children with SEN and all pupils.
Perhaps I can reiterate what I have said on several earlier occasions during the passage of this Bill. Inclusion is not an agenda to close all special schools, or indeed special schools in general. We have signalled a vital and continuing role for that sector. Its overall size has remained more or less static since January 1996. It continues to take around 1.2 per cent of pupils who have special educational needs.
The needs of children who have statements are not jeopardised by dropping the first caveat of the existing Section 316. I explained on Report that it would be wrong for Section 316(3) to refer directly to the needs or best interests of the child because that could be abused. Equally, we firmly believe that safeguards exist elsewhere to protect children with statements.
Let me take one example of how the caveat has been abused. The Special Educational Consortium highlighted the case of a girl with Down's syndrome. Her inclusion at a primary school was extremely successful. But when she came to transfer to secondary school, the LEA directed her towards a special school, one which happened to be miles away. It claimed that the mainstream school could not cope with the needs of that child. The LEA did not consider what could be
Baroness Blatch: My Lords, does the noble Baroness not agree that that makes our point that the LEA did not meet the best interests of that child? At the end of the day the best interests of the child were met. If the provision was on the face of the Bill it would be unequivocal and there as a statement in support of the best interests of the child.
Baroness Blackstone: No, my Lords, I do not agree with that because the LEA sheltered behind this caveat. It took the wrong position about the best interests of the child against the primary school experience of that child and against the parents' wishes. I believe that everyone concerned now agrees that the mainstream can provide for some children's needs effectively. If the amendment were accepted, an LEA would be able to use it to argue--I return to the girl with Down's syndrome--that it was not in the best interests of the girl to attend a mainstream school because it could not cope with her. That was its claim. Not all parents are well placed to challenge such judgments. Vulnerable parents are often intimidated by professionals. That is a fact we should always bear in mind.
Our proposals require maintained schools and LEAs to justify why a child cannot be included. In future they will have to demonstrate that reasonable steps could not be taken to prevent inclusion being incompatible with the efficient education of others. When parents object to mainstream provision or want a special school place, the duty imposed by Section 316 to educate their child in the mainstream is immediately lifted. Clause 1 does not make it harder to gain a place in a special school, whether maintained or non-maintained.
I return to the position mentioned by the noble Baronesses, Lady Sharp and Lady Darcy de Knayth, of the Special Educational Consortium. The position is clear. As my noble friend Lord Ashley of Stoke stated, the SEC believes that the amendment is unnecessary. It feels that the retention of a provision similar to the existing first caveat would be open to further misuse. In Committee the Opposition were keen to highlight what the NUT had to say. Perhaps I may draw the attention of noble Lords to the NUT's briefing for Report, which stated:
Baroness Blatch: My Lords, I should be grateful if the noble Baroness could give me chapter and verse of that piece of information. I have been in touch with the RNIB only today and have been wished well in my attempts to support the noble Lord, Lord Northbourne, in getting that phrase on to the face of the Bill.
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