Why should one want to go further than this? There are six reasons. First, the code of practice, the latest draft of which was issued on 4 October, is very much watered down compared with the existing guidance. In particular, it contains many fewer of the sorts of examples and scenarios which help to bring the principle of inclusion to life for people who need guidance in how to implement it. We need something like the JCHR’s principle in the Bill as a necessary peg on which to hang stronger guidance. Secondly, the principle of inclusion continues to be the subject of considerable litigation. This suggests that the current state of the law and guidance leaves considerable scope for uncertainty. Putting the JCHR’s general principle in the Bill would help to remove this uncertainty and clarify the law and relevant guidance. Thirdly, the JCHR has recommended our amendment. Fourthly, it is in line with the obligations to which the UK has signed up under the UN convention. Fifthly, as I have said, the language of the amendment closely follows that of the UK’s own interpretive declaration, so should hardly be uncongenial to the Government.

Sixthly, there is otherwise nothing about inclusion in the Bill, notwithstanding that inclusion remains one of the central contemporary issues in special education, as I have said. The Minister will point out that Clauses 33 and 34 effectively contain rights to inclusion, but—and this is the most important point—these are rights to inclusion for the individual child. We need a general principle in the Bill in the terms of this amendment which gives local authorities an obligation to,

“continue to develop an inclusive system where parents of disabled children have increasing access to mainstream schools and staff and which have the capacity to meet the needs of disabled children”.

We need an obligation of this sort in the Bill and one which lays the obligation on local authorities to take a strategic overview of the provision in their area and plan for its strategic development in line with the principles of inclusion, and in a way which enables that principle to be progressively realised. Without this, we continue to encounter the problem of children being rejected by individual schools which do not have the facilities—because the legislation is drawn in such a way that they can do that—because the authority

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has failed to take a strategic overview and ensure that there are schools in their area which have the requisite facilities.

There is one general point. I see that people might worry that an amendment in these terms, which speaks of the progressive development of an inclusive system, with increasing access to mainstream schools, might tend to exclude the possibility of education in special schools for those who want it. That is not my intention at all. I am in favour of what I call a mixed economy of provision. There is nothing in this amendment which would take away the right of a parent to opt for a special-school placement if they want to. This is enshrined in the legislation. Under the law as it stands, which is retained in this Bill, no one can be compelled to send their child to a mainstream school who does not want to.

I will just say a word about Amendment 34A. My Amendment 16A covers the importance of developing an inclusive system in which disabled children and young people are increasingly welcomed by mainstream schools with the right skills to support them. The general presumption in favour of mainstream education is maintained in Clause 33. That is why it is disappointing that the potential for special academies to admit children with SEN without an education, health and care assessment and plan is included in Clause 34(9). The fact that academies are brought within the SEN framework by this Bill is very welcome, but the inclusion of Clause 34(9) seems oddly at variance with this approach. As I said at Grand Committee, this clause undermines a long-standing consensus that children and young people should be placed in special schools only where this has been identified as the most appropriate placement, following a statutory assessment and decision-making process which takes full account of the wishes of the parent.

Draft regulations under Clause 34 allow a child or young person to be placed in a special school without an EHC assessment and plan on an indefinite basis, provided that the placement is reviewed termly. Some parents may welcome this power because of the potential to give swifter access to a special-school place. Without a full assessment and decision-making process, however, there is a high risk of inappropriate placement. This new power to place children in special schools outside the rigour of a statutory assessment and decision-making process risks a return to a time when parents could be pushed into accepting a special-school place for their child, not because it is the best placement for them but because the mainstream school had not, for whatever reason, provided the appropriate support. In fact, it would take us back to the situation which obtained before 1999.

I support the noble Baroness, Lady Howe, in proposing that this subsection be removed and, in so doing, I beg to move Amendment 16A.

Baroness Howe of Idlicote (CB): My Lords, my amendment, which I am pleased to hear the noble Lord, Lord Low, is also supporting, is very much along the lines of the discussion we all had in Committee. Currently, as we know, any child who has special educational needs but does not have a statement must

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be educated in a mainstream school. There are no exceptions to this duty, which helps to ensure that children and young people are not inappropriately placed in special schools.

Under both the old and the new regulations, a child can attend a special school on an assessment place. Despite some sympathetic comments by the Minister in Grand Committee, the Government’s proposals will still potentially allow special academies, including free schools, to admit children or young people permanently into school without their having had their special needs statutorily assessed, or an education, health and care plan put in place for them.

Illustrative regulations accompanying Clause 34 —Regulation 2(2)—will also allow children without an EHC plan to be placed in any special school on an ongoing basis provided the situation is reviewed annually. Although the Minister stressed that the support of professional advice would be needed, I fear that not enough safeguards will be in place to stop children or young people being admitted without their needs being fully assessed and agreed by a range of professionals with the child or young person and his or her parents.

6 pm

This proposal bypasses the careful consideration of a child’s needs through an EHC assessment which brings together a range of information and advice, including parents’ views, children’s views and advice from professionals with expertise in relevant areas of SEN, including those nominated by the parent or young person. The proposal would seem to undermine the principle that mainstream schools must be enabled to make provision for all children without a statement/EHC plan and for most children with a statement/EHC plan.

Although special academies will need to make it clear through their funding agreement that a child or young person with SEN but no EHC plan should be placed there only at the request of their parents or at their own request, and with the support of professional advice such as a report from an educational psychologist, I am concerned that there will be no formal role for the local authority in this process. I fear that this proposal will make the local authority’s role of planning provision for pupils with SEN, including provision for children and young people with an EHC plan, extremely difficult.

The draft SEN code of practice confirms that an educational psychologist on their own might support the placement of a child or young person in a special academy. However, it is unlikely that an EP on their own would be happy to advise in this way; their advice would normally sit alongside advice from others who also have specialist knowledge in the relevant area of SEN.

This proposal contradicts the Government’s stated commitment to apply the SEN framework equally to maintained schools and academies. It also bypasses the decision-making process built into an EHC plan which gives parents a right to request the school at which they would like to have their child’s needs met, and a right of appeal against the decision of the local authority.

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If this proposal were enacted, there would be a danger of mainstream schools being incentivised to persuade parents that their child would be “better off” in a special school just because they did not want them in their school, and a child or young person could be moved into special education without their needs and interests being safeguarded by having an EHC plan in place. This would take us back to the situation that prevailed before the Education Act 1981 was introduced. There is also a high risk of head teachers deciding the placement of children with SEN, with parents persuaded of the benefit because otherwise their child might potentially be excluded.

Special schools admitting a child value and use all the information from an assessment and statement to assure themselves that the child has the type of need for which they are designated. However, this proposal would not ensure that this would continue. It would seem contrary to the Government’s new way of assessing, and commitment to meet, the needs of all children and young people with SEN.

There could also be a situation where special academies increasingly enrolled pupils with less complex needs, which would beg the question of where children with complex needs would go. If this provision remains, I would question the point of having mainstream places within a special school.

I fear that the proposal would result in medical labels determining whether a child would secure a place in a special academy. If a special academy has been set up for a particular type of SEN, will it result in an influx of children having been diagnosed with that condition? How can the Government ensure that a framework process is in place so that inappropriate placements do not occur?

There are also concerns about the practical impact on admissions and places. Would decisions be taken solely by schools and parents, and how would EPs’ views be protected and advocated? How would places be allocated within school-year groups? If there was parental demand, could the funding agreement be varied to allow more non-EHC plan places? The policy also begs the key question of what the aspiration would be for a child without an EHC plan in a special academy. Would there be an exit plan? Who would set the child targets and ensure that they were making adequate progress?

I understand the Government’s position, which the Minister set out in Grand Committee, that the views of the parent should be the determining factor in what school a child attends. However, there need to be stricter and clearer protocols for what steps the parents must follow in such instances to protect both them and the child or young person from the risk of receiving misinformation. Regulations should also state that, on making this decision, parents must have ready access to specialist advice that may fully explain both the potential beneficial and negative outcomes of any such decision for the child or young person. I look forward to hearing what the Minister has to say.

Baroness Warnock (CB): My Lords, I have added my name to the amendment of my noble friend Lord Low for reasons that I think are a worry for everybody

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who is concerned with Part 3 of the Bill; namely, the lack of clarity as to how children who do not get an EHC plan will be placed, and the processes by which they are placed. This must be a worry for parents with moderately disabled children as well as for people who are concerned with the clarity—as we hope—of the legislation.

I am not a wholehearted, ideological supporter of inclusion for all children. I think that special schools are enormously important, and there was a time when it looked as though we were going to have specialist special schools, beacon special schools and special schools whose expertise would flow over into mainstream schools much more readily than it does at present. Therefore, I am by no means concerned to uphold a view that would end with all children with disabilities being educated in the mainstream. In some cases, it is very difficult to ensure that children with disabilities do not interrupt or destroy the possibility of the education of other children in the school—this, of course, goes particularly for children with behavioural and emotional difficulties.

The Bill needs to be much clearer on how children will be placed within their local authority area if they do not have a plan made out especially for them—I think that that is still a matter of lack of clarity. Parents find it very difficult to make the decisions and choices that the Bill very properly emphasises, because of the difficulty of access to exactly what the ordinary, mainstream school will be able to offer their child. I know that a large number of parents want mainstream education for their children whatever their disabilities, whether they are going to get the best possible education and the best possible chances or not—it is a fixed belief that it is a right for a child to be educated in the mainstream and for parents to make that demand.

Parents who are genuinely interested in finding the right school for their child who has a disability, but may not be severely disabled or have a complex disability that speaks for itself, need the means to make a properly informed choice. That is why I like the wording of my noble friend’s amendment—although I find the grammar rather difficult—and why I strongly support it.

Baroness Wilkins (Lab): My Lords, I speak in strong support of the amendment of the noble Lord, Lord Low, which is set out so comprehensively and to which I added my name. If accepted, it will reassure those of us who are concerned that elements of Part 3 of the Bill could weaken the right of disabled children and young people with SEN to be included in mainstream education. Sadly, the noble Baroness, Lady Campbell of Surbiton, is not able to be in her place today because, like many people, she has a bad cold. But many noble Lords will have heard her give eloquent testimony of the blight that her segregated education laid on her life. It was not necessary, and it is something that has never left her.

It would be welcome if the amendment were further strengthened by extending the duty to post-16 providers, to ensure consistency for disabled learners across the educational experience. Local authorities such as Nottingham, Calderdale and Newham have used such

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duties to good effect. They have provided specialist support services and training for mainstream schools so that those schools are confident in implementing inclusive educational practice. This has increased the number of disabled children and young people with a wide range of impairments and health conditions being included in mainstream education. But while some local authorities have been proactive in promoting inclusive education at a strategic level, a lot of work still needs to be done to support the development of inclusive education across the country, especially when half of our disabled children and young people with SEN are still being placed in segregated educational provision.

I am very concerned that without an explicit duty, local authorities will become complacent—and, more worryingly, will revert to the practice of investing increasingly limited resources in existing segregated, rather than inclusive, educational provision. For instance, Kent County Council is already investing heavily in special school provision. Nigel Utton, a Kent County Council primary school head teacher and the chair of Heading for Inclusion, is quoted as saying:

“About half the children with statements in Kent are in special schools, with so much resource being targeted at special provision (not to mention the huge transport costs incurred) mainstream schools are left with a very small proportion of the special needs budget. The pressure on mainstream schools to achieve high academic standards, combined with budgetary pressures, is forcing many to not accept children with SEND statements or to persuade parents to leave”.

Such investment in special schools is not compatible with the Government’s Article 24 obligations. One such obligation is to develop and promote inclusive education across the country by building the capacity of mainstream schools to support the inclusion of disabled learners. The situation will only worsen if the Bill, and the draft SEN code of practice, do not include the explicit duty to promote inclusive education practice. I urge noble Lords to support the amendment.

Baroness Lister of Burtersett (Lab): My Lords, I am glad to be able to follow my noble friend, who has made a powerful case. As a member of the Joint Committee on Human Rights, I simply want to put on record my thanks to the noble Lord, Lord Low, for taking the committee’s recommendation forward and for making the case for it so cogently. The committee saw this as a matter of principle. It is a principle that the Government do not disagree with, and I am at a loss as to why they have been so resistant to accepting that it should be in the legislation. I hope that the Minister will think again.

Baroness Whitaker (Lab): My Lords, I support the amendments, because inclusion, which we all want to promote, still has to be fought for. That is why it ought to be in the Bill. I was on the boards of several special schools where some children were, I have to say, “parked”. On the other hand, I noticed the beneficial effects of children with disabilities being accommodated in mainstream schools—not only on the child in question but on the other children, who then have the opportunity to learn how to behave towards them, which they take. Children do not always bully other children with

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disabilities; in a good mainstream school they will have an incentive not to. The duty should be explicit, so it ought to be in the Bill.

6.15 pm

Baroness Hughes of Stretford: My Lords, I shall briefly, but strongly, support both amendments. On Amendment 34A, the noble Baroness, Lady Howe, has fully explained her concerns, which I share, about the possible consequences of allowing specialist SEN academies to admit children without an ECH plan. That seems to run counter to the principle of inclusion and it also seems dangerous to admit children without that comprehensive assessment of their specific needs. I hope that the Minister will respond positively to that point.

When the noble Lord, Lord Low, moved Amendment 16A in Committee, he rightly said that although the code of practice had improved guidance on inclusion, in the Bill as it stands, inclusion is not referred to anywhere. Given the commitment of the Government and of noble Lords across this House to increase access to mainstream schools and to act in accordance with the recommendations of the JCHR, it seems very odd that this overarching principle is not enshrined in the legislation.

The purpose of the amendment is to insert that general principle alongside other general principles that are included in the Bill. As the noble Baroness, Lady Warnock, has said, this is not about pushing inclusion above everything else; it is about parental choice. At the moment, because local authorities and schools have not moved far enough towards making mainstream schools accessible to disabled children, many children are denied that choice.

Clause 19 sets out other key principles to which local authorities must have regard in fulfilling their obligations under Part 3: the wishes and feelings of children and their parents; the importance of child and family participation in decisions; providing adequate information; and supporting the child’s development and educational progress. Those are all very important. But equally important, I would argue, is the principle that local authorities should seek to maximise the opportunities for inclusion.

As the noble Lord, Lord Low, told us, when the Minister was arguing against the amendment in Committee, he said that the Bill maintained the general principle of inclusion in a number of other provisions and went on to list some of them. He also said that schools and colleges had important duties under the Equality Act and he told us about other measures that the Government were adopting to help mainstream schools improve their ability to include disabled children more effectively. However, he did not tell us why the Government would not accept this amendment alongside the other general principles that appear on the face of the Bill. If the Minister is not minded to accept the amendment today, I hope that he will not rehearse that information as we have already heard it and it is on the record. What we really want to know is why he will not accept the general principle of inclusion sitting alongside the other principles in Clause 19. That would send a strong signal to all educational settings, and to local authorities, that they must up their game and move closer and faster to being able to offer places to

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disabled children. That would catalyse a very positive and marked shift. I hope that the Minister will accept the amendment today.

The Parliamentary Under-Secretary of State for Schools (Lord Nash): I thank the noble Lord, Lord Low, and the noble Baronesses, Lady Warnock and Lady Wilkins, for tabling Amendment 16A, and the noble Baroness, Lady Howe, for tabling Amendment 34A. I had an extremely helpful meeting with the noble Lord, Lord Low, and the noble Baronesses, Lady Howe and Lady Wilkins, recently, and I am grateful to them for helping me to understand these issues. As noble Lords know, they are, of course, immensely knowledgeable on this matter. They have spoken eloquently about an issue that I know is important to many in this House—inclusive provision for children and young people who have SEN or are disabled. We have had an informed and passionate debate.

Amendment 16A picks up a recommendation from the Joint Committee on Human Rights, as the noble Baroness, Lady Lister, a member of the committee, mentioned. The Joint Committee welcomed the Bill as containing,

“a number of provisions which … enhance the UK’s implementation of some of the relevant rights of children and young people”.

Those include the general principles in Clause 19; the extension of education, health and care plans to young people up to 25; the requirement for academies to be covered directly by the statutory framework for SEN; the duty to provide SEN information to children and young people; the measures to ease transition from children’s to adult services; the explicit reference to assist in preparation for independent living in a local offer; and the provision of direct rights of appeal for young people and the proposed piloting of children’s rights of appeal. However, the Joint Committee felt that including a principle on inclusive provision in Clause 19 would demonstrate the Government’s commitment, under the UN Convention on the Rights of Persons with Disabilities, to the progressive realisation of the right to inclusive education.

I make it clear at the outset that the Government are fulfilling their commitments under the UN convention. The Bill maintains the general principle of inclusion and does so through some of its key provisions. It places duties on schools and colleges to use their best endeavours to ensure that those with SEN get the support they need and holds a presumption for inclusion in relation to choice of schools and colleges through Clause 33. However, it also recognises that children and young people have different needs and different preferences for where they wish to be educated, including specialist settings such as special schools and independent specialist colleges. That is entirely consistent with the reservation and interpretative declaration that the Government made to Article 24 of the UN convention recognising special schools as part of the general schools system.

Beyond the Bill, as we have discussed in previous debates, local authorities, schools and colleges have important duties under the Equality Act 2010 to prevent discrimination against disabled people, to promote equality of opportunity, to increase access over time

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and to make reasonable adjustments to their policies and practices. Indeed, it was this Government, in 2012, who included schools in the provision of auxiliary aids and services, such as specialised computer programmes, sign language interpreters and hoists, within the reasonable adjustments duty under the Equality Act. I made a commitment in Grand Committee to look at the scope for improving the links to the Equality Act duties in the SEN code of practice and I am happy to reaffirm that commitment now.

We have previously discussed the inclusive schooling guidance. One of the striking findings in the responses to the Green Paper Support and Aspiration was that nearly half of those who responded to a question about the guidance did not know that it existed. That is why we put the key elements of it into the code of practice. I am happy to consider how the code of practice can be further improved in that regard. In view of all that, we do not believe that it is necessary to add to the principles in Clause 19 to fulfil our commitments under the UN convention. The principles in Clause 19 are designed to underpin the key features of the reforms, placing the views, wishes and feelings of children, young people and parents at the heart of the system and placing a focus on improving outcomes. They apply irrespective of where children and young people are educated.

We have heard in other debates about the important role that specialist provision plays in supporting disabled children and young people and those with SEN. The noble Lord, Lord Low, referred to the importance to parents of having that choice. Amendment 16A could run the risk of being perceived as a threat to specialist provision and as encouragement to local authorities not to place children and young people in specialist provision where that is appropriate for meeting their needs and where parents wish it, and could threaten the viability of high-quality provision for children and young people with SEN. I know that that is not in any way the purpose of the amendment, but it is an example of the kind of balance of arguments that we have to weigh.

The Government take very seriously their commitment to the convention. In addition to the provisions in the Bill and the government amendments on disabled children and young people that we will be debating later, we have taken a number of practical steps to build the capacity of mainstream schools and colleges to support children and young people who have SEN or are disabled. I spoke about these in Grand Committee. The noble Lord, Lord Low, referred to them as “soft measures”, but I would not describe them as such. They are certainly extensive. I will not go through them in detail, because I know that noble Lords have heard this before. However, we have invested considerable sums of money in training: there are over 10,000 new SEN co-ordinators, a number of schemes to develop the training of SEN, we have made grants to the Institute of Education, and we are involved in many other projects.

Chapter 6 of the draft SEN code of practice provides strong guidance to all mainstream early-years settings, schools and colleges to ensure they have high expectations for all pupils and students, provide high-quality teaching, have clear systems for identifying those who need

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additional support and provide that support as quickly as possible. We make it clear that schools are responsible for setting their own priorities for the continuous professional development of their staff and we recognise the key role played by the SEN co-ordinator in this and in other ways. In addition, as noble Lords know, the Bill now includes a new clause on supporting children with health conditions. Noble Lords will see that a number of government amendments have now been tabled to include disabled children and young people with SEN in the scope of a number of key provisions in the Bill. I will speak about those amendments shortly.

On Amendment 34A, tabled by the noble Baroness, Lady Howe, I understand her concerns and those of other noble Lords about the provisions in Clause 34(9), but I hope to reassure them. Clause 34(9) would enable a child or young person with special educational needs but without an EHC plan to be admitted to an individual special academy or special post-16 academy whose academy arrangements permit this. The admission of children or young people without EHC plans to special academies or special post-16 academies would be limited to those academies where the Secretary of State for Education had specifically agreed to permit that in the funding agreement in relation to specific types of children.

I reiterate what I said when we debated this issue in Committee. This is not a blanket policy and it is also definitely not part of any dark plan. On the contrary, the Government’s intention is to facilitate innovative new approaches and provision for the benefit of children and young people with SEN. The Secretary of State would look carefully at the detail of any proposal made by a special academy or special post-16 academy and would consider its educational merits and viability. Indeed, we have approved 16 free special schools. All are able, as things stand, to apply to the Secretary of State to have the competence within their funding agreements to admit non-statemented pupils. That is the status quo. Only one has so applied. They were approved to admit, on a temporary basis only, children with autistic spectrum disorder or with specific communication and language difficulties, but as far as we know none has been so admitted.

Concerns have been expressed by the noble Lord, Lord Low, the noble Baroness, Lady Howe, and others that children and young people might be forced into special provision and parents coerced by local authorities into placing their children in special schools. We will ensure safeguards against that are in place. First, the relevant academy’s funding agreement must stipulate that the special academy or special post-16 academy could admit only children or young people without plans who had a particular type of SEN set out in the agreement. Changes that suggested reducing the number of places for children with statements to enable the admission of children without statements would not be approved unless the case was supported by the local authority and by parents, and a lack of demand for statemented places could be demonstrated. Secondly, such a child or young person would be admitted to the academy only if their parents or the young person had applied to go to it. Thirdly, the child or young person should have those particular needs and their admission

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should be supported by a relevant professional opinion, such as that of an educational psychologist. Of course, parents of young people will continue to have the right to ask for a statutory assessment of their child’s needs to be undertaken and a right of appeal to the tribunal if the local authority decides not to carry one out. The academy would also have to adopt fair practices for such admissions in line with the principles of the school admission code. We would take very seriously indeed any instances where these freedoms were being abused. Very significantly, the new secondary accountability, the best eight progress measures, will become the main measure by which we assess the performance of all maintained schools and academies. This new approach will strip away the previous perverse incentives and will hold schools to account for the progress made by all their pupils, not just blunt measures of absolute attainment at grade C. This will move schools that have focused too much on those pupils who can achieve a C grade to focus on the progress of all their pupils and should particularly benefit SEN pupils in those schools.

6.30 pm

There can be no greater demonstration of the Government’s commitment to reducing exclusion than our school exclusion trial, a very hard measure, taking place in 11 local authorities with approximately 180 schools participating. This is aimed at schools taking more responsibility for pupils at risk of exclusion and ranges from schools committing to avoid any permanent exclusion, as in Darlington, Hartlepool, Redcar and Cleveland, to, in Wiltshire, the responsibility for permanently excluded children transferring from the local authority to the school.

Clause 34(9) is designed to improve provision for those without plans and reflects the Government’s general desire to encourage innovation and promote greater choice and flexibility in their free schools and academies programme. We will make sure that it contributes to that improvement and that the above safeguards are in place to address the concerns expressed by noble Lords.

I fully understand the objectives of the amendment. I hope I have been able to persuade noble Lords of the Government’s commitment to improving education provision for all children and young people and specifically to fulfilling their obligations under the UN Convention on the Rights of Persons with Disabilities and of the case for keeping the principles in Clause 19 as they are. I hope, too, that I have been able to reassure noble Lords that the provision in Clause 34(9) is there to encourage innovation and promote greater choice and flexibility for the benefit of children and young people with SEN, and that the safeguards we have put in place will guard against any potential problems envisaged. In view of these assurances and the commitment I have given in relation to strengthening the guidance in the code of practice, I urge the noble Lord, Lord Low, to withdraw the amendment.

Lord Low of Dalston: My Lords, I thank all those who have spoken. They all spoke in support of my amendment except of course the Minister. I thank the Minister for his full response. However, I have to say

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that I am not entirely persuaded by it. It was not a real advance on what we heard from the Minister in Grand Committee. In moving the amendment I think I showed that that was inadequate and that we still needed the amendment.

As I heard him, he has not said anything very different in substance today. He said that children have a variety of different special educational needs. That is right. These include a need for special school placement. In moving the amendment, I went out of my way to make it clear that nothing in the amendment is inimical to special school placement. The amendment follows the language of the Government’s own interpretative declaration when they entered their reservation to the UN convention. Therefore, there should not really be anything in the amendment that would be difficult for the Government to swallow.

Like the noble Baroness, Lady Lister, I do not see what is causing the Government so much difficulty about this. But I want to make it clear that I do not feel embattled. I moved the amendment not in a spirit of ideological embattlement or to provide a further chapter in the history of passionate and sometimes bitter arguments between adherents of inclusive and special education. I see it as much more a matter of good legislative housekeeping, in which we get the appropriate principles on the face of the Bill to drive their amplification in secondary legislation and guidance. As I have made clear, the code of practice as so far drafted, although a considerable improvement on the outline draft which was initially circulated, is still woefully defective compared with the guidance on inclusion which we have at present. The code, as so far drafted, is a real step backwards in this area. I feel very strongly, not as a matter of special education ideology, but as a matter of legislative housekeeping, that we need something like this amendment on the face of the Bill in order to drive the major strengthening of the code of practice on inclusion which is required. In that quite moderate and not embattled spirit, I nevertheless wish to test the opinion of the House.

6.37 pm

Division on Amendment 16A

Contents 205; Not-Contents 222.

Amendment 16A disagreed.

Division No.  2


Aberdare, L.

Adams of Craigielea, B.

Adonis, L.

Allen of Kensington, L.

Alton of Liverpool, L.

Anderson of Swansea, L.

Andrews, B.

Armstrong of Hill Top, B.

Bach, L.

Bakewell, B.

Bassam of Brighton, L. [Teller]

Beecham, L.

Berkeley, L.

Billingham, B.

Blackstone, B.

Blood, B.

Borrie, L.

Bradley, L.

Brookman, L.

Brown of Eaton-under-Heywood, L.

Browne of Ladyton, L.

Cameron of Dillington, L.

Carter of Coles, L.

Christopher, L.

17 Dec 2013 : Column 1192

Clancarty, E.

Clark of Windermere, L.

Clarke of Hampstead, L.

Clinton-Davis, L.

Collins of Highbury, L.

Condon, L.

Corston, B.

Coussins, B.

Craigavon, V.

Crawley, B.

Davidson of Glen Clova, L.

Davies of Coity, L.

Davies of Oldham, L.

Davies of Stamford, L.

Dean of Thornton-le-Fylde, B.

Derby, Bp.

Donaghy, B.

Donoughue, L.

Drake, B.

Drayson, L.

Dubs, L.

Elder, L.

Elystan-Morgan, L.

Evans of Parkside, L.

Evans of Temple Guiting, L.

Falkland, V.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Fellowes, L.

Filkin, L.

Ford, B.

Foster of Bishop Auckland, L.

Foulkes of Cumnock, L.

Gale, B.

Gibson of Market Rasen, B.

Giddens, L.

Glasman, L.

Goudie, B.

Gould of Potternewton, B.

Grantchester, L.

Grenfell, L.

Grocott, L.

Hanworth, V.

Hardie, L.

Harris of Haringey, L.

Harrison, L.

Hart of Chilton, L.

Haworth, L.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Hennessy of Nympsfield, L.

Hollins, B.

Hollis of Heigham, B.

Hope of Craighead, L.

Howarth of Newport, L.

Howe of Idlicote, B.

Howells of St Davids, B.

Howie of Troon, L.

Hoyle, L.

Hughes of Stretford, B.

Hughes of Woodside, L.

Hunt of Chesterton, L.

Hunt of Kings Heath, L.

Hylton, L.

Irvine of Lairg, L.

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Martin of Springburn, L.

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Prosser, B.

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Rowe-Beddoe, L.

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Royall of Blaisdon, B.

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Simon, V.

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Snape, L.

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Stoddart of Swindon, L.

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Turnberg, L.

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Walpole, L.

Warner, L.

Warnock, B.

Watson of Invergowrie, L.

Wheeler, B.

Whitaker, B.

Whitty, L.

Wigley, L.

Wilkins, B.

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Wills, L.

Winston, L.

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Young of Norwood Green, L.


Addington, L.

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Alderdice, L.

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6.49 pm

Amendment 17

Moved by Baroness Hughes of Stretford

17: After Clause 19, insert the following new Clause—

“Children and young people with special educational needs

For the purposes of sections 22, 24, 25, 26, 27, 30, 32 and 62 of this Act, the term “children and young people with special educational needs” will be interpreted to include children and young people with a disability under the Equality Act 2010.”

Baroness Hughes of Stretford: My Lords, Amendment 17 would, for the purposes of Sections 22, 24, 25, 26, 27, 30, 32 and 62 of Part 3, include children with a disability under the Equality Act. It would interpret children and young people with SEN to include children and

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young people with a disability as well. The Government have tabled a number of amendments, I think, to achieve the same thing.

I will be very brief as this is not now contentious, given that the Government have moved on the issue, but my amendment would ensure that key clauses that relate to identifying children with needs, duties of the health authority, joint commissioning arrangements, the duty to keep provision under review, the local offer, advice and information for parents and so on would all now apply equally to disabled children without a special educational need under the terms of the Equality Act. This is important, not only in principle, but also in its practical effects, particularly for the local offer, which we will debate later on Report. The local offer is particularly important for children with a disability but without a special educational need because that is now to be the only way in which they can get services that they and their families need. It is very important for the local offer, particularly Clause 26 on the joint commissioning arrangements between health education and social care. When they are looking at what is needed in an area they will have to take into account the needs of all children with a disability, including those without a special educational need, which was not the case under the Bill as it was drafted.

I very much welcome the Government’s concession here, as far as it goes. The Minister knows that I would have preferred to have an amendment to apply the whole of Part 3 to children with a disability as well. That would have achieved a truly inclusive, integrated and comprehensive system for all disabled children, whatever their disability and whatever the extent of their need. Many feel that this was the promise of the Green Paper. However, we have come part way and that is to be welcomed.

Turning to the government amendments, I think that my Amendment 17 has the advantage of being completely comprehensible when you read it, but the 40-odd government amendments are not so easily understood. I understand that it has been done in this way to achieve a more comprehensive effect and I look forward to the Minister explaining that. I beg to move.

Lord Nash: My Lords, it may be helpful if I outline our government amendments in this group to enable noble Lords to have a debate if they wish to. In Grand Committee we had an extensive debate about the support for disabled children and young people and I know that this is an issue on which the noble Baroness, Lady Hughes, has reflected deeply, as have I since then. Many Peers expressed concern that disabled children and young people without SEN would miss out on the benefit of our reforms and, at the time of the debate, I introduced a government amendment to require schools to make arrangements for supporting children with medical needs. I also asked for help from noble Lords in understanding which groups of disabled children would not be supported by this Bill, the government amendment in respect of children with medical needs, the provisions of the Equality Act 2010 and Part 3 of the National Health Service Act 2006.

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Following the debate, the Every Disabled Child Matters campaign sent some very helpful advice to the department in which it said:

“The Government rightly made the point in the debate yesterday that disabled children and young people are already protected by a range of other legislation, such as the Equality Act 2010, the NHS Act 2006 and the Children Act 1989.

We would like to stress that our concern is not about the rights of individual children and young people who may have a disability but no SEN. We completely accept that on an individual level they are protected under the Equality Act 2010 and other legislation. Our concern is about disabled children and young people as a group not being included in the joint commissioning arrangements, review functions, and local offer duty”.

It went on to suggest which clauses in the Bill might be amended to achieve this—Clauses 22, 24, 25, 26, 27, 30 and 32—and drafted a single amendment to deliver this. I am grateful to the noble Baronesses, Lady Hughes of Stretford and Lady Jones of Whitchurch, for their amendment, which is largely based on the Every Disabled Child Matters amendment.

We agree with Every Disabled Child Matters that the clauses identified should be amended. However, our view is that, by relating the provision for disabled children and the young people to special educational provision, a single amendment would not deliver the outcome that we all want, and that we need to amend each clause.

Clause 22 would be amended to require local authorities to exercise their functions with a view to identifying both the children and young people with SEN and disabled children and young people. Clause 24 would be extended to require health bodies to inform the child’s parents and their local authority where they are of the opinion that a child under compulsory school age has, or probably has, a disability. Clause 25 would now require local authorities to exercise their functions with a view to ensuring the integration of education and training provision with healthcare provision and social care provision for children and young people with SEN and disabled children and young people, where they think that this would promote their well-being, including in relation to their participation in education, training and recreation. In Clause 26, the duties on local authorities and their partner commissioning bodies to make joint arrangements for the commissioning of education, health and care provision for children and young people with SEN would be amended to include disabled children and young people.

Clause 27, which currently requires local authorities to keep under review the special educational provision and social care provision for those with SEN, would be extended to cover provision for disabled children and young people. They will broaden it to cover all education and training provision, not just special educational provision, for children and young people who have SEN or are disabled.

The amendments also require local authorities to consult disabled children and young people and their parents when carrying out that duty. The provisions in the local offer would include disabled children and young people, both in relation to the information to be published and in developing and reviewing the local offer and publishing comments. In Clause 32, the requirement on local authorities to arrange for young people with SEN and parents of children with SEN to

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receive advice and information on SEN would be extended to include provision for disabled young people and the parents of disabled children to be provided with information about matters related to disability. I have also tabled an amendment, which we shall come to later, to extend the requirement to cover children themselves as well as their parents. Clause 73 would make it clear that the definition of disability applied to the provisions covered by these government amendments is that in the Equality Act 2010.

Noble Lords will also be aware from commitments that I made in Committee that we are looking at ways of strengthening links to the Equality Act duties, including those to make reasonable adjustments in the SEN code of practice. The amendments that I am speaking to today will sharpen the focus on the Equality Act duties considerably. Since the code of practice is statutory, the guidance that it provides cannot be ignored. I will respond to the debate in the normal way in due course but I hope that noble Lords are reassured by these amendments.

Baroness Hughes of Stretford: My Lords, I thank the Minister for his explanation and I beg leave to withdraw the amendment.

Amendment 17 withdrawn.

Amendment 17A

Moved by Baroness Northover

17A: Clause 21, page 20, line 16, leave out subsection (5) and insert—

“(5) Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision).”

Baroness Northover (LD): My Lords, I would like to speak to the group containing government Amendment 17A and Amendment 18, tabled by the noble Lord, Lord Ramsbotham. Both amendments seek to set out the circumstances in which provision that would otherwise be health or social care provision should be treated as special educational provision. The Government have consistently given an undertaking to maintain existing protections for parents in the new system. Clause 21(5) was drafted as part of that undertaking. It sought to replicate as far as possible the case law established under the present SEN legislation, which in our view makes it clear that health provision, such as therapies, can be educational, non-educational, or both, depending on the individual child and the nature of the provision. Case law has established, in particular, that since communication is so fundamental in education, in addressing speech and language impairment it should normally be treated as educational provision unless there are exceptional reasons for doing otherwise. We have reflected this in section 7.9 on page 109 of the draft SEN code of practice.

We all share the aim of carrying the current established position through into the new system, but this is complicated legal territory and it has not been straightforward to find the right formulation. We are grateful to the noble Lord, Lord Ramsbotham, for his personal interest here and for his involvement with the

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Royal College of Speech and Language Therapists, which kindly shared and discussed its legal advice with the department. We have taken that advice into account in drafting government Amendment 17A, which we believe would maintain the position established in case law that we all seek.

In our view, a local authority and, where relevant, a tribunal, in considering whether healthcare provision or social care provision was to be treated as special educational provision, would ask themselves whether it was educational, taking the approach set out in the current SEN code of practice in respect of speech and language therapy. We have carried this into the new landscape of the Bill in relation to education and training. We believe that our wording is expressed a little more simply than the amendment of the noble Lord, Lord Ramsbotham, and that it is consistent with the present approach. I beg to move.

7 pm

The Countess of Mar: My Lords, unfortunately my noble friend Lord Ramsbotham cannot be in his place to speak to his Amendment 18, and he has asked me to do so on his behalf.

He tabled this amendment to try to ensure that, alongside the recognition that speech, language and communication needs are special educational needs for an increasing number of children and young people in this country, speech and language therapy retains its status as a special educational provision. This is important for two reasons. First, under the new SEN system, parents of children with EHC plans can appeal to the Special Educational Needs and Disability Tribunal only if this therapy is recognised as special educational provision. Therefore, it is vital that speech and language therapy, officially a healthcare provision, retains its educational status. Secondly, as originally drafted, speech and language therapy could be left out of an EHC plan on the basis that it is not “reasonably” required.

My noble friend is pleased to see that in Amendment 17A the Government appear to have recognised this; he is therefore pleased to accept the government amendment and for Amendment 18 not to be moved.

Baroness Howarth of Breckland: My Lords, I have a simple question about this. Having been sick last week, I may have missed the answer in all the mass of information that usefully comes from the department. Again, it is a question about implementation, as my questions usually are. When anything classified as social care and health becomes an education provision, it will be financed. However, how will it be financed in a college for disabled youngsters where there are myriad therapists, who might be physiotherapists or speech therapists, or where the youngsters may have a residential social care provision in the same place but that is linked to the education? That is rather crucial—almost more crucial than the legislation.

Baroness Morgan of Ely (Lab): My Lords, I speak in support of Amendment 18 in my name and that of the noble Lord, Lord Ramsbotham.

There are countless examples of parents around the country who have had to fight for special educational provision for their children. Of course, this is much

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easier to pursue for middle-class, articulate parents compared with those from poorer households, but the need for clarity about what provision is available and who should provide these services is essential for all parents who need extra help for their children, irrespective of background.

The problem is that, rather than clarifying the position on special educational provision and ensuring the Government’s stated intention of carrying the current established position into this Bill, the wording of the clause in the original draft set a higher threshold than that which currently exists—a danger identified by the sector and expert lawyers. Therefore, healthcare provision and social care provision could be defined only as special educational provision if,

“made wholly or mainly for the purposes of ... education or training”.

If the healthcare provision or social care provision did not directly enhance the education or training of the child, it could not be considered to be special educational provision; it would simply be defined as healthcare provision or social care provision.

I shall not go into the details here of why that makes a difference, as those were rehearsed in Committee, but, thankfully, the Government have acknowledged the concerns of Peers and have introduced new wording as a result of opposition to the initial draft. There was still, however, concern around this new wording, which is why the Government have moved even further to amend the language.

We have come a long way on this clause. We are grateful to the Government for that and we would like to recognise the work of the noble Lord, Lord Ramsbotham, the Royal College of Speech and Language Therapists and David Wolfe QC. On the whole, I welcome the fact that, on this issue the Government have listened to our concerns, and I, too, will be happy not to press our amendment.

Baroness Northover: My Lords, I thank the noble Countess, Lady Mar, for putting the noble Lord’s case. He is indeed a doughty fighter, as we all know. I am mightily relieved that he is pleased that the Government have put forward this amendment and that he is therefore happy for his amendment not to be moved.

I also thank the noble Baroness, Lady Morgan, for what she has said. I assure the noble Baroness, Lady Howarth, that joint commissioning will ensure that arrangements are in place to cover the financing. I will write to her with all the details.

At this stage of the evening, I am extremely glad that we all appear to agree. Clearly, it will very soon be Christmas.

Amendment 17A agreed.

Amendment 18 not moved.

Clause 22: Identifying children and young people with special educational needs

Amendments 18A and 18B

Moved by Baroness Northover

18A: Clause 22, page 20, line 24, after “identifies” insert “—

(a) ”

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18B: Clause 22, page 20, line 25, at end insert “, and

(b) all the children and young people in its area who have a disability.”

Amendments 18A and 18B agreed.

Amendment 18C

Moved by Baroness Wilkins

18C: After Clause 22, insert the following new Clause—

“Data on the number of children and young people with special educational needs and disabilities

(1) A local authority in England must publish information annually within the local offer on the number of children and young people in its area who have special educational needs and disabilities.

(2) Information under subsection (1) must be published by type of special educational need and disability.”

Baroness Wilkins: My Lords, I hope that the Government will agree to this amendment. Clause 22 requires local authorities to identify children with special educational needs. This amendment would require the local authority to publish these data within its formal offer. I have tabled the amendment because I am concerned about the availability of good-quality data on children with SEN and disabilities. It is an important issue, which could well determine the success of the Government’s proposed reforms.

Accurate data on the number of children in their area is vital for local authorities effectively to plan and deliver services. The draft SEN code of practice, particularly in the section on joint commissioning, outlines the importance of local data sets in identifying the needs of children with SEN and in informing their decision-making. Without good-quality data, it is difficult to see how the Government or local authorities can effectively plan and commission services for children with SEN and disabilities. It also means that we have a very weak basis on which to determine the long-term impact of these changes.

I am pleased to see that the Government will be amending the Bill so that local authorities have a clear duty to identify children with disabilities, as well as those with SEN. However, there is compelling evidence that existing data sets are failing accurately to identify all children with SEN and disabilities. Currently, data from different sources for the same area can vary widely. Using deafness as an example, I know that different figures on the number of deaf children vary by as much as 30,000: according to the disability register, there are 7,500 deaf children; according to the school census, there are 16,000; and, according to the National Deaf Children’s Society’s survey of all 152 local authorities in England, there are 37,500 deaf children.

Sense has also identified a widespread failure accurately to identify numbers of children who are deafblind. In the local authority of Kensington and Chelsea, Sense has found that, according to the prevalence data, there should be around 10 deafblind children. However, the local authority has identified four. How many have been identified by the school census? The answer is none. These children urgently need specialist SEN support, so why is the system not capturing them?

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In Grand Committee, the Minister enumerated the various sets of data that are published but failed to acknowledge that the existing data sets are inadequate. For example, the Special Educational Needs in England report does not cover all children with SEN and so misses more than 40% of school-age deaf children. A single data set is needed to bring together all the data from different sources into a format which would ensure well informed commissioning decisions.

It is difficult to see how the Minister’s department will meet the ambitions set out in the Bill unless we have a reliable and single data set that accurately captures all children with an SEN and disability. The current state of affairs cannot be allowed to continue whereby 152 local authorities are left failing correctly to identify and record all children with SEN and disabilities. I hope that the Minister will give the House reassurance that the urgency of this matter is recognised and that work is in hand to ensure that commissioning can rely on accurate data before this Bill comes into force. I beg to move.

Baroness Howe of Idlicote: My Lords, I support the amendment tabled by the noble Baroness, Lady Wilkins. Good quality data on children with SEN and disabilities must be in place before we proceed with these reforms. Unless action is taken, there is a clear risk that some children will continue to fall through the net. The department’s draft SEN code of practice acknowledges that issue and specifically highlights the importance of quality data on children with low incidence needs. Given that these children’s needs are relatively less common, there is an even greater need to establish their needs and whether local provision is sufficient to meet them.

However, as the noble Baroness, Lady Wilkins, has pointed out, existing data sets are flawed. The code of practice refers to the disability register. However, in the case of deaf children, I understand that it is identifying only around 7,000 to 8,000 children, whereas other estimates suggest that 40,000 would be closer to the truth. I understand that the department recently published guidance to local authorities on implementation of the new nought to 25 special needs system. In that, the Department for Education asks local strategic leaders to consider what their data tell them about local outcomes for children and young people with SEN.

My concern is that, whatever these data tell them, they are not going to give a reliable or accurate impression of children with SEN because the underlying data sets and systems are so fundamentally flawed. I hope that the Minister will be able to reply positively in support of this amendment or indicate that positive action is being taken to address these concerns.

7.15 pm

Lord Low of Dalston: I, too, have put my name to this amendment and strongly support it. There is not a lot to be said in addition to what has been said by the noble Baronesses, Lady Wilkins and Lady Howe, but perhaps I could ask the Minister one or two questions which it would be helpful if he could respond to in responding to the debate. The information currently collected clearly does not include all children with SEN. What is being done to address that by the

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department? It is also clear that the information needed to be collected in order that we might get effective planning and commissioning is spread out over different data sets. It would be helpful to know what is being done to bring together the information to be found all over the place in different places to ensure that we get well informed commissioning and decision-making.

Finally, does the Minister know whether the department will take in hand the co-ordination of all the data required, or will that be left to local authorities? If it is going to be left to 152 different local authorities, it is difficult to see how the department will be able to meet the ambition set out in the Bill to improve commissioning without the data sets being improved. Does the Minister agree that it would be better for the department to co-ordinate this area of work rather than leave it to 152 local authorities? If it is left to the local authorities, it is hard to believe that we will get a coherent solution. There are bound to be variations and the data is bound to remain very patchy. Therefore, it would be very valuable if the department would take a stronger hand in co-ordinating this work and in making sure that we get the data that we need to have in order that the reforms in the Bill may be implemented in the way that the Government want.

Baroness Howarth of Breckland: My Lords, I understand that the Government probably do not want to increase the level of bureaucracy in local authorities in terms of information gathering. I also understand that they possibly do not want to have centralisation when one of their main tenets is to decentralise to local government. That being said, however, successive Governments have failed to get this right. Those of us who were involved in trying to implement the Chronically Sick and Disabled Persons (Amendment) Act 1976, which was a long time ago, remember that one of its main provisions was to try to get decent data on which to make strategic planning.

The only point I really want to make is that there is a conflict between that wish not to increase bureaucracy and not to be able to get consistent data on the same basis across the whole of the local authority areas in order to plan. It is not just local authorities which will be affected. I spend a lot of my time in charities. They need to plan their strategy for some very large amounts of provision. I have chaired a number of committees where we have needed data in order to make a decision as to how we are going to move resources from one area to another. If you do not have that information, you can get that wrong. I would like to know how the Minister thinks that that kind of strategic planning can be carried out when the data lack that clear underlying consistency but at the same time I recognise the difficulties that it may cause in other areas of the Government’s plan.

Baroness Jones of Whitchurch (Lab): My Lords, I support Amendment 18C and very much echo the arguments put forward by my noble friend Lady Wilkins and other noble Lords in this short debate.

Clause 22 already sets out that it is a requirement on local authorities to identify all children in their area with SEN. The Government obviously intend this data gathering to take place and this work to be done;

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otherwise they would not have put this in the Bill. It therefore needs to be collected and collated in an organised and effective way. It cannot be argued that it is an extra administrative burden when the basic requirement for the information to be gathered is already in the Bill. Noble Lords have raised genuine concerns about the quality of data in the past and the challenge of improving that quality in the future. I would also like to ask the Minister how the Government, if they think that it is important for the information to be collected, intend to make sure that the quality is delivered so that a proper planning process can take place. Obviously, it is necessary to have this information as a precursor to planning service delivery for all those people with SEN in local authorities.

The amendment is partially about transparency. It is about making sure that the data are not only collected but shared in an appropriate way so that they help both planners and service users to have a more informed input into the local offer and help devise better services in the future. The data might also have the advantage of providing isolated families with the knowledge of how many other families, children and young people in their area share a similar type of SEN or disability, which may help to bring people together.

The amendment is very much in the spirit and intent of the local offer, which is designed to help parents, children and young people shape services for the future. That is part of an ongoing debate that we have been having. The data collection and the quality of that data are crucial to help make this happen. Therefore, I hope that the Minister will see the wisdom in the amendment and will be able to support it.

Lord Nash: My Lords, I would like to thank the noble Baroness, Lady Wilkins, for raising this important issue and noble Lords who have spoken on this matter. I accept noble Lords’ concerns on this. I understand that the noble Baroness’s purpose behind tabling the amendment is to put, as the noble Baroness, Lady Howarth, has said, local authorities and schools in a better position to make good commissioning decisions. Good commissioning is clearly an important underpinning to the reforms that we are making and the Bill already provides for joint commissioning arrangements across education, health and care for the provision that is reasonably required for local children and young people with SEN. That commissioning will be informed by the local joint strategic needs assessment and the data that are already available on these children and young people.

I accept absolutely that good data need to be available to inform commissioning, but I do not think that the local offer is the right place to publish that data. The purpose of the local offer is to set out what provision children, young people and families can expect in their local areas and it is to be used as a vehicle for discussion about the development of local services. It is not designed to publish information on the numbers of children and young people in the area with different types of SEN. It would not be appropriate to clutter up the local offer with such data. We accept that that information will be material to discussions about the development of provision in the local area, but that information is available elsewhere.

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The department already collects data from schools and local authorities on the number of children with special educational needs and publishes this annually on the department’s website. This includes data about the number of children by type of special educational need and we will be expanding this information. At present, we publish data by type of need for children at school action plus and with SEN statements. However, as we move to the new system for school-based SEN support, we will also publish data by type of need for children who are currently at school action.

For disabled children, local authorities are already under a duty to maintain a register of disabled children and young people under Section 17 of, and Schedule 2 to, the Children Act 1989. The draft, new SEN code of practice reminds local authorities of that duty. The department also collects data on children in the early years through the early years census. For post-16, the Education Funding Agency and the Skills Funding Agency also collect data on young people in the further education sector, through the individualised learner record on a range of types of need. Requiring local authorities to publish this data in the local offer would just replicate data that is already available.

So far as bringing together these different data sets into one place is concerned, as I said, I do not believe that the local offer is the appropriate place to do this, and I do not think it is right that central government should impose on local authorities something that they should already be doing. Some local authorities may well be poor at carrying out their duties in this regard, but that is not a legislative issue: it is a matter of practice. We have made it clear in the code that local authorities have this duty.

The noble Lord, Lord Low, talked about incomplete data. It is true that SEN data from the early years census, although available on request, is not routinely published publicly, but we will make sure in future that it will be and will be linked up to the main SEN statistical publication. I assure noble Lords that the department is thinking about what the new arrangements in the Bill imply for data collection and we are seeing where there are possibilities for greater clarity and the joining up of data sets. The post-16 data that are collected by the department, the Education Funding Agency and the Skills Funding Agency are publicly available on a number of websites, and we are looking at ways to bring these together for greater clarity.

Indeed, more generally, we are looking to see how data can be brought together to reflect the new nought to 25 arrangements under the Bill. We will also consider whether there should be a collection of disability data from schools. I would be happy to discuss this further with the noble Baroness and any other noble Lords who are interested. On that basis, I ask the noble Baroness to withdraw her amendment.

Baroness Wilkins: My Lords, I thank the Minister for that reply. Unfortunately, agreement has not continued from previous amendments. I thank all other noble Lords who contributed to this debate, but I find the Minister's reply extremely disappointing. He said that the local offer was not the place to put this information and that it would be cluttered up by it. But he then went on to enumerate various forms of collection of

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the data which fail to recognise that it is the quality of the data that are collected that is so criticised at the moment: it is failing to provide its purpose. It seems key that, without reliable data, local authorities will not be able to commission the services that are needed.

I will read what the Minister has said in Hansard and consider this further. As I said, I am disappointed in his reply, but, for the moment, I beg leave to withdraw the amendment.

Amendment 18C withdrawn

Clause 23: When a local authority is responsible for a child or young person

Amendment 18D

Moved by Lord Nash

18D: Clause 23, transpose Clause 23 to after Clause 24

Amendment 18D agreed.

Clause 24: Duty of health bodies to bring certain children to local authority’s attention

Amendments 18E and 18F

Moved by Lord Nash

18E: Clause 24, page 20, line 38, at end insert “or a disability”

18F: Clause 24, page 21, line 7, after “needs” insert “or disability”

Amendments 18E and 18F agreed.

Clause 25: Promoting integration

Amendments 18G and 18H

Moved by Lord Nash

18G: Clause 25, page 21, line 11, leave out “special educational” and insert “educational provision and training”

18H: Clause 25, page 21, line 14, after “needs” insert “or a disability”

Amendments 18G and 18H agreed.

Clause 26: Joint commissioning arrangements

Amendments 18J to 18N

Moved by Lord Nash

18J: Clause 26, page 21, line 32, after first “for” insert “—

(a) ”

18K: Clause 26, page 21, line 33, at end insert “, and

(b) children and young people in the authority’s area who have a disability.”

18L: Clause 26, page 21, line 40, after “by” insert “—

(i) ”

18M: Clause 26, page 21, line 42, leave out “concerned” and insert “within subsection (1)(a)”

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18N: Clause 26, page 21, line 42, after “needs” insert “, and

(ii) the disabilities of the children and young people within subsection (1)(b)”

Amendments 18J to 18N agreed.

Amendment 19

Moved by Baroness Howe of Idlicote

19: Clause 26, page 22, line 15, at end insert—

“( ) securing for children and young people with special educational needs but no EHC plan the education, health and care provision agreed under subsection (3)(a).”

Baroness Howe of Idlicote: My Lords, unfortunately, my noble friend Lord Ramsbotham cannot be in place at this time of the evening and he asked me to lead, on his behalf, on this group of amendments, about which I know that he has spoken to the Minister. Had he been here, he would have spoken first to Amendment 19, which is by far the most important in the group, because it is designed to try to strengthen the duty on local authorities and their health partners to make joint commissioning arrangements to satisfy the vast majority of children with special educational needs, including speech, language and communication needs, who do not have education, health and care plans.

At present, while 2.8% of all pupils in our schools have SEN with a statement, 16.2% have SEN with no statement. As a result, the schools they attend will have to try to obtain external support services such as speech and language therapy, educational psychology, children and adolescent mental health services and behaviour support teams for them. If such support is not available, their conditions may well worsen, resulting in the need for expensive EHC plans later on in their lives.

As currently framed, the duty on local authorities regarding those with SEN but no EHC plan requires them and their health partners to make arrangements to agree the provision of support—but, incredibly, not to secure its provision. Nor does the duty require partners either to operate or reach agreement on any provision, which is only sought on the basis of what is “reasonably required”. Health partners can use the NHS Act 2006 to decide for themselves what that amounts to, without even having to discuss with the local authority whether it would be appropriate to provide additional support in particular circumstances. What is more, there is currently no specific requirement for consultation on joint commissioning arrangements, and no specific requirement to publish what has been agreed.

7.30 pm

This group of amendments is designed to mitigate those shortcomings. The amendments would make joint commissioning arrangements stronger and more transparent, enabling them to fulfil their function of securing provision for children and young people with SEN who are not protected by an EHC plan, and better provision of the external support that schools need for children and young people without plans.

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Amendment 19 is about securing the provision agreed under Clause 26(3)(a). It also includes an obligation similar to that in Clause 26(4)(b), requiring local authorities to make arrangements to secure the provision in EHC plans. Amendments 20 and 21 are designed to ensure that local authorities and health partners actually operate the joint commissioning arrangements and reach agreement. I see absolutely no point in legislating for the farce of local authorities taking necessary arrangements into account in their decision-making and then not effecting them.

Amendment 22 is designed to ensure that health partners cannot simply use the NHS Act 2006 as a basis for deciding alone what is reasonably required. If joint commissioning is to mean what it implies, health partners must sometimes accept the need for them to do things that they might not otherwise do. Amendment 23 inserts a specific requirement for public involvement in joint commissioning arrangements. Amendment 24 inserts a specific requirement to publish what has been agreed.

My noble friend would have made two further points. First, he would have sought clarification from the Minister on the role of the Minister for Youth Policy in all this. On 3 July, the Government announced that cross-cutting responsibility for youth policy was being transferred from the Department for Education to the Cabinet Office, which would now lead for the Government on: cross-government youth strategy and policy co-ordination; management of the statutory duties on local authorities for youth provision in their areas; and strategic relationship management with young people and youth sector organisations on policy development. Looked at objectively, nothing needs more cross-cutting than what is sought by these amendments. Can the Minister tell the House whether the Minister for Youth Policy, Nick Hurd MP, has a role in that?

Secondly, having read the government amendments published this morning, and in anticipation of the many amendments to Clause 30 on local offers, which turn out not to be offers at all but merely information about what might be available, I suggest to the Minister that at the heart of my noble friend’s concern is the single word “implementation”. On the face of it, there is a disconnect between local authorities and health partners—which I suggest means the Department of Health, the Department for Communities and Local Government and the Department for Education, no doubt exacerbated by the amount of change that the NHS is currently going through.

Much is at stake here, because we are talking about the future of so many children and young people, about which bodies including lawyers, the National Association of Head Teachers, the Royal College of Paediatricians and Child Health, the Special Educational Consortium, Every Disabled Child Matters, the Children’s Services Development Group, the Royal College of Speech and Language Therapists and many others have expressed concern.

My noble friend is reluctant to test the opinion of the House on this when it is clear that the Government share his concerns. I understand that he has discussed

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his offer to host a seminar on the subject early in the new year, at which the Minister kindly offered discussion with officials from both the Department of Health and the Department for Education—to which he would like to add someone who can speak with authority about local authorities. I should be grateful, therefore, if the Minister would expand on what she has in mind when she replies.

Baroness Sharp of Guildford (LD): My Lords, I have much sympathy with the amendment, particularly the point raised by the noble Baroness, Lady Howe, about those who do not have EHC plans. As she rightly said, we are talking about a large number of children—a much larger number of children than will have EHC plans—and it is important that there are facilities to meet their needs. The onus is now on schools to provide those facilities, but we know that traditionally, schools have relied considerably, first, on local authorities to help provide them and, secondly, on health authorities and, for that matter, social services to supplement them.

At the moment, there seems to be a void in the Bill on the question of how more specialist facilities are to be provided. The joint commissioning arrangements, as identified in the Bill, are fine, but at the moment they are targeted at those with EHC plans; there is no mention of those without them. I think that the idea is that what is available will be spelled out in the local offer—I look forward to what the Minister has to say when we discuss the local offer. At the moment, there are a lot of loose ends and, given the number of children and young people involved, I hope that the Minister will take the matter seriously.

Baroness Hughes of Stretford: My Lords, briefly, I support the amendments, especially Amendment 19. I do so because Clause 26, which deals with joint commissioning arrangements, is an extremely important part of Part 3 and the new apparatus that the Government are constructing. I support the amendments because they are aimed at strengthening the joint commissioning arrangements. They need strengthening because of the wording of the Bill. We discussed this in Committee. Clause 26 seems to provide that local authorities and health and education authorities must set up arrangements so that they can have a discussion about what needs to be provided in an area, but it does not say that they must secure the provision that they think is needed. That is an odd omission. Amendment 19, in particular, would create an obligation to secure the provision for children and young people who have not got the education, health and care plans agreed under Clause 26(3)(a). That is a very important amendment to make to the Bill.

As the clause stands, it says that the local authority and its partner bodies “must make arrangements”. The omission to do with “securing” is particularly important with regard to health. As we said in Committee, potentially they can use other legislation for absolving themselves from improving on the provision available, on the ground of cost. It would be very helpful if the Minister could put on record the Government’s intentions in Clause 26 in relation to securing the

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provision that is identified as being needed through the joint commissioning arrangements, particularly, but not exclusively, in relation to health.

Given that Amendment 19 seeks to strengthen Clause 26 in relation to that securing and, as the noble Baroness, Lady Sharp, has said, identifies the rather insecure position at the moment of children and young people without plans, I support it and hope that the Government are sympathetic.

Baroness Northover: My Lords, I thank the noble Baroness, Lady Howe, for speaking on behalf of the noble Lord, Lord Ramsbotham, and arguing his case for him. He and I had very useful discussions before he had to leave and I know how reluctant he was to depart. Noble Lords are right: this is a very important issue. These amendments are designed to ensure that those without education, health and care plans can have their needs met and that the joint commissioning arrangements are transparent and effective. We understand the purpose behind that.

It is worth emphasising—and helps me in understanding the provisions here—that I have just come, as it were, from the Department of Health and worked on the health Bill. The NHS is, and continues to be, a universal service. It must respond to the reasonable health needs of the population it serves. That will be an absolute requirement, connected with the fundamental duties on commissioners to meet the health and care needs of children and young people, and supported by the requirements in the National Health Service Act 2006 on CCGs to engage with the public and with professionals and to promote integration of health and social care and health-related services. It is worth remembering, then, the strength of those provisions from the health side when looking at these arrangements.

Joint commissioning is the heart of the new arrangements for SEN. The statutory framework makes local authorities and CCGs working together fundamental to how we meet the needs of children with SEN and disabled children. Working together is not an option; it will be a “must do”, thanks to this Bill.

Our joint commissioning requirements are backed up by powerful statutory accountability. NHS England’s mandate—the “must dos” for the NHS—sets a clear objective that the NHS must ensure that children with special educational needs have access to the services identified in their agreed plan. NHS England will be held to account for delivery of that, and it in turn will hold CCGs to account.

There is also local accountability, as every CCG’s plans and performance are scrutinised by the local health and well-being board. That board has a specific role to improve the health and well-being of the local population and reduce health inequalities. It must include representatives from each local CCG, Healthwatch and the local authority directors for adult social services, children’s services and public health. Those are key people, accountable for local services. They will prepare the joint strategic needs analysis of the population, including this group, at high level.

I hope this helps to reassure noble Lords that the needs of children and young people with SEN

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and disabilities with and without plans will be met, and that on that basis Amendments 19 and 22 are unnecessary.

The joint commissioning arrangements require that partners across education, health and care work together to deliver integrated services for those with SEN and disabilities. In the draft SEN code of practice we are explicit that arrangements must be established that are clear and robust, including what happens in the event of a dispute between partners, and should be specifically accountable to councillors and senior commissioners locally.

Equally, subsection (4) makes it very clear that partners must be able to reach agreement on a course of action in every case. The wording in the joint commissioning clause reflects the fact that the parties are expected to follow the arrangements unless there is a good reason to depart from them.

7.45 pm

On making the commissioning arrangements transparent, we say in the draft SEN code of practice that commissioners should engage partners, and particularly representative groups such as parent carer forums, as the first stage of their joint commissioning arrangements. We hear what noble Lords have said and conclude that we could be even clearer on that in the code. In the final version we will say more on the role of schools in the commissioning process.

Baroness Hughes of Stretford: That is very helpful. Could the Minister clarify subsection (4)? It says:

“Joint commissioning arrangements about securing education, health and care provision must … include arrangements for”,

securing EHC needs assessments. It talks about EHC assessments only and EHC plans only; it does not talk about securing services for children without plans.

Baroness Northover: The noble Baroness will note that I have talked about supporting children with and without plans. If she bears in mind the responsibilities within the NHS, the NHS mandate, the responsibilities of the CCGs, what the health and well-being boards are designed to do and the intention within the health service to reduce inequalities and ensure that nobody is left out, and looks at those matters in conjunction with that, I hope she will see that there are very strong provisions coming from the NHS side that help to address this. In a minute, I may give her some more comments from the education side, but I hope she will appreciate that joining up with the NHS is a very positive move forward.

Under this Bill, the local authority is also required to consult on the local offer and when it is keeping its education and social care provision under review. Equally, there are duties on CCGs to ensure they, too, consult with local partners and patient groups, including at the commissioning stage. CCGs are held to account by NHS England for delivering this statutory duty, and NHS England has issued statutory guidance for CCGs on engaging with patients.

The noble Baroness, Lady Howe, made the point that the noble Lord, Lord Ramsbotham, made to me about the role of Nick Hurd and the Cabinet Office

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taking responsibility for youth strategy—for example, youth clubs and national citizenship services. That is distinct from departmental responsibilities for education, health and social care, which, obviously, are about the best services for young people as well as children. Cross-government working, especially between the Department for Education and the Department of Health, is critical to the success of these reforms. The Cabinet Office has a role to play because of its strategic oversight of support for young people.

I reassure my noble friend Lady Sharp—and this also picks up the point made by the noble Baroness, Lady Hughes—that the provisions in Clause 26 for joint commissioning embrace children and young people without EHC plans, as well as those with such plans. I hope that the noble Baronesses will be reassured by that.

As the noble Lord, Lord Ramsbotham, and I discussed before his departure tonight, the Government are clear that further legislation is not the answer. The noble Lord has identified an important implementation challenge and the noble Baroness made reference to that challenge.

We must indeed ensure that local areas take full advantage of the opportunities offered by the NHS reforms which I have, I hope, spelt out and by the Bill to secure the best possible planning and commissioning of services to meet local needs. Children with SEN and disabilities, who particularly need their health services, schools and local authorities to be joined up, must benefit from this. That is why I propose that instead of pursuing this amendment a better proposition, which is what the noble Lord, Lord Ramsbotham, and I talked about, would be to arrange a meeting with those working on implementation at the Department for Education and the Department of Health. The noble Baroness referred to that meeting; it would also be with the interest groups that the noble Lord mentioned—the noble Baroness mentioned local authorities, which are obviously also relevant here— and would be about what we should be doing to get the implementation right. I was very glad that the noble Lord, Lord Ramsbotham, was enthusiastic about contributing to that. Of course, he has a lot of expertise in this area.

I hope very much that we will go down that route and that instead of pursuing this amendment, we will take forward these discussions about how this is best implemented, while taking on board the issues which noble Lords have flagged up. I hope that I have been able to reassure noble Lords that the joint commissioning arrangements clause offers a strong framework that works with the NHS and will drive forward the SEN reforms locally, for those with and without plans, and that the NHS mandate, with its specific emphasis on inclusivity, addressing inequalities and on children with special needs, helps to underpin this. On that basis I urge the noble Baroness, on behalf of the noble Lord, to withdraw the amendment.

Baroness Howe of Idlicote: I am very happy to do so and also to thank the other Members who have taken part in the debate. It was very interesting to hear what the plans are. Thank you.

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Amendment 19 withdrawn.

Amendments 20 and 21 not moved.

Amendments 21A to 21C

Moved by Lord Nash

21A: Clause 26, page 22, line 27, after second “for” insert “—

(i) ”

21B: Clause 26, page 22, line 29, after “needs” insert “, or

(ii) any children and young people in the authority’s area who have a disability”

21C: Clause 26, page 22, line 32, leave out “such children and young people” and insert “children and young people within paragraph (a)”

Amendments 21A to 21C agreed.

Amendments 22 to 24 not moved.

Clause 27: Duty to keep education and care provision under review

Amendments 24A and 24B

Moved by Lord Nash

24A: Clause 27, page 22, line 40, leave out “special educational” and insert “educational provision, training”

24B: Clause 27, page 22, line 42, after “needs” insert “or a disability”

Amendments 24A and 24B agreed.

Amendment 25

Moved by The Countess of Mar

25: Clause 27, page 22, line 42, after “needs,” insert “including organisations that provide online or blended learning (or both),”

The Countess of Mar (CB): My Lords, this is a long list of amendments with, the noble Baroness will be pleased to hear, a brief message. The Government are trying to ensure that children with special educational needs have the best education and we are all agreed that that is commendable. The Bill focuses on provision for SEN children and young people who are within mainstream education. This excludes some 100,000 youngsters who cannot have access to the traditional schooling system for reasons of chronic illness, disability, exclusion, relocation of looked-after children, or children who live in a secure environment.

The Government often give the impression that they believe that excluded young people are not interested in learning. As a result, the focus is on mainstream education. At Second Reading, my noble friend Lady Howe of Idlicote highlighted the BIS research paper from January 2013 on the motivation and barriers to learning for NEETs—young people not in education, employment or training. I discussed it further in Grand Committee. It is obvious that it is actually these barriers which make young people feel disillusioned. This leads to their exclusion from the education system and puts them at risk of joining the 979,000 young people who

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are currently on the NEETs register. These young people cost the taxpayer about £56,000 a time. It is vital that they are not left behind.

We know that the right support given at the right time can make an enormous difference and helps young people to achieve their personal ambitions. Students who appear to opt out of education do not do so on impulse. There is usually a chaotic background to their lack of engagement that needs to be dealt with sensitively. We must bear in mind when developing an education solution for these vulnerable young people that one size does not fit all. Clause 19 shows clearly that the Government are determined to involve children and their parents in the decisions around specialised education and that they get the right support at the right time. Surely, by allowing parents and children to have direct input into the organisations that could be part of their education provision, the Government would ensure that they have the best provision with the widest range of suppliers, helping them to achieve their objective.

Education provision for those outside the mainstream is often supplied by individual organisations such as Nisai and the Red Balloon project, which have created innovative ways to help those pupils who are currently out of school. Online and blended learning is one such innovative technique that has been utilised by parents to ensure that their children have access to the education they need. I described in Grand Committee the means by which this is achieved so I will not repeat myself. As I said then, this type of learning is an important tool for many parents but is not recognised as part of the framework of education provision for young people with special needs. This means that it cannot be rolled out to help numerous other children. It is available just to those parents who are in the know and can afford to pay. As it stands, money assigned to a pupil or student while inside the mainstream school system does not follow them once they cease to be on the school roll. This means that it is often difficult for them to access the alternative provision that would help them.

If online and blended learning was officially recognised as part of the education provision that can be provided by local authorities, it would become easily accessible and enable the Bill to fulfil its purpose,

“to improve services for vulnerable children .... to ensure that all children and young people can succeed, no matter what their background”.

In addition, the costs make sense. Online and alternative providers can help to save the Government money. Students will no longer need to be taught in isolation for a few hours a week by home tutors. They will join virtual classrooms of 10, with one teacher, and will have access at any time of the day or night. Local authorities, which are under pressure to reduce their costs, will be able to save on other parts of their budgets. For example, I understand that in 2010 Northamptonshire County Council spent more than £6 million on taxis for disabled special needs children, expelled pupils and young mothers. Saving these costs by centralising the use of online and blended learning would enable local authorities to allocate funds to other vital services.

If online and blended learning were to be formally recognised, there need be no fear that anything need be taken away from mainstream education for the

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majority of children. These amendments are simply about adding a safety net to catch youngsters who would otherwise be drinking at the last chance saloon. I have already used the example of Nisai to highlight the important role of individual organisations which have created imaginative ways to help those who are excluded and produced excellent results. It makes sense that the good work which alternative education providers have been doing for a small percentage of vulnerable young people can be rolled out to reach the most vulnerable in society.

Finally, I stress to the Minister that it is obvious that the use of online learning has support from all sides of the House. We noticed that in Grand Committee. We really need to enter the digital age in this educational field. Virtual education has been used successfully by universities for many years and I am sure that the noble Baroness would agree that it is time that primary and secondary education caught up. Most children are computer literate at a very early age and those who cannot attend mainstream schools would probably enjoy the ability to access educational material in virtual classrooms. I think particularly of the young people who I know best: those who are housebound or bedridden because they have ME. They can take small bites of material at a time and many have had excellent examination results.

I am very grateful for the meeting that I had with officials yesterday. I hope that, as a result, the noble Baroness will look on my amendments kindly and that, even if she is not prepared to see them within the Bill, she will ensure that online and blended learning are included in the relevant codes of practice. I beg to move.

8 pm

Baroness Morris of Yardley (Lab): My Lords, I support the amendment of the noble Countess, Lady Mar. I do not know what the Minister is about to say, so it might not be necessary for me to speak. However, in case we are not entirely satisfied with the Minister’s response, I shall offer a few comments in support now.

We may be missing an opportunity here. There has been a great improvement in blended and online learning over the past few years. A decade ago, I should have been sceptical about an amendment such as this. I should have still wanted almost to squeeze these children into the traditional model of education, which is of course what many of them are rebelling against, and which has failed to meet the needs of many of them. Having visited places like Red Balloon and talked to people who have now become proficient in online and alternative ways of supporting these children, I think the time has come when we ought to acknowledge that it could provide a very important, successful form of education for children whom we have failed in the past. I might not have thought of its fitting into this Bill, but it is an ideal place to acknowledge the growing importance that online and alternative methods of learning are playing in our education system. We ought to seize that opportunity.

My second point is that this fits in with two important aspects of the Government’s education policy. The first is the change needed in the IT curriculum for children in formal education, which the Government

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have done well to acknowledge. In doing so, they seem to acknowledge that changes in IT and learning are here to stay, and that we need to seize ways—of which this is one—to acknowledge the importance of information technology and digital learning in our education system.

The second, more obvious, fit with government policy is that this is an alternative to mainstream education. Among all the alternative provision, such as free schools, about which I have serious concerns, I see this as finding a way to let innovative education play its part in the education of children—something that we are not good at doing. Whereas I am sceptical about a lot of the ways that the Government are finding to put that innovation into the system, I wish they would seize this. If they were to look seriously at this amendment and touch base, they might see in it, for some children with special educational needs who are rebelling against mainstream education, and for whom mainstream education has never done a decent job, something which holds the key.

I look to the Minister for an acknowledgement of that, and either for this to go in the Bill or for a strong message to go out that this is a good thing which we ought to do all we can to support. Trying to read the Minister’s mind before she has spoken is difficult, but I hope that she is going to be sympathetic, if not in accepting this amendment, in giving a really clear signal that this is good, welcome and deserving of maximum support.

Baroness Northover: My Lords, I thank the noble Countess, Lady Mar, for highlighting this area. She has fought long and hard for those with ME, to whose situation she has made reference. In Committee, my noble friend Lord Nash clarified the Government’s position; that the majority of children and young people are best served by attending a mainstream institution. We had a key discussion on this earlier. We do, however, recognise that for some children and young people mainstream education is not appropriate, as both the noble Countess, Lady Mar, and the noble Baroness, Lady Morris, said. The education arranged for these individuals could indeed include the use of online provision as part of a blended package of support. Indeed, I understand that earlier this month, the Nisai Learning Hub was registered as an independent school that will provide alternative provision through a mixture of supported online and face-to-face learning.

Decisions on the use of such provision clearly need to take into account children’s and young people’s academic needs. It is also vital that their social and emotional development is supported, and that their health and safety are protected. Because of that, we believe that local authorities, mainstream institutions or special institutions should remain accountable for these decisions. However, to reinforce the point made by my noble friend Lord Nash in Committee, the provisions in this Bill do not prevent the use of alternative provision, including online and blended learning. I can reassure noble Lords that it can be included within an EHC plan, it can be funded by personal budgets and it can be part of the local offer used to support pupils without an EHC plan.

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We appreciate that an underlying aim of these amendments is to highlight the benefits of online and blended learning for certain groups. The noble Countess, Lady Mar, and the noble Baroness, Lady Morris, made their case effectively and powerfully. We do not think that legislation is the appropriate vehicle to achieve this aim, but we shall reflect carefully on how the SEN code of practice and statutory guidance on alternative provision can better support informed decisions on this type of provision—decisions that are based on the best interests of the child or young person.

In doing so, we shall take into account the views of those groups facing particular barriers to mainstream education. The noble Countess highlighted some of these. To this end, I understand that my honourable friend the Minister for Children and Families has agreed to meet the noble Countess, Lady Mar, to hear experiences of the support needed for children and young people with ME. I hope that will be helpful to both sides. I should like to acknowledge the work of the noble Countess, Lady Mar, in supporting the cause of people with this condition.

I hope I have reassured the noble Countess and the noble Baroness that there is sufficient flexibility within the current arrangements to allow for the use of high-quality alternative provision, including online and blended learning, where it is in the best interests of a child or young person. Where there are restrictions, we believe that they offer vital safeguards in relation to the education, wider development and safety of pupils. We shall, however, look at how guidance can be improved so that decisions on the use of online provision are focused on the individual’s particular needs—that is at the heart of this. I therefore urge the noble Countess, Lady Mar, to withdraw her amendment.

The Countess of Mar: My Lords, I am grateful to the Minister for replying so kindly. I accept her offer to look at the guidance. I thank the noble Baroness, Lady Morris, for her very powerful support. I beg leave to withdraw the amendment.

Amendment 25 withdrawn.

Amendments 25A to 25D

Moved by Lord Nash

25A: Clause 27, page 22, line 43, leave out “special educational” and insert “educational provision, training”

25B: Clause 27, page 22, line 44, after first “for” insert “—

(i) ”

25C: Clause 27, page 22, line 45, at end insert “, and

(ii) children and young people in its area who have a disability.”

25D: Clause 27, page 23, line 2, leave out “special educational” and insert “educational needs, training”

Amendments 25A to 25D agreed.

Lord Nash: My Lords, I beg to move that further consideration on Report be now adjourned. Perhaps I may take this opportunity to wish all noble Lords a

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very happy Christmas, and also to say that I hope that noble Lords opposite will enjoy what is left of their party.

Consideration on Report adjourned.

Gambling (Licensing and Advertising) Bill

Second Reading

8.08 pm

Moved by Lord Gardiner of Kimble

That the Bill be read a second time.

Lord Gardiner of Kimble (Con): My Lords, the Bill is a prudent measure, seeking to increase public protection for consumers based in Great Britain by tightening current legislation to ensure that all remote gambling, whether provided by British or overseas suppliers, is a licensed activity subject to the Gambling Commission’s standards and controls. This is a small but significant Bill, the key purpose of which had broad support across all sides in the other place. In fact, this Bill has its origins in the previous Administration’s review of the remote gambling regulatory framework.

Remote gambling is gambling in which people participate by the use of remote communication—internet, telephone, television or other kinds of electronic communication. Remote gambling is on the increase year after year. According to the latest Gambling Commission statistics, it has increased by 5% from last year alone, fuelled by the spread of fast internet connections and the use of mobile phones.

The Gambling Act 2005 currently regulates those operators who have at least one piece of their remote gambling equipment in Britain, described as,

“at the point of supply”.

These operators are required to hold a Gambling Commission licence and are subject to the commission’s licence code and conditions. However, there is no such requirement for remote gambling operators based wholly overseas. The Gambling Commission estimates that around 85% of remote gambling activity by British consumers currently takes place with operators that the commission does not regulate, and that includes many of the well known high street brands. This is a sizeable proportion outside the scope of the British regulatory regime. While these operators are governed by the regulatory regimes of the jurisdictions in which they are based, British consumers can experience varying levels of protection.

Given the increasing number of British consumers using these services, it is time to extend the regulatory framework established by the 2005 Act to this growing market. We need to move with the times and ensure that British consumers enjoy consistent consumer protection in an age where the use of technology is prevalent and means that operators transacting with British consumers can be based anywhere in the world.

The increased accessibility to online gambling products means that we need to take this opportunity to ensure that the Gambling Commission can monitor and respond

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swiftly and effectively to developments in remote gambling. While the current arrangements have not as yet led to widespread problems for consumers, the Government are committed to staying ahead. The market is growing and we need to take this opportunity to give the Gambling Commission the ability to identify and understand emerging issues before they manifest themselves on a larger scale.

The Bill therefore seeks to extend the regulatory regime established by the 2005 Act to all remote operators that seek to advertise and sell into the British market, whether they are based in Britain or abroad. In this sense, the regulation of remote gambling will move from the point of supply to the point of consumption by consumers.

With this change, all remote gambling operators advertising and selling into Britain will be required to hold a Gambling Commission licence, making them subject to robust and consistent regulation by the commission, increasing protection for British consumers; supporting action against illegal activity, including sports betting integrity; and establishing fairer competition for British-based operators. As licence holders, they will be required to comply with the Gambling Commission’s licence code and conditions, which include social responsibility and technical standards requirements, including licence conditions that protect children and vulnerable adults. It means, too, that for the first time all remote gambling overseas operators will also have to inform the Gambling Commission about suspicious betting patterns to help to fight illegal activity and corruption in sport. The recent allegations of match fixing illustrate the importance of extending this requirement to overseas operators, and the Financial Conduct Authority will further strengthen the existing arrangements by issuing new guidance to sports spread betting operators about their requirements to notify of suspicious market activity.

Advertising is of major importance to operators and central to their ability to attract custom; in many ways it is their life-blood in a very competitive market. The Bill will bring operators’ ability to advertise in Britain in line with the new regulatory regime. As a result of the Bill, all remote gambling operators wishing to advertise to British consumers will be required to hold a Gambling Commission licence. The requirement for a licence means that a failure to comply with the advertising codes of practice, which seek to ensure that adverts do not glamorise gambling, exploit vulnerable people, appeal to children or suggest gambling as a solution for financial difficulties, could result in an operator losing their licence. The loss of their licence would mean they could not advertise in Britain, which would go to the heart of the viability of their business.

The change in the licensing regime means the end of what has become known as the white list. At present, operators based in the EEA, including Gibraltar, or in a non-EEA country designated by the Secretary of State, are able to advertise remote gambling to consumers in Britain without a British licence. Those countries, known as the white list countries, include Antigua and Barbuda, the Isle of Man, the States of Alderney and Tasmania. The list was closed in 2009, pending the outcome of the consultation on the proposal

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for the Bill. The white list will be repealed by the Bill, and all operators, whether based in the EEA or elsewhere, will require a British licence.

The Bill also creates a new offence of unlicensed advertising of remote gambling in Northern Ireland, which has been welcomed and agreed by the Northern Ireland Executive and Assembly. Unlike Scotland and Wales, gambling is a devolved matter in Northern Ireland, but the law there is silent on remote gambling. For that reason, Section 331 of the 2005 Act, which prohibits the advertising of remote gambling by an operator from a non-EEA or white list jurisdiction, was also extended to Northern Ireland. The changes being brought in by this Bill require the repeal of Section 331.

The Northern Ireland gambling laws are currently in the process of being rewritten and updated. In the mean time, the Government and the responsible Northern Ireland Minister, the Minister for Social Development, Mr Nelson McCausland MLA, were concerned to ensure that Northern Ireland consumers continued to have the same protection as other British consumers in relation to the advertising of remote gambling, as was the case under Section 331. This new offence achieves that. It means that all UK consumers will enjoy the same protection in respect of the advertising of remote gambling.

So far as enforcement is concerned, overseas operators that are required to hold, but fail to obtain, a Gambling Commission licence will be committing the offence of providing facilities for gambling or the separate offence of advertising unlawful gambling. The Gambling Commission is empowered under the 2005 Act to take appropriate action against illegal operators.

The Gambling Commission has a number of enforcement tools available to it under the 2005 Act with which it is able to detect and disrupt unlicensed operators. It has wide investigatory powers under the 2005 Act and the Regulation of Investigatory Powers Act 2000 and employs expert staff with forensic accounting, e-commerce and police investigatory skills.

Stopping illegal advertising is an important way the commission protects consumers from illegal operators. The Gambling Commission has demonstrated that it is able to take effective, swift action to remove illegal advertising, including working with third-party carriers such as Google and Yahoo. Third parties which carry illegal advertising are themselves at risk of prosecution under the 2005 Act. Player education is another important tool in combating the use of unlicensed services. The commission also has power to bring criminal prosecutions, including in absentia.

The Gambling Commission also continues to build links and information-sharing gateways with regulatory bodies across the world. Many jurisdictions take account of prosecutions overseas when considering the ongoing suitability of licensees, as does the Gambling Commission.

Of course, I do not claim that the commission can eliminate all instances of illegal activity. The commission will, as it currently does, take a risk-based and proportionate approach to enforcement. There will always be some operators who do not comply and players who disregard the risks, but the Government

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are content that the existing powers under the 2005 Act provide the commission with broad investigatory and enforcement powers with which to achieve the consumer protection aims of the Bill. The situation is not unlike the difficulties posed by counterfeit goods. We cannot necessarily act to prevent their manufacture in overseas countries, but we can use all the tools at our disposal to disrupt and prevent their importation and sale in this country.

The Bill will increase consumer protection. As a result of the Bill, all operators selling or advertising in the British market, whether from here or abroad, will be required to hold a licence from the Gambling Commission. This Bill is a significant step towards enhanced consumer protection. It extends the scope of the 2005 Act to protect British consumers in this fast-growing market and will ensure consistency of consumer protection and a level playing field between operators. The increase of remote gambling makes this the right time to act to ensure that the Gambling Commission has the ability to intervene to protect British consumers of remote gambling now and in the future. I beg to move.

8.21 pm

Baroness Pitkeathley (Lab):My Lords, when it comes to gambling, I am far from being a usual suspect in your Lordships’ House. In fact, this is the first time I have ever addressed your Lordships’ House on this topic. I do so tonight because I have two important personal interests. The first is as a Channel Islander because this Bill has major implications for the Channel Islands, particularly Guernsey and Alderney. I am a very proud Guernsey woman—the only one, I think, in your Lordships’ House.

Electronic gambling is of major importance to both islands and is crucial to the economy of Alderney. The sector provides approximately £50 million a year of benefit to the Bailiwick of Guernsey’s economy, and it employs almost 400 people directly and in related services. For Alderney, one of the smallest of the Channel Islands with fewer than 2,000 residents, it accounts for 12% of its GDP. The consequences for Guernsey and, particularly, for Alderney, should this sector be threatened, are significant and would be of concern to those of us who recognise the importance of the Channel Islands to the British family, which the islanders always emphasise.

The development of e-gambling in Alderney since 2000 has been a huge success, largely because of the quality of regulation that its Gambling Control Commission provides. The commission knows that to survive and succeed it has to meet and exceed the highest international standards of regulation. It has set itself objectives which seek to ensure that all electronic gambling on Alderney is conducted honestly and fairly, that the funding, management and operation of electronic gambling on Alderney remains free from criminal influence and that electronic gambling is regulated and monitored so as to protect the interests of licensees’ customers as well as the young and vulnerable.

In order to do that, Alderney invested considerable effort and resource to become one of the very few jurisdictions to be placed on the UK’s e-gambling

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white list, which was mentioned by the Minister. The UK recognised Alderney as one of only five jurisdictions with regulatory regimes that were benchmarked to be of such a high standard that Alderney operators were allowed to advertise their e-gambling services in the UK. To achieve this, the Alderney Gambling Control Commission had to demonstrate the very highest standards of regulation, propriety and probity. It has done so to such an extent that the UK’s own Gambling Commission has come to rely on the AGCC providing a benchmark of best practice and it has recognised its enormous expertise in regulating remote gambling. Many British firms have established themselves there and have accessed the British public with little or no negative consequence in terms of player protection.

One of the consequences of the Bill should be that the UK and ordinary regulators should work even more closely together to protect the consumers of e-gambling. This would not only avoid duplication of effort, which is in itself sensible enough, but also ensure that, where the Gambling Commission finds itself stretched thinly by the new responsibilities in this Bill, it can ask Alderney to assist. Over the years the AGCC has worked closely with its UK counterparts in developing its own regulatory framework and has been influenced by what we do in the UK. It is one of the very few jurisdictions outside the UK which has placed a mandatory requirement on its licensees to contribute to research, education and counselling of problem gambling, and could be an exemplar for other jurisdictions. I know there is much concern about problem gambling, and rightly so, especially if unregulated operators are allowed to advertise their services, which might be a temptation to problem gamblers. Other noble Lords will no doubt speak about this.

Alderney is a jurisdiction which has had great success in e-gambling and relies on it as a significant driver of its economy. It is at the very forefront of excellence in e-gambling bodies around the world, and it wishes to develop its partnership with the Gambling Commission further within the framework of this Bill. Ministers will, I hope, not only recognise these developments but preserve them, as it is clearly in the interest of British players and the Gambling Commission for them to do so and to capitalise on the work done by the white-listed jurisdictions.

Can the Minister indicate to the House what has been done to ensure that the codes and practices as well as the expertise in the white-listed jurisdictions are being considered in the introduction and development of the new licensing framework? Can he also confirm that he will encourage the Gambling Commission to work with trusted white-listed jurisdictions to avoid any duplication of effort and to ensure that the best standards of regulation, of the sort that are provided by my sister island of Alderney, become the general standard for the United Kingdom?

I turn now to the other personal interest I have in this Bill, which is not as a proud Guernseywoman but as a proud mother. I have a daughter who is an amateur jockey and a son-in-law who is an owner. I often join them at racecourses in various parts of the country. Before I started doing this, I might have had an image of racecourses as rather bleak, rundown

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places peopled by shady characters out of a Dick Francis novel. Not so, my Lords. Even on cold and rainy weekdays I have found racecourses vibrant, exciting places full of both aficionados and newcomers, families as well as professionals—in short, people having a good time. They are also innovative, constantly trying new ideas and schemes to bring more people in—ladies’ days, music of all kinds and many other things which contribute to a family day out.

This is very pleasing to see and confirms the statistics of the British Horseracing Authority that horse racing is not only the country’s second most popular sport, with 5.6 million attendees at events in 2012, but also the second largest sporting employer. British racing supports a predominantly rural industry which makes a significant contribution to the British economy, generating £3.5 billion in annual expenditure and providing direct and associated employment for no fewer than 85,000 people.

There is, however, concern that the future of the industry is threatened by the inadequacies of the horserace betting levy, the legislative mechanism which provides racing a return from betting activity on its sport and which is used to fund prize money and other important expenditure, including regulatory and integrity services and veterinary research and education. This has fallen from an average of £106 million in 2003-04 to £66.7 million in 2008-09.

As just two knock-on effects, the number of horses in training has fallen by 10.6% between 2008 and 2012 while foal production was down 26% over the same period. The move by many betting operators to an offshore location for their remote gambling arms has been an important factor in the decline of the levy in recent years. Betting operators licensed offshore for remote operations are not liable to pay levy on their gross products on British racing from these sources. In other words, they are free riding. This is costing millions in annual levy receipts to racing and unfairly distorts the market against those operators which do pay the levy.

I think that British racing welcomes the Government’s introduction of this Bill, which will license all remote gambling, but as drafted it does not make any provision in relation to racing or the horseracing betting levy, meaning that the sport will not receive a return from remote betting activity, even once it is licensed with the UK Gambling Commission.

There was a Private Member’s Bill debate on offshore gambling in another place last year and the Minister of State for Sport, Hugh Robertson, said that any reform to the levy to capture revenues under a point-of-consumption licensing regime would constitute state aid, but a recent and comprehensive ruling from the European Commission will perhaps change the Government’s legal position. A French levy on online horserace betting has been approved, recognising racing’s special status and common interest with the betting industry. It sets a vital precedent and is, I believe, in the process of being reviewed by DCMS for any read-across to the Government’s previous legal position. I hope that the Minister will be able to update the House on that. The legal advice received by the British Horseracing Authority is that the collection of levy

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from remote operators under a point-of-consumption licensing regime does not constitute state aid. Amendments were put down on this matter in another place. Would the Minister be prepared to accept similar amendments in your Lordships’ House?

I should point out that there is no conflict between my support for Alderney in this regard and my call for changes to levy. The position of the Alderney Gambling Control Commission has always been that it would be willing to consider requiring its relevant licensees to contribute to the levy.

I understand that the Government have agreed to review the situation with regard to the levy. I hope that the Minister will be able to update your Lordships’ House on this when he winds up.

8.31 pm

Lord Clement-Jones (LD): My Lords, it has undergone a lengthy process but I welcome this Bill, which I hope will remedy clear flaws in the Gambling Act 2005. It has already undergone extensive pre-legislative scrutiny and well informed debate in the Commons. As my noble friend the Minister outlined in his introduction, the Bill will require remote operators to hold a Gambling Commission licence to deal with British consumers or to advertise in Great Britain.

The licences will be important. I understand that the licences for such online sites to be granted by the Gambling Commission will include a condition for comprehensive reporting of suspicious patterns of activity, but will the penalties for non-compliance be adequate? Much needed also is a licence condition for protection of player accounts following the Full Tilt case. What is the status of the consultation on this? Can the Minister give us an update tonight? What restrictions on advertising—for example, before the watershed—can the Gambling Commission impose and include as part of its licensing conditions. I hope that the Minister will be able to answer those questions.

Other questions remain with regard to the Bill and online gaming. What are the Government doing to combat problem gambling online, particularly as regards the ability to self-exclude, including “one stop shop” exclusion? What pressure are they and the Gambling Commission putting on operators to develop and use the necessary technology, such as play scan, to identify this? Will there be kitemarking of sites, as recommended by the Culture, Media and Sport Select Committee last May? Is it the Government's intention to introduce this and how will they fulfil it? Why are there no powers to block illegal offshore sites being introduced? If no statutory powers are proposed, is progress being made towards a voluntary agreement between ISPs? Why are there no measures such as payment blocking along the lines of the US Unlawful Internet Gambling Enforcement Act, which has been adopted by so many countries? Why are there no proposals, voluntary or statutory, to ensure that illegal sites cannot appear prominently in search results on search engines? How effective will monitoring and enforcement be? How will licensing checks be carried out by the Gambling Commission? Will adequate resources be given to the Gambling Commission to carry out regular test purchases

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and enforce conditions of the licences? When is it anticipated that the Bill will come into effect? How will the transitional provisions operate, particularly with regard to white-listed countries? The noble Baroness, Lady Pitkeathley, raised that point.

It is widely expected that the Treasury will announce a POCT—point of consumption tax—rate of 15%. Is 15% the right level to ensure that overseas operators cannot compete unfairly with UK-licensed sites in future? Some of the companies that continue to develop their software in the UK have concerns. They believe that the consequence of setting POCT at 15% will be that they and companies like them will be forced to relocate core services outside the UK. Investment in research and development, and in UK marketing, will be cut. The unregulated market, they say, will flourish, to the detriment of players and decent operators. The overall tax burden will be greatest for companies resident in the UK. What is the Government’s response? Can the Minister rebut these dire predictions? What discussions have they held? Why is the POCT being set at 15% if there are such risks in prospect?

There is also the question of whether the new legislation conforms to EU law, as it could be argued that one of the major objectives of the Bill is to bring offshore sites into the UK tax net. What, if any, moves are being made towards common pan-EU standards and compliance? Is there no prospect of a harmonised approach across Europe to ensure minimum standards and effective enforcement?

The Minister will also be aware that the National Casino Forum is seeking to amend the Bill to allow the UK onshore casino sector to provide its customers with the same online gambling experience as the online sector. Under existing regulation, onshore casino operators cannot indicate that the product is available from any internet-linked computer within the casino or advertise their online site on or around an actual computer with internet access. So a customer can bring their own internet access device—a tablet or a smartphone—into a casino and play online, perhaps even on the casino’s own online site, but the casino operator cannot offer that facility. What are the Government’s reasons for resisting such an amendment so far, despite the recommendation in its scrutiny of the draft Bill by the Culture, Media and Sport Select Committee, and the wide support that that has received? It appears that this is under consideration, but only by means of secondary legislation. That route seeks to categorise an internet access device as a gaming machine—perhaps a category A machine—if it is offered for use in a casino. Someone playing in the bar on their own iPad is not playing a gaming machine, but someone playing a device offered by the casino would be. If an internet access device is categorised as a gaming machine in these circumstances, it would become subject to gaming machine technical standards regulations. So a player using two different devices—one provided by the operator on the gaming floor in the casino and the other their own device—might face different conditions of play. That is totally confusing and unnecessary.

By contrast, the industry offered an amendment in the Commons that would have allowed the Secretary of State to control the number of such devices a

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casino could offer. I hope the Government will reconsider their position during the passage of the Bill through this House.

At the end of the day, we have to recognise that the Bill is very limited in scope and there are some key questions relating to ongoing Government intentions in other areas of gambling. The noble Baroness, Lady Pitkeathley, raised an important subject and concisely put the argument for going beyond the current four-year voluntary agreement with the bookies. Why is there no government commitment to consultation on future statutory arrangements to ensure the future of racing industry finances? I know that Ministers have believed hitherto that a new revenue-raising point of consumption licensing regime might constitute state aid. However, as the noble Baroness mentioned, the recent case in which a French levy on online horserace betting has been approved, in recognition of horseracing’s special status and common interest with the betting industry, now sets a vital precedent. I very much hope that Ministers will take note of that.

There is also the question of spread betting. That is, of course, currently regulated by the FCA, but how will its licences compare with those issued by the Gambling Commission? Should that not be included in the Bill, as some have argued, and brought within the ambit of the Gambling Commission? If not, can my noble friend confirm that an equivalent to condition 15.1 on reporting suspicious activity to sports governing bodies will be introduced, which will be enforced by the FCA?

Then there is the desirability of ensuring portability of casino licences as, faced with unused licences in a number of localities, logic would dictate. There are also all the issues surrounding FOBTs, which are now extensively under discussion. Of course, we have the whole area of match fixing. Do we need better definition of the offences or further sanctions?

Last, but absolutely not least, we have the issue surrounding the so-called Health Lottery. Do we have a national lottery, which has a monopoly, or not? If not, are we not putting at risk all those good causes that we support? I very much hope that the long-overdue consultation paper to test opinion on the impact of the Health Lottery, and the amendments that could be made to safeguard the National Lottery, will see the light of day very shortly.

It is clear that the Bill is one thing, but the many other issues that need resolving as regards the gambling industry, and lotteries and gaming, are another. Can my noble friend confirm in his winding-up today that all these issues are under active consideration, either by his department or by the Gambling Commission? I look forward to his reply.

8.41 pm

Viscount Falkland (CB): My Lords, this is quite a simple Bill, as other noble Lords have pointed out. I do not know whether other noble Lords have read the Second Reading proceedings in another place. In the past I did not normally have the habit of reading Second Readings, but I read that through twice and very interesting it was, too. It was really a kind of double act between Mrs Grant for the coalition and the department, and the Member for Shipley, Mr Philip

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Davies, who is a rising star in another place. I agree with the drift of Mr Davies’s speech that this is entirely a Treasury matter. A lot of the things that have been spoken about in another place and even tonight obviously have connections with what we are discussing, but not very close connections.

If it was foreseeable and acceptable, I would not oppose at all the idea of the Treasury to seek further contributions by introducing this point-of-consumption tax in Europe—provided that the licences are in order and so on—but the mistake that it made, if I may make this comment early, is the one that was made during the discussions we had on the pre-legislative scrutiny committee. The noble Lord, Lord Faulkner, who was in his place and is now elsewhere, was with me on that committee and will remember what killed the whole idea of casinos. When the Budd report came out, the idea that we could restore the magnificence of the seaside resorts by gambling and possibly by resuscitating entertainment and so on seemed rather improbable and fanciful. That appealed to the Government on one basis, which is where they fell down badly. That was that to address the danger of gambling by vulnerable gamblers, those people would have to decide to take money in their pockets and make sure that they had an adequate amount to spend over a weekend when they went up to, say, Blackpool—that was the most discussed place. But it was killed absolutely stone dead as was explained to me by experts from America because there is no way that you could get investment to produce the right project when the Treasury was putting such a high tax rate on it.

As I understand it, the guide is that a tax rate of 15% will be required. It is very interesting that the Treasury should do this. It is short-term thinking but it is also quite dangerous, because if you start putting a tax of 15% on licensed companies, it is going to make it very difficult for them to operate in a way that satisfies their customers. A large number of their customers will leave the well-regulated, satisfactory operators. The online companies that are licensed are extremely satisfactory. It will encourage people to go to places where they will be less secure as consumers, where there will be ability for people who are in danger, with their addiction going and so on. That has not been thought through by the Treasury, although I can see nothing wrong with the basic idea of the Treasury getting its hands on some more income.

Various other things have already been mentioned this evening that spring to mind. The Gambling Commission, for example, will have a great deal of responsibility as a result of this. I do not particularly like quangos of any kind, and I have not been too impressed by this quango so far. It is a poor replacement in terms of performance compared to its predecessor, on which it was based, which controlled casinos from the 1960s. The Gaming Board was extremely successful in that it did not grow unsatisfactorily into a kind of an empire. It seems to me that the possibility of empire-building as a result of this Bill is considerable. They will be flying around Europe inspecting places and so forth.

Certainly in the run up to the 2005 Act, we did not discuss online gaming at any length in the pre-legislative scrutiny committee. One afternoon I went to one of

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the leading online gaming companies. I have always been interested in gambling, unlike the noble Baroness, Lady Pitkeathley. I was particularly interested in this visit, because I was expecting something quite worrying. But I came away fully persuaded by the way in which that operation was run, how it took into account dealing with vulnerable gamblers, and the excellence of the staff—in particular, as regards protecting themselves from dangerous and vulnerable gamblers. For companies that work online, the last thing they want is those kinds of people. They would rather spend money on weeding them out before having to deal with them. They want regular players who have got the money to do what they do. They act responsibly and check them out thoroughly. They had three or four highly educated young women in that company who had psychology degrees. Their entire job was to follow and trace their customers’ betting patterns so that they could detect at any moment if they thought such and such a person ought to be watched closely. They would then report that to their employers.

I was convinced that these younger operators, these new people in the bookmaking firmament if you will, were extremely dedicated and extremely careful to run proper businesses, because they realised that integrity was what was going to bring them customers, so it was important that that integrity was maintained, even if it cost them a lot to do so. I have no doubt that the same thing will happen under the new conditions that are now being brought in.

I do not think adverts have anything whatever to do with anything. Adverts are just boring. People who are compulsive gamblers will not be watching adverts at any time. Any restriction that you place on gambling, rather like any restriction that you place on an alcoholic, a gambler will find his way around. So the companies that have the screening process that I have just described are doing a great service, really, to the respectable people who play on online sites. I do not know why we should be talking about advertisements, but I do not think that they do any harm—they are just ridiculous. I do not think that they will encourage even children to gamble, the advertisements that I have seen, and I have watched them quite carefully.

When I was a problem gambler in my early 20s—I would call myself a problem gambler, not a compulsive gambler—I got myself in some trouble, and I went along to see my bank manager to ask for an extension of my overdraft. It was a Scottish bank, with a formidable bank manager. After our discussion he looked at me very steadily and said, “We will grant you the extension of your overdraft that you asked for, but if you will forgive me I should like to make this remark. You have been paying one or two large amounts to a particular company. I would just like you to know that the managing director of that company is an important customer of this bank. He is a very rich man, and I would advise you not to follow the path of expenditure that you have been following in this regard”. It absolutely froze me dead, and I closed all my credit accounts. What my story tells you is that the old-fashioned bank manager was probably one of the best guards against improper expenditure.

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Perhaps the Minister can tell me—I ought to know, if it has been published—what percentage of public indebtedness is calculated to be down to gambling. It is an interesting figure, and I reckon that it is a very large figure.

I do not want to go on about any of the other things. I think that this proposal will produce some problems later on, as I have described. As for racing, I hope that the noble Baroness, Lady Pitkeathley, has paid a visit to the racecourse, where her daughter may have ridden, which is so wonderfully run by the noble Lord, Lord Cavendish. He may even speak to us a bit about Cartmel, which is really one of the nicest and most jolly racecourses in England, with the kind of atmosphere that she so graphically described.

Gambling is really something that gets worse when you do not indulge in it with groups of other people. As children, we all played penny poker and things of that kind. The problem with racing is that, if you become too interested in it, you burn the midnight oil and become solitary—and when you become solitary as a gambler, your problem increases. There is no doubt about that. I am thinking about online betting, and fixed-odds betting terminals in betting shops, where people play poker and roulette. In a normal roulette situation on the table, your action takes place within about eight or 10 minutes, but it takes 20 seconds on a machine. For people who are in danger with gambling, that is a very strong factor that ought to be taken into consideration.