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The noble Baroness said: My Lords, Clause 12 requires schools to take measures to prevent substantial disadvantage to the pupil. Clause 12(3) provides for those measures, those "reasonable steps" as the Bill would have it, to be prescribed by regulation. In other words, at some time in the future, officials would draw up a list of steps which should be taken, might be taken and which should never be taken. There are two major objections to such provisions being made in regulations. The first is the usual one: that powers to regulate should be kept to the very minimum. Primary legislation should be the norm; secondary legislation should be used as rarely as possible, although recent governments of both parties have not held too well to that dictum.
We have far too much bureaucracy as it is; indeed, any more needs to be avoided if at all possible. In the present case, it is not only possible, it is highly desirable by virtue of the second objection to this subsection. Without the subsection the school must take whatever steps it considers reasonable in the particular circumstances presented to it--circumstances as to the present premises and facilities available, and circumstances as to the nature of the disability of the
In attempting during Committee to persuade me that the regulations were necessary, the noble Lord, Lord Davies, invoked right at the end of his response the need for flexibility in the operation of these powers. The dear noble Lord has made my case for me once again. That is just it: we do need flexibility. Far from increasing flexibility, regulations actually limit it. That is what regulations do. That is why they are produced. They limit everything to what is regulated: they limit freedom of action for those "reasonable steps" that the officials drawing up the regulations have devised as being of universal application throughout the country to some average school that they have in mind, and almost certainly will never have seen.
How much better it would be to require each school to decide for itself what steps it can take in the specific circumstances of that school, and leave it free to do so. Nothing in the response that we received in Committee removed the need for this amendment. Indeed, the reply of the noble Lord, Lord Davies, actually reinforced the case for the amendment. I beg to move.
Baroness Blackstone: My Lords, as my noble friend explained in Committee, the regulation making powers in Clause 12 would allow us to prescribe circumstances in which it is reasonable and not reasonable for schools to have to make prescribed adjustments, and to prescribe adjustments that it is always reasonable and never reasonable for a school to have to make.
We have no plans to take up the regulation making powers upon commencement. We wish to keep the reasonable adjustment duty under review. These regulation making powers are about giving us flexibility to deal with any particular problem that might emerge which we cannot really anticipate prior to the duties being in operation. If it becomes apparent that there are certain adjustments being requested of schools that we think would always be reasonable or unreasonable, and that it is not appropriate for those matters to be dealt with purely by the reasonableness test, we shall take up the regulation making powers.
It is possible that schools may not be making adjustments that we consider to be reasonable in all circumstances: for example, adapting a school uniform policy for pupils whose disabilities mean that they would be placed at a substantial disadvantage if they had to comply with the full uniform policy. In our view, it would always be reasonable for a school to have to adapt a school uniform if it placed a disabled child at a substantial disadvantage. I hope my explanation that these are no more than reserve powers to be used if it is necessary to do so will persuade the noble Baroness to withdraw her amendment.
I find this provision both unnecessary and otiose. It is part of the mania to which I also fell victim when I was a Minister in the department. I have in mind the mania on the part of all departments to have regulating powers for that day over the hill when they may be needed. So often, given Parkinson's law, they will feel the need to pass regulations. We shall find ourselves passing inane regulations which tie the hands of schools. I am a free schools person. This is another point that I suspect we shall return to at Third Reading. I beg leave to withdraw the amendment.
The noble Lord said: My Lords, my objections to subsection (3) of Clause 12 are more specific than those of my noble friend. I can understand how subsection (3)(a) and (b) might work to advantage if particular practices arise that the Government want to eradicate and where they want to make sure that schools generally do make certain kinds of adaptation. But I cannot imagine any circumstances under which the use of subsection (3)(c) and (d) would be reasonable. What the Government are imagining here is that practices are growing up among schools of making adaptations or making concessions or changes in policy in order to accommodate disabled people and the Government want to stop it. They want to make a rule which states, "You may not take these steps. All you schools have been widening your doors and now you are not to". Why do the Government want to say that?
Why do the Government require a power to stop schools moving towards making life easier for disabled people, because that is all that subsection (3)(c) and (d) can be used to do? What function does that play in the proper relationship between schools and disabled people and the Government? Why do the Government want to have the ability to look at what is happening in schools and to say, "We are very disturbed at this practice of accommodating blind people; you must stop it", or, "We wish to put restrictions on the way that you are adapting your premises to make them easier for people with wheelchairs"? How can the Government ever wish to do that? What possible needs can they see? Can the Minister illustrate any
Baroness Blackstone: My Lords, I do not have much to add to what I said in answer to the amendment of the noble Baroness, Lady Blatch. As I explained in speaking to that amendment, which is very similar, the regulation-making powers are reserve powers. We have no plans to take them up as soon as the reasonable adjustment duty comes into force. However, if it becomes apparent that there are certain adjustments being requested of schools that we are of the view would be unreasonable and we think that it is not appropriate for those matters to be dealt with purely by the reasonableness test, we shall take up the regulation-making powers.
I give one example of an adjustment we would not consider reasonable. Schools may come under pressure to change their class size practices if parents argue that their disabled child is prejudiced by the addition of, for instance, an extra five pupils. In our view it would never be reasonable for a class size to have to be reduced and we do not want schools to have to spend time justifying not making that adjustment. I hope that in the light of what I have said the noble Lord will withdraw his amendment.
Baroness Blatch: My Lords, before the noble Baroness sits down, even as regards the example she has given, you would not pass a regulation to say that no school must resist the pressure of reducing class sizes in order to accept a pupil with special educational needs. Some schools would be more than happy to do that. But as regards passing a regulation to say that it would not be reasonable for schools to reduce class sizes in order to receive a child with special educational needs, is the noble Baroness giving that as an example of something that the Government would say to all schools throughout England and Wales; that is, that it would not be reasonable to do that, especially where a school is entirely happy and able to accept a child with special needs by responding in that way?
Baroness Blackstone: My Lords, I did not say that. If a school is perfectly happy and has the resources and is able to reduce class sizes, that is fine. I said that the Government would not think it right that a parent of a disabled child could insist that a school had to reduce the size of the class of which the disabled child was a member. That is quite a different point.
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