Special Educational Needs and Disability Bill [Lords]

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Mr. Hayes: I do not want the Committee to be under any illusion about our intentions. The amendment is specifically about the educational needs of the child. For the most part—invariably, in fact—those needs coincide with parents' and children's wishes. As the hon. Gentleman rightly suggests, there will be exceptions. However, in suggesting that there is an implicit conflict, he is perhaps not drawing on his experience of such matters. He should apply that experience to his reading of our intentions and of the effect of the amendment.

Dr. Harris: I draw the hon. Gentleman's attention to the fact that he used the word ``invariably''. He did not say ``almost invariably''. Invariably means with no variation. Elsewhere in his intervention, he accepted that there would be variation from the norm. It is important to recognise that there might be conflict in some cases—it is not invariable that there will not be conflict—so a balance should be struck. As I shall say in more detail in a moment, the legislation should be based on the needs of the child. That is why we are here; it is what the Bill is about. So long as the Government make that clear, there will be no need to accept the amendment. That point was made in an intervention by the hon. Member for Leeds, Central, who is no longer in his place.

The Special Educational Consortium tends to back my position. I disagree with the hon. Member for High Peak, who suggested that there must therefore be something wrong with the amendment. I do not want to demean or diminish the amendment. We table amendments to challenge issues and accepted practices on which we are lobbied. I dissociate myself from the implication that an amendment is devalued simply because an important and authoritative lobby group disagrees with it.

Mr. Levitt: I certainly was not trying to imply that there was anything wrong with our debate or the principles of the amendment. Many of us would argue that its principles are embodied in the Bill. I simply wanted to ask the hon. Member for Daventry if any representative organisation supported the amendment.

Dr. Harris: I am happy that that clarification is on the record, but I question the hon. Gentleman's argument. In other debates, he supported proposals on reform of the structure of community health councils that no organisation backed. We must ensure that we consider the issues.

The hon. Gentleman may have been implying that we must pay special attention to the points made by the Special Educational Consortium because it is representative of a wide group and has great expertise. It has made two points that might satisfy the hon. Member for Daventry. First, it says that the condition that would be introduced by amendment No. 1 has been used to deny a mainstream place to children. There is no getting away from that.

Mr. Boswell: I am carefully following the hon. Gentleman's constructive contribution, in which he is making some proper corrections and qualifications to the points that I made. However, so far as I know, there has never been an explicit duty on the Secretary of State to secure educational needs. There is an issue about whether we are trying to involve the Secretary of State because individual LEAs have been derelict in their duties and have not met their obligations within the existing legislative framework.

Dr. Harris: I am making a general point raised by the Special Educational Consortium. One can always say that there are bad local authorities, but there are good local authorities that, faced with other exigencies, might cite the provision in support of a proposal to go against the parents' wishes, when those wishes have a good basis and are in the best interests of the child.

The Bill removes two of the caveats in section 316, one of which defines a situation in which education in a mainstream school could be deemed—``deemed'' is my word—incompatible with a child receiving the special educational provision that his learning difficulty calls for, as well as with the efficient use of resources. People have been concerned about that caveat being used to support a move to deny places in the mainstream. It could work both ways—against parents' wishes and against the real best interests of children. That might come about because of dereliction of duty or pressure on resources, or because of a misunderstanding.

The second point raised by the Special Educational Consortium was that statutory protection for the best interests of the child already exists. I would not be making these points if I were not satisfied on that. My noble Friend Baroness Sharp would not have accepted that argument, after careful consideration in the House of Lords, had we not been convinced that statutory protection for the best interests of the child is provided by sections 323 and 324 of the Education Act 1996, with schedules 26 and 27, which deal with how statements are made, as well as the SEN regulations and the code of practice.

Finally, I would like to draw the attention of the hon. Member for Daventry—I say this as politely as I can, using no classical allegories at all—to a philosophical question that we must face. His party has traditionally supported selection by schools. That implies less choice for parents, and certainly less choice for children. It is important philosophically, and it would help us in the rest of our consideration of the Bill if his party clarified whether it wants, where possible, more choice for children and their parents, or more choice for schools, which is what selection implies.

Mr. Boswell: I rise merely to give the hon. Gentleman notice that that is a matter to which we may wish to return during consideration of another amendment. In the spirit in which I answered the hon. Member for St. Ives, I shall do my best to clarify that point then, rather than return after a lengthy speech to make yet another explication of the amendment.

Dr. Harris: I thank the hon. Gentleman. While I am on a roll, I should point out that perhaps the Government should answer the same question, given their predilection for allowing more selection by schools.

Mr. St. Aubyn: I do not want the hon. Gentleman to stay on his roll for too long, because the logic of his argument is flawed. If our education system provides for diversity—of selective schools as well as non-selective schools—surely the choice of school available to parents and children is widened, not narrowed.

Dr. Harris: Of course not. If the system does not select a child, that child's choice is meaningless. I am conscious that this discussion is in danger of not being directly relevant to clause 1, and I look forward to our future debate on the subject.

I would like to make one more point to the Conservatives. In a Committee Room very close to this one, they considered the best interests, the wishes and the rights of the child in relation to access to health education on and the promotion of emergency contraception. They were flatly opposed to granting access to those who were mature enough to require it, saying that parents' rights must come first. For the sake of consistency, it is again important that the Conservative party should clarify whether it will pick and choose which rights of children it seeks to make paramount, and which it does not. The Opposition were more wrong in that case than in this, though I disagree with them on this one, too.

12 noon

Amendment No. 2 deals with the caveat of

    ``efficient education for other children.''

Again, that is difficult for us; we were worried about that and had to be persuaded in another place. Part of that persuasion was an undertaking by the Government to monitor the use of the provision. It would be of grave concern if it were used unnecessarily to exclude children with special educational needs, which is a subjective judgment.

It is interesting that the word ``efficient'' is inherited from previous legislation, because I should have thought that ``effective'' might have been better understood to separate the issue from that of resources, which otherwise hangs over our discussions like a shadow. We are talking about effective education, and it appears reasonable, a priori, to say that we must not interfere too much in favour of one child over the need of other children to be effectively educated. The use of ``efficient'' by definition implies resources, which is why many people are concerned. Will the Minister explain why she rejected ``effective''? It is close in the dictionary to ``efficient'', and I am sure, given her hours of study preparing the Bill and the long time that it took for even the draft Bill to be published, that there must be a reason why ``efficient'' was chosen over ``effective''.

The point made by the hon. Member for Tewkesbury about resources is allowed by the term ``efficient'', and must therefore be dealt with. I do not claim detailed knowledge of who makes the decisions in Gloucestershire, but I remember a fascinating debate in Westminster Hall in which the hon. Gentleman and the hon. Member for Daventry spoke. It is clear that local authorities are under pressure, so where resources are tight and new duties are placed on them, something must give. I doubt that any local authority will see the Bill as an excuse to make cuts, but when faced with new duties, budgets legally must balance, and when raising resources, Gloucestershire has been subject to capping legislation that the hon. Member for Tewkesbury supported.

Mr. Laurence Robertson: I can assure the hon. Gentleman that it has certainly been in the minds of certain people in Gloucestershire that closing special schools is a way of saving money. The then director of education, Mr. Roger Crouch, said in front of Labour members that he was ``doing his damnedest'' to save money through the SEN programme in Gloucestershire.

Dr. Harris: I do not want to get into the specifics of Gloucestershire, because I do not have the information, but speaking generally, when local authorities face new duties, such as those provided by the Bill, there are pressures. If those cost pressures, when quantified, exceed available resources, something must give. It is a question of terminology whether we interpret that as an opportunity to make cuts for their own sake or recognise that, given the under-resourcing of local authorities and their inability to raise the resources that local people may want them to raise because they are capped, they are forced into an invidious position. That is why we are worried about the resources attached to the Bill.

I hope that the Minister will make it clear that although there may be perceived effects of inclusion on the efficient education of other children, authorities should, before they decide that that means that provision must end, put into the balance the benefit to the broad education of the other children of inclusion—even of children with especially challenging behaviour and significant needs. Guidance is needed to ensure that schools do not just consider efficient education in direct and financial terms, but look more widely at the benefits of inclusion. We will want to see how the provision works if the Bill is unamended. If our attention is drawn to cases in which the clause is used unnecessarily and inappropriately—I accept that those terms are subjective, but they reflect the wording of a later amendment—to exclude children with special needs on grounds of efficiency, we would want the Government of the day to reconsider the matter.

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