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Public Bill Committee Debates

Draft National Assembly for Wales (Legislative Competence) (Education and Training) Order 2008

The Committee consisted of the following Members:

Chairman: Hywel Williams
Baron, Mr. John (Billericay) (Con)
Clwyd, Ann (Cynon Valley) (Lab)
David, Mr. Wayne (Caerphilly) (Lab)
Havard, Mr. Dai (Merthyr Tydfil and Rhymney) (Lab)
Irranca-Davies, Huw (Parliamentary Under-Secretary of State for Wales)
James, Mrs. Siân C. (Swansea, East) (Lab)
Jones, Mr. David (Clwyd, West) (Con)
Kirkbride, Miss Julie (Bromsgrove) (Con)
Leigh, Mr. Edward (Gainsborough) (Con)
Lilley, Mr. Peter (Hitchin and Harpenden) (Con)
Llwyd, Mr. Elfyn (Meirionnydd Nant Conwy) (PC)
Lucas, Ian (Wrexham) (Lab)
Luff, Peter (Mid-Worcestershire) (Con)
Michael, Alun (Cardiff, South and Penarth) (Lab/Co-op)
Morden, Jessica (Newport, East) (Lab)
Morgan, Julie (Cardiff, North) (Lab)
Ruane, Chris (Vale of Clwyd) (Lab)
Smith, John (Vale of Glamorgan) (Lab)
Williams, Mrs. Betty (Conwy) (Lab)
Williams, Mark (Ceredigion) (LD)
Williams, Mr. Roger (Brecon and Radnorshire) (LD)
Celia Blacklock, Committee Clerk
† attended the Committee

Sixth Delegated Legislation Committee

Tuesday 18 March 2008

[Hywel Williams in the Chair]

Draft National Assembly for Wales (Legislative Competence) (Education and Training) Order 2008

4.30 pm
Mr. Roger Williams (Brecon and Radnorshire) (LD): On a point of order, Mr. Williams. While it is always a pleasure to serve under your generous and inspiring chairmanship, many of us felt that on this historic occasion this issue should be considered on the Floor of the House. There were many indications that that would happen. The hon. Member for Carmarthen, West and South Pembrokeshire (Nick Ainger) said:
“Once that has been put together, the Secretary of State will liaise with the Welsh Assembly Government to produce a finalised draft Order in Council. Then, and only then, would the Secretary of State lay the draft Order in Council in an unamendable form for the 90-minute debates in both Houses of Parliament, inviting their approval. I would expect those debates to take place on the Floor of the House, certainly in the early days of the process.”—[Official Report, 24 January 2006; Vol. 441, c. 1331.]
These are the early days of the process and I am sure that many of us would appreciate the opportunity to take the matter to the Floor of the House.
The Chairman: That is not a point of order and I suggest that the hon. Gentleman take up the matter through the usual channels.
Alun Michael (Cardiff, South and Penarth) (Lab/Co-op): Further to that point of order, Mr. Williams. It would be reasonable for any hon. Member to explain what massive areas of controversy mean that the matter should appear on the Floor of the House, rather than in Committee; otherwise, it seems to be merely an attempt to get a headline for the hon. Gentleman.
The Chairman: Order. That will be covered in debate. Let us move on.
4.32 pm
The Parliamentary Under-Secretary of State for Wales (Huw Irranca-Davies): I beg to move to move,
That the Committee has considered the draft National Assembly for Wales (Legislative Competence) (Education and Training) Order 2008.
May I say what a great pleasure it is to serve under your chairmanship, Mr. Williams? It is an often overused phrase, but it was an historic day for Wales at the weekend and in another, very different way it is an historic day today, which is in the hands of the Committee and your stewardship, Mr. Williams.
Hon. Members will be aware that the 2006 Act includes a number of controls in conferring legislative competence on the National Assembly. For example, measures made by the Assembly have effect only in Wales and only in respect of the scope of the competence conferred. They cannot remove or modify functions of Ministers of the Crown without the consent of the relevant Secretary of State.
The draft order will confer further legislative competence on the National Assembly in the field of education and training—an area that has been largely devolved for many years. Welsh Ministers have wide-ranging powers across the spectrum of education and training, including in relation to schools, nursery schools, universities, further and higher education institutions and special educational needs. The Assembly has also registered a competence in many areas of education and training, conferred through framework powers in parliamentary Acts, which is set out in schedule 5 to the Government of Wales Act 2006. For the attention of hon. Members, the latest version of that schedule is attached to the explanatory memorandum that accompanies the draft order.
Policy in this area of education has been developed in Wales on a collaborative, all-party basis. Indeed, the draft order originated from the report and recommendations of the National Assembly’s former cross-party Education, Lifelong Learning and Skills Committee. The draft order also reflects recommendations made by the Children’s Commissioner for Wales. The principle of different educational provision is already well established in law and in practice in Wales. The draft order will enable the Welsh Assembly Government to introduce measures for special educational provision for children, young people and adults with additional learning needs. It is also important to acknowledge the opportunities that the draft order offers to cover all age groups for lifelong learning, so that adult learners in the community, adult, work-based further education and higher education sectors may also benefit.
The proposed order was considered by the House of Lords Select Committee on the Constitution, the Welsh Affairs Committee and the Committee of the National Assembly for Wales. The scrutiny process has provided the members of those Committees and other interested parties, organisations and constituents with the opportunity to comment and question and to suggest amendments. All the recommendations arising from the final reports of those Committees have been carefully considered. The draft order laid before the Committee today reflects the outcome of those considerations.
Under the devolution settlement, the National Assembly has responsibility for special educational needs provision in relation to education and training, but without the legislative powers for it to change fundamental aspects of such provision.
Mr. John Baron (Billericay) (Con): Without wishing to be mischievous—I know the Minister is a likeable chap—does he appreciate that he is reading verbatim from a speech by Baroness Morgan of Drefelin? If so, does he have an explanation?
Huw Irranca-Davies: Indeed. The Baroness and I conferred diligently together in the preparation of this material. If it is worth saying once, it is worth saying again. I know that the hon. Gentleman was not trying to be mischievous at all, but the message that the Baroness and I bear is identical in purpose and intent on this historic day.
Under the devolution settlement the National Assembly has the responsibility for special educational needs provision, but change in the legislation is not within its scope without the powers here. At present, for example, the National Assembly has no powers to legislate to strengthen the status of the code of practice for special educational needs in Wales to ensure compliance. The current SEN code of practice provides practical advice to local education authority schools and other key stakeholders on how to carry out their statutory duties. The code is, however, considered to have only weak legal force, since LEAs only have to have “regard” to it. That contrasts with similar guidance for social services, where established law means that authorities are expected to “comply” with it.
There is also no statutory basis for the National Assembly to make the current formal system of statementing less prescriptive. Although the Welsh Assembly Government have powers to make regulations about the operation of the statementing process, they are unable to make more fundamental changes to the structure of the statutory process since that is enshrined in primary legislation. While it might be too early to suggest in detail what changes might be necessary, that fundamental weakness was highlighted by the National Assembly’s former Education, Lifelong Learning and Skills Committee, in the policy review of the statementing process. The Committee called on the Welsh Assembly Government to seek the necessary powers to secure full legal competence for such statutory assessment arrangements.
A further limitation, on the statutory level, is that the National Assembly currently has no power to alter the range of individuals with a right to appeal to the SEN Tribunal for Wales, including the right of appeal for children with sufficient understanding to exercise that right, in addition to that for parents and carers. The Children’s Commissioner for Wales strongly urged the Welsh Assembly Government to consider providing a right of appeal for children. He saw that as being particularly consistent with the UN convention on the rights of the child, which underpins all Welsh Assembly Government policy for children and young people. At present, the right of appeal is limited to parents and carers of the children and young people whose cases come before the tribunal. It is important that there be opportunity for public consideration of such issues and that widespread consultation with key stakeholders takes place.
The granting of legislative competence on additional learning needs will enable the National Assembly to carry forward its policies and to make a real difference to the lives of Welsh learners, enabling them to participate fully in the many learning opportunities available in Wales. It will enable the Assembly to consider and scrutinise further legislation in this area and to tailor provision in line with Welsh needs. I therefore commend the order to the Committee.
4.39 pm
Mr. David Jones (Clwyd, West) (Con): May I say, Mr. Williams, that it is a great pleasure to serve under your chairmanship for the first time?
As we heard from the Minister, and from Baroness Morgan, the draft order is the first legislative competence order to be made under the provisions of section 95 of the Government of Wales Act 2006. The period of parliamentary scrutiny has been lengthy. It started as long ago as July last year, when the Select Committee on Welsh Affairs was invited to commence scrutiny by the Secretary of State. Given that this is the first legislative competence order to come before the House, it was perhaps to be expected that its consideration would involve something of a learning curve. Such indeed was the case. The process has not proved entirely uncontroversial, but I hope and expect that in future it will prove rather less fraught, and that both the Assembly and Parliament will benefit from what they have learned.
I shall highlight one or two matters identified by the Select Committee in its report as areas where there might be room for improvement. First, the Select Committee was satisfied that the explanatory memorandum produced by the Welsh Assembly Government addressed a consensus that there was an identifiable need for the order that we are considering. However, the Committee noted that the evidence provided to support the application for the order did not do so effectively or convincingly. I must say that statements made at the time by certain members of the Welsh Assembly Government appeared to indicate a degree of resentment that Parliament should require compelling evidence in support of the order at all. I regret to say that that caused certain parliamentarians to suggest that the Assembly Government were expecting the LCO to involve a process of rubber-stamping rather than scrutiny. As a consequence, the scrutiny process was sometimes rather prickly and bad-tempered. I hope that all parties will learn from that experience, and that the Assembly Government in particular will see the need to provide the sort of supporting evidence that the Select Committee indicated would have been helpful.
Secondly, the Select Committee said that although it could not expect every detail of all future Assembly measures to be provided, it would have been helpful if it had been given a clearer indication of the most immediate legislative proposals for which the additional competence was being sought. As a member of the Select Committee, I agree fully with that observation. If the Committee is provided with such information, it can form a clearer view of the purpose for which the competence is requested, hopefully resulting in the streamlining of the process. The Assembly Government have no need to be coy about what they intend to do with the powers conferred on them.
Alun Michael: The hon. Gentleman refers to meetings and consideration by the Welsh Affairs Select Committee, in which a number of us take part. I certainly do not regard it as being characteristically prickly and bad-tempered. We asked robust questions, which is what we are there to do. It is my view that the process needs to grow up and be examined, because not enough thought was given to it before hand. That is in the flavour of being co-operative and helping the Assembly do its job properly, not in the slightly confrontational style of approach that he seems to be adopting.
Mr. Jones: I apologise to the Committee and to the right hon. Gentleman if my style is confrontational. It is meant to be helpful. It would have been very helpful indeed if the Assembly had come forward with a draft measure. I add—I hope that he will agree, if he is still listening to what I am saying—that in the case of private Members’ applications for LCOs, there is no reason why a draft of the proposed measure could not be supplied to the Select Committee. As he rightly says, it would speed up the process immensely. It is a question of being helpful. The process has been difficult on this first occasion. I have no doubt, however, that as it progresses it will become more streamlined.
Alun Michael: As the hon. Gentleman addressed his question to me, I think that the earlier the Select Committee is given an idea of what the Assembly—or the Back Bencher, if it is a Back-Bench legislative competence order—seeks to achieve, the better it will be for us in enabling us to work together for the best legislative outcome. Hopefully, that will be seen as a positive way of working towards partnership. Otherwise, there is a problem that a Back-Bench LCO could pop out of the woodwork without any explanation or thought, with a lot of unintended consequences. I hope that we can help to make the mechanism effective.
Mr. Jones: I am glad that the right hon. Gentleman and I are ad idem on that point. As I said earlier, the process that we are coming to the end of has been a learning curve. Notwithstanding what the right hon. Gentleman says, there was a certain amount of mistrust on both sides of the M4, but I am sure that that can be improved.
Returning to the wording of the original draft, I should like to mention the question of disability. The draft order, as originally drawn, provided for the insertion of a new matter—matter 5.17—which deals with education and training for, among others,
“persons who have a disability”.
The original order’s definition of “disability” provided that a person had a disability for the purposes of the matter if they had a physical or mental impairment. That definition was considerably broader than the definition provided in the Disability Discrimination Act 1995, which provides that a physical or mental impairment amounts to a disability only if it has
“a substantial and long-term effect on his ability to carry out normal day to day activities.”
The proposed order, in its original draft form, contained no such qualification.
That LCO has been further amended by extending the scope of matter 5.17 to
“education and training for persons with a progressive health condition (such as cancer, multiple sclerosis or HIV infection) where it is at a stage involving no physical or mental impairment.”
Those terms were not contained in the original draft LCO; the Assembly inserted them after the Select Committee reported. The reason for the addition is set out in the explanatory memorandum to the order, which is very helpful, because it sets out the reasons for the insertion.
On process, however, I should observe that in the case of future draft LCOs, when there is a significant amendment to the text of the original draft after the Select Committee has reported, consideration should be given to provision for the Select Committee, if necessary, to carry out further scrutiny and prepare a supplementary report. I am not suggesting that the scrutiny process should go backwards and forwards on a ping-pong basis, but when a significant amendment is made to any future draft LCO after the Select Committee has reported, the Minister might wish to consider whether the Select Committee should, so to speak, have a second bite of the cherry. At present, so far as I can see, the procedure does not permit that. Having said that, I do not believe that further scrutiny is appropriate in this case.
To summarise, the LCO has been something of a test bed for the scrutiny process. It has been a challenge for the Select Committee—and I commend the hon. Member for Aberavon (Dr. Francis) on his chairmanship, but it has acquitted itself well. The materials provided by the Assembly Government could have been clearer, and the Assembly Government should be more willing to share with the Select Committee the nature of the legislation that they contemplate making under the terms of the order. Although the Select Committee criticised their stance, it has nevertheless decided to support the making of the LCO.
The Assembly Government should perhaps bear in mind that that need not always be the case. I have no doubt that if the Select Committee concluded that the case for competence in a particular area was not made, it would robustly discharge its duties and not support such an order. Having said that, I am glad to say that the Conservative party does not intend to oppose the order and I look forward with great interest to forthcoming measures from the Assembly consequent on this grant of competence.
4.50 pm
Mark Williams (Ceredigion) (LD): I would like to add to hon. Members’ comments about the historic nature of the order. I share the legitimate gripe of my hon. Friend the Member for Brecon and Radnorshire about how the matter was not discussed on the Floor of House. That would have provided a useful opportunity to display the consensus that the—
Huw Irranca-Davies: Should the hon. Gentleman have gone through the usual channels or come to me directly, as a Minister, I would of course have considered carefully the idea of presenting the order on the Floor of the House. If, in future, he would care to raise such a matter not in Committee, but through the usual channels, we could of course deal with it very sympathetically. Unfortunately, this is the first we have heard of his gripe.
Mark Williams: I thank the Minister for that useful intervention. I remind him of his former ministerial colleague, the hon. Member for Carmarthen, West and South Pembrokeshire (Nick Ainger)—
Alun Michael: I note with interest the Minister’s courtesy and generosity, but I am sure that the hon. Gentleman will appreciate that time on the Floor of the House is precious and for matters of disagreement. Now that we have exposed the fact that he and his colleague did not follow the usual processes, will they explain why they think that this is a matter of such controversy that it should have been dealt with on the Floor of the House?
Mark Williams: I thank the right hon. Gentleman for that intervention. I was simply reflecting, on this historic occasion, that hon. Members from all parties might have taken advantage of this great opportunity to celebrate our consensus on the first LCO. I remind the Minister of the remarks of the hon. Member for Carmarthen, West and South Pembrokeshire, who said on the second day of consideration in Committee:
“I would expect those debates to take place on the Floor of the House, certainly in the early days of the process.”—[Official Report, 24 January 2008; Vol. 441, c. 1331.]
The Minister can rest assured that he will be hearing from me and my hon. Friends on that matter.
Mr. Jones: Will the hon. Gentleman inform the Committee which of the forthcoming LCOs the Liberal Democrats will suggest come to the Floor of the House, and whether he will pursue that through the usual channels?
The Chairman: Order. I think that we should return to consideration of the order before us.
Mark Williams: I am particularly grateful for that wise judgment, Mr. Williams.
I pay tribute to the National Assembly Committee that scrutinised the order and to my colleague, Eleanor Burnham, who chaired it. Her contribution was recognised by the Assembly education Minister. Like the hon. Member for Clwyd, West, I also pay tribute to the Chairman of the Welsh Affairs Select Committee—of which I am a member—the hon. Member for Aberavon (Dr. Francis), for his sterling work.
Having got my legitimate gripe out of the way, I want to emphasise briefly how supportive my colleagues and I are of the order, although serious matters of process remain to be dealt with, to which the hon. Member for Clwyd, West alluded. I also agreed with the right hon. Member for Cardiff, South and Penarth when he talked about the Select Committee’s opportunity to hear earlier the intentions behind the LCO. It would have been helpful to have taken evidence earlier either from Welsh Assembly Minister, Jane Hutt, or the Minister here—that is not a criticism of him, but perhaps of the process. The Committee needed to hear earlier from the proponents of the LCO about its intentions. It is clear that the powers requested in this LCO are within the terms of the devolution settlement, and that a clear need has been demonstrated for increased legislative competence.
I should declare an interest as a former teacher; indeed, I am still a member of the National Association of Schoolmasters Union of Women Teachers. Compliance with SEN codes of practice will resonate strongly with anyone who deals with special needs education in our schools. The additions to the Assembly’s legislative competence will give it greater power to carry out SEN policy and more flexibility to alter requirements on local authorities, and will allow it more freedom, as the Minister said, to alter statementing policy. All those matters fall within the spirit of devolution and the powers that should rest in Wales with the Welsh Assembly Government.
In those early stages in the Select Committee, it was not sufficient for us simply to be pointed in the direction of the Assembly Government’s document, “The Learning Country: Vision into Action”. We requested specific details, and it would have been right to have had them earlier. I am particularly glad that the Wales Office and the Assembly Government have responded positively to both scrutiny Committees’ recommendations. The redefinition of disability, and the removal of the word “disability” and its replacement with the phrase
“persons who have, or have had...a physical or mental impairment”
is welcome.
In response to the comments of my noble Friend Lord Livsey in another place, Baroness Morgan stated that the new definition would be broad enough to include those with a communication impairment. I am sure that the Minister will be able to confirm that today. We also welcome the inclusion in matter 5.17 of those
“who have...a progressive health condition”.
The new provisions in the order for travel arrangements, higher education students and children in nursery schools are also welcome. That it is a positive way in which the scrutiny Committees contribute to the LCO process.
My noble Friend Lord Livsey also raised an important cross-border issue to which the Welsh Affairs Committee is now turning its attention: provision for Wales-domiciled students studying in England. In response to his comments, Baroness Morgan stated:
“If they”—
those in education and training—
“are placed with an institution in England, it will have been assessed as appropriate for their needs in accordance with Welsh criteria.”—[Official Report, House of Lords, 12 March 2008; Vol. 699, c. 1567.]
I hope that the Minister will say more about how liaison between English and Welsh authorities on SEN provision will work as policies begin to diverge. That is a real issue in parts of Powys and elsewhere along the border.
I am pleased that the first, historic LCO—
Mr. Roger Williams: My hon. Friend used the word “historic”. Does he know that there is some contention about whether the word “historic” will be used more in consideration of the LCO than “stability” was used in terms of the Budget? I think that my hon. Friend is well on the way to doing that.
Mark Williams: It is an important day, and I thank my hon. Friend for that intervention.
Just over 4.5 per cent. of the children in my constituency are statemented, which is one of the highest figures in Wales. That statistic helps us to highlight the importance to many families of good quality education to meet additional learning needs, but the issue is not just special educational needs within the confines of a classroom for those aged four to 11. It is about stretching special educational needs into further and higher education and into the world of work, which is why it is vital that the National Assembly have a full range of tools to meet those needs, and why Liberal Democrats are happy to support the order.
Finally—I shall not go too far down this line—it is also about local education authorities having the resources to develop meaningful special needs education.
4.59 pm
Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): It is an unbridled pleasure to serve under your able, wise and distinguished chairmanship, Mr. Williams, even if I am, for the purposes of this sitting, taking the Labour Whip.
The hon. Members for Brecon and Radnorshire and for Ceredigion referred to their legitimate gripe, which reminds me that when my children were suffering from bad wind we used to give them gripe water. I do not know whether that would assist the hon. Gentlemen to get rid of their discomfort. In future, such matters may be dealt with in the House, but as the right hon. Member for Cardiff, South and Penarth said, there is a great deal of pressure on time there. There is no argument today about the efficacy of this legislation, in any event.
The memorandum is full, informative and easy to understand; it is a good piece of work. Often, when one sits on a Committee, that is not so. It is all in there and it is clear in paragraph 7.10, which probably formed the script for the Minister’s opening statement.
It is important to look briefly at one or two of the powers that the Minister did not refer to, but which are none the less quite important. I understand that he was trying to keep things relatively short and, bearing it in mind that there is no real controversy, that is understood. The memorandum says:
“the current system does not allow for local dispute resolution mechanisms to be concluded before proceeding to appeals to the Tribunal”.
Clearly, if that is possible, it is a good thing. It says:
“there is no statutory requirement for LEAs to provide advocacy services for children with SEN. This is in marked contrast to the position in relation to social services for children in respect of whom the Children Act 1989 places an express duty upon”
local education
“authorities to make advocacy arrangements.”
That is an important power. I understand and appreciate what was said earlier about resources, but I have no doubt that the National Assembly will have that in mind. The memorandum also says:
“there is little scope for the Welsh Assembly Government by regulations to confer additional specific duties upon LEAs or anyone else in relation to”
special educational needs.
All in all, the order is welcome. Most of education has been devolved, and it does not seem logical that something as prevalent as special educational needs should not be devolved. The hon. Member for Ceredigion mentioned a number of cases in his constituency. All hon. Members have cases on their books, as it were, of people who are being let down somewhat and are having to fight, with us acting as advocates on their behalf, which is part of our function. One hopes that there will be a streamlining of the availability of these lines of assistance in due course.
The hon. Member for Clwyd, West said that there has been a learning process. Clearly, that is so. My reading of what has been transacted is that the Welsh Affairs Committee did a good job. The Assembly Committees, likewise, took evidence from many interested bodies and individuals and extensively discussed the matters before formulating their ideas up to this stage.
This has been an evolving process. That might partially explain why the hon. Member for Clwyd, West was asking why we did not know a bit more a little earlier on. It is always good to know more—I am not saying that that is not so—but perhaps we did not know earlier because this has been an evolving, learning process. To be fair, the hon. Gentleman made some reasonable points in relation to any further legislation that comes before a Committee such as this, and they will doubtless be noted elsewhere.
I will not keep Committee members sitting here this afternoon. All I will say is that this is a landmark piece of legislation.
Mr. Roger Williams: It is historic.
Mr. Llwyd: The hon. Gentleman once again says “historic”. He is obviously rapidly getting rid of his gripes. I agree that it probably is historic, as was the victory on Saturday.
All witnesses who appeared before the various Committees in the National Assembly agreed that the powers now being sought should reside with the Assembly. These were people drawn from specialist areas in education, special educational needs, and so on. In future, it will be useful and helpful to streamline proceedings; we must not let those people down.
Without overstating the case, I am pleased to note the forthcoming change in the law and that much has been learned during these proceedings, which will undoubtedly stand us all in good stead when further LCOs come before Parliament. I welcome the measures in the LCO, and I hope that it will make a difference to the lives of young people in Wales.
5.6 pm
Huw Irranca-Davies: The scrutiny and content of the debate are reassuring, particularly at the end of this long process. The Order in Council has been thoroughly scrutinised by the National Assembly for Wales, the Select Committee on Welsh Affairs, this Committee and the other place. It is the first Order in Council to be subject to a vote in this place and to the will of Members, and it is the first to pass to Members of the National Assembly for Wales, under the new approach in the Government of Wales Act 2006, the competence to introduce and scrutinise measures. This is a significant moment in time, and the order could not be on a more suitable issue than additional learning needs, because it will have an immediate impact on the lives of those to whom it is relevant.
I welcome the positive comments that we have heard today, which reflect the general consensus on the order. There has been much comment on process, and I agree entirely that it has been a learning process. As the junior Minister in the Wales Office, I have been intimately involved with this order and others almost from the day that I walked into Gwydr house. The experience has been challenging, but it is rewarding to see how Members, the Welsh Affairs Committee and others have risen to the challenge of scrutinising the order effectively.
I shall refer briefly to the debate in the other place. In his eloquent speech, Lord Rowlands discussed the three tests that should apply to any order that is scrutinised. In future, those tests may be referred to as “Lord Rowlands’ tests”. The first test is
“whether there is proper justification for seeking such competence.”
He concluded that there is “overwhelming justification” in this case, which derives from
“an excellent, painstaking and very sensitive review by the Education, Lifelong Learning and Skills Committee”.
The second test is whether the competence being asked for is “specific and clearly defined”, and he concluded that the order is. The third criterion is that there should be “proper legislative scrutiny”. He concluded that the
“process by which this order has arrived here is proof that that criterion has been well and truly met.”—[Official Report, House of Lords, 3 March 2008; Vol. 699, c. 1565.]
All the peers reached the same conclusions.
This has been a learning process, and I take on board the comments made by hon. Members and in the Welsh Affairs Committee that scrutiny must be rigorous. Ministers in the Wales Office always made it clear that this would be a learning process and that we would always be open to improving and refining how we carry out scrutiny here. That is as it should be, but the order is something of a model.
Let me turn to issues arising from the definition of disability, which were raised throughout the progress of the order. They show that scrutiny not only informed the debate but led to changes by the bye in some areas. The Welsh Affairs Committee recommended that the order contain a definition of the term “disability”, referring to the WHO definition, and it said that the Welsh Assembly Government should have the power to change the definition if necessary. However, following extensive discussions, the term was omitted from the order, not least, as has been mentioned in the good explanation in the explanatory memorandum, because it was thought that to put a definition in the order that was not within the control of Parliament or the National Assembly would limit the future ability to deal appropriately with the needs of those who are affected by the competence.
However, two other items added value to the Order in Council during the process. One was to do with the inclusion of progressive health conditions. In considering in detail the definition of disability, legal advisers identified a quite different problem with the definition. As originally drafted, the order covered those with progressive health conditions, but only if they also suffered an identifiable impairment. As such, the order would not have encompassed persons in the early stages of a progressive health condition if their physical and mental characteristics or abilities were unaffected, so the result was a change in the order.
In addition, the proposed order excluded persons with a past disability who no longer have a disability. That was inconsistent with the definition of disability in the Disability Discrimination Acts. The order now encompasses persons who have had a physical or mental impairment and persons who have had a progressive mental health condition. That is important because it will ensure that such persons are captured by the jurisdiction of the SEN Tribunal for Wales.
The order gives the National Assembly legislative competence to extend the scope of the tribunal to consider claims of disability discrimination from persons with a past disability in respect of decisions about admission to, or exclusion from, educational or training institutions. I raise that to illustrate the process that the order has been through, the level of scrutiny to which it has been subjected, and the fact that it has been changed by the very nature of that good scrutiny. Communication difficulties were raised. To clarify the position, the National Assembly Committee recommended including communication difficulties in the definition of physical or mental impairment. Welsh Ministers decided against acting on that recommendation. They considered the matter carefully, and are confident that the words, “physical or mental impairment”, include communication impairment. Indeed, to accede to the Committee’s recommendation would have the perverse effect of casting doubt on the generality of the current formulation, which is specifically designed to be all-embracing, and which gives the necessary scope and flexibility. I hope that that satisfactorily answers the point raised by the hon. Member for Ceredigion.
The hon. Member for Clwyd, West and others said that this had been a learning process. He asked whether the matter could be looked at again and referred, for example, to a second bite of the cherry. That was an interesting point, but I am sure that he and I—and others, too—want to avoid endlessly chasing down a long tunnel and never getting the opportunity to bring an order to a Committee such as this for a final decision. However, the hon. Gentleman made an interesting point about what happens if there are significant changes, or if contestable, debatable changes are made that do not have cross-party support. That is worth considering further on an all-party basis.
Let me finish—I do not often do this—by citing Lord Roberts. Towards the end of his contribution on scrutiny, he concluded:
“I think we have reason to be pleased with the pioneering procedure that has been followed, and I trust that equal care and diligence will be taken with similar orders that come before us in future.”—[Official Report, House of Lords, 13 March 2008; Vol. 699, c. 1563.]
The Order in Council before us is not only the first of those orders that we are discussing to be passed, but it will have a real effect on many people in Wales. It has received effective democratic scrutiny at many levels, not only from Government and Parliament, but from constituents, organisations and stakeholders who have fed into the process. Yes, this has been a learning process, but as the junior Minister who has seen it through from its very early days, I believe that it has been very effective.
I commend those who have taken part, including the members of this Committee, the members of the Welsh Affairs Committee, Members of the National Assembly for Wales and Welsh Assembly Ministers, who have contributed to making the Government of Wales Act 2006 work effectively. Although this phrase has been overused, this is an historic day and an historic moment, and I hope that the order will receive the Committee’s affirmation. With the good will of the Committee, I commend it to the House.
Question put and agreed to.
That the Committee has considered the draft National Assembly for Wales (Legislative Competence) (Education and Training) Order 2008.
Committee rose at sixteen minutes past Five o’clock.

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