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Lord Campbell of Alloway: The interest declared by my noble friend Lord Pearson of Rannoch is understood with total compassion. The Committee will be grateful for his contribution which, as he said, is much based upon the situation of his daughter. But, on objective examination and on the advice of the noble Lord, Lord Rix--the Chairman of MENCAP--and that of my noble friend and sponsor Lord Renton (I am no expert) I am unable to commend Amendment No. 1 or its series of grouped amendments as being well conceived in the interests of mentally handicapped children.
This series of grouped amendments qualifies the effects of Clause 1 as proposed to be amended by Amendment No. 2 and the series of grouped amendments which stand in my name. It would curtail the intendment of the Bill according to its Long Title which, under Clause 1 as proposed to be amended by Amendment No. 2 and its group, confers on every child--my noble friend is quite right--with SEN the right of representation as it applies to all other child-related matters by excluding children with SEN who are also mentally handicapped. This exclusion is an exclusion from the core moral principle of Clause 1 as proposed to be amended by Amendment No. 2. It is not the basis on which this Bill was given a
Second Reading. The basis on which this Bill was given a Second Reading was that the amendments which stand in my name and that of the right reverend Prelate the Bishop of Lichfield, should be carried into the Bill at Committee stage upholding the core moral principle, closing a loophole in the law and ensuring protection of the rights of every child with SEN. I am informed by the right reverend Prelate the Bishop of Lichfield and the right reverend Prelate the Bishop of Carlisle, who was in your Lordships' House today, that such is the view of the Church which supports this Bill as proposed to be amended, so that all children with SEN may be represented on assessment by the LEA, on appeal from the tribunal or to the High Court, by a friend or professional person in sympathy with the needs of the child.The exclusion of children with SEN who are also mentally handicapped is totally unworkable. The range of mental handicap is extremely wide. It belies definition. There is no definition. There is a broad overlap. Many children with SEN have various degrees of mental handicap, so there is no logical or practical basis upon which the exclusion sought to be introduced by this amendment and the series of amendments may be implemented. Perhaps my noble friend may wish to consider whether this amendment, and in due course the series to which he spoke, may be withdrawn.
Lord Addington: The noble Lord's group of amendments is trying to address a problem with which we have already dealt, at least in principle: the idea that inappropriate, dogmatic reasoning should not guarantee the sort of help that is given.
However, the Bill seeks to ensure that all children have a chance of being given the appropriate type of education. With the noble Lord's amendment going through, we are aiming at a group who may not be obtaining help from their parents in the correct manner. It is the child's rights we are talking about here.
"Learning disability", to use the more currently favoured term of mental handicap, covers a wide group. There is no way any group in this field can be covered at one stroke without removing the vast majority who are not affected by the type of problems to which the noble Lord referred. I hope that he will be able to withdraw.
I accept that he may perceive a problem here, but I am absolutely sure from what has been said from the Dispatch Box and supported by many others in this House and in another place that the correct type of help being provided for individual needs will address most of the problems and fears to which the noble Lord referred.
7.45 p.m.
The Minister of State, Department for Education and Employment, (Lord Henley): At an earlier stage I gave reasons why Her Majesty's Government cannot support my noble friend's Bill in principle. I do not think it is necessary for me to rehearse those particular arguments, but I would like to say a word or two about this amendment.
Again, the amendment down in the name of my noble friend Lord Pearson is one that I cannot support. I believe that the amendments themselves are possibly impractical and divisive and there would be problems of definitions in law as to how one defines mentally handicapped, how one chooses the definition and who shall determine this. The amendment itself gives no definition for that, but perhaps that is something to which my noble friend Lord Pearson will want to return at a later stage.
I also have to say to my noble friend Lord Campbell that I think his arguments about the practical difficulty of allowing appeals by mentally handicapped children would command wide support. But the very arguments that he has been putting forward show the flaws in the Bill's proposals to extend the right of appeal to children. That, for the reasons I gave at Second Reading, is one of the reasons why we could not support the Bill, but it is also one reason why we could not support these particular amendments to the Bill.
Lord Pearson of Rannoch: I am most grateful to all noble Lords who have spoken although I did not, in fact, agree with much of what has been said. For instance, I see no difficulty in defining a mentally handicapped child, as I said in my opening remarks, as one who has a statement saying that he has severe learning difficulties or, as some people prefer, learning disabilities.
It seems to me that the only objection to my amendment would concern mentally handicapped children whose parents, for one reason or another, are not available. I do not believe that that is a good enough reason not to accept these amendments. I think that these children are completely different from all other kinds of special educational needs children. Special educational needs is a very broad church: it includes the blind, the deaf, even the very gifted, although, of course, our local education authorities do not seem to pay an awful lot of attention to them.
But at this stage of the evening, and in order to advance our proceedings, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Campbell of Alloway moved Amendment No. 2:
The noble Lord said: In moving Amendment No. 2, I also beg leave to speak to all other amendments grouped in my name, which shall be formally moved as spoken to.
As mentioned when speaking to the previous amendment and the series, this amendment has the support of the spiritual Benches. It has the support of the noble Baroness, Lady Darcy (De Knayth) who alas, is unwell. She telephoned me this morning and is unable to be here. It has the support of the noble Lord, Lord Addington, who speaks for the Liberal Party. It also has the support of the noble Lord, Lord Morris of Castle Morris who, it is understood,
When speaking to the previous amendment, I also mentioned the reasons given by the right reverend Prelate the Bishop of Lichfield for the support of the Church, which he hoped might be acceptable to Government. The concept of this amendment and the series to which I speak was conceived on legal advice received and accepted at Dean's Yard.
Every child with SEN in his own right should be entitled to participate at the assessment stage, at the appellate stage before the tribunal and in the High Court and in his own right to be represented by a friend or professional person in sympathy with his needs. Restoration of such entitlement to the situation which obtained before the introduction of this regime may not be described as it was described by my noble friend Lord Henley as "inoperable" or "impracticable". I cannot quite remember what he said today but his opposition seems to be at this stage fairly entrenched.
The justification for this sole exception is simply not understood. He suggested at Second Reading that a situation of general application, which pushes a child with SEN into the spotlight of pursuing cases in the teeth of parental opposition and into the forefront of the appeal system, cannot be well conceived. That is nonsense. The reality of the situation is that in many cases there will be no dispute between the child and the parents. However, that in no way derogates from the principle of entitlement.
In this regard--I say this with respect to my noble friend Lord Henley--hope springs eternal that the Government may be prepared to think again and may be prepared to think again without care and without preconception. A statutory bar which disenfranchises the child so that only the parent may invoke the jurisdiction of the tribunal must be removed. As the noble Lord, Lord Addington, put it, the child has a right as an independent unit and not merely as an adjunct to the parent. As the noble Lord, Lord Morris of Castle Morris, put it, this lies at the very heart of the Bill.
This statutory bar operates, albeit in a few cases, where the child is adult having maintained majority. It is not only absurd; it is unacceptable. There is no legal aid before the tribunal. It could only be granted on appeal to the High Court to a next friend, which could include the parent, only if the Legal Aid Board considered there was a reasonable prospect of success. No amendment to the Legal Aid Act or the regulations is required.
This anomalous two-stage dispensation tilted only against children with SEN must end. On appeal to the High Court the child would appear--if not an adult with a parent or some other next friend--on a non means-tested basis as is the case with all other child-related matters. This group of amendments removing the qualification of "if of sufficient understanding" in Clause 1 with a consequential amendment to delete Clause 2 entirely disposes of the objection to the problems of definition and legalistic submissions in a user-friendly and informal
The Government, having set up a statutory tribunal subject to appeal on a point of law which by judicial decision affords the same relief as judicial review, must assuredly recognise that this simply is not a no-go area for lawyers. It has also to be recognised that decisions of the tribunal have been reversed in the High Court. It is accepted that the grant of legal aid on counsel's opinion, given on inaccurate or inadequate instructions, has been fairly criticised in your Lordships' House. This is a general problem of serious concern which has already been referred to on the Floor of the House by my noble and learned friend the Lord Chancellor. It affords no ground for opposition to this amendment.
Page 1, line 8, leave out ("if of sufficient understanding").
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