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Baroness Blatch: Before the noble Lord, Lord Morris, comes back, could I ask the noble Baroness a question? There is a great deal of confusion, as I suggested when I spoke to Amendment No. 135A. On the one hand, Clause 12 says that LEAs and responsible bodies are not required to,

or to,

    "provide auxiliary aids and services".

On the other hand, they are required to plan for such things. What are schools and colleges to make of the fact that they are not required to do it, but they are required to plan to do it? Can they plan not to make alterations and provide auxiliary aids? That is an extraordinary juxtaposition of two requirements.

Baroness Blackstone: The key here is strategic planning across an LEA or across an area of an LEA where, as the DRTF recommended, it is considered more cost-effective and sensible to work together and plan provision across a range of schools, than to leave every school to make adjustments.

The Earl of Mar and Kellie: The noble Baroness has worried me, because I had it in mind that Clauses 13 and 14 were not appropriate for Scotland. Did the noble Baroness say that Clause 12 would not run in Scotland? I think that it will.

Baroness Blackstone: I did not say that Clause 12 does not apply in Scotland--it does. I was simply

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pointing out that the planning duty does not apply. The auxiliary aids referred to in the amendment are dealt with through the SEN framework or a record of needs in Scotland.

The Earl of Mar and Kellie: Clause 13 also seems to be about planning. Will that run in Scotland?

Baroness Blackstone: Perhaps we could deal with that when we come to Clause 13.

Lord Morris of Manchester: I was disappointed by the Government's response. My noble friend Lady Blackstone has heard today the very wide-ranging support, some might say acclaim, for the amendment I moved on behalf of my noble friend Lord Ashley. When she has an opportunity to consider again the case we have adduced in support of his amendment, I hope that she will feel able to revise her response. As of now, I feel I can go no further than reserve the position of my noble friend Lord Ashley. He has clearly struck a chord with opinion in all parts of the Committee, and it is with some reluctance that I will not press the amendment this afternoon. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman of Committees (Lord Mackay of Ardbrecknish): Before calling Amendment No. 102, I must tell the Committee that if it is agreed to, I cannot call Amendment No. 103 due to pre-emption.

Baroness Blatch moved Amendment No. 102:

    Clause 12, page 10, line 41, leave out from beginning to end of line 7 on page 11.

The noble Baroness said: Subsection (3) on page 10 permits the Secretary of State to make regulations at some time in the future as to what steps the governors of a school have or have not to take to ensure that there is no "substantial disadvantage" to the pupil.

Clause 12 provides for those responsible for a school to ensure that the disabled pupil is not put at a substantial disadvantage. I will not go over the debate we have had on that matter.

Subsection (3) of that clause allows the Secretary of State to make regulations as to when it is reasonable for a school to have to take steps as may be prescribed by that regulation; steps which it is always reasonable for the school to take; circumstances when it is not reasonable to have to take certain steps; and steps which it would never be reasonable for the school to take.

This is a very bureaucratic process. Already the Bill is heavily bureaucratic. It seems to assume that those involved in the education of children with special needs, or children with a disability, lack common sense. We do not need yet more regulations. Those involved with these children are more likely to appreciate what measures can or cannot be taken to help them than are parliamentary lawyers framing regulations, no matter how well intentioned those lawyers may be.

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Through both the informal process and through the formal process of statementing and the LEA fulfilling its duties, there will be procedures to test whether a school and indeed, a local authority, is behaving reasonably and fully meeting its obligations under the Bill. I do not believe that this layer of bureaucracy is needed. It is unnecessary and meddlesome. I beg to move.

Lord Lucas: If we are to have this clause, I really do not see the function of paragraphs (c) and (d) of subsection (3). There is no way that regulations can anticipate every set of circumstances. The Government can set out good practice, and if they want to do it by regulation rather than by code of practice, they can say this is what they would normally expect people to do and these are the circumstances under which they would normally expect them to react. Someone in Whitehall may think that under paragraph (c) they can specify something which it would probably not be reasonable to do. However, a circumstance turns up in a school a year later and several hundred miles away, where, because of the particular circumstances of the school and child, a certain step would have been the perfect one to take, but the regulations say it does not have to be taken. That seems ridiculous.

Why are paragraphs (c) and (d) needed? I share the antipathy of my noble friend Lady Blatch towards this subsection as a whole, but if we are to have it, what are paragraphs (c) and (d) there for? Surely they cannot have any function in support of the child; they can only turn to the bad. I do not see that they are of much use to the school either.

The Earl of Mar and Kellie: My Amendment No. 103 is grouped here. Perhaps I ought to speak to it now, despite the possible pre-emption.

This amendment embodies the classic "may/shall" argument, but hopefully it will not run as long as it sometimes does.

I seek to ensure that regulations will contain measures that a school must implement to comply with the requirement that it shall not substantially disadvantage disabled pupils.

The clause requires certain actions but then does not say what they are. The amendment remedies this by ensuring that there will be regulations, either giving a requirement for action or exoneration from action. These regulations must identify, in a mandatory way, what steps the school should take, and those which it need not take.

Without this amendment, it is likely that we shall continue to have 32 varieties of provision in Scotland, and possibly many more, if each school can draw its own conclusions.

Lord Davies of Oldham: I shall address my arguments to both amendments for the obvious reason that they have been grouped together, and because I shall be able to point out the wisdom of the Government's course of action in the context of the two amendments.

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Amendment No. 102 would remove from the Bill the regulation-making powers in Clause 12. It may be helpful if I start by explaining why we decided it was necessary to have such regulation-making powers. Clause 12 allows us to make regulations to prescribe circumstances in which it is or is not reasonable for a school to have to make prescribed adjustments, and to prescribe adjustments that it is always or never reasonable to have to make.

The school system, after all, is a national, regulated system, providing broadly similar experiences to all. The regulation-making powers will allow us to deal with specific problems where it is apparent that it is not appropriate for those matters to be dealt with purely by the general reasonableness test and by guidance in the code of practice. We might, for example, wish to set down categorically that certain adjustments would not be reasonable.

The regulation-making powers provide sufficient flexibility to be able to respond to changing circumstances or to problems which emerge. It is important that we are able to take account of any changes in arrangements in schools.

Amendment No. 103 would require us to make regulations irrespective of circumstances. However, if it turns out that the experience of the operation of the reasonable adjustment duty is such that one or more of the four separate regulation-making powers contained in this clause need to be used, we would not want to be forced to use them. We would only tend to use them where we feel it is of great benefit to do so. It may prove to be the case that the application of the reasonableness test, together with the consideration of the factors set out in the clause and the guidance contained in the Disability Rights Commission's code prove to be quite sufficient. We are arguing for flexibility between the two positions.

One of these amendments is about removing the regulation-making powers; the other is about ensuring that we take them up straight away. There is clearly a balance to be struck here and that is what we think we have achieved in this clause. I hope that, on reflection, the noble Earl and the noble Baroness will accept that the regulation-making powers are needed in Clause 12, and also that the need is for flexibility in the operation of these powers. I hope that they will therefore consider withdrawing their amendments.

6.45 p.m.

Baroness Blatch: I am afraid the answer will not do. I argue that, without this provision, we have flexibility. I am arguing for flexibility because the provision will be implemented in many different ways. LEAs or schools differ greatly in what they reasonably can or cannot provide. I have not seen a regulation before any House which does not provide a blanket way of doing something. There is no point in having a regulation which states that schools will do what is reasonable in the circumstances. Regulations will be made when the Government at national level wish a particular rule to apply across a category of schools and/ or LEAs. The proposition here is one of rigidity and not flexibility.

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I ask the noble Lord a technical question as to the circumstances when it is reasonable for a responsible body to have to take steps, if the reasonable steps include providing auxiliary aids and/or services by a school and/or a local authority. In Clause 12(2) there is an unequivocal statement that responsible bodies are not required to provide auxiliary services; in other words, it is up to them whether they provide them under the test of reasonableness. Do those two statements conflict? Could regulations be taken by the Secretary of State which, under subsection (a), would say that it is reasonable in the circumstances for LEA X and/or schools Y and Z to make these provisions available? In other words, could they be required to make them available?

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