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Lord Davies of Oldham: The issue that the noble Baroness identifies--the question of requiring auxiliary aids--is on the face of the Bill. The Secretary of State is bound in his actions by what is contained in the legislation. On the question of whether regulations would be required, it is difficult to predict the precise circumstances in which they would but there might be examples. What if a school felt it should alter its policy on class size in an attempt to meet the requirements? Or if it had to reduce the length of the school day? That might be considered not to be an appropriate way of tackling those issues and there would need to be some power within the legislation that gave any Secretary of State the right to make judgments on the course of action that might be proposed in certain circumstances.

Lord Lucas: I am somewhat confused by that answer and indeed by the first one. A school would surely have the right to shorten the school day anyway? These regulations would only stop a school being compelled to shorten the school day by reason of not discriminating. The noble Lord's comments actually suggest that the department does not have any clue as to the purpose of these regulations. They are not going to use them immediately. They are not going to put them into force but wait to see if they are needed; they are a reserve power, as it were.

Though I would prefer not to have them, I can imagine some practice evolving whereby schools were refusing to provide chest microphones for teachers to help students with hearing difficulties. The Government might then say it is always reasonable to provide microphones under those circumstances and make it a universal practice.

I cannot however imagine any circumstance when it would be reasonable for us to let the Government have the power that they want in paragraphs (c) and (d). The only time they will need those powers is if some practice has grown up, perhaps as a result of court judgments, stating that this Act means that the school has to do this under those circumstances for the child and the Government are going to use these regulations to prevent that. In other words, they will use these regulations against the children because the courts have decreed that this Act requires some provision to be made for them.

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That sort of back-tracking should not be allowed in secondary legislation, particularly since the Government do not really know what they want to use it for. They are not likely to table regulations under paragraphs (c) and (d) and the Minister is probably not able to produce any examples of the sort of things he would put in those regulations. If my understanding is correct, it is not appropriate that they should remain in the Bill.

Baroness Blatch: I shall of course withdraw the amendments. As I have said before, I have no other option at this stage in the Bill in the Moses Room. I simply say that this is a control too far. The examples that were given by my noble friend and indeed the responses from the Minister quite terrify me. It does seem that if the Government have in mind to regard the length of a school day and class sizes as reasons for bringing in a regulation which could only do one thing--that is, prevent schools from doing something or giving them a stipulation right across the board, across all categories of school-- and if I take prima facie what the noble Lord said (that the Bill says that a responsible body cannot be required to provide auxiliary aids and services) then this regulation power could not be used to require schools to provide auxiliary services and powers.

The other argument is this. There are mechanisms throughout the Bill to see that schools and LEAs act reasonably. There is a statementing process whereby, if it is decided that a school or an LEA has been unreasonable, they can be required to make that provision.

In relation to the inspection system, it is possible for Ofsted and/or the Government to have a specific look at the way in which LEAs and schools are behaving. I go back to my original point. It will be school by school that they behave reasonably or unreasonably; LEA by LEA that they behave reasonably or unreasonably, and the notion of taking a regulatory power to do something blanket across all local authorities and all schools simply because one or two are acting unreasonably seems to be inappropriate and a control too far. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 103 not moved.]

The Chairman of Committees: Before I call Amendment No. 104, I have to inform the Committee that, if Amendment No. 104 is agreed to, I cannot call Amendments Nos. 105 to 108 due to pre-emption.

Lord Morris of Manchester moved Amendment No. 104:

    Clause 12, page 11, leave out lines 8 to 26.

The noble Lord said: I rise to move Amendment No. 104 in the name of my noble friend Lord Ashley of Stoke and I shall also speak in support of his Amendment No. 169.

These amendments remove from the face of the Bill the duty on a school's responsible body to have regard to a specific list of factors in deciding on "reasonable adjustments".

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Educating SEN children in mainstream schools is an evolving process. Already what at one time would have seemed inappropriate and unrealistic is actually happening and working well. However, in the years to come attitudes will change even more and resources will follow. It is for this reason that the list of factors which have to be considered should be in a code of practice and not on the face of the Bill. They should guide, not bind.

My noble friend and I believe that, if the factors have legal status, they will unduly fetter the tribunal in developing a concept of "reasonableness" for the future.

An example is, if a school wanted to modify a sports programme to include a physically disabled child, the factor laying down the need to maintain sporting standards could tie their hands. Amendment No. 169 refers to further education to the same effect as Amendment No. 104 refers to schools. I am pleased to commend my noble friend's amendments to the Committee. I beg to move.

Baroness Sharp of Guildford: I rise to speak to Amendments Nos. 105 and 169 which are in my name and that of my noble friend Lord Addington, and to support the other amendments in this group.

The noble Lord, Lord Morris of Manchester, has already explained why these amendments were tabled. We have here on the face of the Bill a number of specific qualifications as to what is reasonable and what is not reasonable. Earlier we were talking about Clause 11 and the noble Lord, Lord Rix, suggested that subsection (3) was what he called a "cop-out". It seems to me that, in specifying all these detailed issues on the face of the Bill, we are driving a coach and horses through the whole principle of inclusion that we are trying to write into the Bill.

The difference between Amendment No. 105 and Amendment No. 104 is that we have suggested that it is more appropriate for all the specifics to go into the code of practice. Part III of the DDA, on which I believe that the provisions are based, does not contain an exhaustive list of factors that have to be taken into account in determining what is reasonable. There is no place for such a list of factors on the face of the Bill. It is highly prescriptive and will send out the wrong messages to schools and local education authorities. There is no justification for civil rights in education to be treated less robustly than civil rights in other areas, yet it is a common pattern throughout the Bill. Factors such as,

    "the need to maintain academic, musical, sporting and other standards"

in paragraph (a) and,

    "the interests of other pupils and persons who may be admitted to the school as pupils"

in paragraph (g) are wholly out of place here.

Such factors would be more appropriate in a code of practice. We recognise the need for an interpretation of what constitutes "reasonable steps" and that a range of considerations will be taken into account. I also recognise that the cost of a particular step is a

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consideration when determining what will be provided through Part IV of the 1996 Act. However, when it comes to a consideration of the rights of other pupils, there needs to be a careful balancing--as the Minister has said on other occasions--of the rights and duties of the various adults and children involved. The face of the Bill is not the right place to rehearse such balances, as the Minister has told us on several occasions. This is the territory for guidance under codes of practice.

The Government have recognised that in respect of the guidance on the operation of Section 316. What constitutes "reasonable steps" under Section 316A(6) will be teased out in guidance. The Disability Rights Task Force report, From Exclusion to Inclusion, published in December 1999, also made it clear that a code of practice was needed to address such issues and gave examples.

Amendment No. 105 locates the consideration of what conditions should inform the interpretation of "reasonable" within the code of practice to be drafted by the Disability Rights Commission. Under Section 9(4) of the Disability Rights Commission Act 1999, the DRC code of practice has to be approved by the Secretary of State and it is laid before both Houses.

It is ironic that on many occasions when we have asked for specifics to be written into the Bill, we have been told that it is not appropriate, yet here we are confronted with a list of specifics that, taken at face value, would drive a coach and horses through the provisions of the Bill. We are asked to accept that that is reasonable. I maintain that it is not.

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