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The Lord Privy Seal (Baroness Jay of Paddington): My Lords, I must say to the noble Lord that I can only do what my right honourable friend the Prime Minister did at the Glasgow conference at the weekend and say that I am very surprised that the Opposition take all their views from the newspaper delivery boy. It really is a high level of opportunism to raise the matter in this way this afternoon.

As the noble Lord himself has mentioned, the noble Lord, Lord McNally, will ask a Question tomorrow on this matter to which I am sure my noble and learned friend the Lord Chancellor will respond very fully. It is obviously the case that that is the appropriate moment for this Question to be answered. The noble Lord is aware that, if he had a concern about the Private Notice Question on this matter which he tabled yesterday afternoon, he should have raised it yesterday afternoon. He did not.

Lord Waddington: My Lords, perhaps I may ask the noble Baroness one further question. She must be aware that many people are using this issue to raise wider issues, such as whether the role of the Lord Chancellor should be changed, whether he should lose all his judicial functions, or whether, indeed, there should be a ministry of justice--none of which I approve of, I might say. It would be highly desirable, if only to clear the air, to get back to discussing the real issue as to whether the Lord Chancellor was lacking in judgment in getting involved in fund raising, rather than being diverted, as all the newspapers are today, to far wider questions of whether there should be a ministry of justice, and so on.

Baroness Jay of Paddington: My Lords, I am sure that the noble Lord raises some interesting questions

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that are worthy of debate. However, a Private Notice Question is probably not the appropriate forum in which to do that. I am sure that the noble Lord, Lord Waddington, who says that he does not agree with the theoretical questions that are being raised about the potential role of a ministry of justice, and so on, would agree with the opinions of the noble Lord, Lord Kingsland, who said on the radio this morning that he believed that the present Lord Chancellor had acted with the utmost probity in fulfilling his functions.

Lord Renton: My Lords, I became a student of Lincoln's Inn as long ago as 1929. Apart from the noble and learned Lord, Lord Shawcross, I am the most senior Queen's Counsel in England and Wales. I, therefore, have memory of these matters, going back some 70 years. May I say that during that time there has never arisen such an occasion as this.

Special Educational Needs and Disability Bill [H.L.]

3.10 p.m.

Report received.

Baroness Blatch moved Amendment No. 1:

    Before Clause 1, insert the following new clause--

(" .--( ) In the implementation of this Act by local authorities, schools, parents, and all concerned with the welfare of children and young adults who have some form of disability or learning difficulty, the following principles shall be observed.
(1) The best and most appropriate available education shall be offered--
(a) to a disabled pupil,
(b) to a pupil with a statement of special educational needs maintained under section 324, or
(c) to a pupil with special educational needs but with no statement.
(2) Any requirement in this Act to prefer any particular type of school must always be of secondary consideration to that of making available the best and most appropriate available education for each particular child.
(3) Any placement of a pupil with special needs in a mainstream school must not be to the detriment of the best and most appropriate education available for the other pupils in that school.
(4) The wishes of the parent and the pupil must be respected at all times.").

The noble Baroness said: My Lords, during our discussions of the Bill in Committee, it was obvious that noble Lords from all sides of the House wished to do the best that was possible and affordable for children with special educational needs, with or without a statement, and later, in Part II, Chapter I of the Bill, for children with some form of disability.

The only acceptable purpose of a Bill of this kind is to make the best possible provision for children and young persons. Any consideration of convenience to local authorities or schools must be secondary to the welfare of the child. Ideology should not come into the equation at all. It is a matter of where best, and how best, to educate children. Finance comes into the

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matter, and any proposed changes to our arrangements must be properly financed, otherwise they are best not done.

The Bill places much emphasis on putting children with special educational needs into mainstream schools. Here and there, the Bill offers limited exceptions to that imperative. In the light of our discussions in Committee, and the assurances given by the noble Baroness the Minister it seems to me essential for the Bill to reassert the principle that the welfare of the child should come first. Where best to assert that principle than by making it the first clause of the Bill?

My proposed new clause is in no way controversial. It simply qualifies the rest of the Bill with something with which we all agree, namely that the needs and welfare of the child should remain paramount. If it is so obvious that that need is paramount, some might say that it is unnecessary to say so. But, my Lords, I believe that it is necessary. We are not formulating only guidelines, which have no force in law. We are formulating law, a law which might be challenged in the courts, a law which must be followed by local authorities, schools and parents, and a law which has to be followed not just by this Government but by subsequent ones as well.

In asserting at the start that the overall purpose of the Bill is to provide as best we can for children with special educational needs, we shall not only guide the lawyers as to our intentions; we shall clearly and specifically kill off rumours some noble Lords have already heard that in some way the Bill is intended to reduce our expenditure on children with learning difficulties or disability, or that it is intended to close all or some of our most special and specialist schools.

I trust that the Minister will confirm that it is not the Government's intention to do either of those things. The proposed new clause would write into the Bill the clear intention that the interests of the child are a priority. I beg to move.

Baroness Blackstone: My Lords, Amendment No. 1 would wreck the Government's proposals to strengthen the right to a mainstream place for children with special educational needs. The starting point is not a blank page. Rather, the Bill seeks to improve existing legislation. The amendment would have us retain provisions equivalent to those that have been abused and used unduly to limit inclusion in the past.

The amendment has been presented as a measure to ensure the right response for individual children with special educational needs or disabilities. Of course, we are all in favour of that, but the amendment could make it harder for pupils who deserve the benefits inclusion can bring to gain a place in a mainstream school. I remind noble Lords that our proposals to strengthen the right to a mainstream place, which also safeguard the interests of all children, have been welcomed.

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The position of the Special Educational Consortium is that it wants,

    "to ensure that the education provided for a child is appropriate for their needs".

The consortium feels,

    "that the new inclusion framework"--

proposed by Clause 1--

    "provides the best legislative framework to ensure this takes place".

The consortium is not in favour of amendments that would have the effect of reinstating "the first caveat". It believes that that,

    "could lead to an unnecessary restriction on disabled children being offered a mainstream place".

The amendment would make the education of individual children paramount. It would entitle every child who has SEN or a disability to the best possible education. What is the best education? Is it a better education than that to which children who do not have SEN or disabilities have access? Is that really what the noble Baroness wants? We believe that the needs of individual children should be balanced alongside the needs of all children. If the,

    "best and most appropriate available education"

for a child with "some form of disability"--whatever those terms might mean--conflicts with the best and most appropriate available education for other pupils at the school, what is it intended should happen? The amendment provides no answer. Education involves balancing many interests. The Bill provides for that, but the amendment does not.

The amendment promotes the interests of children with SEN and disabilities over and above the needs of other children. It is not clear whether other children are being given comparable rights to the best possible education. If they are not, it would render the Bill incompatible with the Human Rights Act 1998.

Our policy for children with SEN and disabilities is clear and simple. Every child has the right to have his or her needs identified, assessed and met. Every child has the right to a broad and balanced curriculum, differentiated according to his or her needs. The SEN framework will ensure consistency and that the right support is put in place.

I suspect that the amendment has been promoted, at least in part, by the Opposition's belief that more children with SEN should be placed in non-maintained schools, though perhaps I am wrong about that. The Bill will not prevent or limit local education authorities from funding placements in the non-maintained sector. The duties of LEAs are unchanged, but they should seek to use resources efficiently. Excessive or inappropriate expenditure on one child can come only at the expense of other children. When appropriate, LEAs can name a non-maintained school in a child's statement and pay for the placement.

In answer to one of the questions of the noble Baroness, it is not the Government's intention to reduce in any way the amount of resources available to children who, with or without statements, have special

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educational needs. On the contrary, the Government are providing additional resources to make this Bill, when implemented, work in practice.

I turn to the second question of the noble Baroness. We have underlined a continuing and vital role for special schools. The facts speak for themselves. The size of the specialist sector has remained static, broadly catering for 1.2 per cent of all children. We do not envisage that that will change. Sometimes special schools are closed; sometimes they are opened.

The amendment also provides an absolute parental and pupil veto. The amendment reads:

    "The wishes of the parent and the pupil must be respected at all times".

Again, the noble Baroness, Lady Blatch, did not feel that that was necessary for the 1993 Act. Such a veto could result in inappropriate and potentially damaging placements. What parents want is not necessarily always a reliable measure of what is right for the child. The SEN system is complex and parents sometimes need support and advice, hence the need for parent partnership services, which this Bill will establish.

We believe that the Bill strikes the right balance. It promotes inclusion and makes disability discrimination unlawful. It will enhance provision for all pupils with SEN. It protects the interests of all children. We believe that the amendment would seriously jeopardise that balance. I hope therefore that the noble Baroness is able to withdraw it.

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