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Lord Lucas: I add my voice to my noble friend's support of the amendment of the noble Baroness, Lady Finlay. I still cherish hopes that one day the Labour Government will return to a little unfinished business from the 1945 government; that is, ending the divide between state and private education in this country. It was a missed opportunity then. The Government again missed the opportunity because they chose to destroy the assisted places scheme rather than turn it into something which might have worked.

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I would be quite radical and probably horrify my noble friend Lady Blatch by what I would do. I would put VAT on all independent school fees. I would use the money raised to give parents who sent their children to independent schools the right to take with them the funding that they would have had for that child in a state school. I think that the two would reasonably well balance each other.

I would make sure that the moneys that independent schools' charitable status gained were devoted entirely to helping children who genuinely could not afford independent education to get it, rather than the rather inefficient and inaccurate methods that we had under the assisted places schemes. I would hope that that would allow a range of schools to grow up in the middle. It is certainly somewhere where the likes of Manchester Grammar School would move, and maybe the GDST would too, and genuinely look at how they could take pupils from the state system and provide a genuine addition to the state system with a smooth transition between the two forms of education providers.

I do not like the social ghetto which has been created in the private system. I do not think that it is a good idea, nor is it healthy for the nation. I should have thought that it was something that the Labour Party felt that it ought to find a way of ending. One day perhaps that thought will get just as dusty an answer as the amendment of the noble Baroness.

Lord Davies of Oldham: The noble Baroness, in introducing the amendment, indicated that it was a probing amendment giving the Government an opportunity to express their views on the developing partnership. I begin by assuring her that the reason why I shall be asking her to withdraw the amendment is simply that it is unnecessary. There is nothing in law to prevent local education authorities from making arrangements for children to make use of other educational facilities under existing legislation. It is already by no means unknown for pupils registered at one school, particularly sixth-form pupils, to attend another school in order, say, to take an A-level subject which is not available at their own school.

To facilitate such arrangements, we recently made regulations under Section 50(3)(b) of the School Standards and Framework Act which specifically authorise the use of a school's budget share to run provision made by the school for pupils registered at other maintained schools. That removes any barriers which might have been created by the rule that a school's budget share may be used only for the purposes of that school.

If an LEA wants to make arrangements for a pupil at a maintained school to receive education at an independent school, it has the general power to do so under Section 18 of the Education Act 1996. Provision already exists for pupils with special educational needs, to which some reference has been made in the short debate.

There is also nothing to prevent LEAs from making such arrangements now in respect of gifted and talented pupils who attend maintained schools in their

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area, provided that funding is agreed and that the receiving institutions are amenable. Although schools should be able to meet most of their younger pupils' educational needs, this kind of flexible approach may well be appropriate for a pupil who is exceptionally gifted or talented. Moreover, the Green Paper for 14 to 19 year-olds proposes similar arrangements for older pupils, enabling them to spend some of their time in FE institutions, for example. We are also fostering partnerships between maintained and independent schools through our independent-state school partnership scheme, which has been in place since 1997.

For those reasons, the amendment would not add value to the Bill. I hope that the noble Baronesses are reassured by my response and that the noble Baroness, Lady Finlay of Llandaff, will feel able to withdraw the amendment.

Baroness Blatch: Is the Minister actually saying that children can be selected on the basis of their ability, which may not be being met in a particular school, and transferred to an independent school where their needs can be met?

Lord Davies of Oldham: Yes, that is possible in law.

Baroness Howe of Idlicote: Perhaps I may press the Minister slightly more on the issue of how valuable the Government consider those partnerships to be in pursuit of their educational objectives. It has surprised me how little attention has been given to this whole area. I realise that the amendment refers to one aspect and one group of gifted children, but it would be reassuring to many people to know that such partnerships are in a broader sense part of government policy.

Lord Davies of Oldham: As I said, we have recently taken steps to provide for schools to be able to use their budgets in that way. But in the oldest phrase, it takes two to tango and it takes two to form a partnership between state and independent sectors. That requires initiative on the part of the schools concerned. The noble Baroness will recognise that it may not be the highest priority for schools to act in that way. However, the legislation certainly permits it.

Baroness Finlay of Llandaff: I thank the Minister for his reply and the noble Baroness, Lady Blatch, for her support for the amendment and for her comments and questions. As she pointed out, a highly gifted child may need as specialised a provision as a child with learning difficulties. I am also grateful to the noble Lord, Lord Lucas, for his support for the amendment.

As my noble friend Lady Howe pointed out, a child in the private sector may be able to benefit from the new and imaginative academic provisions that exist in the maintained sector. I was relieved to hear from the Minister that such arrangements are already possible and will remain possible under the Bill. I was pleased to hear that the facilitation arrangements can already

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occur to authorise a school budget to be shared across the maintained school sector and into the independent school sector.

As the Minister rightly said, it takes two to tango. It may well be that such arrangements need to be slightly better publicised among some LEAs that have been resistant to any form of dialogue. Such dialogue would open up access to resources from which some highly gifted children may benefit enormously who will go on to contribute to the nation when they have completed their education. Given the welcome reassurances that I have heard from the Minister, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

2.15 a.m.

Baroness Blatch moved Amendment No. 363ZB

    Before Clause 203, insert the following new clause—

Nothing shall be done under this Act to the disadvantage of any provision in respect of special educational needs under this or any other enactment."

The noble Baroness said: Many attempts have been made as we have gone through the Bill to protect the interests of children with special educational needs. As each new power has unfolded—in particular the early clauses on innovation and autonomy—amendments have been tabled to guard against the exercise of those powers having an adverse effect on the education of children with SEN.

The Minister warmed to my suggestion earlier that one portmanteau amendment covering not only this Bill but other enactments would be a neater and more effective way of proceeding. The noble Baroness went as far as to say that the department was looking at the wording of an amendment. I know that the noble Lord, Lord Rix, and some of his colleagues are also looking at the wording, and other noble Lords are actively working on such an amendment.

This is my modest attempt at getting where we want to be. It is the simplest way and I must thank the Public Bill Office. It achieves what we want it to achieve, which is that

    "Nothing shall be done under the Act to the disadvantage of any provision in respect of special educational needs under this or any other enactment".

It is very straightforward and simple. It would be a test that if a power were exercised under this Bill and it had the effect of disadvantaging the special educational needs of other children, it would be in breach of the Act. It need not be complicated and we do not need to spend too much time on it. It would be too overwhelming at this time of the morning to hear the Ministers say that it is perfect in every way. I hope that she will look on it favourably. I beg to move.

Baroness Ashton of Upholland: Following the previous intervention of the noble Baroness, Lady Blatch, she is right to say that we have been looking at the issue. There is a commitment on the part of the

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Government to protect all children, but especially those who are most vulnerable, including children with special educational needs.

We have given a commitment to explore the matter fully. I want to have discussions with noble Lords who are interested in the matter, and I hope that the noble Baroness, Lady Blatch, can also find time for this crucial discussion. She will not be surprised when I say how difficult it is to address the issue of special educational needs in a general statement applying to the whole Bill. There are real problems on how to produce such a framework without laying ourselves open to a whole range of potential difficulties, not least that of judicial review in respect of the operation of such a measure.

We have been working very hard on this, including discussions with parliamentary counsel and we are still in debate about the best way forward. I hope that that debate may be better informed by further discussions with many of the noble Lords who have spoken and who have such expertise to bring to bear.

As the noble Baroness, Lady Blatch, said, in previous discussions, the noble Lord, Lord Rix, referred to a proposed amendment from Mencap which would address the issue of children with SEN. Mencap pointed out the serious difficulties that a portmanteau clause could cause, not least that it is not normal constitutional practice to have "trumping" clauses. Of course, the practical difficulties are clear, too. A clause such as that proposed in Amendment No. 363ZB throws into question whether it would ever be lawful to exclude a pupil with SEN.

The issue is difficult and I cannot give guarantees to the Committee, but I shall seek to find an appropriate way through. As I said, I would genuinely welcome discussions with noble Lords. I am very interested in finding a way forward. I want to consider that and other issues before the next stage of the Bill. It is difficult, but there is no lack of will from the Government. With those reassurances, I hope that the noble Baroness, Lady Blatch, will withdraw the amendment.

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