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Lord Swinfen: My Lords, I urge the Government to accept the amendment. The Minister will probably say that it is not strictly necessary, but I see it as a belt and braces amendment, although I am not a lawyer. At times of financial or other difficulty, special educational needs is the area of education that tends to come under the greatest pressure. A future government could well try to get round the amendment that the Minister introduced at an earlier stage. I urge her to accept this amendment.

Baroness Ashton of Upholland: My Lords, it is a great privilege to hear new voices raised in our debates in support of this most vulnerable group of children. I echo all that has been said about the Government's desire to ensure that we do what is best and right for these children.

I am conscious that this is a Third Reading debate, but I should like to refresh the memory of those who have not been able to participate in our debates as they

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might have wished. This power will be on the statute books for only four years. Any school or local education authority applying for the power to innovate can be granted that power for three years, with the possibility of an extension for a further three years if the circumstances are appropriate—for example, if there has not been time to assess and evaluate what has happened. Talk of future Secretaries of State is inappropriate. I am not saying that there will always be the same Secretary of State for the next four years, but this power will disappear in four years. That is important.

I intend to spend some time on this and I hope to be able to give the reassurances that noble Lords and others outside the Chamber are seeking about the effect of the amendments that the Government have already made. I had hoped that I had already made clear that the legislation as drafted already means that nothing could be done through this power that would disadvantage children with special educational needs. I am more than happy to repeat that and to spell it out in greater detail.

My officials have been in conversation with the Special Educational Consortium, which was looking for some specific reassurances. The noble Lord, Lord Addington, is looking for similar reassurances. I hope that I am now able to give those.

I hope that it is clear to all noble Lords that we are committed to the basic statutory framework that is now in place. We have recently strengthened that framework through the Special Educational Needs and Disability Act 2001. We believe that the changes we have made are good and positive. We do not want to unpick them; we wish to see them embedded.

We do not in any way begin from the position that there is something wrong with the sections referred to in Amendment No. 3, or that we expect significant proposals for change—quite the opposite. Let me be clear about the meaning of the Bill as drafted. We have made a number of amendments to the Bill, the most significant being those that now appear in Clause 1(2) and Clause 2(5). They already provide the belt and braces that the noble Lord, Lord Swinfen, seeks. Those amendments mean not only that the Secretary of State must consider the interests of every pupil affected by a project, but also that no order may be granted if there is likely to be a detrimental effect on the education of children with special educational needs.

Those tests are deliberately drawn widely. The Secretary of State must consider the likely effect of the project on all children who may be affected by it, whether present or future, at the school in question or at another school. The protection for children with special educational needs in Clause 2(5) is sufficiently strong that a project that would be beneficial to a significant number of other children but would be harmful to the interest of a single pupil with special educational needs could not be approved.

The first clear point on the effects of the law in relation to the specific sections mentioned in Amendment No. 3 is that they could not be changed if

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that change would be likely to damage the education of children with special educational needs. No change that harmed children with special educational needs would be possible. It is clear that simply abolishing the duties in any of the sections to which the amendment refers would not be lawful. It would be detrimental to children with special educational needs, for example, to have no duty to assess or to identify. Without those duties the basic provisions for children with special educational needs would not function. Therefore it must not be lawful to remove them.

As the noble Baroness, Lady Darcy de Knayth, pointed out, many of the duties in Amendment No. 3 are expressed as "when necessary". Clearly it is necessary for someone to act to secure the best interests of children with special educational needs, but it would be to the detriment of those children if they did not do so. It follows that having no duty on anyone to act when necessary must be to the detriment of children with special educational needs. Accordingly, it would not be lawful to remove any of those duties. I hope that I have made it as clear as I can that that is the meaning of the legislation as the Bill is drafted.

The Bill would permit, for example, the transfer of duties from one party to another. To take an example I have used before in your Lordships' House, if under the power to innovate the governing body of a strong school were taking on responsibility for a weak school, we would be likely to want the special educational needs duties to transfer to the strong governing body. Otherwise the residual weak governing body would be left with no powers and a duty in relation to special educational needs that it would be unable to fulfil. Meanwhile, the body with the powers would be left without the duties. That would not be in the interests of children with special educational needs and therefore I do not wish to rule it out.

It is conceivable that some adjustment to the legislation set out in the amendment could be in the interests of children with special educational needs. I have said in your Lordships' House many times that it is my strongest desire that the power to innovate should be used for these children, who may benefit from innovative approaches which cannot take place under our current legislative framework. That is why I have looked for positive approaches to innovation.

The most obvious example, as I said, would be the transfer of duties from one body to another. Similar arguments would apply to the transfer of duties between local education authorities, or from local education authorities to voluntary bodies. In looking at the issue it is not inconceivable that a school or local education authority dealing with a number of children described as low incidence highly complex special educational needs may wish to involve one of our major voluntary organisations with knowledge, insight, experience and expertise on the particular special educational needs to work with it on the assessment of these children and to ensure that they are catered for properly.

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I do not believe that any noble Lord would wish to rule out that possibility, but that is unfortunately what would happen if the amendment was passed. It would require in law that one body be exempted from the duty, as noble Lords will appreciate, in order for another body to take it on. What is not conceivable is that the duties in those sections could simply be abolished. It could not be the case that no one would have them. I can be clear, and I believe that this is the key assurance the noble Baroness is seeking, that that would not be lawful under the legislation as it stands.

I do not want to rule out the adjustments to the legislation that I have set out, which would be beneficial for children with special educational needs, in the interests of inserting a protection that, as I have described, is already there. So I do not believe that Amendments Nos. 3 and 4 are necessary in order to secure the protections that the noble Baroness rightly seeks.

But I wish to go further. In any case, if there was a proposal to transfer duties of the sort I have described, we would need to be clear not only that that was in the interests of the children, but also that the position would be absolutely clear for parents. It would not be acceptable to create a position where parents would not know where to go for help, guidance or support or would not know who to hold to account in relation to the legislation. That would not be in the interests of children with special educational needs and so that too would not be lawful.

Furthermore, any measure that left parents with no right of appeal could not be in the interests of children with special educational needs. That might be unlawful anyway for other reasons, but in any case it would not be permitted under the Bill as it stands. I can therefore be clear that the legislation as it stands satisfies the concerns raised. It also ensures that if any change were in the interests of children with special educational needs, it would be permitted. That is the goal to which I have aspired.

But in case there remains any doubt, I wish to go further still. I have already described, in moving the government amendments on Report, how we would expect applications to be dealt with and the process that we would expect to go through in order to assess proposals in relation to children with special educational needs. I have said that we will put that in guidance, to which my noble friend Lord Brennan referred. We will make clear in guidance that we would not regard as standard-raising any proposal that simply proposed to do away with those duties. We would not expect to see any such proposals in any case. But if there was any doubt about that matter, I hope that I have put it to rest by committing the Government to setting it out in guidance.

Finally, I know that the Special Education Consortium was concerned that it might be unable to police any proposals coming forward because it would not know about them in time. I know that the noble Baroness, Lady Darcy de Knayth, is concerned that prpoposals should not be left entirely to the Secretary of State's opinion, for all the right reasons and none of

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the wrong reasons. I will make the commitment that if the Secretary of State were to receive any application affecting the duties set out in the five sections included in the amendment, the Special Education Consortium would be informed and consulted about the proposals. That would ensure it would have an opportunity to be involved in decision making.

I believe that in what I have said I have met the concerns expressed to me both inside and outside your Lordships' House. I hope that I have made it clear that the legal position is much more secure than some might have feared. In setting out the legal position in such detail, I am conscious that I have taken your Lordships' time. But I hope that all noble Lords will recognise the importance of my having done so, the strengths of the commitments I have made, and, in particular, our involvement of the Special Education Consortium in the process as more than a belt-and-braces approach to ensuring that the needs of these children remain as paramount as they should be, but also allowing the opportunity to look for innovation in our schools and local education authorities. I hope that with those words the noble Baroness will feel able to withdraw her amendment.

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