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Lord Campbell of Alloway: My Lords, before the Minister sits down, is she aware of any precedent of a clause that has this power to suspend the statutory requirement other than in emergency legislation in wartime?

Baroness Ashton of Upholland: My Lords, I would not know that. As the noble Lord will know, we have debated the clauses at great length at other stages. I wish that the noble Lord had been able to put that question to me at a time when I could have written to him before another stage. I will of course commit to write to him with a definitive answer.

Baroness Darcy de Knayth: My Lords, before I thank the Minister for her reply, perhaps I may thank all noble Lords who have taken part in the debate for their fantastic support. I am overwhelmed. My noble friend Lady Warnock mentioned the important 18 per cent without the state's protection, as did the noble Baroness, Lady Uddin, for whose informed support I am grateful. The noble Baroness, Lady Blatch, and the noble Lord, Lord Campbell of Alloway—I am delighted he is present as I remember his Private Member's Bill which resulted in the 1993 and 1996 Acts—both referred to the importance of safeguards. I am extremely grateful for the support of the noble Lord, Lord Addington. As always, he put his finger right on the question of whether what is proposed in our amendment is lawful.

I thank the noble Lord, Lord Lucas, for his unequivocal support. I thank also my noble friend Lord Listowel and the noble Lord, Lord Swinfen. I am particularly indebted to the noble Lord, Lord Brennan, for his careful analysis and informed advice, which did a great deal to set my mind at rest that anything to the detriment of children with special

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educational needs would not be lawful. I am extremely grateful to him for his suggestion that guidance would be a good idea.

I thank the Minister for her careful and long reply. That is a compliment, not a criticism. I am delighted by the clear statement with which she began; namely, that having strengthened the SEND legislation, she had every wish to keep those matters embedded and not renege on them. The amendments to Clause 1 are extremely welcome.

I am particularly grateful for the Minister's explanation that if a project adversely affects a single pupil with special educational needs, it could not be approved. However, what would happen as regards a new pupil entering the school after a project has started? Does the Minister wish to intervene?

Baroness Ashton of Upholland: My Lords, this is where I get lost in procedure as I understood that at Third Reading I could not reply to questions after I had made my main reply. As ever, I am at the mercy of noble Lords as regards procedure. However, as I said, a school would have to be able to demonstrate that a child arriving at that school would not be adversely affected by a project.

Baroness Darcy de Knayth: My Lords, I thank the Minister for that reply. It is clear that the key duties will remain and that it will not be lawful to remove any of them. A governing body or LEA that took over from a weaker LEA or governing body would still be bound by those duties.

I am most grateful to the Minister for saying that she would consult the SEC when drawing up guidance, and if someone came forward with an unusual proposal, for example. The Minister also said that parents would be informed and given a right of appeal. Our amendment consciously did not mention that. I am grateful to the Minister for making that point.

This has been a worthwhile exercise. I do not think that we have wasted the time of the House. I am glad to see that the Minister agrees. It is now clearly stated that the key duties remain. That is valuable. It is important that the Government send a clear message to service providers, especially LEAs, that they are committed to the legal framework and to the concept that children and young people should receive the special educational provision for which their needs call as a matter of legal right. Those who draft applications for innovative projects will receive the message that it is absolutely not the Secretary of State's intention to consider, let alone approve, applications which seek exemption from the key duties which LEAs have towards children with special educational needs with regard to identifying them, conducting assessments and making and maintaining statements.

I could make one or two other remarks but I think that I have spoken for long enough. Unhesitatingly, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved.]

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Clause 6 [Interpretation of Chapter 2]:

Baroness Blatch moved Amendment No. 5:

    Page 4, line 41, at end insert—

"( ) No order may be made (in relation to England) under Part 1 of this Act which includes reference to criteria prescribed under subsection (2) unless a statutory instrument containing the prescribed criteria has been laid in draft before, and approved by resolution of, each House of Parliament.

The noble Baroness said: My Lords, although we have discussed the clause to which my Amendment No. 5 refers, there remains nevertheless an important but residual issue. The Minister said on Report on 17th June:

    "In Committee, I said that I would reflect further on the nature of the criteria for earned autonomy and on the number of schools that might qualify. I can now tell your Lordships' House the outcome of that reflection".—[Official Report, 17/6/02; col. 533.]

The outcome of that reflection was welcome as we now have, instead of a predicted 10 per cent of schools qualifying for earned autonomy, the Government's own prediction; that is, 30 per cent. I have two comments to make. First, I hope that we shall get away from percentages. We are not aiming for 10, 20, 30 or any percentage. What we want are clear criteria that are well understood by schools and objective judgment in regard to those criteria. Whatever number of schools qualify, so be it.

However, it is depressing that the Government expect only 30 per cent of schools to qualify. At the same column of Hansard the noble Baroness continued:

    "We have always said that we want the best led and best managed schools to qualify for earned autonomy. We now wish to align the criteria for earned autonomy with those for short inspections. That will mean that, if a school has qualified for a short inspection under the current inspection arrangement and has received a good inspection, it will be eligible for earned autonomy. However, if a school receives a good inspection of any sort, we should be prepared to consider whether it might be suitable to give it additional freedoms. It will be for the chief inspector to identify those schools, and that is why the amendments that we have tabled are needed".—[Official Report, 17/6/02; col. 533.]

Therefore, the Government have moved away from objective criteria to what the chief inspector thinks and, indeed, at the end of the day to what the Secretary of State thinks.

If there are to be criteria, as I said a moment ago they need to be clear and well understood and everyone needs to have the security and the guarantee that those criteria will pertain when any decision is taken by the Secretary of State who will—not with my support—consider every single application that comes before the department. It is possible for different judgments to be made by different Ministers at different times.

The other reason that I wish my amendment to be incorporated in the Bill is that the Government have moved—which we welcome—from a relatively small number of schools qualifying for earned autonomy to a figure of about 30 per cent. The criteria drawn up to decide how many schools qualify will be important. The House should not mistrust the Minister's comments but should endorse them. The criteria

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should not comprise just the words and the promises of the Minister but should have the endorsement of Parliament.

I have to query why it is that 70 per cent of schools are not expected to be, in the words of the Minister, "well led and managed". It cannot be that the Government themselves say that only about 30 per cent of our schools are well led and well managed. If that is the state of education at the moment, it is a good deal worse than many of us thought. That sends a negative message to schools. I believe that the relevant percentage is a good deal higher and that many more schools should qualify for earned autonomy.

I rest my case. I shall not go over the arguments that I deployed at the previous stage except to say that we welcome what has been achieved so far. We believe that the criteria will be critical in determining the number of schools that qualify. If the measure is endorsed by Parliament, it will remove the discretion that is left to the chief inspector and to the Secretary of State. I believe that it will gain the confidence of schools, teachers, parents and, of course, more significantly, children. I beg to move.

Baroness Ashton of Upholland: My Lords, I am absolutely with the noble Baroness, Lady Blatch, in wanting to get away from the concept of percentages. However, they are a useful guideline and they have helped our debates on the Bill to move forward. I refer to the response of the noble Baroness and others to our initial figure of 10 per cent. However, I make it clear that I referred to that figure as a starting point. I referred also to 30 per cent of secondary schools and 60 per cent plus of primary schools. We want to ensure that qualifying schools are well managed and well led so that all schools in the future will be able to move forward in terms of earned autonomy. It is a starting point, not an end point. It is important to have clarity with our proposals. I give an unequivocal assurance that the criteria will be clear. It is important—I am sure that the noble Baroness, Lady Blatch, agrees—for schools to know whether or not they qualify.

I turn to the amendment. I simply say to the House that the Delegated Powers and Regulatory Reform Committee looked in detail at our proposals for regulation-making powers in this regard. It was content with our proposed procedures, and I hope that, as is conventional, the House will be guided by the committee's view.

The noble Baroness suggested that the amendments made to the Bill on Report mean, in her view, that the affirmative procedure is needed. But while I certainly made it clear that our intentions in relation to what regulations would contain had changed, the changes to the scope of the regulation-making power in primary legislation were not significant. I am therefore clear—we have taken some care to examine this carefully—that there have been no changes in the primary legislation that would disturb the committee's judgment of the appropriateness of the procedure, given the extent of the powers.

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All noble Lords will know that we have been completely open throughout about our intentions for the criteria for schools qualifying for earned autonomy and their development. We made our original intentions very clear in the policy statement that was placed in the Library of your Lordships' House. We made clear our continuing intention to consult. On Report, I responded to the concerns that had been raised in Committee. I set out in some detail the Government's revised intentions in relation to the qualifying criteria under Clause 6(2).

I have given very clear commitments on the Floor of the House, which will of course be met; I am sure that that is not in doubt. The powers in primary legislation were presented openly to the Delegated Powers and Regulatory Reform Committee and were not the subject of adverse comment. We have been open about our intentions throughout and we remain of the view—having checked very carefully, as I said—that the procedure we propose in the Bill is the appropriate one.

Therefore, in the light of the views of the Delegated Powers and Regulatory Reform Committee in particular, I very much hope that the noble Baroness will withdraw her amendment.

4 p.m.

Baroness Blatch: My Lords, could I ask the noble Baroness two questions, in the light of what has just been said?

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