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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 UphollandFollowing 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 1337 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.
§ Baroness BlatchI am sorry that there was not a more detailed description of what was wrong with the amendment. I understand the point on exclusions, but I am not so sure that we need waste time on discussions. The Minister may be able to bring forward a form of wording that suits parliamentary counsel and officials and Ministers in the department that achieves the ends, which are that nothing in the Bill should disadvantage children with special educational needs. In the exercise in innovation and autonomy it must be possible to exclude a child with SEN. I accept that if the conditions are right and meet the criteria for exclusion.
The Minister knows what we mean and just talking about the issue will not bring it further forward. It is important that parliamentary counsel with all their expertise should find the right form of words for what is the lay explanation. We have set it out on the record 1338 a number of times and our time would be used more wisely if the department were to get on and produce an amendment for the Report stage.
If such an amendment achieves my aims and those of the noble Lord, Lord. Rix, and others, who are concerned that children should not be disadvantaged as a result of what is an innovative Bill, it will have my full backing. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 203 [Orders and regulations]:
§ [Amendment No. 363A had been withdrawn from the Marshalled List.]
§ Lord Lucasmoved Amendment No. 364:
Page 123, line 20, at end insert—() section 49(3),The noble Lord said: The purpose of the amendment is to make regulations under Clause 49(3) subject to the affirmative resolution rather than the negative resolution procedure in this Chamber. I beg to move.
§ Lord Davies of OldhamI rise to speak to government Amendments Nos. 365 and 379, and to respond to the noble Lord, Lord Lucas, on his Amendment No. 364. One of the benefits of moving legislation into regulations is to give greater flexibility to respond to circumstances and to make changes to the rules when circumstances dictate. That is why the regulations under Clause 49 are subject to the negative resolution procedure. We should lose some flexibility if they were to be subject to the affirmative resolution procedure.
The Delegated Powers and Regulatory Reform Committee has looked closely at all regulation-making powers in the Bill. It raised no concern about Clause 49(3). I hope that Members of the Committee will not wish to question that judgment.
On Amendment No. 365, the Government are grateful to the noble Lord, Lord Lucas, for his support. It will provide that the power to amend the areas of learning for the foundation stage as part of the national curriculum is subject to the affirmative instead of the negative procedure. That will be consistent with the powers to amend curriculum requirements for the key stages of the national curriculum.
Amendment No. 379—a government amendment—is a technical amendment, which corrects a very minor error in the Bill. It is intended that the Bill should repeal Section 98(2)(c)(ii) of the Environmental Protection Act 1990. This is correct in paragraph 10 of the minor and consequential amendments in Schedule 21, but the entry in the repeals in Schedule 22 contains an error. This amendment to Schedule 22 corrects that error. I commend these two government amendments to the Committee.
§ Lord LucasI shall not try to argue my amendment in detail this evening. Perhaps we may return to the matter at another time when the troops are out. 1339 However, I should like to know what Amendment No. 379 now repeals. Can the Minister tell me what is the provision in the Environmental Protection Act that requires to be repealed by this Bill?
§ Lord Davies of OldhamNoble Lords may believe it or not, but, even at this late hour, I had anticipated that the noble Lord might press me on that point. Unfortunately, what I am not sure that I am capable of doing is repeating with precision the sections that the amendment would repeal. However, I shall do my very best to do so on behalf of the noble Lord, and, indeed, on behalf of the whole Committee.
Section 98(2)(c)(ii) of the Environmental Protection Act 1990 is an obsolete provision that refers to Section 218 of the Education Reform Act 1988. As noble Lords will recall, Section 218 of that Act is repealed by the Bill. Section 98 of the Environmental Protection Act is in a part of the Act dealing with control of litter, which applies to various categories of land including land of some educational institutions. Section 98 then defines "educational institutions".
The definition in subsection (2)(c)(ii) includes the reference, which the Bill is removing, to institutions designated under Section 218 of the Education Reform Act. This reference is obsolete as no such institutions have been able to be designated for many years. The amendment will not of course affect the continued application of this part of the Environmental Protection Act to maintained schools, CTCs, academies and further and higher education institutions. I hope that I have satisfied the noble Lord on that point, and received support from all sides of the Committee.
§ Lord LucasI am immensely grateful. The sun will rise tomorrow. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Lord Davies of Oldhammoved Amendment No. 365:
Page 123, line 22, at end insert—(bb) section 79(3),On Question, amendment agreed to.Clause 203, as amended, agreed to.
§ [Amendments Nos. 365A and 365B had been withdrawn from the Marshalled List.]
§ Clause 204 [Wales]:
§ Baroness Ashton of Uphollandmoved Amendment No. 366:
Leave out Clause 204 and insert the following new Clause—