§ 3.12 p.m.
§ The Minister of State, Department for Education and Employment (Baroness Blackstone)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, That the House do now again resolve itself into Committee.—(Baroness Blackstone.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The CHAIRMAN OF COMMITTEES in the Chair.]
§ Clause 119 [Code of practice for securing effective relationships between LEAs and maintained schools]:
§ Lord McIntosh of Haringey moved Amendment No. 241N:
Page 90, line 37, leave out subsection (3) and insert—
("(3) Section 80 shall apply in relation to the code as it applies in relation to a code of practice under section 79.").
§ The noble Lord said: Government Amendment No. 241N provides for the code of practice on LEA-school relations to be subject to parliamentary approval. This meets the recommendation of the Delegated Powers and Deregulation Committee which suggested that the code be subject to approval by the House.
§ I am happy to accept the recommendation of the committee. I am also grateful to the noble Baroness, Lady Blatch, and the noble Lord, Lord Pilkington, for tabling Amendment No. 243, which would have the same effect as this amendment.
§ It is vitally important that all the partners in the education service work together effectively if we are to achieve the challenging targets we have set ourselves for raising standards. The code will play a key role in establishing and maintaining a positive relationship between local education authorities and schools in the new framework. Getting this relationship right will be essential to our success.
§ Making the code subject to parliamentary approval will allow a further opportunity to ensure that the detail of the code is right. The government amendment achieves this by applying the procedure set out for the parliamentary scrutiny of the code of practice on admissions to any codes made under Clause 119. This will allow Parliament a full opportunity to comment on the draft of the code—as revised following our current wide consultation exercise—before it can be put into force.
§ The amendment proposed by the noble Baroness and the noble Lord is slightly less economical in its approach and would require a couple of additional consequential amendments. I hope, therefore, that they feel able to withdraw their amendment in favour of the approach taken by the Government's amendment.1454
§ Amendment No. 241G has been included in this group, but perhaps it will be for the convenience of the Committee if I speak to it after it has been spoken to by either the noble Lord, Lord Tope, or the noble Baroness, Lady Thomas. I beg to move.
§ Baroness Thomas of Walliswood
The noble Lord has invited us to speak to our amendment now. If that is not thought to be the wrong way round, that is what I propose to do.
The purpose of the amendment is to ensure that the code of practice for securing effective relationships between LEAs and the maintained schools takes account of the functions of an LEA in relation to children with special educational needs. As it stands, the draft code of practice on LEA-school relations specifically excludes SEN responsibilities, indicating that they are covered elsewhere in the code of practice. However, the code of practice looks at special educational needs from the point of view of the process of the child's various stages of assessment. It does not look at the whole interface between the school and the LEA with regard to special educational needs.
In addition, in paragraph 8 of the draft code, one of the criteria for including particular functions in the code on LEA school relations is stated as its relevance to raising school standards with a reminder that that is government policy. In the debates on Clause 6 on the education development plan, repeated assurances were given about the importance attached to addressing special educational needs as part of the agenda on raising standards for all children. To omit SEN from the code would be to undermine those assurances.
In addition, the relationship between schools and LEAs on the subject of special educational needs and the curriculum is complex. Those are the three reasons why we thought it important to table our modest amendment.
§ Baroness Blatch
My amendment, Amendment No. 243, is grouped with Amendment No. 241N. I thank the noble Lord for what he said and for the fact that the Government have tabled their own amendment, which the noble Lord claims is more effective and more economic than mine.
I have one question. The penultimate part of my amendment asks that for the purposes of counting the 40 days no account should be taken of any period during which Parliament is dissolved or prorogued. In other words, the counting of the 40-day period should be frozen during that time. May I be assured that those provisions of subsection (7) are subsumed by the government amendment?
There are now a number of questions about the status of the code in relation to, for example, education action zones. It appears to cut across some of the rhetoric used about the establishment of the action zones. It seems extraordinary that there is not more mention of the roles of the school organisation committees and of the adjudicator. It seems extraordinary that a document, to which local authorities will have to have regard, is to be on the face of the Bill when that is not the case for the most undemocratic of the Government's proposals. 1455 I refer to the establishment of the school organisation committees and to the role of the adjudicator. They will take upon themselves a great deal of the work which has hitherto been the remit of the local authorities. It would be helpful if something could be said about the interaction of that and about the fact that nothing on the face of the Bill subsumes the interaction between the LEAs and the roles of the adjudicator and of the school organisation committees.
As to special needs, referred to by the noble Baroness, Lady Thomas, the functions of local authorities are enormously enhanced by the Bill. In almost every clause there is a new function for local education authorities, particularly in planning. We now have the interim admissions document. There are even more hares running in terms of the functions of local authorities and the way in which LEAs relate to schools and the education establishment generally. The code of practice will be a particularly important document.
My final point displays my depression about the whole of this matter. The code of practice is no more than exhortation. In reality, the law will require local education authorities only to have regard to the code of practice. There is no obligation upon them whatsoever to do anything other than have regard to the code. All one has is exhortation about a light touch, no intervention without good cause and what I would regard as a requirement about the way in which LEAs relate to their schools to achieve what the Government want; namely, to give as much autonomy at school level with as light a touch as possible at LEA level. It adds up to no more than exhortation, with some kind of threat that if the Secretary of State is not impressed with the way in which local education authorities behave he will not take power under this Bill but will rely on an old power. That will be invoked only if it can be proven that the LEA has no good reason for exercising its functions.
It will not take an LEA very long to realise that the scope for intervention and taking a slightly heavier hand as opposed to a light touch in approaching schools is considerable. All it must do is prove that it is concerned about a school on the grounds that people in the community may be complaining, or there are articles in the newspapers, or there is a hint that something is going on in a particular department, or perhaps a teacher is not marking work—the kinds of operational matters that should be for the governors and the school itself. I believe that the import of the code of practice, being no more than exhortation, is deeply worrying given the enormous number of new functions for LEAs and in particular the practice and work of the organisational committees and the adjudicator.
§ Lord Swinfen
I support what has been said by the noble Baroness, Lady Thomas of Walliswood. I urge the Government to accept Amendment No. 241G. As I understand it, the special educational needs code of practice is designed to show how the assessments are worked through, not the relationship between schools and the local education authorities. It is important that this amendment is included in the Bill and that schools do not start with one code of practice for their 1456 relationships with local education authorities which must be amended in a few months' time to take account of special educational needs.
§ Lord McIntosh of Haringey
I believe that I have three tasks to perform. The first simple task is to assure the noble Baroness, Lady Blatch, that the Government's amendment will achieve exactly what her amendment seeks to achieve in relation to the calculation of the 40-day period. Indeed, the amendment of the noble Baroness is taken word for word from Clause 80. That is what the government amendment applies to the code of practice. As in her amendment, so Clause 80 provides:(7) In this section '40-day period' … means … no account being taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days".I refer next to Amendment No. 241G as spoken to by the noble Baroness, Lady Thomas of Walliswood. I am grateful to the noble Baroness for tabling this amendment. It draws attention to the fact that special educational needs are an important dimension of LEA-school relations. The principles which are set out in the code of practice will certainly apply to the relationship between LEAs and special schools and to the provision that mainstream schools make for statemented pupils. Those principles include raising standards; intervention in inverse proportion to success; partnership and co-operation; and zero tolerance of under-performance.
Our starting point with the draft code for England has been that in most circumstances the way LEAs, head teachers and governors use their powers and fulfil their responsibilities will apply equally to mainstream and SEN provision. But we also recognise that some special schools and children with special needs in mainstream schools require additional or different kinds of support from their LEA. When considering our consultation responses we shall look particularly carefully at those which suggest areas where different treatment may be needed. We shall certainly take account of these in preparing the final version of the code. However, I do not want to rule out the possibility of having separate guidance relating specifically to SEN provision if in the light of responses to our consultation that seems to be the most appropriate way to cover it.
I can assure the noble Baroness and the noble Lord, Lord Swinfen, that SEN issues will be given full and proper consideration. This is a very important part of the role of LEAs and we recognise the need to get the arrangements absolutely right. The list in subsection (6) of this clause is not intended to be exhaustive. It is therefore already open to us to include SEN issues in the code of practice in whatever way is considered most appropriate. As already discussed, noble Lords will have another opportunity to comment, if they are dissatisfied with the approach we decide to adopt, when the revised version of the code is laid before both Houses. In view of these assurances, I hope that the noble Baroness will feel able to withdraw her amendment. In the meantime, I shall be happy to receive any further advice that she or the noble Lord, Lord Swinfen, wishes to offer on this subject.
1457 My third task is to reassure the noble Baroness, Lady Blatch, about the nature of the code of practice. First, I assure her that the code will apply to the relationship between local education authorities in all circumstances, including education action zones. It is comprehensive in that respect. The noble Baroness claimed that the code was only exhortation and clearly wished, although she did not spell it out, greater central control than the approach taken by the Government. It will be open to schools to appeal against unreasonable action by local education authorities, and the Secretary of State in considering any such appeal must have regard to the code. Therefore, the code is a good deal more than exhortation; it applies to all parties and provides a procedure for the resolution of disputes. The Government do not fear either that this code will depart from the light touch that has been discussed or that it will be unworkable in the sense that it is only exhortation, as the noble Baroness believes. On that basis, I beg to move Amendment No. 241N.
§ Baroness Blatch
Before the noble Lord formally moves the amendment, I do not seek greater central control. My amendment seeks the opposite: greater autonomy at school level. I suggest that schools that are successful and improve year on year should be left to get on with it and there should not be any intervention at all by the local education authority.
§ 3.30 p.m.
§ Lord McIntosh of Haringey
That is a point of view. If the noble Baroness says that there should be no intervention whatsoever, we would argue the contrary. However successful the school, the need for a properly thought out education provision in any area involves a local education authority. If the accusation is more limited—that there would be unreasonable intervention by the local education authority—that is answered by the provisions for appeal to which I referred.
§ Baroness Thomas of Walliswood
I do not find myself entirely satisfied with the response from the Minister. During this Committee stage, there has been a long struggle to get the special requirements of pupils with special educational needs on to the face of the Bill. That process has occurred with other education Bills as they have passed through this House. My recollection is that more often than not that recognition was put on the face of the Bill.
It is not terribly consoling to find that some reference will be made in accordance with requests made by other people during the consultation process on the code, even given the fact that the code will be discussed in your Lordships' House. The code will include—I sought to write the list down; I have not completed it yet—the education development plan, warnings to schools on standards, the suspended rights to a delegated budget, reports from governors, staffing of schools and discipline within schools. In all those areas there should be specific responsibilities, for example, on governors, to account for how they have dealt with pupils with special needs. I do not include pupils with statements because those pupils are usually accompanied by a small 1458 amount of money—it may not be a large amount—and some additional help. However, a large number of children have special educational needs. A wide range of different needs are covered. I believe, as do others, that those children's needs are as important as the needs of children with statements.
This would be an excellent place to insert on the face of the Bill the Government's concern for the well-being of children with special educational needs. It is no good saying, as the Minister has done in the past, that this is a special interest. It is not a special interest in the ordinary recognisable sense of the word. We are talking of up to 20 per cent. of the population and their parents. This may be one of the two best places to put the Government's concern on the face of the Bill. The code will cover many of the relations between LEAs and schools. The noble Baroness, Lady Blatch, pointed out the increased responsibilities of schools for the curriculum. Many on this side share the Government's concern. This is the ideal place to put that concern on the face of the Bill.
§ Lord McIntosh of Haringey
I confess that I did not expect to satisfy the noble Baroness, Lady Thomas. The noble Baroness knows that whenever the issue has been raised—it has been raised properly on a number of occasions as we have considered the Bill—the Government have tried to listen to, and evaluate, the relative merits of the different amendments relating to special educational needs. We have sought to consider, as we undertook to do, what might best be done between now and Report stage. We have undertaken to talk to any noble Lords who wish to discuss these issues. I understand that the noble Lord, Lord Swinfen, in company with the noble Baroness, Lady Darcy de Knayth, and the noble Lord, Lord Rix, have already visited the department to set out their stall, so to speak, and to discuss the matter with officials. That offer is open to anyone who wishes to discuss with Ministers or officials the issues of special educational needs.
I understand the noble Baroness's disappointment over what I said. I understand her point that the provision of parliamentary scrutiny for a draft code of practice does not meet what she intended to achieve. The six considerations set out in the draft code of practice, as I said, are not intended to be exhaustive. The consultation process has only just begun. I hope that that process will meet the points the noble Baroness raises. In any case there will be an opportunity for further debate on Report.
§ On Question, amendment agreed to.
§ [Amendment No. 241G not moved.]
§ [Amendment No. 242 had been withdrawn from the Marshalled List.]
§ Clause 119, as amended, agreed to.
§ [Amendments Nos. 243 and 244 not moved.]1459
§ Baroness Blatch moved Amendment 244A:
§ After Clause 119, insert the following new clause—
§ ("Inspection of voluntary aided and foundation schools