Lords Sitting of 19 December 2000

Preamble
The House met at half-past two of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Bath and Wells): The LORD CHANCELLOR on the Woolsack.

Supermarkets: Competition Commission Report
Lord Bowness Lord Bowness asked Her Majesty's Government:
Whether they agree with the recommendation of the Competition Commission, in its report on supermarkets, that no action should be taken against pricing policies found to be against the public interest.
Lord McIntosh of Haringey: My Lords, my right honourable friend the Secretary of State for Trade and Industry accepted the Competition Commission's recommendation that no action be taken against below-cost selling and price flexing.
Lord Bowness: My Lords, I thank the Minister for that Answer. But can he tell the House the point of investigations and findings against the public interest if no action is to be taken just because it is too difficult? Where does that leave the Government's policy of trying to ensure the survival of shops in the high street and of village shops if no action is to be taken on matters of this kind?
Lord McIntosh of Haringey: My Lords, the Competition Commission recommended that no action be taken on two counts. The first is not particularly because it is difficult, but because the results would not be effective and, indeed, may be counterproductive. Secondly, there is evidence from France and Ireland, which have restrictions on below-cost selling, that it leads to higher prices and higher margins. There is also evidence that supermarkets can drive down supplier prices to avoid such restrictions and that they use promotions, temporary offers and limited stock offers to get round them. The Competition Commission therefore concluded that such restrictions would not work. Regulating price flexing would ignore the fact that there can be genuine regional cost differences which would be outlawed by a prohibition. That would be to the disadvantage of consumers.
Lord Razzall: My Lords, will the Minister indicate whether the implication of what he has just said is that Her Majesty's Government have no policy whatever with regard to the current problems in relation to regional and local monopolies of supermarkets in certain areas of the country?
Lord McIntosh of Haringey: My Lords, that certainly does not follow from what I said. I was
626
describing our reaction to the Competition Commission report. A whole range of issues relate to the comparative advantage of supermarkets and high street shops. Such matters may include planning issues or issues relating to parking in the high street on a Saturday. The noble Lord, Lord Razzall, cannot draw the conclusion he did from what I said about the Competition Commission.
Viscount Waverley: My Lords, taking the noble Lord one step further, was thought given in the report as to the consequences of cavalier buying practices whereby suppliers are paid less than the cost of production? If not, what is the Government's view of such practices?
Lord McIntosh of Haringey: My Lords, I set out that argument in some detail in response to the supplementary question of the noble Lord, Lord Bowness. The danger, from the point of view of suppliers—I believe that that is 'what the noble Viscount is concerned about—is that a prohibition on below-cost selling would drive down supplier prices so that they would no longer be below-cost selling. That would be to the disadvantage of suppliers to supermarkets.
Baroness Miller of Hendon: My Lords, I declare an interest as a former member of the Monopolies and Mergers Commission, which was the predecessor of the Competition Commission, and as someone who continually goes across the Channel to buy in Calais where the prices of many articles are much cheaper than in our supermarkets. Perhaps I can change tack slightly. Can the Minister say whether the higher prices charged in British supermarkets have anything to do with fuel and vehicle taxes being higher here than in Europe? Also, will that make a difference to the smaller shops in this country and cause problems for them?
Lord McIntosh of Haringey: My Lords, I looked carefully into such evidence as is available on comparative costs in supermarkets in Britain and in continental Europe, but they are extremely difficult to interpret. They are affected not only by the quality of the information gathered—in other words, by whether a sufficient sample of supermarkets is being checked and whether it covers a suitable range of high quality and low cost supermarkets—but also by changes in exchange rates and according to the basket of goods chosen. I refer, for instance, to whether they reflect British buying habits or the buying habits of continental Europe.
All the evidence indicates that, although transport costs may be a factor, they are not the most significant factor. I remind the noble Baroness, Lady Miller, that although our fuel prices are higher, our other

627
commercial transport costs make us competitive in that respect with continental Europe.
Lord Marlesford: My Lords, does the Minister agree that if it was not for supermarkets, we would all be paying a lot more for our petrol and would have to pay the crazy prices charged on motorways?
Lord McIntosh of Haringey: My Lords, I hope that the noble Lord, Lord Marlesford, is not recommending that we travel many miles to supermarket petrol stations in order to save 1p or 2p on the price of petrol. That would not only be damaging from an environmental point of view, but would also cause a great deal of road congestion.
Lord Elton: My Lords, is the Minister aware of whether the practice of below-cost selling has had any effect on the farm gate prices of such products as British lamb?
Lord McIntosh of Haringey: My Lords, first, the Competition Commission report on below-cost selling, although it recognises that there is a problem in that regard, does not say that it is a universal problem or anything like it. Secondly, as I have already said, the danger of a prohibition on below-cost selling is that it would force down supplier prices and that would not be to the benefit of farmers.
Lord Mackie of Benshie: My Lords, can the noble Lord say whether he has any evidence of the suppliers—the primary producers—being able to force up prices? Is it not a fact that, in the case of Milk Marque, for example, any attempt to combine forces has been frustrated by legislation which forced the break-up of that body which might have kept the price reasonable?
Lord McIntosh of Haringey: My Lords, the Ministry of Agriculture, Fisheries and Food has a number of food chain initiatives in place to help farmers. I agree with the noble Lord, Lord Mackie, that it is extremely difficult for farmers to get together to exercise collective market power since they are necessarily fragmented. But they have task forces, which were recently announced by MAFF, to deal particularly with the case of milk, taking forward the recent work of the Food Chain Group. There has been continuing recognition of the need for a viable, competitive UK farming industry and the importance for that of the whole food chain. The difficulty is that the food chain is fragmented and there is little vertical integration.

Swimming Tuition in Schools
2.38 p.m.
Lord Harrison Lord Harrison asked Her Majesty's Government:
What is their response to the Ofsted report Swimming in Key Stage 2.
The Minister of State, Department for Education and Employment (Baroness Blackstone): My Lords, we welcome the generally positive report. It shows that four out of five children can swim 25 metres at the end of Key Stage 2. We need to work with schools to make better opportunities available for even more children so that they acquire this important life skill, and to ensure that the proportion of children who cannot swim when they leave school is reduced from the current 20 per cent. Extra funding is being provided which will lead to improved opportunities for swimming where needed. We will also work with swimming associations to develop an action plan to do more.
Lord Harrison: My Lords, I thank my noble friend for that reply. Does she agree that, while it is a generally supportive report from Ofsted, nevertheless there are concerns that half the schools reported a cut in swimming tuition over the past three years? Indeed, the cost to schools of providing tuition has risen from £1,000 to £9,000. Can that differential be explained? Finally, does she agree that children in our inner city schools are more affected by the recent cuts than those in rural schools?
Baroness Blackstone: My Lords, the Government welcome the Ofsted report because it helps us to identify both the strengths and weaknesses in school swimming provision. There are some weaknesses which we want to acknowledge. That is why we shall be discussing the report further with Ofsted and with the Amateur Swimming Association and shall put forward an action plan in the new year.
As regards the differential costs, the vast majority of schools spend between £1,000 and £3,000 on swimming provision but it is unusual for schools to spend as much as £9,000. However, where that is the case the report will help them to investigate ways of reducing those costs.
As regards the difference between the number of children living in rural areas and in inner cities who can swim, the Government will support inner city schools because it is important that children living in cities should learn to swim as well as those in the countryside.
Lord Campbell of Alloway: My Lords, I have listened to the debate with great attention. However, will the Minister tell me what is the overwhelming importance of swimming in Key Stage 2 to children and education? What is it all about?
Baroness Blackstone: My Lords, from the point of view of safety, and perhaps even of health, it is important that all young children should learn to swim. For that reason, the Government, Ofsted, the Amateur Swimming Association, most teachers and, I suspect, nearly all parents attach a great deal of

629
importance to it and expect good results in terms of the number of children who can swim 25 metres by the age of 11.
Baroness Sharples: My Lords, does Key Stage 2 mean 75 yards or 25 yards?
Baroness Blackstone: My Lords, Key Stage 2 refers to a stage in the educational process. It is the second stage in primary schools for 7 to 11 year-olds. It has nothing to do with the distance which children are supposed to swim.

London Stock Exchange
2.43 p.m.
Lord Phillips of Sudbury Lord Phillips of Sudbury asked Her Majesty's Government:
What responsibility they and the Financial Services Authority have for the ownership and future effectiveness of the London Stock Exchange.
Lord McIntosh of Haringey: My Lords, the London Stock Exchange is a commercial company. Subject to its complying with regulatory requirements, its ownership and running are matters for the Exchange and its shareholders.
Lord Phillips of Sudbury: My Lords, can a government who are ready to intervene in almost all other walks of life be satisfied that an institution which is crucial to the future of the City and, like it or not, to the commercial future of this country can safely and adequately be left to a group of private shareholders whose understanding of the long-term strategic issues involved—if judged by the recent attempted Swedish take-over and the botched merger with the Frankfurt exchange—lead one to have little hope as regards dealing with their future?
Lord McIntosh of Haringey: My Lords, I reject the noble Lord's original premise that the Government are anxious to intervene in almost all walks of life. But even if I did not, I believe that he over-exaggerates the role of the London Stock Exchange. It provides a market for share trading—and there are many ways of providing markets for share trading. If it were providing a market which was defective in that it had problems such as barriers to entry, it would be potentially subject to investigation by the Office of Fair Trading. However, neither of the incidents to which the noble Lord referred—neither the iX incident nor the bid by OM—led the OFT to believe that there might be competition considerations worthy of further investigation.
Lord Taylor of Blackburn: My Lords, does my noble friend believe that the noble Lord, Lord Phillips, is speaking on behalf of the Liberal Democrat Benches or not?
Lord McIntosh of Haringey: My Lords, that always puzzles me. A group within the Liberal Democrat
630
Party likes to position itself to the Left of the Labour Party. However, whenever it comes 1 o the crunch, the more moderate and capitalist wing of the Liberal Democratic Party reasserts itself and the radicals retreat to the sidelines.
Lord Razzall: My Lords, does the Minister agree that there is no evidence whatever in the proceedings of this House that my noble friend Lord Phillips of Sudbury has ever positioned himself to the Left of the Labour Party?
The Earl of Northesk: My Lords, after that exchange between the Liberal Democrat and Government Benches, perhaps we may return to the Question. Will the Minister confirm that it is a statutory duty of the FSA to have regard to the competitiveness of the UK financial services industry? In that context, is it not desirable that in so far as it may not already exist machinery is put in place to enable the Treasury and FSA to be proactively involved in discussions with the London Stock Exchange as to its future?
Lord McIntosh of Haringey: My Lords, the noble Earl has gravely disappointed me. In asking such questions, his usual tactic is to call attention to what I said in the past in order to seek to find a conflict with what I am saying at the present. He failed last week—and on a number of other occasions. I thought that he would refer to my Answer to his Written Question dated 24th May this year; indeed, I took especial care to anticipate such a question. However, I imagine that he discovered that there was no change of government policy and no conflict.
Of course, the Financial Services Authority has regulatory responsibility for the London Stock Exchange, as I said in my Answer to the original Question. If the London Stock Exchange fails to meet the requirements for recognition as an investment exchange, the Financial Services Authority will step in. It is incumbent on the London Stock Exchange to maintain an orderly market for share trading. to have sufficient financial reserves and so forth. All of that is the responsibility of the Financial Services Authority, which in turn is accountable to Parliament through Treasury Ministers.
Lord Hooson: My Lords, is the Minister aware that there is little room on the Right of the Labour Party? However, does the attitude he has expressed today mean that the Government would regard with equanimity the taking over almost entirely of control and ownership of our service and manufacturing industries without any sign of government intervention?
Lord McIntosh of Haringey: My Lords, the reckless breadth of that question leads me to wonder whether I ought to make any assumptions about the Liberal Democrat point of view on any subject. Of course, there is no suggestion that the Government regard with equanimity any mergers or acquisitions in any part of the economy. As I have made clear, we have a

631
regime which provides for regulatory control through the Financial Services Authority and competition control through the Office of Fair Trading and the Competition Commission.
Returning to the London Stock Exchange, which was the subject of the original Question, none of the incidents which took place in recent months drew the attention of either of those authorities to problems in the London Stock Exchange.
Lord Newby: My Lords, does the Minister accept that if the single market is to work efficiently there must be a consolidation of stock markets across the EU? In those circumstances, does it not make sense to have a common EU regulatory regime? Will the Government take a leading part in bringing forward discussions to ensure that that takes place, thus enabling the single market to work more effectively?
Lord McIntosh of Haringey: My Lords, in this case I have some sympathy with the noble Lord's premise. It appears inevitable that in the longer term there will be a move towards global market trading which will affect not only the European Union but also the United States and the Far East. However, the need for a central regulatory regime in Europe is not a conclusion that appears to follow from that premise, and I am not sure that it is a line which the Government wish to follow. However, in general, European regulatory authorities have sought to emulate the regime which we introduced under the Financial Services and Markets Act.

UK Steel Industry
2.50 p.m.
Lord Islwyn Lord Islwyn asked Her Majesty's Government:
Whether they have had any recent discussions with the Corus company concerning the future of the British steel industry.
The Minister for Science, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, government Ministers and officials maintain close and regular contact with Corus on a number of issues and will continue to do so. The Government were deeply concerned by the job cuts announced by Corus earlier this year and they are playing their part in assisting the steelworkers affected by helping them to find new jobs. The Government are fully aware of Corus's announcement on 5th December that further restructuring was inevitable. Ministers are maintaining a close dialogue with the company and will continue to monitor the situation closely.
Lord Islwyn: My Lords, does the Minister appreciate that since British Steel merged with the Dutch concern Hoogvens about 14 months ago to form Corus there has not been much harmony or business success? Thousands of British Steel jobs have
632
already been lost, with not a single job loss in the Netherlands. That rationalisation to be nearer European markets is being carried out under the subterfuge that Britain is not in the euro. Does the Minister appreciate that steel has always been regarded as a basic industry of strategic importance to the nation? Does my noble friend also agree that if Corus closed the steelworks at Llanwern it would be little short of a national scandal?
Lord Sainsbury of Turville: My Lords, as far as I am aware the current problems of Corus have nothing to do with the fact that it joined the Dutch company a few years ago. There have been 680 redundancies in the Netherlands, although more have occurred in the UK, due to the structure of the plants in the two countries. Although the steel industry is going through a difficult period, it remains one of the most efficient in the world and is a key part of the British economy.
Lord Brookman: My Lords, I declare an interest as someone who for many years represented those whose jobs are currently at risk. Does my noble friend agree with me and Members of another place as well as trade unions that it is imperative that a round table conference be convened to thrash out a strategy to save both jobs and communities that are under threat? Does the Minister also agree that the items on that agenda should include electricity prices, the climate change levy and local rates which are a tremendous burden on the steel industry? Does my noble friend agree that that would be looked upon favourably by those whose jobs are currently threatened?
Lord Sainsbury of Turville: My Lords, the Secretary of State for Trade and Industry and the Prime Minister, who recently met MPs representing the steel group, are very well aware of the concerns of both the industry and its employees. I am not certain that a round table would contribute anything to the process. There have been detailed discussions about all the issues which have been raised: the climate levy, electricity prices and the euro. As I hope I indicated in my first Answer, government Ministers and the Prime Minister are very well aware of the serious situation in this industry.
Lord Elton: My Lords, can the Minister confirm or deny the allegation made in this Chamber about a fortnight ago that Railtrack is ordering replacement rail in lengths which cannot be produced in this country and, therefore, must be imported? Does that not bear on this situation?
Lord Sainsbury of Turville: My Lords, while everyone may have doubts about Railtrack's purchasing requirements, where it purchases its rail must be its decision. Presumably, Railtrack does that to obtain the highest quality and the best price.
Lord Ezra: My Lords, does the noble Lord agree that the steel sector is not the only part of manufacturing that is being assailed at the present time

633
and that the car industry and many others have been going through a very difficult period? Therefore, is it not appropriate that this House should look in greater depth at the whole manufacturing sector? If the usual channels agree, can that not be done by setting up a Select Committee?
Lord Sainsbury of Turville: My Lords, it is true that some parts of manufacturing industry are going through a difficult time, but other parts, which tend to be the higher value added sectors, are doing quite well. The most recent figures show that manufacturing output has increased. Manufacturing industry is a key part of our economy, and it is appropriate for this Chamber constantly to review its performance and what action should be taken upon it. I am sure that the usual channels will take that into account.
Lord Hoyle: My Lords, does my noble friend agree that he should not dismiss so lightly the idea of convening a round table conference on this vital industry? Will my noble friend undertake talks with the company about the fact that, surely, in future we should produce long, not short, rail?
Lord Sainsbury of Turville: My Lords, I shall pass on to the Secretary of State the view that there should be a round table conference. He has already considered the matter and does not believe that it would add to the current discussions. However, I shall ask my right honourable friend to reconsider the matter.
The Viscount of Oxfuird: My Lords, does the Minister accept that, as explained in The Times some months ago, in manufacturing a decline in the machine tool industry is the first indicator of a serious problem in steel consumption? The machine tool industry is the first to suffer at the hands of accountants in any company. Does the Minister agree that that area should be looked at very closely?
Lord Sainsbury of Turville: My Lords, it is already clear that in the past year or so there have been problems about the demand for steel, and that is part of the current troubles that face the steel industry. That situation is due in part to the low level of demand by some of the other industries which make great use of steel products.
Lord Stoddart of Swindon: My Lords, will my noble friend look closely at the suggestion of the noble Lord, Lord Ezra? Is it not a fact that manufacturing industry as a percentage of GDP has fallen from 32 per cent in 1973 to under 20 per cent today? Is the Minister also aware that in 1985 this House set up a Select Committee to look at the state of manufacturing industry, which has declined even further since then? Does my noble friend agree that it is about time another Select Committee considered what can be done to resuscitate that sector?
Lord Sainsbury of Turville: My Lords, the falling proportion of total GDP represented by
634
manufacturing industry is not only a problem for this country; it is a universal fact for all developed countries where there has been a consistent decline in manufacturing. There are good reasons for that. The two main ones are: first, increasing productivity of manufacturing; and, secondly, as people's incomes rise they spend proportionately less of it on physical goods. Therefore, in every country, including the most successful at manufacturing, there has been a decline. The situation in this country is not very different from that in every other developed country of the world.
We should continue to look at the position of manufacturing industry and what we can do to help, but it is quite wrong to think that there is something wrong about the proportion of manufacturing going down or that we are in some way in a different position from other developed countries.

Special Educational Needs and Disability Bill [H.L.]
3.1 p.m.
Baroness Blackstone: My Lords, I beg to move that this Bill be now read a second time. At the heart of the Government's agenda is the wish to have an inclusive society and a recognition of the importance of education for all. We are committed to a fairer, more tolerant society where every individual is valued and appreciated for what he or she can do, not labelled for what he or she cannot do. It is for all of us as citizens to work to break down the barriers that some members of our society have to overcome to gain access to services that the majority of us take for granted.
The Bill covers two topics—special educational needs and disability in education. The Bill is about moving the legislative landscape forward, building on the best of existing law and practice.
Part I of the Bill covers special educational needs in England and Wales and amends Part IV of the Education Act 1996. Of course the noble Baroness, Lady Blatch, played a key role in establishing the original special educational needs framework through the Education Act 1993, and I would like to pay tribute to her for her role. Part I of the Bill builds on the strong legislative background which she helped to put in place. In October 1997 we published our Green Paper Excellence for All Children: Meeting Special Educational Needs in England and the parallel Green Paper in Wales The BEST for Special Education. Our vision of excellence is for all. Our commitment to raising standards of achievement for children in schools encompasses children with special educational needs.
In November 1998 we published Meeting Special Educational Needs: A Programme of Action in England and Shaping the Future for Special Education was published in January 1999 in Wales. Those documents set out action that would be taken to maintain the momentum of progress in relation to special educational needs.

635
Part I of the Bill fulfils the commitments made in the programme of action that require primary legislation and covers England and Wales.
The Government's commitment to inclusion has been strong and constant. We are committed to ensuring that children with special educational needs are included wherever possible. The potential social, moral and educational benefits are significant. Clause 1 of the Bill delivers our commitment to strengthen the right to a mainstream place for children with special educational needs, where parents want that. That is in line with the Disability Rights Task Force's recommendation. Our approach is pragmatic and practical, recognising that inclusion is not always easy. Equally, we are clear that there is a continuing and vital role for special schools.
Inclusion is clearly an emotive issue. I want to use this opportunity to set out our objectives and the principles behind this first clause. First, we want an inclusive education service to offer excellence and choice. Secondly, inclusion must be based on sound foundations. The interests of all pupils must be safeguarded. All children have a right to an appropriate education that affords them the opportunity to achieve their personal potential. Thirdly, where parents want a mainstream place for their child the education service should do everything possible to try and provide one. Equally, where parents want more specialist provision their wishes should be listened to.
Finally, inclusion does not mean that every child should be placed in a mainstream school irrespective of their needs or circumstances. There will be cases, particularly where there is severe challenging behaviour, where a mainstream place is not appropriate. But that will be a small minority of pupils. We believe that many more pupils could and should benefit from a mainstream place where this is what their parents want. But we also believe that pupils should be protected from those whose inclusion would adversely affect either their learning or their safety.
Supporting parents is a theme of the Bill. Clauses 2 and 3 place duties on LEAs to provide parent partnership services and arrangements for resolving and preventing disputes respectively. Even the most articulate of parents can find the system confusing. All parents should feel empowered and able to play a full and active part in their children's education.
All LEAs have been encouraged to set up these services in advance of the statutory duty. We have published practical guidance to help them based on existing good practice. We have also provided the funding to enable LEAs to run them. This year £12 million has been provided, which is double what was available in 1999–2000. Next year the resources will increase again to £18 million.
Clauses 4 to 9 amend the existing legislative framework with a view to streamlining the SEN process for parents and maximising the benefit for children. Those clauses take forward specific commitments in the SEN programme of action.
636
In conclusion, Part I of the Bill seeks to enhance significantly the rights of children with special educational needs to high quality education that meets their needs. It strengthens the rights of parents to a mainstream place and promotes a strong partnership between parents, schools and LEAs for the benefit of children with special educational needs.
These are themes which the Bill shares in common with the revised SEN code of practice. I want to use this opportunity to say a few words about our recent consultation on a draft revised code. Over 1,000 responses were received. Similar consultation on a draft revised code of practice has recently been completed by the National Assembly for Wales, which will be responsible for approving a revised code in Wales. The majority of these were positive. In particular, people liked the emphasis on identifying needs as early as possible; improving partnership with parents; taking account of the views of the child; promoting strong school-based provision; and, reducing unnecessary paperwork for teachers.
Concerns were expressed about some aspects of the revised code. We made clear from the start that we would listen carefully to views. We have done that. My department has just issued a short document updating interested parties on our thinking as a result of this consultation. It covers a number of issues. But I will focus here on the issue that has caused most debate—the changes we proposed to the guidance on specifying special educational provision in statements of special educational needs.
Let me make absolutely clear that we have no intention of weakening the legal protection for children with statements. Vague statements do nothing to secure the right kind of help for a child with SEN; nor do they help a school to know what is required of it in helping the child to learn and progress. We will make clear that LEAs are required to specify provision in statements, as they always have been. We will retain the requirement in the SEN regulations for provision to be specified, matching the terms of the duty on LEAs set out in the Education Act 1996. We will stress that statements should be clear and specific about a child's special educational needs; the special educational provision required to meet those needs; and, the objectives that the special educational provision should aim to meet. We will recognise that that provision should be quantified as necessary.
I turn to disability discrimination in education. Part II of the Bill deals with disability discrimination in the provision of education. The Social Attitudes Survey of 1998 told us that 75 per cent of people in Great Britain believe that there is a prejudice against disabled people. There are some 8.5 million disabled people in Great Britain. They continue, regrettably, to suffer discrimination on a daily basis. There is still some way to go if activities which the rest of society takes for granted are not to be denied to some disabled people.
Legislation of itself cannot secure a change in culture or attitude but it can provide certain rights and a means of redress if those rights are infringed and it can provide leadership and a framework which

637
encourages changes of attitude. The Disability Discrimination Act represented a step forward in tackling disability discrimination, but it is flawed in a number of respects. It omitted the establishment of a Disability Rights Commission and it did not cover the provision of education.
In our 1997 manifesto we pledged,
"to support comprehensive and enforceable civil rights for disabled people developed in partnership with all interested parties".
It was with great pleasure, therefore, that almost exactly two years ago I opened the Second Reading debate on the Disability Rights Commission Bill and have subsequently seen the commission formally open its doors in April of this year. The Disability Rights Task Force, established in December 1997, reported in December 1999 through the publication of its report From Exclusion to Inclusion. The Government welcomed that report and since then have been committed to taking forward the education recommendations of the task force. We announced in another place on 20th November that we hoped to publish a response to the task force report around the end of February next year.
In addition, we will have invested £195 million in the New Deal for Disabled People. So far nearly 4,000 disabled people have found jobs and many more are making progress towards getting jobs. The "See the Person" campaign, launched in June last year, was a hard hitting campaign which our research revealed most people found easy to understand, informative, provocative and relevant.
Lord Campbell of Croy: My Lords, I am grateful to the noble Baroness for giving way. But it sounded as though she was being a little critical of the Disability Discrimination Act 1995. I am sure that she did not intend to be. She is quite right to say that it did not include education. However, at that time the bodies most concerned were in tremendous disagreement about what education provisions should be in the Act. The whole of the rest of the DDA which had been agreed in principle would have had to wait until the education part was dealt with. Now, six years later, the correspondence I am receiving shows that there are still differences of opinion among those concerned with the education of disabled people which our consideration of the Bill will try to iron out. The whole Disability Discrimination Bill would have been held up while the education part was being dealt with.
Baroness Blackstone: My Lords, the DDA was an enormously important step forward in establishing rights for disabled people. All I wished to set out was the fact that education had been omitted and that that is now being rectified. It has been recognised that that needed to be changed and I am delighted that there is enormous consensus in the education world for moving forward in this way.
Perhaps I may return to what the Government have done in recent months. A disabled person's tax credit was introduced in October of last year to give a minimum guaranteed income for disabled people
638
moving from benefit to work. We have increased the disabled student's allowance and we have extended eligibility to part-time and postgraduate students. Access to a high quality education—whether as a child, a young person or an adult learner—is essential if disabled people are to be empowered to live independent, fulfilling lives.
The exemption of education from the access to goods and services provisions of the DDA must now be put right. In looking to provide rights against disability discrimination, the starting point is clearly the Disability Discrimination Act 1995. The DRTF recognised that applying disability discrimination provisions to education was not, as the noble Lord, Lord Campbell of Croy, has just indicated. entirely straightforward. Education is a unique service and needs to be covered in a unique way. In framing its recommendations, the DRTF took the best of the DDA and applied it in a practical way to education. The DRTF also recognised that a different approach was needed for schools and for post-16 education providers, reflecting the existence of the SEN framework which already operates in schools.
I turn now to the provisions of the Bill on disability discrimination in schools which are covered by Clauses 10 to 24. This chapter places new duties on LEAs and schools, including independent schools and non-maintained special schools, in England and Wales and on local authorities, independent schools, self-governing schools and grant-aided schools in Scotland.
In England, Scotland and Wales the new duties are not to treat disabled pupils less favourably, without justification, than pupils who are not disabled; and to make reasonable adjustments so that disabled pupils are not put at a substantial disadvantage to pupils who are not disabled, but not where this requires them to remove or alter a physical feature or to provide auxiliary aids or services. Additionally, in England and Wales, there is a new duty: to plan strategically and make progress in increasing physical accessibility to schools premises and to the curriculum.
The DRTF considered in some detail whether a duty on individual schools to alter physical features was a practical way forward. It concluded that it was more sensible to have a strategic planning approach which would allow LEAs and independent schools to look across their building stock and to make changes as necessary within the context of an overall strategic plan. We have already announced a significant increase in the money to be made available through the schools access initiative in England—some £220 million over a three-year period—to support this duty. That planning duty, which is covered in Clauses 13, 14 and 21, applies only to England and Wales. While the provisions are clearly designed to help disabled children, they are more about the organisation of schools and as such are matters devolved to the Scottish Executive.
A key feature of the reasonable adjustment duty is that it is anticipatory. It will not be good enough for a school or LEA or local authority in Scotland to wait

639
until a disabled child arrives on the doorstep. The approach must be to think ahead—always to have the rights of disabled children on the agenda. The anticipatory nature of these duties is an example of taking the best of the existing DDA and applying it here.
Where there has been discrimination on the grounds of disability, a remedy is essential. Clauses 16 to 20 and Clause 22 provide these rights of redress. The DRTF was impressed with the work of the SEN tribunal, which has been working since 1994, and recommended that the role of the SEN tribunal should be expanded to deal with such cases. The SEN and disability tribunal, operating in an informal and non-confrontational manner, will have wide-ranging powers to order LEAs and schools to take certain action as a remedy for discrimination. For example, a school or LEA might be ordered to change a policy that prevented visibly impaired pupils from going into a science laboratory and, additionally, ordered to provide extra tuition to enable a child to catch up on things that he or she may have missed due to discrimination. In Scotland, where no SEN tribunal operates, the Bill provides for these cases to be heard by the sheriff courts.
Clauses 25 to 33 cover the disability duties in relation to post-16 and non-school education. We are committed to lifelong learning and we have made a particular commitment to helping people who face barriers in gaining access to learning to overcome those barriers. This Bill will make a reality of that commitment for disabled people by placing new anti-discriminatory duties on the main providers of post-16 education. Those duties will bear on colleges, universities and LEAs in relation to adult education, community education and the youth service. They will mean that providers will not be able to treat disabled pupils less favourably, without justification, than students who are not disabled. They will have to make reasonable adjustments to ensure that people who are disabled are not put at a substantial disadvantage to people who are not disabled in accessing post-16 education.
Once again, the duties are anticipatory. The Bill will make it unlawful for institutions to discriminate against disabled people, not only in the way in which they carry out their main business—which is, of course, the provision of education—but also in the wider services that they provide for students such as accommodation, welfare services, careers advice, as well as leisure, recreation and entertainment.
Recently I have been made aware of instances where unreasonable behaviour by an institution has meant that a student cannot participate in a programme of further or higher education at a college or university. For example, in one case, a young deaf student was unable to hear her lecturer because he refused to clip on a radio microphone. In another instance, a student at an FE college who uses a wheelchair was denied access to the upstairs library because the only lift in the building was designated for staff only. The Bill places the responsibility firmly on educational institutions to
640
deal with unacceptable cases such as these. Providers must meet the needs of all their learners by taking reasonable steps to put in place policies and procedures capable of providing learners with a disability with fair access to all opportunities. In practical terms, this means that students with disabilities will have much greater access to necessary teaching facilities, classrooms, lecture theatres, laboratories and so forth, as well as to general facilities such as libraries and canteens. Providers are required to do what they reasonably can to avoid disabled students being placed at a substantial disadvantage to their peers. This will require them to take an inclusive approach.
In further and higher education institutions all over the country, a great deal of good work is already being done to provide a more inclusive environment, but while significant progress has been made, there is still a long way to go. Too many people are excluded from the great benefits that learning at any age can bring. The Bill will mean that many more people with disabilities can take part in lifelong learning. Adult and community education, together with the youth service, is by far the most informal part of the spectrum. They provide a huge variety of learning opportunities, often recreational, which are closest to local communities. Participating in learning at this level can act as a crucial bridge to more formal and organised education. Furthermore, it can improve health, in particular for older people. It is therefore important that both sectors should be covered by the Bill.
Cases of disability discrimination will be taken to the county court in England and Wales and to the sheriff courts in Scotland In all cases, a financial remedy will be payable. Chapter III of Part II deals with miscellaneous provisions. Clause 34 extends the role of the Disability Rights Commission, giving it similar powers and duties to those in respect of Parts I and III of the Disability Discrimination Act.
I look forward to debate on this Bill. The issues covered by it are always of great interest to this House. Indeed, they are of interest to everyone who is committed to fairness and social inclusion. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Baroness Blackstone).
3.25 p.m.
Baroness Blatch: My Lords, I thank the noble Baroness for explaining the proposals as set out in the Bill. We welcome the Bill. As has already been said, it builds on the 1981, 1993 and 1996 Acts which all deal with special educational needs. I know that it will receive its customary diligent scrutiny by Members of this House. I can also promise that the aim of the contribution to this Bill by myself and my colleagues on these Benches will be to make the Bill work for all children.
My starting point, and that of my noble friends, is that the education system should address the educational needs of all children from whatever

641
background, whatever their mental and/or physical needs, and from whatever point they are placed on the ability scale. At this stage, I wish to put on the record our thanks to those schools and their staff which provide for children with special educational needs, and especially those which exercise much patience—sometimes to the point of exhaustion—with behaviourally disturbed children.
In the 1999 gracious Speech, the Secretary of State for Education and Employment made a commitment to legislation on special educational needs. However, that was dropped from the legislative programme and replaced by a promise of a draft Bill. As we all know, that was never published. On reading the Bill before us, one wonders why the delay.
There are some in the field of special needs who would have preferred more time to have seen a draft Bill as promised, in order to allow for consideration of the detail before its passage through Parliament. Although there will be much discussion on this Bill, the test of its success will be in its implementation. To that end, the Bill reveals little about how these proposals are to work in practice. That, I believe, will form the focus of much of the debate on the provisions.
We know, for example, that the Government plan to modify the code of practice. If, as a result of those changes—and the passing of the Bill—many more children with special educational needs are transferred to mainstream school provision, then the support to mainstream staff will have to match the additional burdens placed on our teachers.
In a press release issued on 17th November 1999, the Secretary of State stated that:
"This Bill will improve the quality of education for children with special needs by making it easier for parents and children to secure the type of education they want. It will strengthen the right to a place in a mainstream school for those with special needs who want it, in all cases where it is appropriate. This Government is making a reality of parent power and meeting the individual needs of pupils in a more coherent way—putting equality into practice".
I hope that it will also strengthen the right of parents to choose a place in a special school as long as it is consistent with the educational needs of their child. There should be no imposition of inclusion into mainstream education against parents' wishes for those children for whom it is not appropriate.
In response to the Bill, the NASUWT has said:
"The Bill appears to be premised on the assumption that all parents want their children educated in a mainstream school regardless of their child's particular needs. This is not always necessarily the case".
It is important that, when parents receive information about the options for their child, they understand the advantages and, sometimes, the limitations of both mainstream and specialist school education. The quality of the information on which they will make those choices is absolutely crucial.
However, special school places are decreasing. Ofsted put the decline, during last year alone, at 30 per cent. Furthermore, there is evidence that local educational authorities are under pressure from government to promote inclusivity. The NASUWT, speaking for teachers, is concerned that parents could
642
be faced with no alternative but mainstream education which, despite even the best efforts of the school and the local education authority, might not be the most suitable placement for the child.
In so far as it went, I welcomed the statement by the Secretary of State in the debate in another place on this year's gracious Speech when, in answer to a point raised by my honourable friend Theresa May, he said:
"I want to make it absolutely clear that the inclusion agenda is not a wholesale closure of specialist facilities and schools that meet particular needs of youngsters and their families. That is why we want a regional structural approach so that facilities are available. We do not want a free-for-all or a closure by clint of resources not being available in a particular borough or local authority".—[Official Report, Commons, 8/12/00; col. 259.]
Will the Minister tell the House whether the parents, children and friends of Thurlow Park School in Lambeth can take heart from those words of the Secretary of State?
I hope that noble Lords will forgive my note of caution about that statement of the Secretary of State. He referred to no "wholesale closure" of special schools, but does that mean a closure of some special schools, giving way to a plan, as yet unseen, of regional facilities? It is important that we know what was in the mind of the Secretary of State when he made that statement. The Minister will know that to provide area-wide facilities in inner-city areas, where the relative distances to be travelled are manageable, is one thing; however, in suburban areas—and more particularly in urban areas—it would present great difficulties with unmanageable costs.
Whenever there is a major debate about the special educational needs of young people, it is important to remember the valuable work of the noble Baroness, Lady Warnock, whose report gave rise to the Education Act 1981. The noble Baroness identified about 20 per cent of young people whose learning needs would require additional help over and above the norm. It is important to note that the 20 per cent ranged from children who, for example, had difficulties mastering reading at an early stage right through to those who had severe learning difficulties.
However, suffice it at this stage to make one point on this issue. Ofsted states that approximately 75 per cent of children with learning difficulties are under-achievers in reading and writing—and yet, with all the improvements of formal assessments, testing, school inspections and an emphasis on literacy and the teaching of reading in teacher training colleges, the percentage of children with learning difficulties has not diminished. In fact, it is quite the reverse.
Dr John Marks has recently researched this subject. He reports that from 1991 to 1999 the number of pupils with special educational needs but without statements has risen from 11.6 per cent to 19.2 per cent in primary schools and from 9.6 per cent to 16.5 per cent in secondary schools. The number of pupils with statements of special educational needs has risen from 0.8 per cent to 1.6 per cent in primary schools and from 1 per cent to 2.5 per cent in secondary schools.

643
Of particular interest to all those who wish this Bill to work will be the allocation of funding and, more importantly, the identification of costed and necessary support when a mainstream school is selected for a placement. This is a Bill that cannot be bought on the cheap. There is no requirement for this in the Bill, which could mean a placement being made where a school, in order to meet its obligations under the law to a child with special needs, finds that it is unable to provide fully for the other children. Although the Government have put aside extra funds for special needs—we acknowledge that—there needs to be clarification of where a school would stand in such circumstances.
It is disappointing that more research and information has not been made available to prepare the ground for this Bill. Again, Dr John Marks, in his recent report, posed six fundamental questions, to which, so far, there are no answers. What are the criteria for deciding whether a child has special educational needs? No definitive criteria exist or have been proposed. How many pupils are at the various stages of special educational needs? Again, there are no data available. Who are the children with special educational needs? Some data are available for Wales, but not for England.
Very few data are available about the number of boys and girls who have statements of special educational needs, but there is no information about the numbers and percentages of boys and girls with special educational needs who do not have statements. There is no systematic monitoring of the effectiveness of special educational needs' funding. There are no research findings available to evaluate the teaching or monitoring of reading specifically among children with learning difficulties. Do the Government have any plans for research into these basic questions?
There was considerable disquiet about the draft code of practice. Many respondents saw it as a dilution and a weakening of the education rights of vulnerable children. However, the news from the Secretary of State today promising not to make the change from the word "specify" to "setting out" in relation to defining provision within statements in the regulation is very welcome.
Are the Government satisfied that all children with special educational needs currently in mainstream education have the support for access to all appropriate areas of the curriculum? What has been the response of parents to the decline of special school provision? Have the Government evaluated the tension between the current pressure to reduce the number of exclusions and the difficulties of placing with teachers more demanding children—especially those with behavioural difficulties—without adequate support? Will the Government guarantee that children are not placed in mainstream unless the necessary support is provided? For example, will a school be free to use as a defence for refusing to take a pupil with special educational needs the fact that the support is not also provided?
644
In Ofsted's report on pupils with learning difficulties in mainstream schools, it is recorded that many parents complained about the length of time taken to move to a formal statement. They argue that, in so many schools, if it had not been for the parents' persistence, such diagnoses may not have been made. Early identification and early intervention is the key to tackling learning difficulties.
The Ofsted report goes on to state that there is a tendency on the part of primary schools to move to a statement for a child just before secondary school transfer. Thus valuable time is lost, which all too often gives rise to anxiety for the parents and, worse, great frustration for the child. It is well known that much frustration and disruptive behaviour stems from under-performance and low achievement, particularly in reading and writing skills. What specifically in this Bill will address this issue, other than pressure to retain more behaviourally disturbed young people in mainstream schools?
There are a number of conditions which require the earliest possible intervention, including autism, asperger syndrome, hearing impairment, poor eyesight and dyslexia. What in the Bill will improve early identification and early intervention for children who are so affected?
During the debate on the gracious Speech I asked about the Government's universal neo-natal hearing screening programme. The Minister promised to write to me but I have not as yet heard anything. Can she comment today on the progress to date of that scheme?
Many other questions will need to be explored in further stages of the Bill. In Clause 11, how can there be a charge of discrimination in further or higher education if the responsible authority is unaware of any disability? Who will be responsible in law to inform the institution—or is ignorance no defence for such an institution?
I am sorry that when the Minister gave examples of poor provision in further and higher education—for example, the lecturer who refused to put on a microphone or the lift which was available only to staff, both of which examples, I agree, are deplorable and wholly unacceptable in today's world—they were not accompanied by a recognition of the enormous lengths to which those in further and higher education go to accommodate young people with special and physical educational needs.
What is the position of sport in relation to people with disabilities? If, for example, a mainstream school agrees to take a child with disabilities but is not able to adapt all sports facilities for the child due to physical constraints within the building, would that amount to discrimination?
Time does not allow me to touch on all aspects of the Bill. Seeing the list of speakers, however, I have no doubt that all issues will be addressed during the course of the debate. However, I ought to refer to another Motion that will be addressed by the noble

645
Baroness before the debate concludes. I refer to the proposal for the Committee stage to be taken off the Floor of the House.
I need to make it clear that I am not an enthusiast for the Moses Room procedure. I am not attracted in principle to the idea of taking significant business off the Floor of the House. I believe that the Committee of the Whole House in this Chamber is a distinctive feature of this House which we should do well to preserve. I want to make clear my concern that a Bill of this type should not be scheduled at a time when other important business—such as, for example, the critical issue of legalising human cloning—is being considered in the Chamber. That would be inconvenient to noble Lords on all Benches. I hope that the noble Lord, Lord Carter, the Chief Whip, will take that into consideration when scheduling the business.
However, the Grand Committee is part of our procedures now. We have come under intense and prolonged pressure to put a significant Bill into the Moses Room and we must proceed by agreement. There is no substantial disagreement in the House with the broad objectives of this Bill. Indeed, I believe that there is a large measure of agreement in principle about much of what it has to offer. That is why the Official Opposition have reluctantly agreed with the request from the noble Lord, Lord Carter, for a Grand Committee on the Bill. I only hope that the experiment will prove to be a success. If it does not, or if it is handled in a way that is inconvenient to noble Lords, we shall want to think carefully about again acceding to such a request on so significant a Bill.
Like all those who are concerned about young people with learning difficulties, we welcome the Bill and we want to see it work. It will call for improved teaching, especially in the early years, greater support for teachers, and effective use of resources.
As I said during the debate last week, I remain concerned about the aggressive policy intention towards the integration of children with special needs into mainstream schooling. Where it meets the educational needs of the child and is consistent with the wishes of parents, and where teachers are fully supported, mainstream schooling will be the right choice. However, to remain ideological about inclusion to the point of making inappropriate placements will not only be wrong; it will be damaging to children and will cause great distress to parents. The system should be exclusively concerned with educational needs and specific provision to meet the needs of all children.
3.43 p.m.
Baroness Sharp of Guildford: My Lords, from these Benches, I welcome the Bill. Unlike the Minister and the noble Baroness, Lady Blatch, I have no previous experience in dealing with Bills of this nature; I am a relative newcomer to this whole area. As such, I am struck by the relative unanimity of view on these issues on all sides of the House. There is a wish on all sides to promote its main objective: access to first-class education for all children, whatever their needs.
646
We on these Benches also have a great deal of sympathy with the Government's inclusion agenda—the inclusion within mainstream education of children with special needs and disabilities wherever that is possible. There are too many cases of ostracism, bullying and stigmatisation of those with disabilities or special needs for us to be happy with the present situation.
There is clear evidence that, in most cases, including children with disabilities and special needs in mainstream schools and colleges brings mutual benefit. Such children benefit generally from the higher level of aspirations and expectations prevalent within mainstream schooling and from the wider companionship that they experience within the school and the wider community. Those without such needs learn that those with disabilities are normal human beings with all the hopes, fears and humours of normal human beings. Where it is possible, therefore, and where the child and the parents want it, it is sensible to try to accommodate such children within the context of mainstream schooling. We on these Benches welcome the provision in the Bill for that purpose.
The Bill moves the agenda forward in two important ways. First, it tidies up a number features in relation to special educational needs, emphasising the option of remaining within mainstream schools, simplifying procedures, increasing advice, in formation and support for parents, and clarifying the respective roles of schools, special schools and LEAs. These provisions are broadly to be welcomed, although, as I shall indicate, there are a fair number of specific points where we have reservations about the lack of clarity in the present proposals.
Secondly, the Bill brings education within the framework of the Disability Discrimination Act, and again that is to be welcomed. Outlawing discrimination on grounds of disability, extending the accessibility requirements to schools, universities and colleges, and placing a duty on governors and LEAs to develop longer-term plans to increase accessibility are all to be welcomed. It also extends the jurisdiction of the Special Educational Needs Tribunal to cover disputes arising over discrimination in relation to the provision of educational services, but not—and I believe that this is right—to the field of further and higher education.
We welcome both these sets of provision. The emphasis is on inclusion. The onus is on parents, schools and other professionals to say why mainstream schooling is not appropriate, rather than vice versa. This does not present a threat to special schools. There will always be a need for specialist support for children and young adults with complex needs. But special schools must increasingly be seen as resource centres for learning communities rather than as stand-alone institutions, isolated and insulated from the world around them.
As I said, we have reservations on a number of particular parts of the Bill. Perhaps too frequently, there are weasel words within it which we shall need to

647
tease out in Committee. A number of examples come to mind. One is the breadth of meaning of the expression in Clause 1,
"incompatible with … the provision of efficient education for other children".
Although it is designed to permit the exclusion of severely disruptive pupils, it could be used to exclude milder cases—for example, an autistic child with unconventional behaviour, or a deaf child who might require a special communications support person who, it might be argued, distracted the other children. We shall need to tease out the precise meaning of this provision and see where the codes of practice cover such issues.
To refer again to Clause 1, the revision of Section 316 of the Education Act 1996 does away with the need to take account of the wishes of the child, replacing it with the wishes of the parents. There is presently no provision in the Bill for the rights of the child. The child, for example, has no standing before the tribunal, even though it is not unusual for a teenage child to have strong views about his or her schooling. Although the Human Rights Act mentions the parents' right to educate the child in accordance with their convictions, the right to an education under the Human Rights Act belongs to the child. Is the Minister confident that the Bill is compatible with the rights of the child under the Human Rights Act?
In Clauses 2 and 3, relating to advice and information for parents, broadly speaking we welcome the requirement on local education authorities to provide the parent partnership information service, and the new independent conciliation service. But we have reservations about resources. Where will the expertise come from to meet the demand of these new services? It is important that existing services are not denuded; many of them are already short-staffed and do not have the key personnel that they need, leading to yet more delays and frustrations. It is important also that the new conciliation service is precisely that, and that it does not add just another layer of delay and bureaucracy between recognition of the problem and the implementation of effective action.
In Clause 4, on compliance and enforcement with regard to the Special Educational Needs Tribunal, while welcoming the new requirement for local education authorities to comply with the tribunal along fixed time-scales, we retain a degree of scepticism as to how this can be achieved when, frequently, local education authorities cannot themselves command the staff to achieve the necessary action. For example, where the services of a speech therapist are required, it is quite usual for a year or even 18 months to elapse before such services can be given to a child. It is, therefore, sometimes difficult to lay down fixed time-scales, unless more resources are put into the whole procedure.
I turn now to disability discrimination. In Clauses 11, 12 and 13 we have these weasel words again of "reasonable adjustments". Clauses 11 and 12 deal with the duty to make reasonable adjustments, while Clause 13 specifies the duty on local education authorities to
648
plan for greater accessibility. As they stand, these clauses seem very weak; indeed, much weaker than Part III of the Disability Discrimination Act, on which they are modelled, or, for that matter, the equivalent clauses in Chapter II of this Bill which deal with the further and higher education sectors. Schools will be able to plead,
"a material and substantial reason",
for not doing what would otherwise seem to be reasonable, while the list of special factors listed in Clause 12 includes the need,
"to maintain academic, musical, sporting and other standards",
which could be a let-out that would undermine the whole purpose of "reasonable adjustments". Is it not contrary to the spirit of tolerance and inclusion that the Bill is designed to foster?
Clause 12 deals with auxiliary aids and services. According to new Section 28C(2), the duty to make "reasonable adjustments" does not extend to the duty to supply auxiliary aids and services, or to make changes to the physical environment. Is this really so? It means that those students for whom such aids and services are crucial—for example, students with sensory impairments or learning difficulties in particular—may get little benefit from "reasonable adjustments". The Government are apparently aware of these issues, but argue that "reasonable adjustments" that are costly are better dealt with through the rational planning procedures of Clause 13. But these deal only with the physical environment. It is important to appreciate that the aim of accessibility is to make the curriculum more accessible. That does not appear to cover the provision of auxiliary services such as communications support; nor will it cover the training of staff. Is this really what is desirable?
Clause 13 relates to the duty to plan. As it stands, the duty to plan applies only to the physical environment. There is real concern from some in the disability lobby that the duty to plan should be extended to access to the curriculum for children with communication and developmental disorders, and those with learning difficulties. For example, access to the curriculum for a child with autism or Asperger syndrome is possible only with trained staff. Training is a critical factor in enabling such inclusion.
A particular concern has been expressed about the lack of cross-reference between the special educational needs and the disability provisions of the Bill. Will parents and teachers be faced with two separate codes of practice that will need to be satisfied—one on special educational needs and another on disability rights? What about the two routes of appeal that do not cross refer? How far will the definition of "disability" adopted in Part II actually include many children classed as having special educational needs? As it stands, the overlap between these two provisions is not clear.
I do not have time today to follow on with the further and higher education sectors of the Bill. We welcome the stronger powers of resort to the courts in relation to universities and colleges. We believe that this is certainly appropriate in their case. It may well

649
provide the incentive to these institutions to make good what I believe to be a very considerable backlog of deficiencies in terms of their buildings. Many of the issues raised in relation to access to knowledge and to the curriculum also arise in the further and higher education sectors. Here, again, too much emphasis is perhaps being placed on the physical environment and not enough on the overall teaching environment.
I should like now to raise a more general point of concern about the Bill. As I understand it, the legal definition of "disability" means that, while not all disabled children will have special educational needs, the overwhelming majority of the 250,000-plus children who have statements of special educational need will fall within the legal definition of "disabled" and, therefore, in the future come within the scope of the anti-discrimination legislation. Children with statements have,
"an enforceable right to the provision specified in the statement".
So far, so good. But what if LEAs are resistant to specifying what is to be provided? As long ago as 1992, the Audit Commission pointed out that there was an in-built incentive for LEAs not to specify what should be provided because they thereby avoided a long-term financial commitment. Many LEAs have done precisely that. The result is that only those parents who have the confidence, ability and financial resources to take their case to the Special Educational Needs Tribunal are likely to win an order that compels the LEA to quantify the amount of support that their child should receive. Others have often been short changed. Indeed, as one parent of a severely disabled child put it to me:
"For LEAs there are three priority categories. Top priority goes to those who know their rights and have pursued it through to actually taking them to the Tribunal. Second priority goes to those who are threatening to take them to the Tribunal. And lowest priority goes to those who know nothing of the Tribunal".
That hardly seems to be an equitable outcome! One would have hoped that all of these proposals for parent partnerships, better advice, information and support for parents with SEN children would have reversed those priorities.
However, I am encouraged today because we have the new statement from the Secretary of State about the code of practice. As it was, the draft code of practice seemed to be extremely weak on this issue. I am most encouraged to see that the Secretary of State has strengthened the provision and that he does require LEAs to specify what is required at the stage of statementing. I am delighted with this development. It is a very welcome strengthening of the Bill.
I turn now to my final point. As an outsider coming afresh to this area, it seems to me that there is created here a fundamental imbalance between rights and responsibilities. Under the provisions of successive education Acts, culminating in this Bill, we have created a series of, as the Disability Rights Task Force described them, "enforceable rights". Schools and LEAs have the responsibility to meet those rights; but, as the Audit Commission made clear, they also have
650
every incentive to skimp on those responsibilities and to make sure that the parents involved do not know the extent of their rights.
The Government for their part, having created the rights, have skimped on the funding. In this very Bill the cost of implementation, which is set out at the end of the Explanatory Notes, is assessed almost entirely in terms of the costs of alteration to the physical structures. The estimates are of some £200 million for schools and £170 million for the university and further education sector. By contrast, the costs to be borne by the schools in terms of extra support staff and extra training for existing staff is put at £12 million for this year and at £18 million for next year. Are such figures realistic?
This is not a trivial issue. I have already indicated that some 250,000 children in this country have statements of special needs and that in many cases we are failing to provide the necessary support. If we extend this to the total population of children with special needs, not just the statemented children, we are looking at approximately one-fifth of the school population—some 1.5 million children, most of whom come from poor and disadvantaged backgrounds. It is our failure to meet their special needs in the past that has endowed us with one of the highest rates of illiteracy and innumeracy among advanced nations.
In this Bill we are endowing these very children with a fundamental right: the right to a decent education. But I fear that, once again, while we may will the end, we have not to date been prepared to will the means. Unless we are prepared to do so, I believe that we shall be raising aspirations but short changing a considerable proportion of the population.
4 p.m.
Lord Rix: My Lords, it is with great pleasure that I too welcome the Special Educational Needs and Disability Bill into your Lordships' House. Proposals for this Bill have existed in a number of incarnations over the past 12 months. It is gratifying to have before us a final framework for legislation upon which we can all concentrate. I am also grateful for today's announcement from the Secretary of State about progressive changes to the code of practice.
During last week's debate on the gracious Speech I extended my support to the principles of the Bill. I believe that it is right to update the 1996 Education Act, which was introduced so admirably in your Lordships' House by the noble Baroness, Lady Blatch, so parents of children with disabilities have a stronger right to choose a mainstream school if they wish. I also believe it is right that the Disability Discrimination Act is updated so it becomes unlawful to discriminate against disabled people in education.
Policy in the field of special education is an emotive and challenging subject, as no doubt we shall hear during the course of this Second Reading. Arguments are frequently polarised by the reality of hard, but often exceptional cases—cases on the one hand where outrageous unjustifiable discrimination has prevented disabled children from having the same life chances as

651
other children, and cases on the other hand where inclusive policies, implemented without adequate support, have been seen to fail that child as well as their peers, their parents and their families.
I believe that it is vital that we approach this legislation with a sense of proportion over its consequences. In education, as in most areas of policy, one size does not fit all, particularly for children with complex needs. There is no doubt that making inclusion work is a challenge. In some cases it can work only with the support of highly professional staff in well resourced schools and while we are a long way from that, experienced teaching assistants are already making huge differences.
I believe that an adversarial debate about the merits of mainstream versus special schools in the context of this Bill is unhelpful. It is a myth to suggest that our education system is divisive in such a way. I hope that your Lordships will permit me a short aside. Mencap's research with the University of Birmingham shows that a number of different models of integration and inclusion exist at this very moment. Some pupils attend mainstream schools with full-time specialist teaching help. Others attend some classes in a mainstream school but are withdrawn for specialist input such as physiotherapy. Some pupils attend a specialist unit as part of a mainstream school; others are on the roll of a special school but attend mainstream schools part-time or for specific practical lessons. I believe that this demonstrates that there is no Berlin wall between mainstream and special schools. They can and indeed they do work effectively together.
The view that this Bill is in some way an ideological nail in the coffin for special schools is also misleading. As we all know, government are putting welcome new money into both mainstream and special schools, while it is important to stress that there is nothing in this legislation to affect policies around school closures or anything that weakens parents' rights in respect of special schools.
Proposals in Clause 1 seek to strengthen the rights of parents to choose a mainstream place for their child if that is what they want. But I believe that this is a fundamental point of principle about choice—principle, not ideology. I am delighted that government have chosen to remove the caveats that limit a right to a mainstream place on the grounds of the efficient use of resources and on the rather vague grounds of the "needs of the child" because both have led to discrimination.
The legislation retains an exception based on the "efficient education" of other children. Interpretation of "efficient education" is notoriously subjective and as a consequence this still leaves open the potential for discrimination. I hope that during the passage of the Bill we shall be furnished with more detail about regulation and guidance in this area and I hope that government will consider further monitoring of the use of this exception. A number of scenarios, assessed by any objective standard, have shown its operation to be deeply unfair.
652
I know of a case at the moment involving a six year-old girl with a moderate learning difficulty. She was successfully included in a mainstream nursery, but is currently being denied a place in a mainstream primary school on the grounds that her inclusion in the school would prejudice the efficient education of other children. She is currently not in school pending a tribunal decision. This means that she has absolutely no access to education. One would expect that if she thrived in a mainstream nursery, she would at least be able to show that she could thrive in mainstream primary education.
Other measures in the special educational needs clauses of the legislation are all for the good. Parent partnership schemes should help to foster more constructive relationships between parents, schools and local education authorities. This is a welcome change of culture and attitude. I should also like the views of the young person to be taken into account. Finally, we are starting to listen to parents; now let us start to listen to the young people themselves. I was glad to note that the press release of the Secretary of State's announcement today mentioned that the views of children with special educational needs would be taken into account.
The second half of the Bill covering disability discrimination also deserves a warm welcome. The concepts of unjustified less favourable treatment and substantial disadvantage offer a practical framework to make discrimination unlawful. I am concerned that this framework could be limited by regard to,
"the interests of other pupils and persons who may be admitted to the school".
This is again rather imprecise and, if drawn too widely, could become a "get out clause". There is need for further explanation during the passage of the Bill and in the code of practice. Perhaps the use of all these limiting conditions will require monitoring.
I welcome the anticipatory duties contained in the Bill to encourage LEAs and schools to plan for greater disability access. Planning is absolutely critical to the success of meeting the needs of disabled children. Ensuring the infrastructure is right should mean, over time, that perceptions of disabled children will change. No longer will they be seen as awkward or as a problem: the right support will be offered as a matter of course. As the Bill is currently drafted, the emphasis is on encouraging schools and LEAs to plan for increased physical access. This is obviously not something I criticise, but I believe that equal emphasis should be placed on ensuring that the curriculum is made accessible. This is particularly crucial for pupils with learning disabilities who can achieve in mainstream schools but who may need a modification of the curriculum in order to fulfil their potential. Learning support assistants have a critical role in making the curriculum accessible. For children with learning disabilities we are concerned about access to learning itself rather than access to the places where education is delivered.
I am worried that overall there is insufficient coordination between the proposals in relation to disability and those in relation to special educational

653
needs. After all, in many cases we are talking about the same children. I also have concerns for children who may not come under the disability definition and will not therefore have their rights protected. Those with mild learning disabilities or communication impairments, particularly those who are young and may not have a confirmed diagnosis, could fall outside this definition. A typical example is a boy called Jamie who has a mild learning difficulty with associated communication impairments. In order for him to have full access to the curriculum there is a need to develop alternative teaching strategies in consultation with his speech and language therapist. Jamie's needs would not meet the criteria of the DDA and his school of choice would not be required to make reasonable adjustments to meet his special educational needs. This is as much a problem in further education as it is in school-based education.
The issue of the powers of the new special educational needs and disability tribunal in respect of discrimination cases will, no doubt, be explored in detail during the Committee stage. My initial reaction is that the overriding objective ought to be to resolve discriminatory situations in order for the child's education to be properly restored. We need to be sure that the tribunal has sufficient teeth to achieve this. There is a lack of confidence based on the difficulties in enforcing current tribunal decisions which I hope we can turn around. I welcome the extension of the Disability Rights Commission's powers to issue nondiscrimination notices. This should help to nip discrimination in the bud. The more that can be done to prevent the need for formal proceedings, the more effective the system will be.
I believe that we need to proceed with caution on the issue of financial compensation. There is a case for offering small sums of money in lieu of the aggravation caused to families—aggravation which should not be dismissed. Whether a workable system can be developed remains to be seen.
To round off, I should like to flag up a few brief concerns regarding the post-16 elements of the legislation. I must declare an interest as the Chancellor of the University of East London where the concept of lifelong learning has been enthusiastically embraced. The professor of lifelong learning gave me lunch only yesterday. As I have said in the past, I believe that the Government's lifelong learning agenda is heading in the right direction, and thanks to noble Lords of all parties joining forces in a constructive manner during the passage of the Learning and Skills Act, provision for those with learning difficulties or disabilities is central to that agenda. This Bill should further enhance those developments, but there are three areas worthy of brief comment.
First, the implementation of parts of the legislation covering physical access should be speeded up. The year 2005 is not acceptable when there are duties under Part III to introduce access to goods and services by 2004. Secondly, work-based training which currently sits under Part III of the DDA should come under this new legislation in order to benefit from a common code of practice. Finally, work placements and work
654
experience should also be covered by the new legislation since they often form an integral part of courses in further education.
I do not wish to dwell on more detailed matters of policy at this stage. That can wait until Committee stage. But I should like to close by expressing my support for this legislation. It offers many more opportunities than threats—opportunities which Members of all parties can extend if we co-operate to improve the Bill. I am delighted that this process of cooperation has already begun with Peers of all parties attending a meeting earlier today to discuss the Bill, and another is arranged before Committee stage. Mindful of the potential restrictions on parliamentary time which could emerge if there is a spring election for those in another place, I hope that Members of this House will use their time constructively and for the benefit of the next generation of disabled learners.
Shortly after our first daughter was born with Down's syndrome some 49 years ago, I received a letter—from the Ministry of Health, mark you—couched in these hurtful and hateful terms:
"You telephoned me on the 8th February about the services available for mentally defective children. I am assuming that the mongol child"—
our daughter—
"you referred to will not be capable of education within the education system and will therefore have to be dealt with under the mental deficiency acts".
In that year, 1952, thousands of parents of newly-born children must also have received such horrendous letters. For those children with physical and sensory disabilities the wording would have been different perhaps but the message would have been the same. They were to be excluded for life from so-called normal society.
Since those dark ages, successive governments have sought to bring forth legislation which would mitigate such draconian exclusion and they are to be congratulated on undertaking the journey. The Bill before us today, therefore, is another significant step along the long, and sometimes lonesome. road to integration and normality.
4.14 p.m.
Lord Ashley of Stoke: My Lords, it was a great pleasure to listen to the noble Lord, Lord Rix, especially in view of his close professional and personal involvement with the issue we are discussing today.
The Government deserve the warmest congratulations on the Bill, in particular David Blunkett, Margaret Hodge and my noble friend Lady Blackstone. It is a vital component in creating the new Britain: one which is prosperous and fair, in which discrimination against disabled people becomes an ugly memory. It fills a deplorable gap in the DDA. It is a Bill greatly to be welcomed albeit one which needs clarification on some points and amendments on others.
I welcome the additional funding of £220 million over three years for the Schools Access Initiative and the £172 million over two years for improving access

655
to post-16 institutions. Such financial allocation illustrates that this is not just government talk but government action. I cannot see how they can talk about the Bill "on the cheap". There is emphasis by David Blunkett on the word "specific" in the code of practice as distinct from the original wording which was vague. These are major advances. They are a clear indication of the Government's aim. It is practical, not ideological. For the life of me, I do not believe that people can say that this is an ideological Bill.
Countless young, disabled people have suffered from discrimination, prejudice and neglect in education. One example of under-performance is that only 14 per cent of deaf pupils in mainstream school achieved five or more A to C grades at GCSE compared with a national average in England of 44 per cent. I declare an interest as president of the RNID. Like the noble Baroness, Lady Blatch, I, too, look forward to hearing the report on the neonatal hearing scheme. It is very important. I have no doubt that my noble friend Lady Blackstone will do what she can as soon as she can.
Only 60 per cent of the 22,000 blind and partially sighted children under 16 are educated in mainstream schools. This point involves the deaf and the blind. Many young people are placed at a serious disadvantage. That is the kind of person who will benefit enormously from the Bill.
There are many points to be made. We have all been provided with splendid briefing material from the Special Educational Consortium, the RNID, the RNIB and many others. I do not intend to make a lengthy speech in deference to the many noble Lords who wish to speak in the debate. I should like to move immediately from a very warm welcome for the Bill to my reservations and criticism which I aim to make wholly constructive.
The first issue is whether disabled children of school age who suffer discrimination should receive financial compensation. Of course, I favour the education remedy so that the discrimination is removed. There is no question but that that is imperative. But an important principle is involved here. It is equally imperative that such children should receive financial compensation. Some people suggest that such compensation would deprive the schools of the capacity to pursue an educational remedy. But such a point would be valid only if extravagant compensation were to be paid. I do not suggest that for one moment. I believe that such compensation should be reasonable and limited—not so limited that it fails to deter the local education authority from practising discrimination, but not so high that it would hit education provision. That is a vital deterrent.
Some LEAs are superb on the issue, but some are dreadful and recalcitrant. Any pleading to them without financial sanctions would be brushed aside contemptuously. They would behave like traditional bullies and continue with discrimination unperturbed, as we have seen in the past. They will change their
656
behaviour only when they are penalised. That is why I want compensation for those children who suffer discrimination at the hands of the LEA.
It is also important to ensure that the tribunals that deal with educational discrimination are no less effective than those that deal with race and gender discrimination. For sex and race discrimination, a court can grant an injunction that the discriminatory behaviour should not be repeated and order a financial remedy. I do not understand why everyone else should receive financial compensation—for social security, health or anything else—but not children who suffer discrimination. It does not make sense not to treat them in the same way. There is no argument for not doing so, provided that the compensation is reasonable and does not affect the education remedy. We can deal with the details in Committee, but I want to stress that tribunals should be empowered to award financial compensation. That would avoid having two bodies—the tribunal and the county court—hearing the same case.
I also welcome the Government's clear intention to strengthen the rights of children to have a mainstream education. The changes that they propose are admirable. To my amazement, some people are against the retention of any special schools, on the ground that that militates against the principle of mainstreaming. I do not agree for a moment. There is a specific case for special schools. My noble friend Lady Blackstone is right that in some cases mainstream schooling is not appropriate. The only trouble with the Government's proposals on mainstreaming is that they do not go far enough, because they maintain the caveat that children have the right to a mainstream education except when that would be,
"incompatible with the provision of efficient education for other children".
That exemption has been abused in the past and there is no doubt that it will be abused again in the future, to the detriment of the child. We have to be careful.
I was going to call for the abolition of that exemption, but I do not think that I can achieve that. It is designed to permit the exclusion of severely disruptive children. I well understand that. However, it can also be used to exclude minor cases, such as autistic children with unconventional behaviour or a deaf child with communication difficulties. Some argue that the presence of an autistic child or of the communication support would be distracting. That is nonsense, provided that proper provision is made. The priority should be what is right for the child. We do not want excuses to exclude them. We should amend that exception. At the least, we should provide for the efficient education of all children—I underline the word "all".
Finally, I regret that bullying on the grounds of disability is not covered by the Bill, although I am delighted by David Blunkett's decision today to combat school bullying. He is a great Secretary of State and this is a very important step forward. We are complacent about bullying in schools. It is a scandal to allow it to go on. The bullying of disabled children is

657
one of the most fundamental reasons for the damage to their educational standards. It is mean, vicious and prevalent and it should be vigorously tackled. It is damaging to the concept of mainstream education.
Unfortunately, we have to admit, bullying also happens in special schools. The most effective way of tackling bullying, in addition to educational persuasion, is for every school to be committed to abolishing it. That includes bullying on the grounds of physical, sensory or intellectual impairment or special educational needs.
Schools are required to have an anti-bullying policy, but that is not working, so we need to do something more. We need a real, tough and uncompromising commitment that should be carefully monitored by the Government.
Working together with Ministers, we can all make a substantial difference to the lives of disabled children with the Bill. I warmly welcome it and wish it Godspeed.
4.26 p.m.
The Lord Bishop of Bath and Wells: My Lords, I feel humble following the noble Lords, Lord Ashley and Lord Rix, and all the previous speakers in the debate. This is a very important subject. We on these Benches welcome the principle of inclusion for theological as well as educational reasons. It is right that as many children as possible should benefit from mainstream schooling. That is not only important for the progress of the child or young person, but an encouragement for greater integration and understanding with the child's peers, which we hope will spread out into wider society. With the right ethos in a school, it will increase respect for the child and avoid isolation and bullying, as the noble Lord, Lord Ashley, has just mentioned. For me it is one of the great delights to go to a school and see how, with the right teaching methods and the right ethos, children can learn not to victimise or to bully, but to support children experiencing difficulties, to the benefit of both.
However, we have two concerns. First, although we welcome the Minister's assurance, we are anxious that there will be a reluctance to statement, if such a statement were to lead to a special school placement, thus increasing costs. As we have heard, many children need a statement to bring adequate support to them, their parents, their carers and their teachers.
Secondly, as has already been said, the placing of a pupil with a special educational needs statement in a mainstream school must be appropriately funded and resourced for the education of the child or young person concerned and that of his or her peers to be effective.
The old ethical saying, "ought implies can" is helpful when thinking about special educational needs and disability. There can be a tension between the proper desire to include and expect the best that a person can give and the need not to try to exceed that person's capacity. It can be wrong to pressurise by
658
expecting too much, as it is wrong to expect too little. "Ought implies can" is a sound and pragmatic moral principle.
That may be particularly evident and contentious when a school has to propose to exclude a disabled pupil. It may well be argued that the pupil's behaviour derives from their disability. The excluding body would rightly have to demonstrate that such discrimination—and it would be discrimination—was justified and for the well-being of the pupil, the parents, the head teacher and the governing body. Part II of the Bill requires serious scrutiny to ensure that that process is just to the children and young people involved.
That leads me to refer to another concern, touched on by the noble Baroness, Lady Sharp. In the Children's Society, which £ chair, we attempt increasingly to engage children and young people in the matters that affect them. Indeed, at present we are setting up an advisory group of young people in order that they may share in decision-making and in the consultations that we have to carry out in making our major decisions. We believe that the participation of children and young people is important.
However, we learned that such participation is not always easy and that it requires much energy and time. Communication needs to be carried out in an open and generous manner where young people are trying to be involved. That must be the case especially with children who have disabilities. Sometimes their parents, too, find it hard to communicate or to understand what is going on. However, we believe that it is important to go as far as possible in discovering their thoughts and wishes.
Therefore, we welcome the parent partnership—particularly so if it is developed into a parent and child partnership. Consulting with parents and hearing their views is part of the inclusion because so often they are not heard, not understood, nor given the time to make their views known. The bureaucracy of tribunals, and so on, can be awesome for anyone, let alone for those who have poor communication skills. I believe that that is especially true where there is a history of abuse.
Obviously, another concern relates to funding. We are wary of the justice, or injustice, being determined by geography, with varied provision existing between LEAs. In the attempt to produce accessibility plans for schools, will it be ensured that they are consistent in what they provide? Are the financial provisions sufficient? How will the money itself be made accessible? Will successful LEAs receive the money and others not? Perhaps some of the highest needs are to be found in areas where LEAs are not successful and efficient. How will the proposals work for aided schools? Do such schools apply to the department or does the money trickle down through the LEA? Will the £0.7 million a year available for voluntary providers of education include the governing bodies of voluntary aided schools?
The Government are rightly saying that we should and can do more, even if the detail of the "can" or the "how" is not yet totally clear. We know that some

659
schools and LEAs are less sympathetic to those needs because of the changes which they believe will have to be made within the buildings, because of the pressure to achieve high positions in league tables and because of insufficient resources to carry out the changes. The Bill must provide the resources for schools and LEAs to do the right thing.
With regard to church schools, we must also accept responsibility on the grounds of the Christian faith to which we are committed and in which we believe, as well as the law of the land. The Lord Himself had a tremendous ministry of inclusion of those who were excluded and "ghetto-ised" by the rest of society. Two schools that we know of, for example, both have 1,000 pupils. One has 40 pupils on the special needs register; the other has two. That must imply a need not only for more just admission arrangements but for the provision of better opportunities for all. In terms of being civilised and moral, we must learn how to live together and to share the gifts and love that disabled children and children with special needs can give to our society. Such things are essential. We welcome the Bill and hope that it will reach a successful conclusion.
4.34 p.m.
Lord Baker of Dorking: My Lords, I agree with much of what the right reverend Prelate the Bishop of Bath and Wells said. For a Conservative to say that to a Bishop of the Anglican Church today is a rare, if not unique, event.
First, I declare an interest in that I am the president of the Royal London Society for the Blind, which maintains and supports one of the leading schools for blind children in our country. It takes in children from the age of two and a half through to the age at which they sit GCSEs. It also has a special education college for some 90 students from 16 to 19 years of age. It is a centre of excellence not only in this country but internationally.
I apologise to the Minister. Later this evening I must take some younger people to a Christmas entertainment. If, by any chance, the curtain on that goes up before the curtain on this debate goes down, I may not be present to hear her reply but I shall read it very carefully.
The Bill has received a general welcome. It gives an enhanced power to parents to decide whether children with special educational needs should be educated in a mainstream school. That is the whole thrust of the Bill and its amendments to existing legislation. Perhaps I may say that, as a Member of Parliament over a period of 30 years, I did not have one case of a parent asking for a child with special educational needs to go to a mainstream school. But I had many, many cases of parents asking for a child to go to a special school because they felt that the provision by the local education authority was neither adequate nor appropriate. One of the Minister's colleagues, a former Member of Parliament, would probably agree that that is the pattern of experience of an MP. It is not that we have experienced cases which are in support of
660
the Bill; it is the other way round. Over the years, parents have felt that education authorities do not provide the degree of training and education required.
The legislation to phase out special schools and to concentrate more on mainstream schools started with the Conservative government in 1980. When I was Secretary of State in the late-1980s, I certainly supported the arguments for that. However, I begin to wonder whether the process has gone a little too far. Over the past 20 years, a huge number of special schools have been closed. In the area of blindness and visual impairment, half the schools have been closed.
One has to ask whether the provision of education to children who have special educational needs has improved. Of course, I understand the argument that it is right to include those children and that they should not be considered outcasts. They should not be considered as children with such special difficulties that they are not included. I also understand the argument that it is good for children in a school to have alongside them children who have special educational needs. They understand the problems and, probably for the first time in their lives, they realise that many of their contemporaries are very disadvantaged. That should provoke some degree of sympathy and involvement and improve the community spirit. That is the whole raison d'être of this policy.
However, we must ask whether it is achieved entirely satisfactorily. Earlier this year a report was published by the Royal National Institute for the Blind, with which I had no particular contact. It is one of the best reports on the provision of special education in our country. Approximately 22,000 children under the age of 16 suffer some degree of visual impairment. One thousand of those children and their parents were interviewed. Some very disturbing points are made in the report. The noble Lord, Lord Ashley, talked about bullying. One child said:
"I am getting bullied at school because of my eyes. They called me 'cockeye' and I'm scared of it because it's not fair on all the people who are like me with disabilities".
A parent of a six year-old girl said:
"My daughter K… gets upset when people stare at her and call her names like 'cat eye'.
The report states that half the parents of primary schoolchildren believe that their children were bullied as a result of their disability. Nearly three in five secondary pupils and students in further and higher education said that they had been bullied at some time. That is a disgrace by any standard. One might at least understand, if not forgive, bullying of the normal kind, but this is bullying of people who clearly are at a huge disadvantage in their schools. That is against the whole purpose of the policy.
There is the question of whether local authorities have provided sufficient facilities to deal with children with special educational needs. Perhaps I may refer again to the report; its comments are disturbing. I am sure that there are similar reports concerning the hard of hearing and the deaf. The report states:
"One in three blind and partially sighted pupils in mainstream secondary schools did not always get their school test and exam papers in their preferred format".

661
If pupils are not tested in the preferred format, they cannot take the test. The report goes:
"One in five secondary pupils did not have the necessary specialist equipment to do their homework".
Twenty per cent of the children we are encouraging to go to mainstream schools did not have the equipment to do their homework. That is a disgrace.
"Half of the parents whose children had complex additional needs were not in touch with their local authority specialist visual impairment teaching service".
Such parents had no idea what was happening to their children.
"Two in three parents [66 per cent] of children with complex additional needs who felt their child needed an 'interpreter' said there was never one available".
An interpreter is someone who talks to a child to try to define a problem. In schools they are sometimes called "intervenors".
That is an indictment of the provision of specialist education in mainstream schools. I say at once that I am not making political points. I know perfectly well that some education authorities do well in that area; some not so well. In June this year I wrote to Mr Woodhead, the chief inspector of schools, who has just resigned. I asked whether there was any comparison between the provision of specialist education in mainstream schools and that in specialist schools. His reply was rather extraordinary. He wrote:
"The inspectorate has not undertaken any specific work on the provision of education for blind and partially sighted children but all the special schools catering for such children in the state sector have been inspected and reports have been published. Most schools for Visually Impaired children have had very positive inspection reports. We have not undertaken any specific comparisons between maintained and non-maintained VI schools".
I consider that an indictment of the system, not of the Minister. I thought that the system would throw up a comparison between the provision of special education in local authority services and that in specialist schools. As far as I can see from the letter, no evidence is available. That does not undermine the basic provisions of the Bill, but to some extent it brings them into question. As the debate proceeds, perhaps the Minister will be able to adduce evidence. I do not expect her to do so today, but her officials will now be busy trying to find evidence of comparison.
I should like to make a case for special schools. The right reverend Prelate mentioned them. The noble Lord, Lord Ashley, mentioned their importance. Special schools tend now to become the residual teaching facilities for children with manifold disabilities. Dorton House provides not only for the visually impaired but for those with severe behavioural problems. I begin to wonder whether that should be the case. I am not so sure that there is not a case for more special schools. Perhaps that is rather an unpopular thing to say today, but it may be right.
Special schools have a concentration of skills, experience and equipment. Many are supported by charitable foundations. Compared to state provision, we have been able to "over-provide" Dorton House
662
with equipment from money which I helped to raise. Such equipment is necessary for the hard-of-hearing, the visually impaired and the physically disabled.
When parents appear before tribunals which decide whether their children should attend a special school, local education authorities now appoint counsel to protect their position, particularly because of the Human Rights Act. Parents do not have that facility. There is not an even playing field as regards the rights of parents and those of local education authorities. I believe there should be.
Perhaps I may make a further comment about special schools, particularly those for the visually impaired. As I have stated, there are 22,000 visually impaired children in our country. There are 80 different eye conditions. How is it possible for local education authorities to have that information? For some children, large print is important; for others, small print is important. Some children need a bright light; others need a darker light. A tremendous amount of knowledge arid expertise is required, most of which exists in our special schools. The same applies to special schools for the hard of hearing, which are centres of excellence in that area.
I suggest that special schools should be used in many more ways; for example, for the initial training of teacher assistants and support workers; for staff development of teachers, social workers and health professionals, and for collaborative work aimed at early intervention support for parents, which we heard about today. When parents suddenly discover that, for one reason or another, at a very early age their child cannot cope they are adrift in a world about which they know nothing. Where do they go for assistance and help? They become worried and alarmed. There is a real recognition of the role of special schools in our society today.
I do not believe that the Government realise the cost of what they are doing. Perhaps I may stress that I am not trying to make a political point. In the financial memorandum, the Government state that the Bill will cost £1.5 million to £3 million. They also state that over the next three years they will spend £200 million—a point raised by the noble Lord, Lord Ashley. Two hundred million pounds among 30,000 schools is £7,000 per school over three years. That will be for ramps and handrails. It will not cover the cost: of employing one extra teacher; nor even one-third of a teacher. Yet the provision of special education should mean a teacher-pupil ratio of 1:2 or 1:3.
I do not believe that the Government have estimated the financial consequences of what they are doing. When parents have the right to decide that their children should go to a mainstream school, they will say, "I want my child to be taught Braille"; "I want the latest devices because she is half deaf"; "I want special training because she is physically disabled". Perhaps I may say to the Minister that that costs a huge amount of money. I believe that there is a time bomb ticking away in the whole area of special education.
My final point concerns a matter which has been raised before. I refer to those children who have special behavioural difficulties. Here, I believe the

663
Government face both ways. Last week, Mr Blunkett, the Secretary of State for Education, clearly stated that he wanted to take stronger action against bullies. That means first trying to address the question of bullying, but it also means excluding bullies from schools and placing them in special units. It recognises that behavioural difficulties come from anger, impatience, contempt, intolerance, or whatever. That is rather against the whole drift of this legislation, which is inclusion. Here we have a conflict. I do not ask the Minister to address that conflict tonight, but to reflect upon it.
If we decide to act against bullies—not only bullies in the disabled area but bullies generally—we shall exclude children. I am not against that. I am in favour of identifying children with behavioural difficulties in primary school at the ages of five, six, seven and eight. All teachers will tell you that they can identify those children at that level. If we try to identify them at that level and put them into special units or special schools, we have a chance of doing something with them, whereas we have no chance at all when they reach 10, 11, 12 or 13. That has been proved in different schools throughout the country. I know of one in north Oxford which takes primary schoolchildren from Oxfordshire at the age of 6, 7 or 8, who are extremely disruptive. They handle them and try to integrate them back into the state system of mainstream schools. So a conflict exists in the Government's policies. I ask them to address it, but I do not suggest that there is an easy solution.
Finally, the provision of education to those children who have special needs is one of the most important actions we can take. We must try and do it right. There is no standard position. Some will go into special schools—I suspect more will need special schools. But this Bill moves in a direction which could be helpful provided the Government are prepared to fund it. The funding requirements of the Bill will be astronomic in educational terms; much greater than the Government indicated. So I hope that in the course of the Bill passing through its stages in this House we will be able to explore all those matters. At the end of the day we want to ensure that those children who are already burdened with enormous disadvantages are somehow given a leg up in life.
4.51 p.m.
Lord Morris of Manchester: My Lords, it is a pleasure to follow the noble Lord, Lord Baker. We have been fellow parliamentarians for upwards of 30 years and I am always impressed by his abiding skill and sincerity, as well as by his reasonableness, in arguing his case.
I warmly welcome the Bill and commend the Government on giving it such high priority in their legislative programme for this new parliamentary Session. Today my noble friend Lady Blackstone and her ministerial colleagues at the Department for Education and Employment deserve special credit for their crucially important role in bringing the Bill forward. I know from my own ministerial experience
664
that success like theirs does not come gift-wrapped. It has to be worked for. I congratulate my noble friend and her colleagues on an important achievement for disabled children and young people and their families, one that it may be appropriate for me—the House knows of my long involvement in this policy area—briefly to put into its historical context.
This Bill traces back, first, to the enactment of my Chronically Sick and Disabled Persons Bill 1970, Sections 4 to 8 of which were the world's first-ever legislation on access for people with disabilities to schools and places of further and higher education, and thus to mainstream schools and tertiary educational opportunities. Secondly, the Bill is a lineal descendant of the report of the committee of inquiry—the Committee on Restrictions Against Disabled People (CORAD)—that reported to Sir Hugh Rossi, then the Minister for Disabled People, in 1982. Chaired by Sir Peter Large, the committee of inquiry was one I had appointed while I was the Minister in 1979 to consider the case for legislating to end unfair discrimination against disabled people.
The CORAD report emphatically supported legislative action, not least for the purpose of improving the educational opportunities of disabled children and young people; and there were high hopes among their parents in 1982 of better provision in the years immediately ahead.
Sadly, the Government's response to the report was to say that persuasion was preferable to legislation and there was no action on the report, notwithstanding repeated attempts by individual Members of Parliament to give it effect. Some of their Private Member's Bills—the first of which was introduced under the 10-minute rule in another place by my good and noble friend Lord Ashley, who then as now chaired the All-Party Disablement Group—had Second Reading debates; but none made progress into Committee.
While one Minister after another sat on the CORAD report, other countries acted to outlaw unfair discrimination on the model recommended by CORAD, notably the United States where, with huge all-party congressional backing, the Americans with Disabilities Act was signed by President George Bush and became law in 1990. Twenty years earlier we had been a world leader. But now, much to the dismay of all the major disability organisations, we were among the world's followers in a field where quick action on the CORAD report would have kept us in the van.
That was the background to my decision to draft and promote the Civil Rights (Disabled Persons) Bill—for which I had won parliamentary time for a Second Reading debate in another place in the Private Members' ballot of November 1991—to end the delay in implementing the report of the committee of inquiry I had appointed 12 years earlier. But although the Bill, which my noble friend Lady Lockwood presented for me in your Lordships' House where, much to the honour of this House, it twice completed all its stages, it was systematically obstructed by Government Whips in another place; first, when I moved its Second

665
Reading on 31st January 1992, and again when Roger Berry and Harry Barnes used their good fortune in subsequent Private Members' ballots to reintroduce the Bill.
Obstruction of the Bill led to disquiet, not only in the organisations of and for disabled people, but also among MPs of all parties. By 1995, when a clear majority of all MPs declared their support for the Bill, the Government finally changed their policy and introduced the Disability Discrimination Act of that year. But it was a very weak version of my Civil Rights (Disabled Persons) Bill. Without my Bill's provision for a disability rights commission, the 1995 Act was what the equal opportunities legislation for women would have been without the Equal Opportunities Commission—a car without an engine. Again, the total omission of education from the Act blocked the path to equality of educational opportunity for disabled children and young people.
Those two major defects in the Disability Discrimination Act have now been addressed and, while there are still problems to tackle, this Bill is—as James Strachan, chief executive of the RNID has said—"great news" for people with disabilities. He goes on to say,
"Disabled children have finally won the right to be educated on the basis of need not disability. Challenging discrimination in schools and ensuring the right to a decent education will give them the sound start they need to become independent and successful adults".
Like James Strachan, the Disability Rights Commission (DRC) also sees this Bill as rectifying a major weakness of the 1995 Act. It looks forward to producing the codes of practice for which the Bill provides and to setting up a conciliation service to secure the rights of its beneficiaries. The DRC acknowledges, however, that there are some points that will merit detailed parliamentary attention as the Bill proceeds—at high speed, one hopes—to the statute book.
Thus Clause 1 of the Bill states that caveats regarding inclusion under Section 316 of the Education Act 1996 should be retained, in particular one referring to,
"the provision of efficient education for other children".
That applies to children with special educational needs, many of whom are also physically or sensorily impaired. The Disability Rights Commission rejects the need for such a caveat since it presents a potentially negative image of disabled children as disruptive to the effective education of other children; secondly, because there are already sufficient safeguards in place, as the noble Lord, Lord Baker, will know as a former Secretary of State, for excluding pupils who are causing major disruption to the education of others.
Similarly the DRC is concerned about the provision in Part II of the Bill that regard shall be had, when considering including disabled pupils/students and persons who may be admitted to the school/institution as pupils/students. It is felt that this may be seen as implying that the presence of disabled pupils/students is to the detriment of other pupils/students attending an educational institution.
666
Clauses 17 and 22 make it clear that no financial compensation or award of damages is envisaged when discrimination has taken place within schools. Many of my correspondents from disability organisations, all of them held in high regard on both sides of this House, want that questioned and consideration given to reasonable compensation for such discrimination.
Another important issue that merits detailed parliamentary consideration is the omission from the Bill of bodies such as the General Medical Council which thus may still be able to argue that they are outside the remit of the Disability Discrimination Act. It is widely felt that it would be more helpful to achieving an inclusive society if they were brought within the Bill.
But while this is the right moment to put down markers, it is not the day for detailed scrutiny of the Bill. That is for another day, before when I hope my noble friend will liaise very closely with the disability organisations—not least Mencap, Sense, the RNIB, as well as the RNID, the National Autistic Society, the Dyslexia Association, the Special Educational Consortium and the Centre for Studies on Inclusive Education—about their thoughts for improving the Bill.
Today is one for wishing my noble friend Lady Blackstone all possible success in steering this humane Bill through your Lordships' House. It is a Bill, first and foremost, enabling children and young people with disabilities to become a part of, instead of being apart from, our society.
5.2 p.m.
Baroness Brigstocke: My Lords, first, I must apologise to the Minister and to the House because I may not be able to stay until the end of the Second Reading debate. I have a longstanding evening engagement.
Secondly, I must declare my interest. For the past eight years, I have been chairman of Landau Forte College, a large, fully comprehensive school in inner city Derby. It is one of the 15 city technology colleges set up by my noble friend Lord Baker when he was Secretary of State for Education and Science in the previous government.
I also visit secondary schools all over the country on behalf of a large charitable foundation in order to assess the schools' needs for extra funding. I therefore realise how many schools are woefully short of money.
I have two concerns. The first has been mentioned at length today. Of course we all want to ensure that children and young adults who are disabled—whether physically, mentally or emotionally—are given the chance to live life to the full, to have the best possible education and training as well as being able to take part in the many opportunities which now exist in musical, physical and dramatic activities which are such a splendid characteristic of our best schools today.
But the proposed legislation which we are considering is rather woolly. The DfEE means well and the proposals look good on paper, but the

667
practical arrangements for delivering them have not been fully thought out. I want to make it clear that I applaud many of the proposals; for example, for children who are dyslexic or dyspraxic, expert individual help from special educational needs teachers working closely with mainstream subject teachers can certainly do well by them. But—and I echo, perhaps less strongly, what was said by my noble friend Lord Baker—the resources needed are enormous. It is proposed that £220 million will fund the new duties placed on local education authorities, local authorities and schools. All schools in England, Wales and Scotland will receive £50 million in the first year, £70 million in the second and £100 million in 2003–04. That is manifestly not enough, especially when schools with old buildings will have to spend most of their allotted grant on wheelchair access.
My second concern is that the Bill's 42 clauses and eight schedules could well impose a rigid pattern in an attempt to fit everyone into a rigid framework. At Landau Forte we prefer to think in terms of individual rather than special needs. Every single child has individual needs and they cannot all be met by one blanket, complicated framework.
By all means bring into the mainstream schools—and it would be good to have independent schools involved—the children who, with specialist help, can profit from the arrangement. I believe that we already have a good system at Landau Forte, which is a school of just over 1,000 students. We have three full-time and two part-time individual needs specialists. The individual needs specialists teach small groups separately but at other times they teach alongside the individual subject teachers. One member of the subject team is the responsible link between the specialist teachers and those in the team.
The whole arrangement depends on individual fine-tuning to do the best for students with dyspraxia, dyslexia or attention deficit disorder, for which there is the added medical complication of having the drug Ritalin administered by the school nurse. The physically disabled—some in wheelchairs and some with epilepsy, visual or hearing impairment or other hidden medical conditions—are also well and happily integrated. But the badly autistic, completely thrown in on themselves, and those with emotional and behavioural difficulties, will often need very specialised help in a special school. Their parents are at the moment worried that this Bill might cause those children to be placed, against the wishes of the parents, in schools which are not suitable. I am concerned that, despite what the Minister said in her opening remarks, there is a danger that even more special schools will be closed. I think of a girl who last year shouted, screamed and was quite out of control in class. Not only did she disrupt the lessons for everyone else but clearly she was herself deeply distressed. Since moving to a special school she is much calmer and happier.
I also make a plea for bright pupils who are not necessarily academically inclined; often not. Such children have very real individual needs. They do not need to be segregated unless they suffer from
668
Asperger's syndrome, but they need special provision and, most of all, intellectual stimulation and understanding. I hope I was wrongly informed when told recently that these children are known in the DfEE as "severely able".
I ask the Government to reassure schools and parents that the Bill will provide enough money and specialist teachers. There is a chronic shortage of school teachers in almost all disciplines at the moment, particularly male teachers who can do much to help emotionally disturbed boys and those who display laddish culture and have special needs. Please reassure schools and parents that there will be sufficient flexibility and attention to individual needs over a wide spectrum of need, disability and ability. Please also remember that it is easier to sit behind a desk to plan a new framework than for a young teacher, even with modern white board technology behind her, to stand alone in front of a large class of teenagers, several of whom are disruptive and the rest disrupted.
This is an ambitious Bill which contains many good proposals, but if the Government really want to bring into mainstream education all of these very special children and young adults, they will need extra help and equipment to integrate and keep pace with their school fellows. I very much doubt that the proposed funding is anything like adequate for that enormous task. The greatest care must be taken in assessing students and their individual needs. It is essential to continue to make proper provision for those students who cannot be accommodated in mainstream schools because they make the task of young teachers quite impossible. I ask for some assurance about the criteria to be used to decide which students should and should not be in special schools. I also seek an assurance that special schools will be retained and supported for those students who cannot be expected to thrive in mainstream schools.
5.14 p.m.
Baroness Warwick of Undercliffe: My Lords, I congratulate the Government on the introduction of this legislation, which will make possible major improvements in the provision for disabled pupils and students across the whole education system. Its emphasis on inclusion, excellence and choice and lifelong learning is admirable, and I very much support it. I have been enormously impressed by the expertise and passionate commitment of other distinguished speakers in this debate.
I shall be brief because I intend to confine my remarks to that part of the Bill which deals with higher education. In doing so I declare an interest as chief executive of Universities UK. Further and higher education will have a duty under the Bill to do two things: not to treat disabled students less favourably, without justification, than students who are not disabled, and to make reasonable adjustments to ensure that people who are disabled are not put at a substantial disadvantage to people who are not disabled in accessing further and higher education.

669
I was pleased to note that in introducing the Bill the Minister recognised how much the proposals in the Bill confirmed the good practice already introduced arid adopted by many universities which do a great deal of work with disabled students. However, the specific issue to which I draw the attention of the Minister is the need for care in assessing the compliance costs for the higher education sector. I was concerned that no regulatory impact assessment was undertaken during the consultation, which means that we are all somewhat in the dark.
Many institutions have already been working towards the accommodation needs of disabled students and have often made very imaginative use of existing resources. But inevitably the new statutory demands mean new additional costs, particularly in terms of physical facilities and the use of computer, IT and auxiliary aids which have capital and recurrent cost implications. I realise that the Explanatory Notes to the Bill are an attempt to get at those costs but they are not very detailed. The Secretary of State's grant letter to the Higher Education Funding Council for England stated that £56 million would be provided to improve access for disabled students in HEIs over the two years to 2003–04. Although that is very welcome, it is not based on a regulatory impact assessment. Therefore, I hope that the figures can be looked at very carefully during the course of the Bill. Some work undertaken in the sector with a small number of pilot institutions suggests that the costs might be as large as £250 million rather than the £56 million quoted in the Bill. We all want the Bill to work. Therefore, I urge my noble friend to consider this matter. The Bill is so positive that it would be a great pity if it did not achieve the success promised because of pressure on resources.
I hope that the Minister will also look at the question of institutional responsibilities for the services that they utilise. The relationship between the institutions' liabilities under the new legislation and those of other organisations which utilise institutional facilities requires closer attention, as does the provision of work placements, field trips, international exchanges and study-abroad components of courses. Although these are detailed issues, I hope that they can be considered in the statutory code of practice which will accompany the legislation.
The Disability Rights Commission will consult interested bodies, and on behalf of Universities UK I welcome the opportunity to take part in the consultation. I join many other speakers in the debate in giving a very warm welcome to the proposals in the Bill.
5.19 p.m.
Baroness Darcy de Knayth: My Lords, I am particularly delighted by this Bill because during the passage of the 1981 Act I sought to remove the caveats to what is now Section 316 of the 1996 Act and spent the entire passage of the Disability Discrimination Act 1995 in abortive attempts to include education. I extend my heartfelt congratulations to the Government on achieving that. Certain areas of
670
concern remain, and I hope that we can all work constructively to improve the Bill further and ensure that it really works.
The noble Baroness Lady Uddin, who has waited years for this Bill, is extremely sorry not to be here: her youngest child is ill. I am sure that the noble Baroness will be back at full strength in Committee.
It is most welcome that in Clause I the reference to the efficient use of resources has gone. Like the noble Baroness, Lady Sharp, l would have hoped that new Section 316(3)(b)—the provision of efficient education for other children—could also have gone, because that could be used as a get-out by some LEAs. Therefore, I hope that the code will clearly advise LEAs against that.
I am delighted that the extension of anti-discrimination legislation covers pupils and prospective pupils with disabilities. Not all disabled children have SEN, but the vast majority of the 250,000 plus children with statements will fall within the legal definition of disabled. I am concerned that not all will be covered—my noble friend Lord Rix gave the example of the child with a mild learning disability—particularly if he or she is young and the condition is, as yet, unconfirmed. I hope we can ensure that all children who need protection are covered by the legislation.
The Independent Panel on Special Education Advice (IPSEA)—I should declare that I am a member—welcomes extension of the DDA as a significant advance. IPSEA has advised on cases where children have been discriminated against on the grounds of their disability, left out of school trips, left out of class photographs for image reasons, and even excluded from school because of their needs. IPSEA says that instances of this kind of discrimination are few in number in comparison with the number of children who are denied the special education that their needs call for.
As the Bill stands, it will not address the problem of a denial of special educational provision because it will not create a duty on schools or LEAs to provide aids and services. These are excluded under new Section 28C(2)(b). A denial of provision will not constitute discrimination under the Bill. We need to explore how we will ensure that protection. Why are they excluded? The post-16s are covered. I understand that the Disability Rights Task Force recommended that it was unnecessary because the Education Act 1996 already provided the protection needed.
The noble Baroness, Lady Sharp, has removed magnificently a huge chunk of my speech, for which I am grateful, by referring to the Disability Rights Task Force and the conclusion of the 1992 Audit Commission and making the point concerning the LEAs failure to specify provisions in Part III of the DDA. I am delighted also with the announcement today of the Secretary of State, Mr Blunkett, that the word "specify" in the code of practice will stay. That will make the most enormous difference.

671
I am grateful to the Minister for sending me a special edition of the SEN update. I have not had time to digest it, so some of my anxieties may have been addressed. But it appears that children with statements will have a stronger chance of getting the help they need. I remain slightly worried about the children without statements who come under the DDA but who do not have protection in the face of the denial of aids and services. Perhaps the Minister can assure me that the SEN policy will give them sufficient cover. It would be regrettable if people had to revert to statementing in order to be sure of securing the provision they need. I hope that the Minister can reassure us, or that we can explore the issue further in Committee.
I welcome the very positive move to further inclusion by strengthening parents' right to opt for a mainstream school place for their child. It will lead to greater inclusion if parents are assured that their children will receive the provision and service they need. The excellent news today will go a long way towards including children with statements. I hope the Minister can offer us the same assurance for those without statements.
I turn now to post-16 issues. It is a great pleasure to follow the noble Baroness, Lady Warwick. I am afraid that noble Lords will find my contribution a bit of a comedown after listening to her. However, I was delighted that she did not touch on the same matters as I shall. I was praying that I would not have to change my speech at half a second's notice.
The legislation is extremely welcome, but there are some points of concern and some that need clarification. I consulted SKILL, which is the National Bureau for Students with Disabilities, for its view. I should declare that I am the president of SKILL. The timescale, mentioned by my noble friend Lord Rix, is of great concern to the organisation. It feels that 2005 is too late for the implementation of those parts of the legislation covering physical access. Education institutions already provide many non-educational services which are covered by Part III of the DDA—catering provision, careers services, sports facilities. They have been preparing for better access by 2004. They will be transferred to the provision under the new legislation and therefore given a new date of 2005. Why should students have to wait an additional year for the service that other service users will get in 2004? Why not keep the deadline of 2004? It is correct that institutions would have to take immediate steps to ensure the education provision was ready by then, but many of them have already taken such action because of the requirements of the inspectors and, in higher education, the quality assurance agencies. Therefore, it should not be too much of a problem.
It is a matter of concern that, as with the under-16s, because of the definition of disability not all students will be covered. Their impairment may not have a substantial adverse effect on normal day-to-day activities. It would exclude perhaps the student with dyslexia who could only concentrate for short periods
672
of time. To compete fairly with others, that student might need some accommodation in order to do a three-hour exam.
My noble friend Lord Rix mentioned work-based training. When the learning and skills council is established in April 2001, further education and training will come under a single funding body. The distinctions between work-based training and FE will become increasingly blurred. SKILL believes that work-based training is more akin to FE than to other services under Part III and should come under the new legislation and benefit from the accompanying code of practice.
There is great concern in HE about students who receive no external support. Institutions do not receive funding to cover the students who do not receive a disabled student's allowance. They think that the DSA covers all students, but nursing students, midwifery students, post-graduate students in Scotland, and international students are not covered. I hope that the Minister will undertake to look at that—not necessarily now—to find some solution.
I turn to the role of professional bodies. Educational providers are justified in discriminating against disabled students where professional requirements prevent someone entering a profession with a particular disability. But some professional bodies unnecessarily restrict access to disabled people who would be able to practise a particular profession with appropriate adjustments. SKILL recommends that the DDA be further amended to lay a duty on all public bodies, including professional bodies which are completely outside discrimination law at the moment, to promote equal opportunities for disabled people. Therefore, this discrimination can be outlawed.
Finally, I turn to work placements, which the noble Baroness, Lady Warwick, touched on. SKILL feels that this issue is very important. Many students in further and higher education are expected to attend work experience placements during their studies. Vocational courses such as nursing, social work and teaching require it. I am sure the Minister knows that research has shown that work experience is one of the most crucial factors in finding a job. I see that the noble Lord, Lord Davies of Oldham, sitting beside her is nodding.
Under the Bill institutions are to be made responsible for the accessibility of courses, including any placements, to the individual student. But it is not always possible for the institution to control what goes on on the outside. I hope that the Minister can give some thought to solving that. Probably the education provider should be the principal party responsible for the overall planning and organisation of the supported placement, but the work provider should also have some legal responsibility on a day-to-day basis. SKILL suggests that perhaps one should have a named person on site who has built up a relationship with the education provider and student in advance and is aware of the potential issues. That is a matter which I hope can be sorted out.

673
What I have suggested is only a tweaking and a fine-tuning of an extremely welcome Bill. I hope we can ensure that it works really well to enable pupils and students with special educational needs and disabilities to flourish in an inclusive environment.
5.30 p.m.
Lord Clement-Jones: My Lords, I am pleased to participate in a debate in which we have already heard so many important and expert contributions. I cannot lay claim to the expertise of those noble Lords who have already spoken but I declare an interest as the chairman of the development committee of a school for children with autistic spectrum disorder and a member of the All-Party Group on Autism. I also declare a strong interest in children with ME and membership of the All-Party Group on ME.
My noble friend Lady Sharp has comprehensively laid out the approach of these Benches to the Bill. I certainly hope that we can build consensus on the improvements that can be made as the Bill passes through the House. I welcome very many aspects of the Bill. I suppose that it would be churlish to say that the Bill was somewhat delayed. On the other hand, one can only be impressed by the fact that the department has managed to secure a non-political Bill of this nature in a pre-election period.
First, I particularly welcome the general philosophy of inclusion. I interpret the thrust of the Bill as providing parental choice as to whether children should have mainstream schooling. Inclusion is all very well, but there must be adequate support. It cannot be used by education authorities as an excuse to save money on special schooling if that schooling is appropriate for the child. It certainly cannot be used as an excuse to close special schools. There is quite often a lack of support in mainstream education. More learning support assistants are needed and adequate training of class teachers must be secured. I was very heartened by the Minister's assurance—I think I quote her correctly—that there will be a continuing and vital role for special schools. I welcome that assurance.
Secondly, I welcome the new duty on LEAs to provide parent partnership services and independent conciliation. I certainly welcome the new duty on LEAs to comply with the decisions of SEN tribunals. However, as a number of noble Lords have said, we need to go further and ensure that compliance is monitored through appropriate mechanisms and that there are the resources to do that.
I wish to raise a number of specific issues. New Section 316 provides for the deletion of two of the three conditions which permitted LEAs to avoid inclusion. But, in the view of many of the relevant voluntary organisations, the third condition potentially provides a major loophole. LEAs can avoid inclusion in a mainstream school if it is incompatible with the efficient education of other children. I certainly agree with the noble Baroness, Lady Darcy de Knayth, that that could well be a problem. We should debate the issue further as the Bill goes through the House.
674
I have concerns about the early years. Early years assessment and intervention is vital for conditions such as autism. Assessment provision in early years, however, is voluntary. It is not a duty on LEAs. The code of practice for SEN treats the under-fives quite differently from those above that age. There should at least be a duty to provide assessment and support. As the Government have, to their credit, recognised in programmes such as Sure Start, the early years are crucial. I very much hope that that point will be addressed as the Bill goes through the House.
The Minister and I have not exactly crossed swords on the issue of identification of the various conditions which could be classified under special educational needs but we know that certain conditions are on the increase. Certainly, autistic spectrum disorder comes within that category. As many as one in eight children could be suffering from ASD. Why are schools not obligated to return to the Government a break-down of those children with special needs and a break-down of what those special needs are? I have raised that point with the Minister on a previous occasion. At that time she prayed in aid the report produced more than a decade ago by the noble Baroness, Lady Warnock, which claimed that children would be stigmatised if there was such a categorisation. Surely, we must have gone beyond that stage.
Is it not vital to identify what those conditions are and the kind of facilities and support that those children need? Is it not vital that that should be clone as soon as possible when they arrive at school? Is that not what inclusion is all about? Stigmatisation is surely not an argument in those circumstances. If it can be done in Scotland, why can we not do it in England? In Scotland, the latest census on arrival at school has included all that information.
Another area concerns me. I refer to the importance of quick assessment. Section 329 of the Education Act provides a duty to assess children for special educational needs at the request of a parent only within six months. New Section 329A, which gives to a responsible body—often a head teacher—the same power to request an assessment, still provides only for that assessment to be made within six months. Six months is an eternity for a young person. Six months is an age. Why cannot an assessment be made by LEAs within a much shorter period of time? Should not LEAS have the resources to do that?
There is a thumping great hole in the next part of my speech because the Minister made a welcome announcement about changes to the SEN code of practice. I suspect that other noble Lords who are to speak have been scribbling out great passages of their speeches. I am delighted that at the last minute changes have been made to the code of practice. Those assurances from the Minister are extremely welcome. Therefore, as the Bill goes through the House, we shall not need a great debate about the exact meaning of the word "specify".
Another area of concern to noble Lords is the joining up of issues relating to disability and SEN where they overlap. Another area of overlap relates to

675
sick children. On average, children with ME are ill with it for about four-and-a-half years, which is a horrifyingly long time in the childhood of a young person. At what point do those children become assessable under the code of practice? At what point does Circular 12/94 give way to the SEN code of practice? Who makes that decision to switch across, in a sense, to the code of practice?
Generally, as far as concerns SEN and disability, other noble Lords have referred to the coherence between the SEN and disability provisions, both as regards whether there can be a common right of appeal where there is overlap and also in general terms as regards how the two codes will relate to each other. Why should there not be a cognate duty on those catering for those with SEN to provide for reasonable adjustments? Why should not mainstream schools be obligated to make those adjustments as well?
I turn to Clause 13 and the duty to plan. This is a step forward, but do we not need to plan in order to increase access to the curriculum as well as to the physical environment? I very much hope that we will debate that point as the Bill passes through the House.
Finally, I very much thought that the noble Lord, Lord Baker, and the noble Baroness, Lady Brigstocke, hit the nail on the head when they referred to resources. The Explanatory Notes show that only £18 million seems to be indicated in additional resources for SEN and that that is for parent partnership services and independent conciliation. Without the resources, how on earth will our mainstream schools cater for children who may be coming in from special schools? We are living in cloud cuckoo land if we believe that additional resources are not required. Ironically, it may well be that a great deal of our debate should not be about the precise wording of the primary legislation or the codes of practice. Basically, we should be having, and should continue to have, a resource debate, although it may be that throughout the passage of the Bill we do not address that point.
5.40 p.m.
Baroness Wilkins: My Lords, I join with other noble Lords in giving a heartfelt welcome to the Bill. The Government are to be commended for giving the Bill such a high priority in this parliamentary Session. Many of its provisions have been long awaited and are warmly welcomed, in particular by those who have experienced the restricted education offered within the special school system and have long campaigned to include education in the Disability Discrimination Act.
However, much as I welcome the intention of the Government to put an end to disability discrimination in education, sadly, the Bill fails to achieve it. In its present form, it does not protect or promote the human and civil rights of all disabled children. It still allows for some children to be excluded from mainstream schools on the basis of their impairment. It can be argued that that goes against international
676
human rights agreements. That, I believe, is the fundamental problem with the Bill in its present form. But, as I have already said, there is much to welcome in Part I of the Bill, especially in the wider range of help, information and support which will be made available to parents.
The Bill sets out a range of provisions such as the requirement of LEAs to provide parent-partnership services and the setting of a time limit on the implementation of SEN tribunal decisions. That will help to establish good working relationships between parents, schools and LEAs and will give parents much greater confidence in the appeal system.
Part I of the Bill provides welcome amendments to Part IV of the Education Act 1996, which will strengthen the rights of children with special educational needs to be educated in a mainstream school. As many other noble Lords have already noted, it has removed two of the much-criticised caveats in Section 316 and has put the burden of proof on to a school or LEA to demonstrate that a child should not be given a mainstream place, rather than the current situation in which parents have to try to prove that their child should be included.
My main concern with this part of the Bill is with Clause 1. I shall largely confine my remarks to that clause. This is the clause that retains the third caveat. It states that a child with SEN shall be educated within mainstream provision unless that is incompatible with the wishes of his parent or it prejudices the provision of efficient education for other children. Disabled children do of course have a civil right to education. They also have a human right to,
"active participation in the community",
as set out in Article 23 of the United Nations Convention on the Rights of the Child. The problem with Clause 1 of the Bill is that it assumes that some unequal access to education and active participation in the community is justified and inevitable. I believe that that is in itself a prejudicial attitude. Clause 1 explicitly excludes access to human and civil rights for some children on the basis of their impairment.
Retention of the third caveat means that a child with a statement can be excluded from the mainstream without even being given a chance to be in a mainstream school, based on the supposition that their inclusion would be incompatible with the efficient education of other children. In the case of Crane v. Lancashire, it was considered that because Nicky Crane needed to leave lessons some five minutes earlier than other pupils in order to miss the crush in the corridor, this would interfere with the efficient education of other children. Lancashire LEA was relieved of the burden of duty to integrate him in a mainstream school.
What other reasons will be used to invoke this exclusion—if children make noises or need more support than other pupils? Will it be invoked if they need work to be translated into braille or BSL, or need food in lessons because they are diabetic; or will it be only when they are disruptive and constitute a danger to themselves or to others?

677
Why should children with SEN be treated differently from all other pupils when all schools have clear procedures for dealing with disruptive pupils, ending in the right to exclude permanently in the last resort? I believe that this is a discriminatory clause and will, I hope, be removed or least considerably tightened during the passage of the Bill.
The effect of retaining this third caveat will undermine the expressed intentions of the Bill—to promote the greater inclusion of all pupils in mainstream schools. It will continue to give licence to those LEAs which are only too ready to exclude children who are difficult to accommodate. As the latest statistics published in November by the Department for Education and Employment show, the most segregated LEAs are increasing the number of pupils in segregated provision and are doing so at a faster rate than inclusive LEAs, which are steadily reducing the numbers of children in segregated schools. Of the 30 worst segregators, 24 had increased the percentage of pupils in segregated provision compared to a year previously. It cannot be justified that a pupil in Lambeth has eight times more chance of going to a special school than one in Newnham. I hope that the Government will reconsider this clause.
Moving on to Part II of the Bill, this gives welcome effect to many of the recommendations of the Disability Rights Task Force made in its report of November 1999. One concern is that there are no targets or requirements in the Bill to monitor progress towards the increased mainstreaming of disabled children. Furthermore, significant resources are being made available to meet special educational needs and to increase access for disabled children. Much of the money is delegated directly to schools, and with it much of the responsibility. However, the Bill does not make it clear how schools and LEAs will be held accountable for those resources. Greater clarity will be sought during the passage of the Bill about the monitoring and accountability mechanisms.
Cases of disability discrimination in schools will be heard by the SEN tribunals, to be renamed the special educational needs and disability tribunals. I join with the noble Lord, Lord Ashley of Stoke, in his concern that whereas financial compensation is available for young people who win a case on race or sex discrimination, there will be no financial compensation for pupils under the age of 16, even if they do win a case. This appears discriminatory in itself and removes a major incentive for change. It will also fail to address the "hurt" caused to a young person, for whom it will often too late to find an "educational remedy".
In conclusion, there is much to welcome in the Bill, which sets out to redress the sorry exemption of education from Part III of the Disability Discrimination Act. Its provisions will make a significant improvement in the educational opportunities available for disabled children and those with special educational needs. I hope that, during, the passage of the Bill, the Government will find themselves able to send a clear message that segregating on the grounds of disability is against
678
human rights. If segregation continues to be a legal option, schools will continue to find ways of excluding children who, for whatever reason, do not fit particular arrangements. It will exacerbate the tendency that exists in all institutions, including schools, and in human relationships of all kinds, to discriminate and exclude difference rather than to make changes to accommodate it.
5.48 p.m.
Baroness Fookes: My Lords, before this debate began, I feared that I might be a lone, heretical voice in querying the universal assumption that the greatest good must come from integrating every child with special needs into mainstream education. I am sorry to disagree with the noble Baroness who has just spoken in her view that the greatest evil is the segregation of children.
I am worried by Clause 1 of the Bill, but for entirely different reasons from those of the noble Baroness. My concern is the lack of any wording to make clear "the best interests of the child"; in other words, that the best interests of the child might be served not by going to a mainstream school but by enjoying the benefits of a specialist education. I shall not dwell on those benefits. They were set out clearly by my noble friend Lord Baker when he referred to the admirable schools which deal with those without sight or the partially sighted. The same would be true of many other schools which cater for specific needs. I hope that, as the Bill goes through the House and on to the statute book, we retain our appreciation of the continuing value of specialist schools for many children.
Surely these children will not necessarily have to go to either one or the other. In the course of a child's school career it may well be possible for the child to be educated, first, in the mainstream or in a specialist unit and then to transfer, a point made by the noble Lord, Lord Rix. It seems more sensible to keep the valuable specialist units that we have and to transfer children between them—to make them centres of excellence, if you like—than simply to sideline them, which I fear is the thrust of the Bill. Even though the Minister indicated that there will still be a role for such centres, I wonder, when it comes down to implementation by local authorities, whether those special schools will still have the same value.
It seems to me that such schools provide an economic way of providing specialist education. It will be extremely difficult for an ordinary school if it suddenly has to cater for several children with different disabilities. Let us suppose a school has a child who needs a wheelchair, a child with autistic needs and a child who is profoundly deaf. I cannot believe that the school would find it easy to cope. The noble Baroness, Lady Brigstocke, indicated how the school with which she is associated deals with the situation. It sounded excellent to me, but quite expensive. Even the noble Baroness felt that some needs could not be provided in that particular school. I wonder whether less well endowed schools, with their own difficulties in dealing with mainstream pupils, will be able to cope.

679
I am also concerned, as are other noble Lords, about the issue of bullying of special needs children who may go into a mainstream school. My noble friend Lord Baker mentioned the cruel comments made against children with impaired sight who need to wear special glasses. That could be replicated in many other ways.
I have never taught special needs children but I did teach in a small independent school many years ago. A little girl who came to us had no spleen, which meant that she was very small, very delicate and unlikely to make it to adulthood. She did not. But what struck me as so appalling at the time was that the child had been mercilessly bullied in her previous school. She was rescued by coming to the school at which I taught and, for a few years of her existence on this earth, we were able to give this very bright child a good education and the support she needed. The funeral of a child is very disturbing and upsetting when you have taught that child and have known of the various unhappy experiences she encountered in her short life.
I urge those who want the Bill to be very conscious of the problems of bullying which can occur when a child is different. Even placing such children in a special unit within a general school does not necessarily mean that bullying will not occur.
I turn now to the question of the hard-pressed teachers in mainstream schools. We are all aware of the problems they already face—they have been rehearsed endlessly in various debates and in other forums—but if we are to ask them to undertake these additional tasks, I wonder whether they will be able to cope adequately. I am not sure whether the Government have it in mind to allocate funds for extra training of teachers, either before they go into the schoolroom or as in-service training—I do not recall it being mentioned by the Minister in her opening remarks—but it is a major point which should be considered.
Turning to institutions which are not run by local authorities, as I understand it, independent schools which cater for post-16 young people will have a duty and an obligation placed upon them to ensure that disabled pupils are not substantially disadvantaged. That must have financial implications for such institutions as well as for those in the local authority sector. I trust I am right in assuming that they will not be in receipt of public funds. I am not sure where they will get those funds or whether the obligations will be so onerous that they cannot continue. I shall be interested to know what is the position.
Like other noble Lords, I am extremely disturbed by the resource implications of the Bill. If it is to amount to more than pious platitudes with which we can all agree, it is extremely important that sufficient money is made available. Perhaps I have become cynical after many years in politics, but I am not sure that that amount of money will be made available in the foreseeable future.
I conclude with a cautionary tale. Many noble Lords will remember years ago the enthusiasm for bringing to an end the long-stay mental hospitals. Of course it
680
is true that many of the patients had become institutionalised, that some should never have been there in the first place and that others no longer needed to be there—but there was a hard core of patients who needed specialised care and attention. Care in the community sounded wonderful. Who could possibly disagree with such a humane, kind and caring concept, especially having regard to some of the grim wards of the old large mental hospitals? But what happened? Were sufficient funds made available to deal with the situation? No, they were not. We now find that many people with mental problems are insufficiently cared for and quite a number of them walk the streets and have become part of the homeless problem. We should be very careful before we embark on something which seems so splendid, so reasonable and so humane; we should ensure that we do not get caught again with inadequate resources to back up what otherwise seems a good idea.
5.57 p.m.
Baroness David: My Lords, I had decided that I would not speak in debates again, but when this Bill on special education was brought forward I felt that such a step had been made that I really should welcome it and congratulate the Government on it. I have always had a very strong interest in the subject and I have been involved with many earlier Bills. I thank the Minister for her clear exposition of the Bill.
There will need to be a significant change in the thinking of everyone working in education to ensure that the new civil rights being given to disabled people are achieved. Professional development and increased training will be necessary for everyone working in the field.
The Government have done well in bringing together in one Bill two of the definitions in legislation for children in need—the disabled person in the Disability Discrimination Act 1995 and the child with special educational needs, now in the Education Act 1996. The noble Lord, Lord Clement-Jones, referred to this. There is a third definition in the Children Act 1989. One day, we hope, all children in need will be covered by the same legislation.
Having said that, the time is not right to join up the definitions. The then government developed the definition of disability without thinking of the implications for education. That definition is now in use throughout public and private life for all bodies that wish to provide services to the public. Similarly with the definition of special educational needs, which was confirmed by Parliament in 1993, just two years before the Disability Discrimination Act went through.
I think that the then government in 1995 felt that they had done their bit for children, and that was it; perhaps they did not want to think through the financial implications. I recall that in the summer of 1995 the House got the Government to concede that the Disability Discrimination Act could not leave education entirely aside. The Government were persuaded to think again and to come forward with a

681
minor amendment which required school governing bodies to say what they were doing for disabled pupils. I congratulate the Government on having the courage to come forward with this Bill that says what they intend to do for disabled pupils. I hope in the course of debate we can develop the Government's thinking and, in all humility, provide leadership to the education profession about how we can best help young people in need with these two definitions.
Part I of the Bill deals with special educational needs and amends the 1996 Act. I applaud all that the Government are doing to promote the inclusion of disabled children in mainstream institutions and to limit compulsory segregation in special schools. But I have two questions. First, it is very welcome to see that Clause 1 of the Bill amends the law to remove some of the current justifications for segregating children with special educational needs outside the mainstream system. But it seems unfortunate that parents should be given what appears to be an absolute veto on mainstream school placements for children with statements. This seems incompatible with other aspects of government policy and with the Convention on the Rights of the Child, which require children's arid young people's views to be ascertained and given due consideration. I was glad to hear the noble Baroness, Lady Sharp, raise this question; it was mentioned also by the noble Lord, Lord Rix, and the right reverend Prelate.
I should be grateful to hear the Minister's justification for allowing a parental veto where a local authority believes that a mainstream placement is in the interests of a child and the child wants one. Also in Clause 1, subsections (5) and (6) of new Section 316 require LEAs which believe that a mainstream placement is impossible because it is incompatible with the provision of efficient education for other children to show that there are no reasonable steps it could take to prevent incompatibility. Surely, given that all children have a basic human right to inclusion in mainstream institutions, parents who insist on a special school placement against the views of a local education authority should also have to show why mainstream placement is not possible.
There will be a need for substantial new funding to allow the new plans to go forward, and the Minister has said that there will be these funds. But will there be enough—as a number of noble Lords have asked? I hope that the Minister will say something about that in replying to the debate. I know that the Local Government Association hopes that the Government will fund the new duties through the revenue support grant rather than the Standards Fund. Will the Minister give a reassurance about that?
Will the additional powers the Secretary of State is seeking to require authorities to take account of guidance be necessary? The LGA hopes that there will be a commitment that all guidance is contained in the code of practice. The press notice that arrived on my desk this morning encouraged me, as it has many other speakers. The Secretary of State said that, after full consultation, he would strengthen the code of practice for special needs. I was particularly pleased that there
682
was a focus on taking account of the views of children with special educational needs and that another focus was on reducing unnecessary paperwork for teachers.
I turn to disability. Here the Government make considerable welcome changes to the Disability Discrimination Act. At the moment, it covers a range of services but not education. That is not to be so in the future. I was rather surprised by what the noble Baroness, Lady Brigstocke, had to say about disabled children in mainstream schools. It seemed to me that she was rather prejudiced. I am afraid that she is no longer in her place, so she will not hear what I say.
Schools will have to make reasonable adjustments to their policies, practices and procedures and the Bill would require schools and LEAs to plan strategically to increase access to education. This includes not only buildings but also the curriculum. Disabled pupils are not to be substantially disadvantaged compared to other pupils. More than £200 million will be provided for this over the next three years.
Like the noble Baroness, Lady Sharp, I should like clarification from the Minister. Will she say what "reasonable adjustments" might be, particularly in relation to the curriculum? I am a bit mystified. I hope that the Minister will not merely say that I should read Clause 12.
I come to Chapter II, on further and higher education. This is a part of the Bill that I am enormously pleased to welcome. For far too long, children with special educational needs, particularly those in special schools. really had no provision for them to continue their education after the age of 19. That was something that a number of us struggled hard to change over the years, but without much success. Now, the change has come. Disabled students—and that includes adults, those in continuing education and in the youth service—must not be discriminated against on admissions, exclusions and on the services provided. They must not be placed at a substantial disadvantage compared to non-disabled students. If they have complaints, they will have a right of redress through the county court system in England and Wales and the sheriff court system in Scotland.
I have not touched on the special educational needs and disability tribunals. All I will say is that the tribunal should offer a relative swift and informal resolution of those claims. The range of remedies seems appropriate. What is important is that the consequences of discrimination are redressed.
We have an excellent Bill. No doubt adjustments and improvements can be made in Committee and questions can be asked. A Committee stage in Grand Committee seems to me appropriate for this Bill, although I understand the fears expressed by the noble Baroness, Lady Blatch, that there might be other things going on in the Chamber which one would not want to miss. Huge strides forward have been made, as most noble Lords seem to think. I congratulate the Government on the Bill.
6.7 p.m.
Lord Swinfen: My Lords, I must begin with an apology to the House and in particular to the Minister. Owing to a long-term commitment, I shall not be able to stay to the end of the debate. If the points that I raise are not answered by the Minister in replying to other speakers, I hope that she may find a little time over the Christmas Recess—possibly after she has opened her stocking—to drop me a line.
I welcome the Bill. The education of children with disabilities with their able-bodied peers will in the long run make those who are able-bodied far more tolerant of people with disabilities once they leave school and go out into the wider world. Most of us had to wait until we were well on into our adult years to appreciate the difficulties faced by many people with disabilities. I think that helping people with disabilities and understanding their problems is of benefit to society as a whole.
However, despite that, there will be occasions when children with disabilities need to be educated in schools specifically set aside for those with special educational needs. This not a one-shop Bill. We must bear in mind that there are those who need at times to go to special schools so that they are taught the particular skills that they need to go through life and to make life safe for them in the wider world. But, on the whole, I welcome the Bill. It may need a little improvement as it passes through the House, but I am sure that this Chamber, in its best traditions, will ensure that that takes place.
According to Clause 11, there can be no discrimination if the responsible authority,
"did not know and could not reasonably have been expected to know",
that a child is disabled. That puts the onus on the child's parents to disclose the disability to the school. It changes the emphasis from being a responsibility of the local education authority to plan for inclusion to that of responding when a disability is known. It may affect anticipatory action such as staff training or the amendment of policies, practices or procedures.
It will be important for parents to have the opportunity to present that information to the school. But, as I read the Bill, there seems to be no duty on the school to ask for the information. However, if one member of staff is aware of the likelihood of a disability, is that sufficient for the school to be held responsible? How much knowledge of disability should teachers of children have? Further, will such issues be addressed through the code of practice?
I have considerably shortened what I intended to say because many speakers have already raised those subjects. As the hours draw on, I am sure that noble Lords would not wish me to repeat those points. However, there is one matter that I must raise. The noble Baroness, Lady Sharp, from the Front Bench of the Liberal Democrats mentioned this issue in her speech. I refer to compliance with the Human Rights Act, or with the European Convention on Human Rights.
684
There is no provision in this Bill for the rights of children. In particular, a child has no standing before the tribunal. It is not uncommon for a teenage disabled child to disagree with his parents about appropriate education. That is particularly the case where the choice is between oral or bilingual education for a deaf child. Even though the Human Rights Act mentions a parent's right to educate a child in accordance with his or her convictions, the right to an education under the Human Rights Act belongs to the child.
New Section 28C(7) is designed to safeguard confidentiality. It gives the parent the right to request confidentiality. This, too, may be the subject of dispute between the parent and the child, especially as the child grows older. Therefore, is the Minister confident that the Bill is compatible with the rights of the child under Protocol 1 Article 2 (the right to an education) of the convention on human rights? I ask that question in particular because I see from the Bill that the noble Baroness has given an undertaking that, in her opinion, the Bill is "compatible" with those rights.
I have one further point to make, which was originally raised by my noble friend Lady Blatch. Although I am talking about screening for deafness, it is also appropriate for screening for other disabilities to be carried out as early as possible. The sooner that such disabilities are detected, the sooner proper provision can be made by the parents, the schools and education authorities for the education of the child.
I believe that a national programme of screening for deafness in new-born babies would complement many of the Bill's objectives. I realise that that falls under the remit of a different department from the one that the Minister represents, but the noble Baroness answers for the Government as a whole. I know that she is aware of that fact because, from these Benches, she raised that point before the last election; and, indeed, I suspect that she may have done so on more than one occasion. However, I do not expect the noble Baroness to answer me verbally on the matter this evening.
The Government's welcome initiative on Universal Neo-natal Hearing Screening (UNHS) has the potential to ensure that the educational achievements of deaf children match those of hearing children. Each year I understand that some 840 children are born deaf in the United Kingdom and that, up until now, the only way of identifying this group of children was through a haphazard system known as the "Health Visitor Distraction Test" (HVDT). However, only 400 babies are detected by this test before they reach the age of 18 months, and around 200 remain undetected until they reach the age of three and a half. That is quite unacceptable.
With the HVDT, the hearing of babies is not tested until they are seven or eight months old. Professionals accept that the test can be inaccurate and that it does not detect deafness or hearing loss in all deaf babies tested. Undetected deafness in new-born children has a significant negative impact on the development of speech and language. There is evidence that children whose hearing losses were identified before six months of age are reported to have expressive and receptive

685
language development quotients significantly higher than children whose hearing losses were identified after six months. Therefore, earlier identification of deafness through UNHS delivers: earlier development of communication, language and speech; earlier fitting of hearing aids; earlier identification of candidates for cochlear implantation; and earlier introduction of sign language. All of those factors will have a beneficial effect on the education of such children.
I hope, therefore, that the Minister will ensure that her department chases the Department of Health to make certain that it makes her task much easier with regard to the education of children with disabilities. I know that that is not strictly part of this Bill, but I make no apologies for raising the subject because I believe it to be extremely important for the education of those children with disabilities.
6.16 p.m.
Baroness Massey of Darwen: My Lords, I should like to speak to the first part of the Bill on special educational needs in schools. The Bill is welcome, building as it does on previous Bills, reports, research and good practice, as well as raising the profile of special educational needs and disability. I am aware that, over many years, special educational needs have been transformed, thanks—at least in part—to the efforts of several people in this Chamber. We can now further improve opportunities for children. I have in mind those 20 per cent of children who will have special needs at some time in their career and the 3 per cent who need special provision.
Special educational needs is a multifaceted issue and one that touches many aspects of legislation and delivery in schools. As the noble Baroness, Lady Blatch, pointed out, it is a growing issue and needs a whole school approach, linking with parents. Of course, as many noble Lords have said, funding is a key issue. Learning difficulties can be caused by what one head teacher described as a "viewing culture" rather than a reading culture. Boys appear to be more affected than girls. That can have serious implications for behaviour and achievement and needs tackling early with its many ramifications.
The Bill deals with several loopholes in existing provision; for example, that relating to the education of children without statements. But I believe that more detail is needed on certain aspects that I know are of concern to parents and schools. Like my noble friend Lord Ashley of Stoke, I wish to be constructive. I should like to look at some of those concerns in relation to school governors, to parents and to schools, and then to give some practical examples from my own experience and that of others.
I turn first to governors. They have a duty to oversee special educational needs in schools, yet this is a highly specialised area that relates not just to learning needs but also to the much more complex issue of emotional and behavioural difficulties that can impinge drastically on teachers and pupils. I wonder how much training is provided by LEAs for governors in dealing with special educational needs. I wonder how many
686
schools have a governor with designated responsibilities in this area. That is particularly important as chairs of governors and head teachers have to be consulted if a statemented child is assigned to their school, and an appeal may have to be arranged.
Secondly, there are the parents. In Clauses 3 to 8, the Bill addresses in a most positive way the processes by which parents receive advice and information, and by which disputes might be resolved with the help of an independent person. All this is most welcome, and I do not intend to cover other aspects of the Bill that have been discussed by other speakers.
I wonder whether there still remain potential problems, examples of which have arisen in the school where I am a governor and which have caused distress and confusion. This is where the parent does not accept that the child has a special educational need. In the case of physical disability this is not usually a problem, but it can be difficult for parents to accept that their child has a learning difficulty or an emotional or behavioural difficulty. If the parent is from a cultural or linguistic minority, this problem may be intensified. In the school where I am a governor we have recently had two such cases. When, I wonder, does it become an issue for child protection. What best benefits the child? Like other noble Lords. I am concerned about the rights of the child as well as the rights of parents.
Thirdly, I turn to schools. Of course, improving programmes for all children should improve the lot of children with special educational needs. I do not mean simply in terms of numeracy and literacy but in relation to behaviour such as bullying through programmes of personal, social and health education and citizenship. This is happening. Information technology has also helped enormously with some learning difficulties. Many schools can identify need and provide for it. But I find the funding mechanisms complex, especially if there are in a school a number of children with SEN. For example, it seems that an LEA is under no obligation to provide cover for a learning support teacher if he or she is on sick leave.
According to many head teachers, at least the ones I talk to, children with special educational needs tend to achieve more if they are integrated, but designing a curriculum for all is a tall order. Many schools do it superbly with support from their local education authority. There is plenty of good practice around. The whole thing, of course, requires good management and creative thinking, as the noble Lord, Lord Rix, described. I understand that LEAs can make their own rules about SEN funding, even when actual needs within LEAs are the same. Some LEAs become overspent as they include, for example, transport for SEN within their budgets. The whole area of financial management and funding for SEN requires attention, so do any delays in implementing decisions by the Special Educational Needs Tribunal.
A few other questions remain for me. In my own school, for example, in Wandsworth, an educational psychologist can do Stage 3 work with children from

687
neighbouring Lambeth, but not Stage 4 work because Lambeth will not accept it. Neighbouring Merton on the other side of the borough will. I am not sure but I suspect that this is happening on the fringes of many boroughs. It is especially complex when there is a change of staff or even premises in adjacent boroughs. Roles and responsibilities of educational psychologists and therapists need examining and clarifying for they are key players.
I am also concerned about gifted and talented children. That was touched upon by the noble Baroness, Lady Blackstone. I know that they do not officially come under special educational needs provision, but many of these children end up in all kinds of trouble, perhaps especially on transfer to secondary school, because they are not adequately dealt with. I understand that money is being provided under the Excellence in Cities Programme for local co-ordinators and policies for gifted and talented children. Does this link with special educational needs in schools? In my primary school the SEN co-ordinator has gifted children under her remit and under her performance management targets, but money to support gifted children does not come under the SEN budget. Is this a widespread issue?
Other noble Lords are concerned about, and will speak on, league tables and children with special educational needs. In my school the attitude to such children is not one of low expectations but of different expectations. Most children with special educational needs in my school will not achieve Level 4. We need to look at the achievement of these children in a different way. Yet the whole cohort of children is included in league tables without any value added system.
As I said earlier, this Bill is welcome and supportive to parents and children. It needs, of course, to be integrated into other educational initiatives. There are issues which need clarifying, but I am sure that we can do this at later stages.
6.25 p.m.
The Earl of Mar and Kellie: My Lords, I am generally content with the principle of the Bill. It extends to Scotland in part and it is on that issue which I must dwell. I am content that the Bill relies on the Scottish Parliament to make suitable legislative arrangements. I never have a problem with legislative splits stemming from home rule. That, therefore, is not the issue which concerns me.
I believe that the Bill must be more specific about how it will be implemented in Scotland and about what else must happen before commencement in Scotland. First, I believe that a Scottish code of practice must be drawn up. The historic differences in the education systems make it impractical to write a composite Anglo-Scottish code of practice, which leads so often to Scotland being referred to in brackets. Such a Scottish code of practice must be clear and must be written specifically for the regime to which it will be relevant so that it can be relied on by everyday citizens.
688
Secondly, there is already confusion about the definitions used in Scottish social work legislation. For example, the Education (Scotland) Act 1980, as amended, mentions special educational needs. The Children (Scotland) Act 1995 refers to "children in need" and to "children affected by disabilities". The Disability Discrimination Act defines disability differently yet again.
There is a need for legally based clarification of the terminology. For example, will social, emotional and behavioural difficulties be covered by the Bill or not? Will the school for "educationally fragile" children of my noble friend Lady Linklater of Butterstone come within the ambit of the Bill or not?
Thirdly, there is no Scottish planning duty. Scotland is excluded from Clause 13. I believe that it would be wrong to implement the Bill in Scotland until the Scottish Parliament has made its own legislative decision about the need for such a duty to plan for access or otherwise.
Fourthly, Scottish schools are exempt from having to make physical alterations under Clause 12. I am content that this duty is imposed on Scottish further and higher education establishments. One of the overarching principles is that there should be choice for children with disability between special facilities and integration. That is relatively easy to achieve in a city or large brugh but it obviously becomes more difficult to achieve in a small brugh and rural area. Of course, in a remote area such as an island, there will probably be no choice whatsoever. So, once again, the Scottish Parliament must enact complementary legislation before commencement.
Fifthly, there are insufficient rights of redress. There are to be no financial remedies for discrimination in school education. The possibility of a financial penalty will act as a useful lever for change and probably be of practical help for pupils. As this could be seen as a form of age discrimination, I wonder whether there are ECHR implications.
Sixthly, rights of redress are to be heard in the sheriff court. I do not have a problem with the sheriff deciding upon such a civil matter, but many families will not countenance action in the sheriff court. What is required presumably is a conciliation process. That is more likely to find a way forward which everyone understands. I believe that the Disability Rights Commission in Scotland could provide such a conciliation service. It would seem to be a more user-friendly process than a prosecution in the sheriff civil court, albeit it that it would probably be heard by the sheriff in chambers. Allied to that, perhaps I may ask whether legal aid and advocacy support will be available when seeking redress for discrimination in the sheriff court. I note that there will be much work to do on the Scottish aspects during the Committee stage.
My final plea is this. Please may we have a clause in Part III which lays out precisely which clauses apply in Scotland? The Bill is clear about its application in Northern Ireland. Can it not also be clear about its application in Scotland? For the Bill to be a success in Scotland, it must start by being immediately understandable.
6.31 p.m.
Baroness Andrews: My Lords, I am delighted to have the opportunity to contribute to this Second Reading debate. It is the first Second Reading debate at which I have been fully conscious. During my maiden speech on a Second Reading debate, I achieved a state of nervous trance. I did not realise that a t this stage of the debate much that I would have wished to say would have been said.
However, I join with all other colleagues in greeting the Bill with much pleasure. I also share some of the reservations. I look forward to discussing them in more detail in Committee, including the troublesome words "efficiency" and "reasonableness". I am sure that that will give us hours of pleasure.
There are many aspects of the Bill to welcome. It has been a long time in gestation and reaches the House with high expectations and some concerns. There are fewer concerns now that the Government have listened so admirably to the negotiations over the code of practice. I am glad that they stuck to the concept of "specify" rather than "set out".
Many issues have already been raised. I refer, for example, to the relationship between Parts I and II of the Bill and the balancing of rights and resources. Much has to be discussed in detail. However, I hope that it is sufficient to welcome a Bill which for the first time gives disabled children a positive right, not merely a right by default, to an education on the basis of individual need. It makes it easier for all children to have an inclusive education.
Many noble Lords have spoken with great authority, expertise and personal experience. I hope that the Bill will be successful in three critical areas: first, that it will raise the expectation of achievement by every child with special needs and disability; secondly, that the new and positive powers the Bill gives parents will make it easier for parents to ask for, accept, receive and secure the appropriate educational help for their children; and, thirdly, that it will signal a new era, with maintained and special schools being part of a genuinely coherent and inclusive system of education. The Secretary of State said:
"Inclusion is about building on and developing the wealth of expertise and experience within the specialist sector in the interests of the children".
I heartily agree with that. The Government got off to an excellent start in 1997 by making it clear in the White Paper, Excellence in Schools, that the standards for the education of children with special needs are no more and no less than those expected for the education of all children—the very highest. It is only too easy to exempt young people with disabilities from high expectations.
The noble Lord, Lord Ashley, is a campaigner against all forms of bullying. Recently I presented a partially blind young man with a national award for achievement. I assumed that the award was because he had overcome his blindness. He had high standards of academic achievement. In fact he had been bullied and had set up an anti-bullying unit in his school which was hugely successful. The model was copied by other
690
schools. According to his friends who nominated him for the award, he was there for everyone when they needed him. The value of inclusive education is not that children are seen as equal but that they are valued for who they are and what they can do for the whole school. It may be on the school council, in the school play, on the sports field or doing exceptionally well academically. That understanding of human capacity strengthens the basis of our society.
The Bill gives welcome and practical help to parents. There is nothing more frustrating than for parents to watch a child struggling at school, knowing that they cannot help him. They do not know what to do to help the child, especially if he has speech and language difficulties. They do not know what support is available or whether it will arrive. There is nothing more disheartening for a teacher than watching the child grow in frustration and anger, eventually perhaps resorting to destructive and aggressive behaviour.
The Bill strengthens the right of pupils to a place in a mainstream school if their parents want that but it also gives parents access to information, understanding and support when it counts the most. I welcome what has been said about the need to have the voice of the child in these discussions. We neglect that at our peril. We need to listen to children in that respect.
There is no doubt that the experience of many parents over the past 20 years has been of delays and disappointments, followed by a final confrontation with the school or an SEN tribunal. Where the child is rejected by a school or a tribunal, parents are often not in a good position to argue the case. Above all, I hope that the Bill will change the climate of negotiation and reduce the isolation of parents.
I welcome the new duty on all local authorities to provide a parent partnership service, the access to independent parental supporters and the informal arrangement to avoid or resolve disputes. Resources are an undeniable issue which we have to face realistically. As with all other aspects of education, the aim must be to have the very best standards. Recent research suggests that many schools with high levels of statemented pupils are less successful in terms of attainment. That is hardly surprising. However, the same research suggests that schools in the top 30 per cent of attainment are in many cases also in the top 30 per cent of those with children with special needs. Why are those schools successful? The difference cannot be explained wholly by resources but has much to do with professional attitudes, parental involvement, leadership, good teaching and learning and good use of resources.
Comments have been made about insufficiency. Providing £220 million for access is a good start and an indication that the Government are serious about the practicalities. There is a great deal of ground to cover. The noble Lord, Lord Baker, referred to that shocking report. Not only is the supply of basic materials necessary but also new technologies. I have seen children with disabilities using them and profiting

691
enormously. New technologies can make a difference not only in competence but also in imagination and learning.
I am also certain that the Government are right to be ambitious for all children with special needs and disabilities. Inclusion is not a sentimental or simple concept. It has to be properly planned for and funded. Over the past 20 years many children who would have been separated in special schools have taken their place very successfully in mainstream education. The Bill gives a greater chance to more children who will also flourish. But there are many new challenges. For example, 20 years ago we did not have so many competitive pressures on schools. We now have greater delegation to schools and changes in the curriculum. We have many differences now. We also have to secure the right future for special schools to give them the confidence of knowing that their place is to provide an appropriate and inclusive education for all.
The safeguards in the Bill offer the prospect of the right balance between meeting the needs of the individual child with special needs and meeting the needs of all children in the classroom, so that each child will have an equal chance of success. I very much look forward to the next stage of the Bill, when we can pursue some of those issues in more detail.
6.40 p.m.
Lord Dixon-Smith: My Lords, I had a nephew who was born a haemophiliac. By the time that that was diagnosed, he was also brain damaged. About 25 years ago, when my brother discussed the issue with the education authority, he was met with consideration and, ultimately, generosity. Subsequently, like the noble Lord, Lord Clement-Jones, I was a governor of an autistic school. As an independent foundation, its problem was security of funding for the pupils that it took care of. Again, my education authority was very generous and considerate in its handling of the pupils and the school once the problem was identified.
I make that point for two reasons. First, I want to show the noble Lord, Lord Rix, that even 25 years ago the environment had moved forward dramatically from the harsh introduction that he received a relatively short time before that. Secondly, the situation has been developing over a long time. The past is not all ill and the future is not all good.
We are dealing with a very difficult area, particularly for parents, who find themselves in a situation that they would not wish to be in and that they often do not understand and that has implications for their lives as individuals and as families that often confuse and upset their motives. We heard about the consequences of that from the noble Lord, Lord Baker of Dorking, and his comments about his postbag.
Essex, which was my LEA, currently has about 5,000 statemented children in its education system. That is a large number. Of those, roughly 2,300 are in special schools. The number of special schools has diminished over the past 10 or 15 years. There used to
692
be 30 but now they are down to 23. The cost of those special schools is about £18.5 million per annum—roughly £8,000 per pupil per year. They are staffed with dedicated teachers who are well resourced with facilities and do an excellent job. The other 2,700 pupils are supported in mainstream schools. That costs £12.5 million annually—roughly £4,600 per pupil per year. That illustrates the point that supporting handicapped children or those with educational problems in mainstream schools is an expensive exercise and we have to face the implications.
However, that is not the end of it. That deals with the 5,000 statemented children, but the education authority also makes available £8.5 million through delegated school budgets to the schools themselves to support children who are not statemented but who none the less need support. We need to recognise that the boundaries are grey. Some children who are not statemented still need support. For schools to work efficiently and make proper use of their resources, additional money has to be provided. Another £8 million is made available to support children with difficulties who go across education authority boundaries or go to independent schools. A total of £47.5 million is currently made available in Essex.
I asked the LEA for an estimate of the cost of fulfilling the expectations in the Bill. It estimates that the Bill will increase its costs by between 6 and 8 per cent. That is plus or minus £3 million per annum for one education authority. The financial statements made about the Bill cover the problems of capital resources perfectly reasonably, but I have considerable doubts on the revenue support that is required. I hear a, "Hear, hear", from somewhere in the Chamber. Several noble Lords have already made that point.
I am not so starry eyed as to ask the Minister for an assurance that the resources that are required to meet that liability will be made available, if only because I know that it would be beyond her competence to give such an assurance. There are others behind her who will ultimately take control of events.
I shall introduce the House to a simple economic formula that applies to local government funding, of which this is a part. Local councillors and anybody who has been involved with local authorities will be familiar with the formula: the sum of the sums is greater than the sum. The sum of the sums is the sum of the individual demands that are made on local authorities, usually through legislative requirements such as the Bill. We can sit down and calculate what the Bill might cost locally and nationally. When considered in isolation, it looks achievable. However, adding up all the requirements service by service across the breadth of local authority services always produces a figure that is greater than the sum that is provided. That is the dilemma for local authorities.
I am not making special pleading; I am just trying to introduce reality. Local authorities will always have conflicting demands for resources. Not least of the dangers that we face in this debate is an unwillingness to recognise that, when we get down to the level at

693
which the service is provided, local authorities across the land—not Whitehall departments—have a very difficult job. On top of all the human problems of individuals with their own ambitions and purposes, their own jobs to do and their own conflicting emotions, authorities have the problem of not always having all the resources that are considered necessary to do the job properly.
That is the background that we shall always face. I am conscious that out there, across the country, are bands of all types of dedicated professionals to whom we all owe a great debt and, indeed, to whom we owe our thanks. I welcome the Bill. It is a stepping stone in the right direction. We should recognise it as that: a very welcome stepping stone.
6.50 p.m.
Baroness Ashton of Upholland: My Lords, I strongly support the principle behind the Bill of integrated education on the basis that, if it is done properly, the lives of all our children are enriched. There is no reason for education standards to fall; rather, the education experience of all children should improve. Children learn to work alongside each other, to be tolerant and to recognise that they are good at different things. Through their curiosity, children learn about different lifestyles and life experiences. All that makes them better adults—one of the fundamentals of education—and better able to cope with the world in which they live.
I say that as chairman of a state junior school and also as the step-parent of a young man who had a statement of special educational need. As he finishes his college course without the need for extra support, I pay great tribute to the education authorities of Cambridgeshire and Hertfordshire for the support that they gave him in the 1980s and 1990s. Being educated in the mainstream was of great benefit to him, and it was his choice. It made him ordinary and challenged him to cope with his disabilities in real situations. To his credit, he succeeded. His friends and colleagues gained, too, from this interesting and talented young man.
As a step-parent, I remember being very nervous as we approached a new school, wondering whether it would want to take him. I know that that is how many parents in the same position feel now. Children with special educational needs are not always seen as a great catch by schools which are tied up with getting to the top of the league tables and keeping class sizes large enough to afford new equipment.
When this Bill is passed, I shall be looking for three things in particular. To illustrate them, I want to describe two experiences that I had recently as a governor. The first concerns a young child who had multiple disabilities but who had coped well at nursery school and, now rising five, was ready to go to "big school". Our governors were asked whether, in the light of her disabilities, we would be willing to take her. The unanimous, positive reaction of the staff was echoed by the governing body. Only then did we learn
694
that we were the 19th school to be asked and that this child would have a long journey each day. I can only imagine how her parents felt.
The child was a delight. Bright as a button, she succeeded in everything. We were pleased that, during the term before her SATS, the school nearest to her home found her a place. However, because she did not take her SATS with us, the hard work which teachers at my school had put in was not reflected.
My second experience concerns a child who had many problems which were hard to identify and who had already faced difficulties at a previous school. When my school was approached, we considered very carefully having him there. However, there was little information to go on, and in the class into which the child would have been going were a number—over 40 per cent—of children with some kind of special educational need. Disruptive behaviour would have been a negative for those children in particular. Finally, we had to take him because we had a place, despite the strong views of everyone involved that it would be detrimental, especially to him. Not surprisingly, it did not work and we are all the poorer.
Various points arise from those experiences. First, if we are serious about integration, we need to start with children long before they go to school. Other noble Lords have made that point. The director of education in Hertfordshire said to me one day in my capacity as chairman of a health authority that health visitors were always telling him that they could identify children with needs at an early stage, especially those with conditions such as dyslexia, dispraxia, autism or Asperger's, or those with behavioural problems. They would say that they knew those children quite well, certainly by the time they had reached the age of two—yet they were not involved as health professionals in identifying the children and working with their local schools. That is harder to do without catchment areas but, nevertheless, not impossible.
When a child arrives at school with his little rucksack containing pencil, ruler and lunch box, I want to see the beginnings of the special needs package in the rucksack as well: resources, assessments and understanding.
Secondly, if we are serious about integration, we need to tackle what I call the "one-dimensional" nature of league tables. I have nothing against measurement and the raising of standards—far from it. However, I expect to see sophisticated measurement which measures like with like or which recognises what I have come to call "value added". The reality is that some schools which are striving to stay up in the league tables and which enjoy over-subscription have little incentive to take children who might—I emphasise "might"—not achieve the highest standard or who will require additional resources.
Being involved in a school which works with children of all abilities, I am still astonished when parents come to see us, pointing out that other local schools have suggested that their child might do better with us because he has a special educational need and they do not normally take children who have that need.

695
My point is that integration needs careful management to ensure that all children can learn. Put bluntly, it is often better, particularly for those with behavioural difficulties, to spread children across the education sector. That means giving local education authorities the power to ensure that all, and not only some, schools participate in supporting children with special needs. Of course, it also means that Ofsted needs to recognise that participation and to sing the praises of schools which do it successfully. League tables must reflect that.
Finally, the desire for integration for children requires a recognition that it does not always work. That means finding new solutions as to how children move on into other forms of educational experience, other than the route of exclusion—such a negative experience for everyone, especially the child. Yet, exclusion is still often the only way to obtain the support which children need. Teachers are not necessarily trained to deal with a multiplicity of special needs. Some children are extremely challenging.
The dearth of classroom assistants trained to work with such children represents an additional problem. High employment and poor levels of pay make it extremely difficult to recruit people who are willing to work on a one-to-one basis with those children. Where schools are willing to try to work with a child, education authorities should be prepared to accept that occasionally they will fail. They should not see it as bad teaching, ineffective management or anything else. That, too, would make a difference to the willingness of schools to take on children who have complex needs.
This legislation is about improving the education for all our children and improving the experience of children with special educational needs and their families. It should be warmly welcomed and supported. From my position in health and education, I shall be looking most closely for the incentives and rewards that will allow us to succeed. I congratulate my noble friend the Minister on bringing this legislation before your Lordships' House.
6.58 p.m.
Lord Lucas: My Lords, that was a very hard speech to follow. I believe it is the best speech I have heard all day. Given the quality of the debate, that is a considerable compliment, but one that is well earned. I hope that we shall see the noble Baroness on the Front Bench in due course because that kind of talent should not be left to languish so far back on the red Benches.
This is a good Bill. I hope that we can improve it a little in Committee—it will be all the better for that—but it will make a positive impact on the present system. However, it will not get at the root of the problem, which is that local education authorities are charged with promoting the interests of the child, adjudicating what those interests are and being the paymaster at the end of the day. That is an impossible combination to ask of any authority.
696
As a result, over the years all kinds of bad practice have crept into the way that LEAs deal with the problem of special needs. There has been a denial of the need for statements, an avoidance of looking at the problems and providing statements, and, when a problem has been identified, there has been delay in doing anything about it. For parents, getting through the various regulations and tribunals has become an intimidating and endless trial—an exhausting process. When a child most needs immediate help, commonly the delays can last for up to two years at a time when two years is absolutely critical as regards the child doing well.
Surely we all want a system which puts the interests of the child first—a system which allows LEAs to be an active partner in seeking out children who need their help and giving that help. We also want schools which, as the noble Baroness said, seek out children who need their help. By and large, schools that are good at dealing with special educational needs are good at dealing with ordinary kids, too.
All children have individual needs, and all benefit from concentration on and attention to their needs. The very best schools are those which are best fitted to deal with special educational needs. If we can get that into the heads of the schools which throw up their hands at the thought of taking anyone on board with even mild dyslexia, we will have a better educational system for everyone. There is not much we can do about that in the Bill. However, elsewhere, the Government have provided us with a model for which we should aim. The National Institute for Clinical Excellence (NICE) sets out the standard of provision in the health service and bases that on research. If that sort of foundation were available for special educational needs, everybody could judge where a local education authority should be. It would be possible for a body such as Ofsted to monitor what happens.
The difficulty is that we have no research. It astonishes me that a profession whose pinnacle is research at some grand university is so reluctant to admit researchers into its own practices and nostrums. The epitome of that was the former chief inspector of schools who refused ever to allow anyone to assess the effectiveness of the methods of Ofsted. He was therefore extremely reluctant to promote any form of research into educational practice. There were one or two exceptions, but very few. I believe we should look to see whether in the Bill we can produce a duty to research. Indeed, as the noble Lord, Lord Clement-Jones, said, there should be a duty to provide data for research; to collect data so that five years from now, when we are considering this matter again, we shall have a basis upon which we can found a more constructive system.
The noble Baroness lightened many hearts by referring to the end of the proposal to make statements unspecific. However, that is not a great triumph. The practice has become more and more widespread in local authorities under the existing regime. All we are doing is going back to that regime. I hope that we will find a way to sharpen it up so that the sort of

697
statements one commonly sees, which are so vague they can only be interpreted by the LEA, become a thing of the past.
Two references were made to the Human Rights Act, both of which I believe are well founded. It is clear that a child who is nearing the age of 18, and is certainly well aware of what is going on in the world, must be allowed rights before tribunals. The Human Rights Act is specific on that point. The Bill seeks to give those rights only to parents, which I do not think is defensible.
The other aspect, which I find more interesting and which was raised by my noble friend Lady Fookes, is the question of best interests. Other child-centred legislation, such as care legislation, requires authorities to act in the best interests of the child, which is compatible with the Human Rights Act. This legislation does not. If we persist in that, eventually we will he in trouble under the Human Rights Act. It would be better for the legislation and the system as a whole if the child's best interests were central to what authorities do and the decisions they make.
A particular application of that would be the decision concerning mainstream or special schooling. Inclusion is a wonderful thing, but if we dump a vulnerable child into a school in which there is bullying, we will do that child no favours. The noble Baroness, Lady Wilkins, complained about Lambeth. That merely observes the effect of many parents being given the chance to send their children to schools which are not part of the Lambeth mainstream. Under those circumstances, I suspect that many parents would leap at the chance of a special school, many of which are wonderful places.
Many special schools are great centres of excellence. One sees damaged kids in their first year coming in from mainstream schools. They have been bullied, told they are stupid and think little of themselves. They themselves begin to bully and have all sorts of undesirable traits because of what they have been through. At the top end there are inspiring wonderful kids who look one in the eye and are as bright as buttons. That is an example of a special school really doing its job. At the other end, we see special schools which make our hearts sink, and kids we wish could be allowed out to be part of the real world. We need a mixed economy; we need both types of school. The judgment of which type of school a child attends should be made in the best interests of the child. That is a concept which this legislation needs.
Perhaps I may refer to one or two minor points. Progress needs to be made in improving the profession of educational psychology, which is a black art. There are many unsatisfactory practitioners. Many have been bought by their LEAs. They produce reports which are unspecific, extremely unhelpful to parents and allow the LEAs to do almost what they want. I believe they should be strongly regulated and strongly independent. Perhaps we can make a first move in that direction in the Bill.
I should like to see the LEA's duty to advise extended to parents who think that their children might have a special educational need. At present, it
698
kicks in only when an educational need has been established. I should like to see clarity in the definitions of "special educational needs" and "disability". Perhaps it would be a good idea if, for the purposes of education, anyone with a statement was defined as "disabled". That at least would be a simple change to make and would introduce a good deal of clarity, at least on one side of the equation.
I hope that what I read as the scope of new Section 28C(1)(b) means that teaching methods will have to be adjusted to deal with children who have a disability. That will be great progress. Many schools still teach in ways which are profoundly unhelpful to anyone with a mild, let alone a serious, learning impairment. If they are compelled by the Bill to pay attention to modern teaching methods, that will be a good thing, and an unexpected bonus from the Bill.
7.7 p.m.
Lord Addington: My Lords, in a debate of this kind, it is always difficult when one is faced with a great degree of unanimity. Most people would agree that this is a good Bill, which is built on a solid foundation. It works on good practice and includes provisions which everybody has thought for a while should be included. The Minister is to be congratulated on the Bill finally reaching this House, as is her department. It is only a pity that we have had to wait so long. However, that could be said of virtually any Bill which goes back over the long history of this subject. They are always slightly reactive and slightly conservative.
The first major argument which occurs in relation to the Bill is that concerning special schools. Well over 12 months ago, when the Bill was first mentioned to me, I predicted that there would be disagreements on this subject. The major problem we face is that people are frightened. I refer to the comments of the noble Lord, Lord Lucas. I believe that he embarrassed the noble Baroness, Lady Ashton of Upholland, by saying that she would soon be on the Front Bench. I am afraid that he displayed exactly why he was on the Front Bench.
Many people who go to special schools regard them as a rescue service. I refer to the world of dyslexia, with which I am familiar. Often, such schools were there primarily to take people who had failed badly within their schools and often had severe emotional scars. Unless someone is placed in a protective environment in those circumstances they cannot even begin to succeed. That is one of the reasons for the fear which surrounds this subject. Special schools to which pupils have access and which provide no threat must be kept within the system. This is a good Bill but, with the best will in the world, it is not a magic wand. We must have that emergency net.
Having said that, ultimately I should like to see the removal of the need for those schools and for them simply to be there to provide a back-up service. But let us work towards that goal with what we have. We cannot do it overnight. If we are to make any real progress, we must consider the areas involved. So when the Bill says we must respect the wishes of the parents, that is a good thing.

699
The reference to the provision of efficient education for other children produces fear in the opposite direction. What is "efficient education"? We heard about the pressure placed on schools as a result of league tables, and Clause 12(4)(a) relates to standards being maintained. That worries people that possibly children will be forced out of mainstream education. To use my own experience of being dyslexic, and on the ground of it being one of the largest groups—often one of the largest undiscovered groups—when pupils are found to be mildly dyslexic a school may panic because it is not properly prepared and thus excludes them. That is the downside.
The Government have a real problem of calming the fears on all sides and providing a way of ensuring that they are met and properly grounded. That is not tackled in the Bill. As my noble friend Lord Clement-Jones said, it requires sufficient knowledge of teaching, and the training of teachers before they enter schools to enable them to identify the problems. We must also provide back-up services.
That brings us nicely back to the functions of special schools. Surely they can be brought in to advantage. It may mean in-service training. Teachers who are not given the time and opportunity to retrain will carry on doing the job to the best of their ability; but if they are not given the tools they will not be able to do the job—to misquote a rather more famous parliamentarian. If we do not resource the Bill properly to enable the legislation to move forward, we will find that there is nothing behind it.
The easiest part of the new provisions is probably the removal of the exemption under the DDA. That is comparatively straightforward. I understand why it was introduced. I did not agree with it then and welcome this provision now. Discrimination is discrimination. Further, we can go forward here comparatively easily, especially when it comes to exclusion on physical grounds. If we provide resources to get people into schools, then with a little good will most of the problems will disappear. Once again, the in-service training would help. But the human resource aspect is difficult and we must not lose sight of that. If people were capable of taking this subject on board easily without making cultural changes, there would have been no need for the statementing process in the first place. Indeed, where the culture has changed in certain cases the need for statements has been dropped; for example, Swansea has dyslexia-friendly schools, which has reduced the number of statements required. But that cultural shift is difficult. It requires considerable input and considerable political will. We must bear that in mind.
Before I go into a diatribe on the general aspects of education, I should like to say that, ultimately, this Bill should have a fair wind behind it. The Government will be able to enjoy its passage. If any major Bill stands a chance of surviving the Moses Room process without giving us a Report stage from hell, it is probably this Bill. I believe the noble Baroness has taken that on board. I hope we will be able to take part in discussions so that the Government do not
700
automatically produce a negative response to amendments that are tabled. Most of us agree that the Bill should go forward and should be passed.
However, there is one area in which I have a fundamental point of disagreement with the Government. It was first raised by the noble Lord, Lord Ashley of Stoke; that is, that in a case of discrimination there should be some recourse to financial compensation. I agree with him that it is important for the discrimination to be recognised, and that is probably as important as the financial compensation itself. Also, the compensation may provide the opportunity for people to receive specialist help, if it is properly targeted, or for a parent to stop working to give support to a child who is in trouble.
On those grounds I believe we can build an almost watertight argument for compensation. To say that it may take resources away from another area is not acceptable; for example, to say that the money could be better spent on health. The whole idea of compensation would just disappear under that argument. We accept compensation in other areas; why should education be different?
I hope that the Bill goes through your Lordships' House improved and even better than when it starts out. But I must say that it starts out as a much better Bill than most.
7.16 p.m.
Baroness Miller of Hendon: My Lords, this has been an interesting Second Reading debate on the Special Educational Needs and Disability Bill. As usual, and as is only to be expected in this House, we heard well-informed contributions from noble Lords with wide experience on this subject and it was a delight to hear them all. I am not as brave as my noble friend Lord Lucas and will not attempt to say who came top. In any event, I do not wish to add to the embarrassment of the noble Baroness. Everybody spoke well in the debate and it is difficult to choose any one individual, nor indeed should we.
My noble friend Lady Blatch cogently explained our attitude to the Bill. She spoke with the great authority of a former Minister of State at the Department for Education who, as she reminded us in her speech today, was the Minister in this House responsible for taking through the Education Act 1993, Part III of which dealt with special educational needs. In general terms, my noble friend told the House that our party supports the objectives of the Bill, which is founded on the 1993 Act and the Education Act 1996, to the extent that they are to improve the education and facilities available to children with special educational needs.
Special educational needs are defined in the 1996 Act as,
"a significantly greater difficulty in learning than a majority of children of his age … or a disability which prevents or hinders from making use of the educational facilities provided for children of his age".
The aims of the Bill are to integrate those children into mainstream schools. There too, in general principle, we agree that that is a most laudable object. But there

701
are some aspects of the detail and methodology which give us some concern and which, as the Bill goes through its various stages, we shall wish to explore in more detail.
We believe it is a lack of basic reading skills that can lead to other severe learning difficulties and thence possibly to behavioural problems. That in turn could be one of the reasons that there has been such a large rise in the number of children classified as having special educational needs over the past few years. My noble friend referred to research done by Dr John Marks, and I shall not tire the House with reading the details. But from that one can see that there has been an enormous increase recently. Of course, there may be another reason, to which I shall turn later.
However, what worries us about the Bill is that, despite the Government's good intentions, we may be running the risk of damaging the very children we want to help by the theory of inclusiveness. Of course children with special educational needs, because of some disability—whether it is physical, in learning or even behavioural—should be integrated with the rest of their contemporaries whenever possible. The right reverend Prelate said—and I shall read his contribution with care—that he agreed with mainstream education, but he added the caveat, "whenever possible".
There is no place in the system for a kind of educational apartheid. I heard the noble Lord, Lord Rix, read the horrific letter he received more than 49 years ago. To hear the experience of people who have been there, one realises the horrendous impact which that might have on parents and children.
On the other hand, one should temper that with the experience of my noble friend Lord Baker. He is not in his place but I want to comment on the experience he described of children with certain types of blindness. They were treated badly in ordinary mainstream schools when it would have been better for them to have attended special schools.
The Bill requires that a child must—and I stress the word "must"—be taught in a mainstream school unless it is incompatible with, first, the wishes of the parent, or, secondly, the provision of efficient education of other children. It would help the House if the Minister would clarify the meaning of the second provision and explain how she thinks it would work in practice. Other noble Lords have asked the same question.
We have another serious concern over this keystone clause in the Bill. There is one overriding, undisputed principle in every area where children are concerned. It is that the welfare of the child is paramount. My noble friend Lady Blatch commented on a speech made by the Secretary of State for Education during the debate on the Queen's Speech in 1999. It is sufficient for me to quote one sentence from the Secretary of State's press release of 17th November 1999. He stated:
"It will strengthen the right to a place in a mainstream school for those with special needs who want it"—
and I want to emphasise the following words—
"in all cases where it is appropriate".
702
That principle does not appear in the Bill and we want to explore that during our debates to see whether it can be more specifically spelt out.
The current position is that a child may be the subject of a statement which defines him or her as having special educational needs and which up until now has had to be specific, detailed and quantified. I said "up until now", but like other noble Lords we were pleased to see the press release and hear the Minister say that her right honourable friend the Secretary of State has altered that provision and that the code of practice will be different from what we first believed it would be.
A child who has been statemented is entitled to have those special needs ministered to by the local education authority or by some means or another, such as a special school or a school with special facilities, or specialist teachers and so on. But we are worried that the present Bill should not dilute the rights of parents and that the Bill will impose a compulsory regime of inclusion. Again, I want to quote my noble friend Lord Baker. It was worthy of note that during his 30 years as a Member in the other place he was often asked by parents whether he could help to get their children into a special school, but in all those years he was never asked by parents to get their children into a mainstream school. While the Bill is about mainstream education—we believe that to be admirable and will do our best to work with the Government and Members in all parts of the House we must ensure that the wishes and choices of the parents are not taken away in the theory of inclusiveness, thereby losing something which benefits the children.
We want to ensure that local authorities do not utilise the new system for identifying the children with special needs as a means of forcing them into mainstream schools in order to reduce expenses. I shall read carefully what was said by my noble friend Lord Dixon-Smith, but as to the formula of the sum of the sum being more than the sums I could not make out whether he was suggesting that mainstream schools might be more expensive than special schools or vice versa! Either way, the budgetary constraint should not be the principal consideration; it should be what is best for the child.
Equally, there are undoubtedly cases in which parents, with every good intention for their children, insist on special schools when the children would benefit from mainstream education. The noble Baroness, Lady David, was concerned that in such circumstances the parents should be able to make a case for why they want that. That is an important issue. If the parents ask for something different, they should be subject to the same regime that the needs of the child are paramount. Should there be some reasonable doubt, the wishes of the parents should ensure that they receive the benefit of it and that their children receive what is best for them.
Then there is the case in which the child's special needs arise from some persistent disruptive conduct. In that case, there is another element to be weighed in

703
the balance: the needs of the other children in the class and the school that their education shall not be disturbed. Educating as many children as possible in mainstream schools and restricting special school provision for the tiny number with the most extreme emotional disorders could, as Melanie Phillips pointed out in a recent article in the Sunday Times, leave teachers floundering with pupils whose very disruptive behaviour spells chaos in the classroom. The Minister suggested that only a few children would be so badly emotionally disturbed, but perhaps she could give some criteria as regards what would constitute such behaviour.
I mentioned earlier that lack of reading skills could be a factor in the numbers of children classified as having special educational needs. But there could be another reason. It could possibly be the readiness of some schools to label some children as having special educational needs in order to excuse poor league table performance. I do not suppose that that is beyond the ken of some schools, although I would think not many.
It is also a paradox that the more SEN children the school can claim it has on its register, naturally the more money it receives—and so it should. However, that is not just a theory on my part. That point was made emphatically at a meeting earlier this month at the Centre for British Teaching, which is an independent education provider, by Professor Mel Ainscow who is normally a strong supporter of mainstream education. That is why I said earlier that, although the proposal sounds good, and probably is very good, certain matters must be considered with care.
In summary, the Bill's stated intention is to place a new, or rather reinforced, duty on schools and local authorities to plan strategically and to increase access for physically disabled children. It is intended to ensure that pupils, whatever their disability, shall receive fair treatment. In my view, that also includes protection against bullying and taunting over their disabilities. The noble Lord, Lord Ashley of Stoke, mentioned that and my noble friends Lord Baker and Lady Fookes mentioned two horrific examples of the way in which it could occur. We therefore need to be aware that such incidents can happen.
While all of these are laudable objectives, and while we know that the wishes of the parents and the impact on other children are most important, it should never be forgotten that this Bill is primarily to benefit children who have special educational needs. That is paramount. What is provided for the children must be in their best interests, a point made most strongly by my noble friend Lady Fookes.
What happens to the child, which school he attends and the whole ethos of the Bill must not be secondary to the budgetary needs of local authorities or government. During the debate, Members on all sides of the House have mentioned budgeting and resources. I am sure the Minister is aware that these provisions cannot be made on the cheap. I appreciate that the Explanatory Notes give an idea of what can be spent, but all noble Lords with experience have said that all
704
such things cost more than one thinks. If we are to enable children with SEN to have better facilities, we must ensure that we have the money to do so.
To conclude, on the whole the Bill is deserving of support in principle and we shall be examining it sympathetically and, we believe, constructively.
7.30 p.m.
Baroness Blackstone: My Lords, I very much agree with the noble Baroness, Lady Miller, that we have had a useful and wide-ranging debate. I am also extremely pleased that there is so much support for the broad thrust of the Bill. Certainly, our consultation revealed a consensus on the main provisions and basic principles of the Bill. My noble friend Lord Morris of Manchester asked whether the Government would continue to listen. We shall continue to consider the views of experts in this matter: people who run disability organisations, disabled people themselves and all others who are involved in providing education for children and adults who have special educational needs or are disabled.
Until last year the legislative background for those with a disability had two significant gaps: the Disability Rights Commission Act 1999 filled one of them and this Bill fills the other. Providers of education will be required to take reasonable steps to ensure that pupils, students or adult learners are not at a substantial disadvantage in comparison with others.
I shall try to address the main issues raised in this first-class debate, but it will not be possible to answer all the questions that have been put. Where appropriate I shall write to noble Lords. However, some of the details should be left to Committee stage. Many speakers have referred to resources. We have made a number of announcements about resources to underpin the provisions of the Bill, but it may assist if I summarise the significant investment we are making to support children and adults with special educational needs and disabilities. This investment demonstrates our commitment to improving provision in this area. We are spending far beyond the £18 million indicated in the Explanatory Notes, to which one speaker referred.
Earlier this month we announced that the Standards Fund for SEN would be increased to £82 million next year. That represents a 50 per cent increase on the £55 million available this year. It also means that funding will be more than three times higher than in 1996–97 when it stood at £24 million. We have announced that over the next three years schools will receive £220 million to improve access for disabled children. The spending for school access next year will be £50 million, rising to £70 million the following year and £100 million the year after that. Already the schools access initiative has supported work at some 6,000 schools. That increase will have a direct impact on the physical environment of many schools.
I turn to funding for post-16 providers. We recognise that the new duties under the Bill will increase their costs in that they will increase the likely take-up of places by disabled students£I am sure that

705
all noble Lords welcome that—and generate higher demand for support once people get to know their new rights. We intend to make additional money available for this purpose in the period following passage of the Bill to pave the way for its implementation. That will total £172 million in England. The sum will be made available to the FE sector, to LEA adult and community learning provided through the Learning arid Skills Council and to higher education through HEFCE. All of the resources will be ring-fenced and spent entirely on improving access to post-16 education for disabled people. As my noble friend Lady Warwick said, of that £172 million, over the two-year period, £56 million will be made available to the HE sector and £20 million to the FE sector.
Perhaps I may answer one point raised by my noble friend on RIA. That assessment is not made for higher education. It covers primarily the cost of the Bill to the private and voluntary sectors, and HE is in the public sector.
We should remember that not all changes which will be required by the provisions of the Bill will need a large amount of capital investment. There are many simple ways in which we can help disabled people in our LEA, FE and HE institutions, but we believe that, together with the resources that we shall provide, they will dramatically improve access to education for people with disabilities. I accept that we must continue to monitor the need for further funding. It is not true to say that the Government are unaware of the costs of making these changes. However, as the noble Lord, Lord Lucas, observed—perhaps it was the noble Lord, Lord Dixon-Smith—it is worth investing that money in a much improved situation for those with disabilities or special educational needs. As the noble Lord rightly pointed out, special schools are expensive.
I said at the outset of the debate that inclusion was a somewhat emotive issue, and that point has emerged during the course of the debate. The noble Baroness, Lady Blatch, and some of her noble friends accused us of pursuing an over-aggressive inclusion policy. That is not what we intend to do. Some other noble Lords were concerned that the Government had not gone far enough. I have tried to listen carefully to both sides.
In response to the noble Baroness, Lady Miller, there will not be a compulsory regime of inclusion. We have always said that we must take a pragmatic approach to inclusion so that we safeguard the interests of all children. We are not interested in dogma or ideology. We believe that this is an area in which we can be bipartisan to arrive at the best solution for those with special needs and others. We must see what works and in that way try to raise standards for everyone. We want an inclusive education service that offers excellence and high standards, as well as choice, to parents. I am delighted that both the Special Educational Consortium and the LGA have welcomed our proposals.
I turn to the question of whether this Bill means that many special schools, or all of them, will close. Inclusion is not an agenda to close special schools of
706
whatever type. I make clear that such schools have a continuing and vital role to play. There will always be some changes to local provision to reflect local circumstances. While some special schools have closed, others have been enlarged and new ones opened. The noble Baroness, Lady Blatch, suggested that the sector had declined in size. The net result is that the size of the sector has remained broadly static since 1996 and still caters for about 1.2 per cent of all children, or just under 100,000 pupils. We do not envisage that that will change dramatically. It can be misleading to look at the number of special schools that have closed. I give the example of Wigan's reorganisation which was brought into effect earlier this year. It closed five special schools but opened six new ones. I can provide plenty of other examples.
Some noble Lords have implied that the Bill will make it harder for parents to get a special school place for their child, but that is not the intention of this Bill. We recognise that one size does not lit all. Some children will continue to need the support that is provided by special schools. The existing right of a parent whose child has a statement to make a positive choice and express a preference for a special school place will be fully maintained. It is very important that LEAs listen to what parents want. Where parents want a special school place and an LEA refuses it, they can, as in the past, appeal to the SEN tribunal. I hope that the new informal arrangements to prevent and resolve disputes will ensure that an amicable solution that is acceptable to all sides is reached quickly without unnecessary conflict. Therefore, I agree with the noble Baroness, Lady Sharp, who said that the Bill need not mean a threat to special schools.
The noble Lord, Lord Baker, who is not in his place, is right about the fact that we are educating more children with disabilities. I have no doubt that that will continue. He and other noble Lords who talked about the importance of early identification of disabilities are spot on: the more we can do that, the better it will be.
It may be appropriate at this point to mention that I can assure the House that the Bill will not undermine the very important contribution that the non-maintained and independent sectors play in providing opportunities for children to have their special educational needs met.
Noble Lords spoke about bullying. I agree with my noble friend Lord Ashley of Stoke that we cannot tolerate it. Unfortunately, bullying can take place in all kinds of schools—mainstream or special schools. It can apply to children with or without disabilities. We must stamp it out. My partner is profoundly deaf. He was bullied in his mainstream boarding school. He wrote home asking his mother whether she would provide him with speech therapy and judo lessons. He got his judo lessons. They helped and the answer was: do not mess with me. But I hope that children will not be driven into that kind of situation because we must intervene as soon as it happens.
My noble friends Lord. Ashley of Stoke and Lady Wilkins and other noble Lords did not go so far as to call for an absolute right to a mainstream place, but, in

707
particular, my noble friend Lady Wilkins was anxious to move close to that position. We have to take care to ensure that inclusion is always based on sound foundations. I do not believe that a dogmatic approach will work. Such an approach could alienate both parents and teachers. Even worse, it could end up sacrificing the interests of all children.
For inclusion to work—I say this to the noble Baroness, Lady Miller, who asked about it—there must be confidence that pupils' needs can be appropriately provided for in the mainstream school without a detrimental effect on other children. An absolute right would jeopardise that. We do not want a headlong dash for total inclusion, because that would undo so much that has been achieved. Therefore, to set targets for inclusion would probably not make a great deal of sense.
Noble Lords, and in particular the noble Baroness, Lady Blatch, raised the issue of challenging behaviour. I accept that it is an important question. At the same time I have much sympathy with my noble friend Lord Ashley of Stoke who said it was important that allowing schools to decide whether a child would be too challenging is not something that they should be allowed to abuse. To say that a child with autism should not be included, because his or her behaviour is eccentric, is something that we should avoid. The same must go for, say, a deaf child with bad communication skills. We must look at both sides of the argument and reach sensible and pragmatic conclusions.
The noble Lord, Lord Addington, asked about training. Inclusion has important training implications. We do not underestimate the challenges here. We need to make good arrangements to ensure that teachers and others receive the support they need.
I start with initial teacher training. In order to attain qualified teacher status, all student teachers must demonstrate that they can identify pupils with SEN, know where to go in order to give positive and targeted support and are familiar with the requirements of the code of practice. Those requirements are reinforced by induction arrangements that specifically require new teachers to demonstrate that they can plan to meet the need of pupils with SEN. We also have to provide further in-service training to consolidate, reinforce and extend teachers' knowledge and skills. We are providing substantial extra funding to support INSET under the Standards Fund 2000–2001 for that purpose.
As well as helping teachers we are keen to support the work of learning support assistants, LSAs as they are known. These assistants play a key role in supporting individual pupils and their teachers. We have devised a new induction training programme for teaching assistants which is offered this year and includes a component specifically about SEN.
I am grateful to the right reverend Prelate the Bishop of Bath and Wells and my noble friend Lady Wilkins for their support of what we are doing for parents. Our proposals have received widespread support. The Special Educational Consortium and the Local Government Association have welcomed what we are
708
doing. We know from our consultations that parents want and need more information and guidance on the SEN system. They also want it at an earlier stage.
LEAs will have a duty to ensure that parents know about their services. How they do that will be for each LEA to decide, but it might include, for example, publicising the services in the local press, flyers in libraries, health centres and supermarkets.
Several of my noble friends and the noble Lord, Lord Addington, raised the issue of financial compensation in schools. There have been calls for the SEN tribunal to award that where discrimination takes place. That is not something we intend to do. Disabled children, possibly even more than other children, need the start in life that a high-quality education can give. If, through discrimination, they are prevented from taking part in educational activities, it is vital for their learning and development that the effect of that discrimination be remedied in education terms. That is what really matters. Therefore, we propose that in the Bill the SEN tribunal should have the power to order that an educational remedy be provided. I am pleased that a number of disability organisations accept the importance of finding an educational remedy, although I know they have concerns about cases where remedies may be somewhat more difficult to identify.
We intend that the tribunal should be able to offer an appropriate remedy that offers the pupil educational recompense for the effect of discrimination. I am sure we can discuss the matter further in Committee.
Several noble Lords raised the issue of compatibility with the Human Rights Act. Some speakers suggested that the fact that claims are brought in the SEN tribunal by the parent and not by the child is not compatible with the Act. My legal advice is that this system is compatible with the Act. Article 6 of the European Convention on Human Rights is the relevant article, but it only applies to claims where people's civil rights and obligations are at issue. Civil rights for convention purposes do not include educational rights which fall squarely in the domain of public law. I am advised that all the rights which the tribunal will rule on under the Bill, SEN and disability, are predominantly public law rights so that Article 6 does not apply.
The noble Baroness, Lady Sharp, and my noble friend Lady David asked about the concept of "reasonable adjustments". This is quite well understood in the context of the DDA. Let me say a little more about that, but again I shall not go into too much detail today. Clause 12 contains a list of factors to be taken into account when considering whether it is reasonable for a school to take a particular step to comply with the reasonable adjustments duty. A list of that kind is not unprecedented. Section 6 of the Disability Discrimination Act has a not dissimilar list.
The noble Baroness, Lady Sharp, and the noble Lord, Lord Clement-Jones, referred to the duty to plan and asked whether that covers the curriculum. The planning duty covers both physical access to school

709
premises and the curriculum. We are fully committed to addressing the recommendation of the DRTF on that point. The duty will include a duty to provide aids, such as colour schemes, hearing loops and sound systems if they are appropriate, to enable children to have access to the curriculum.
I turn now to the implementation timetable for disability provisions. My noble friend Lord Ashley of Stoke and the noble Lord, Lord Rix, were a little worried about whether we should wait until September 2005 with regard to duties to alter physical features, particularly in post-16 institutions. The key issue is to ask all institutions to get on with making the changes. We need to give them a realistic timescale. Many capital programmes are planned over a five year period. I have no doubt that many of them will finish this work before 2005, but that is when we intend to implement the legislation.
The noble Baroness, Lady Darcy de Knayth, the noble Lord, Lord Rix, and my noble friend Lady Warwick asked whether the Bill will cover work experience for students in FE and HE. The Bill covers it indirectly. If a student is in paid employment, he will be covered by Part II of the DDA. If he is not paid, he will not be covered by the employment provisions in Part II, but the institution is likely still to be providing services which will then be caught by this Bill; for example, by helping the student to organise a placement or because it sets the rules that a placement has to be part of the course. Under those circumstances, education providers will need to comply with their duties in how they carry out these services. For example, a college or university might have to consider helping to find a reasonable alternative placement or altering a course to take out the requirement for a work placement. It may be necessary for colleges and universities to try to take steps to raise employers' awareness about meeting the needs of disabled students. Ultimately, it might be necessary to remove an employer from their lists.
Several noble Lords raised the issue of universal neonatal hearing and the programme already agreed by the Department of Health. In July this year the department announced its intention to pilot the programme. Health authorities have now submitted bids to take part and the successful applicants will be announced in the near future. We are well on the way to introducing this important change.
The noble Lord, Lord Lucas, the noble Baroness, Lady Blatch, and the noble Lord, Lord Clement-Jones, asked about research. A whole range of research is being undertaken, including longitudinal studies of young people with SEN. I am happy to provide details of the research we are currently undertaking.
A large number of individual and particular points were made in the debate which I do not have time to answer. The noble Earl, Lord Mar and Kellie, raised a number of questions about Scotland. I am happy to write to him on those points. However, as he will be aware, part of the Bill does not apply to Scotland—those are matters for the Scottish Parliament—and part of it does.
710
In conclusion, perhaps I may say once again how glad I am to hear so much support for the general thrust of the Bill. I know that in Committee we shall have many interesting and spirited debates about points of detail. But we must never lose sight of our overarching determination, which I know is shared by all those who have spoken in the debate, to work towards a more tolerant and a more inclusive society. The Bill better supports children and their families through the SEN framework and puts right the omission of education from the coverage of the Disability Discrimination Act. It is an essential measure if we are serious about our wish to move towards a more tolerant and a more inclusive society and if we are to show our commitment to children with special educational needs and to pupils, students and adult learners with a disability. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Grand Committee.

Miners' Compensation
7.56 p.m.
Lord Lofthouse of Pontefractrose to ask Her Majesty's Government what progress has been made on compensation payments to miners and miners' widows for bronchitis and emphysema.
The noble Lord said: My Lords, I gain no pleasure from finding it necessary to call for this debate. I feel both sad and angry that it is necessary. During the course of the day I read through Hansard of 16th November 1998, which covers a debate on this subject. When I put down Hansard, I thought that all that had been said in that debate could equally be said today—but, I would hope, with more force because events that were suggested during that debate have come about.
The miners were successful in their claim following the decision of Judge Turner, who ruled in the miners' favour on 23rd January 1998. I, along with all the mining fraternity, was delighted when the judge made that ruling. I was rather surprised when I approached the Minister of State at that time, Mr John Battle. It was something of an experience because I met a Minister who was waiting with £2 billion ready to spend to provide the miners with compensation. I was delighted, especially when I compared that with my experience following my campaigns under the previous government for industrial injuries benefits for miners suffering from the same diseases. In fact, I had the bitter experience of receiving a leaked document from one department to another requesting that it did not declare the decision of the industrial injuries tribunal and that it hold on to the decision for as long as it possibly could because by then men would have died. When I heard that the Government had responded so rapidly with this money, I was absolutely delighted.
As time has gone by, the arrangements to implement the scheme have been extremely difficult. I appreciate that. I understand that the Government had to follow

711
the conditions of the judge's decision. Having said that, however, we are now in a situation where 120,000 applicants—miners suffering from disease, with many more to follow—have found themselves in the position of having to wait and wait for a decision. I understand, too, that out of 120,000 applicants, some 40,000 have already died.
I concede that some of those miners died prior to the judge's decision, but nevertheless, they have now died. I do not think that anyone, including the judge when he came to his decision, would want to see such a situation. Obviously I am extremely concerned at the long delays. I believe that the scheme has failed those who have suffered disability as a result of a lifetime spent working in the mining industry. Those men are entitled not only to full compensation but to receive it speedily. They have waited long enough. Having fought and won their High Court case, many of the men have died or are dying without seeing a penny in compensation. It comes down to this: justice delayed is justice denied.
Progress on the scheme was considered in a hearing at Sheffield High Court on 15th November 2000 before the honourable Mr Justice Turner. Consequent on that hearing, I consider that unless greater resources and, indeed, improved working practices are urgently introduced, the scheme will continue to fail those men and increasingly their widows.
At a meeting which I attended only about a fortnight ago, along with my noble friends and colleagues Lord Dixon, Lord Hardy, Lord Brookman and Lord Islwyn, I fully appreciated the Minister's concern. I refer to the right honourable Helen Liddell, herself the granddaughter of a miner. As I have said, she demonstrated great concern. Unfortunately, however, that concern is not speeding up the scheme. It is moving along a little faster but it is not progressing rapidly enough.
In the last debate and during several Questions tabled in this Chamber, I have proposed a suggestion to different Ministers which would at least settle some of these matters. I still believe that I am right about that, but I have not convinced the appropriate powers-that-be. Around 14,000 men have received industrial injuries benefits arising out of the decision reached by the Industrial Injuries Advisory Council recommending that the diseases of bronchitis and emphysema should be prescribed. All those men have been examined and have gone through the necessary tests. They have been awarded appropriate industrial injuries benefits for those diseases. For the life of me, I cannot understand why the Government and their advisers cannot find a way to pay the men without any further examination or any further period of waiting. It is extremely difficult to understand that.
Although the Minister has replied to my long letter containing 23 questions, which I appreciate, one response stated that the difficulty of implementing my suggestion was that that decision was not part of the judgment and does not follow the same criteria. It would require the permission of the judge or solicitors. To that I say: so what? If we have a blockage of 120,000
712
cases and we have an opportunity to clear 14,000 of them—covering men who have been examined and certified to receive industrial injuries benefits—that seems to me to be a simple enough answer. All it needs is goodwill. We need to show that, in fact, we want to solve this problem.
My time is nearly up. I have talked about 120,000 applications. Former British Coal records show that some 450,000 miners are suffering from chest diseases of this nature. The numbers are going to increase. If we do not find a system that sharpens up this procedure, the list will get longer and longer. It has now been agreed, more or less, that it will be five years before the men now included on the list will receive any settlement. I say to this House tonight that that is far too long. If there is a will, there is a way to settle this. I say to our Ministers and to their civil servants: this problem has got to be solved. It is no good sitting back, rubbing our hands and saying, "It's hard lines for those poor miners. They're dead, but we haven't been able to do anything about it". There is no such thing as "we can't". I say this evening that we must.
8.7 p.m.
Lord Mason of Barnsley: My Lords, I should like, first, to thank my noble friend Lord Lofthouse of Pontefract for once more initiating a debate on this subject. There is no more important issue in the coalfields than this of today.
It is a long time since I started work underground, at 14 years of age in 1938, in an industry that was dirty, dangerous and uncivilised. If the top of a coalmine could have been sliced off and televised, no man would ever have ventured underground. Working conditions were appalling. In 1938, 802,000 men were working in the pits. Coal was mainly hand got, pick and shovel slaving at the coalface. The dust came from shotfiring and blasting at the coalface. But in the late 1940s, mechanisation came into the coalmines and with it the dreaded killer dust diseases of pneumoconiosis, silicosis, emphysema and bronchitis. Clouds of dust were caused by cutting machines, power loaders and rock cutting machines driving the roadways. The numbers working in those uncontrollable dust conditions then totalled over 600,000 men. With the noise and dust, every pit was a hellhole. I doubt whether many of those men realised at the time—nor did I, for I was there until 1953—that they would be subject to a slow, lingering death as their chests began to solidify and as they struggled, gasping for breath. Those are the scenes that we have witnessed happening to thousands of our coalmining colleagues in the coalfields for some years.
At this point, let me once again pay a tribute to my noble friend Lord Lofthouse. It was him, above all others, who led the campaign to get the Industrial Injuries Advisory Council to recommend that chronic bronchitis and emphysema should be listed as prescribed industrial diseases in coalmines. He introduced a Bill in another place way back in October 1982, which was followed by another four attempts to get it on the statute book, none of which received the support of the then government. Even after the

713
advisory council had recommended implementation and thousands of miners had placed claims, the matter had to go to the courts for a final decision. Unfortunately, that was a major diversion which has caused unforgivable delay in the recognition of claims and especially in having to observe the 600-page judgment. As my noble friend said, the ruling in favour of the miners was given on 21st January 1988. Since then the Government have been grappling with this mammoth problem. It is a mammoth problem because more than 123,000 miners have registered a claim.
The Government may well be trying—I believe that they are—but they are failing to rid the complaints and recognition system of its bottlenecks and blockages. That is really the complaint of miners and their representatives. The compensation payments are agonisingly slow. I noticed that the Government went back to the courts to obtain a speeding-up agreement—a fast-track proposal. I ask my noble friend, what has been the outcome? In the meantime, nearly 7,000 miners—all likely claimants—have died. What an appalling picture of misery and death.
What have the plaintiffs' solicitors group to say about this—the group which negotiates on behalf of the many solicitors representing claimants and which handles the arrangements to resolve this mass of claims? There is a great deal of uneasiness that a lot of money is being made by some of these solicitor groups.
I hope that the Minister will bring us up to date on the number of claimants, the payments made to date, the expedited claims and additional payments, and on what knowledge he has of miners and widows who have passed on—who are, dare I say, eligible but dead.
Finally, is my noble friend satisfied that everything is being done to speed up the payments. Perhaps I may ask him—hesitatingly but I believe it is necessary—to state the obstacles in the way of agreeing a set payment for all the claimants. The Minister knows the number of claimants and the size of the kitty; what is the position regarding a major share-out before hundreds die? Whatever the legal objections or union difficulties, we will save some lives. Is this not still possible?
As of now, does my noble friend believe that, in checking the claimants' records, we have enough mobile and scanning teams, assessment centres and consultants? As we know from the numbers that are dying, time is not on our side. I hope, therefore, for the sake of the lives of some of the claimants, that he can give us some heartening news.
8.13 p.m.
Lord Clinton-Davis: My Lords, I support my noble friend Lord Mason and, above all, my noble friend Lord Lofthouse, who raised this issue.
I speak as a member of the profession that has been mentioned more than once—namely, solicitors. I am ashamed of my profession if we have done that of which we are accused. I am ashamed that my Government have taken so long to deal with this issue. I am deeply ashamed that the Opposition Benches are bereft of speakers—apart from the noble Baroness, Lady Miller—exerting their pressure upon the
714
government of the day. Of course, I assume that has something to do with political points, but they did not do a thing when they were in office to ensure that the miners would be properly compensated. Some 40,000 men have died. It is unbelievable that this should have occurred in this day and age.
I was the Minister of State on 29th January 1998, when my noble friends Lord Davies of Coity and Lord Lofthouse again raised this issue in the House. I went to see my colleague, my right honourable friend John Battle, MP, and we were both of the view that the briefing we had from civil servants was defective. We both changed it, and the answers that we then gave were helpful. Little did I realise that almost three years from that date the matter would not be resolved.
I have been a solicitor since 1953. I have never had a case which has involved so many people. Nevertheless, difficult though it may be, I plead with my noble friend who will reply from the Front Bench to ensure that we get a move on. If we do not, it will not be 40,000 who have died; it will be nearly 120,000. That is not acceptable for a Labour government. We shall be blamed—and rightly so—by the people concerned.
I do not blame my noble friend for the travail that has occurred—of course I do not; it is not his fault—but I do blame those who have the conduct of this matter. If they cannot resolve the matter entirely in a year or 18 months from now, it should be taken out of their hands and dealt with by the Government. I expect my noble friend today to issue that challenge to his friends.
Of course we shall not get the support of the Opposition, whatever may be said by the noble Baroness, nor do we expect or want it. It should be our purpose. The people involved are our people; they expect the Labour Party to perform. My right honourable friend should understand that. There is no doubt that every single one of those people expects us to produce the goods—not for 100,000 or 120,000 people to die. They should be compensated in their lifetime. I beg my noble friend to understand that and to do whatever he or the Minister responsible can do to ensure that we get a resolution of this matter that is satisfactory to the majority. Of course it is not easy. If someone is malingering, so be it. We have 100,000 or 120,000 people who have made claims to date, the majority of which should be satisfactorily resolved.
We shall be met, as we were last time, by those who expect us to perform whatever the law demands. I speak as a lawyer. This matter should not be determined only by the law; it should also be determined by human requirements. Every single one of those people deserves to be taken into account. As miners, most served the nation well and all of them should be properly regarded by the Government in return.
I hope that my noble friend will cause to be speeded up the procedures for litigation. I hope that he will ensure that all cases are resolved within the period I have mentioned—namely, a year or 18 months; or the matter should be taken out of the hands of the lawyers

715
who have done so much to advise the Government, and whose advice in some cases has been terribly wrong.
8.21 p.m.
Lord Islwyn:: My Lords, first, I thank my noble friend Lord Lofthouse for initiating this important debate. He brings a good deal of expertise and common sense to the subject. He has been a constant advocate of the miners' case. My noble friend reminded us that justice delayed is justice denied. That is the theme of the debate.
I was among the delegation of noble Lords who met the right honourable Helen Liddell, the Minister for Energy, on 22nd November. The impression I received was that the Minister and her civil servants were anxious to see the compensation process operating speedily and efficiently so that the miners affected, or their widows, can receive the compensation that is due to them.
The truth, however, is that that is just not happening. I appreciate that the Minister has an unenviable task. There are over 20,000 cases in Wales alone. Some of those former miners are critically ill. They are suffering from killer diseases as a result of the years they spent underground. Regrettably, many have passed away without receiving any compensation, and that is a great tragedy. Certain efforts have been made to speed up the assessment process in order that a realistic level of compensation can be arrived at. In some cases there have been difficulties in obtaining proper medical records. There is still a huge backlog of paperwork. Despite the goodwill at the Ministry, it seems that, given the present arrangements, there will be years of delay before justice is done.
But sick miners need money now, if only to ease their suffering. Some have previously had medical examinations and have been awarded industrial injuries benefit. My noble friend Lord Lofthouse mentioned a figure of 14,000. That is a large number of claimants. I have come to the conclusion that the only short-term answer is to provide generous interim payments. I urge the Minister to re-examine that possibility. I do not speak of the derisory £2,000 interim payments that were put through earlier; I am thinking of a sum in the region of £10,000. Surely it is better to make interim payments than to allow miners to die without receiving a penny. The money is ready and available. We should not allow one more sick miner to go to his grave without receiving a penny.
On 10th October, the noble Lord, Lord Sainsbury, told me that the Department of Trade and Industry hopes to make about 4,000 offers in Wales before Christmas, totalling approximately £25 million. We are now within a few days of Christmas. Will the Minister confirm that the pay-outs are being made?
An issue has arisen over the so-called clawback arrangements. A number of cases have been cited in the South Wales Argus, which has led a full-scale campaign on the subject. It is alleged that one miner
716
accepted a payment of £45,000 when he was very ill. The Department of Social Security took back £21,700 by way of recovery of certain benefits that had been paid to him over the years. It was later discovered that a mistake had been made and that the department should have reclaimed just over £6,000. That former miner is dead, but his widow will receive the adjusted sum. Surely mistakes of that kind merely add insult to injury. There is a very strong case for cutting out the clawback altogether.
The issue of compensation payments to former miners suffering from bronchitis and emphysema is heart-rending. Bureaucracy and red tape should not be allowed to stand in the way of early and generous settlements to those who have suffered so much. I warn the Government that this issue is having a profound effect on public opinion in South Wales. People there are wholehearted in their fight for justice for these disabled miners. I urge the Minister and the Government to take that point into consideration.
8.28 p.m.
Lord Dixon: My Lords, I, too, should like to add my congratulations to my noble friend Lord Lofthouse of Pontefract on initiating another debate on this important matter. I dread to think how many miners have died of this terrible disease since we first debated the issue over two years ago, on 16th November 1998. My noble friend Lord Lofthouse fought hard as a member of the Energy Select Committee in another place to have emphysema recognised as an industrial disease. I can say without fear of contradiction that since it was recognised no one has fought harder in this and another place to ensure that those who are entitled to compensation should receive it as quickly as possible.
Like other noble Lords, I joined a delegation to see the Minister for Energy, the right honourable Helen Liddell, in place of my noble friend Lord Dormand of Easington, who, unfortunately, was unwell at the time. He, too, has fought hard in this House to have such compensation paid. Along with my noble friends, Lord Hardy of Wath, Lord Islwyn and Lord Brookman, I was a member of a delegation led by my noble friend Lord Lofthouse. At the meeting, my noble friends£my noble friend Lord Lofthouse in particular£put forward some concrete proposals that we believed would speed up these payments.
The money is available. I honestly believe that my right honourable friend the Minister for Energy wants such payments to be made. A recent article in our local newspaper, the Shields Gazette, stated that the Prime Minister also wants these payments to be speeded up. Incidentally, many of these miners suffering from emphysema live in the Prime Minister's constituency. These delays seem to go on and on. Instead of receiving credit for making the money available, this Government are being criticised in the mining communities for not ensuring that payment is received by the miners who are suffering.
If the present situation had taken place during the time of the previous government, I can well imagine what some of my honourable friends in the other place

717
would have done. Every day Private Notice Questions would have been tabled, demanding emergency debates and complaining about the slow progress of claims.
Perhaps I may give the House an example from the North East, where I have lived all my life. Although no figures have been made available indicating a regional breakdown of claimants, it is estimated that there are 20,000 in the area. In the first six months of this year only 19 claims had been processed—11 in Newcastle and eight in Durham. That is just not good enough.
I worked in the shipbuilding and ship-repairing industry for 35 years before I was elected a Member of Parliament. Like almost everyone in the industry, I suffer from industrial deafness. The GMB union, which my noble friend Lord Burlison on the Front Bench will remember, took the case of six members to the High Court and obtained what is now known as the "Newcastle settlement". A scale was devised by the court, which gave compensation to those who had a loss of hearing. It quickened up the process of such cases. I see no reason why such a settlement cannot be worked out in this case.
Everyone who comes from a mining community knows of cases of former miners who have been assessed as suffering from emphysema. Such men breathe with difficulty; they can hardly walk; and their life expectancy is not good. They require this compensation as quickly as possible, not only to make their lives more tolerable but also to make the lives of their relatives more bearable. Friends with whom I went to school went to work in the mines when I went to work in the shipyards. I used to play football with them. They also used to box at the local gym; indeed, they were built like house ends. But now they can hardly get across to the local pub for a pint and have difficulty in holding dominoes in their hands. These are the sort of people with whom we are dealing today. As my noble friend Lord Lofthouse said, why cannot these people be assessed immediately?
When the delegation went to see the Minister for Energy, we heard the arguments from some of the civil servants who were present about the effects of smoking. I can tell noble Lords that the conditions under which these men worked were enough to drive anyone to smoke. Moreover, we are talking about many years ago when smoking was not considered to be as dangerous as we are led to believe today.
As my noble friend Lord Islwyn said, another concern is the impact of the Social Security (Recovery of Benefits) Act 1997 in relation to these awards of damages. This legislation allows for certain compensation payments to be exempt. It seems illogical to me that one government department, the Department of Trade and Industry, makes payments of compensation and then another department, the DSS, takes it back. Miners have waited years for settlement of their compensation claims. They have had to endure the trauma of court proceedings to settle their claims with the DTI. But now they will have to go through a similar experience with recoupment under the 1997 Act, but this time with another government
718
department; namely, the DSS. The impact of recoupment under the 1997 Act is simply to move money from one government department to another at considerable cost.
Another reason why recovery is unreasonable is the time factor involved, which will affect the final settlement of these claims. If the Government enforce the terms of the 1997 Act and recover benefits from disabled miners, a vast number of appeals will be lodged with the Medical Appeal Tribunal. Due to the complexity and the importance of the issues involved and the number of claimants, it is almost inevitable that the decision of the Medical Appeal Tribunal will be argued before the Commissioners and, thereafter, before the Court of Appeal. This will prevent the final conclusion of many cases for a long time.
These miners have suffered enough from this terrible disease. They have had to wait long enough to get their compensation claims settled. They should not have to go through a second set of tribunals over the recovery of benefits. The one thing that the Government can do immediately is to use that 1997 Act and exempt these payments from recovery by the DSS. I hope that my noble friend the Minister will take that request on board.
8.36 p.m.
Lord Prys-Davies: My Lords, I am also grateful to my noble friend Lord Lofthouse for giving us this opportunity to put points to the Government for them urgently to consider, as they seek to speed up the administration of the bronchitis/emphysema scheme.
To justify my making a contribution to the debate, perhaps I should say that I live in Mid-Glamorgan in the heart of the former South Wales coalfield, where coalminers were exposed to very high levels of coal dust and where emphysema was widely prevalent and recognised before the nationalisation of the mines. I have also had the benefit of discussing the administration of the compensation scheme with the secretary of the National Union of Mineworkers (South Wales) and with the administrator of the Coal Industry Social Welfare Organisation in South Wales.
Perhaps I should point out to my noble friend the Minister at the outset of my remarks that it will be for ever to the credit of the present Government that they accepted the High Court's judgment that the Coal Board had been negligent and that compensation was payable. It has been rightly said that the compensation scheme that was approved by the High Court was greatly welcomed. But, of course, the welcome does not extend to the way that it is being administered.
I hear of cases that have gone badly wrong. Former miners, the widows of deceased miners and members of the public feel very deeply that the scheme is too complex and that it takes far too long to process each claim. If I may say so, that feeling has been movingly and powerfully expressed in your Lordships' House this evening by my noble friend Lord Lofthouse. Of course, the Trade and Industry Secretary and the Minister for Energy have admitted that they, too, are frustrated by the way in which the scheme has worked.

719
I believe that I can possibly best help by concentrating on how we can seek to move forward and avoid some of the difficulties that we have experienced over the past two years.
I was glad to see a month ago that the DTI, with the agreement of the solicitors representing the miners, went back to the High Court to seek its consent to modifications and improvements to the scheme in order to speed up the pay-outs. The judge, Mr Justice Turner, consented. Can my noble friend tell the House how long it will take to settle all the existing claims as a result of these modifications and improvements? Of course I appreciate that progress does not always keep up with forecasts, but I trust that the time-scale will be substantially less than the five years mentioned by the judge at the November hearing.
Hitherto there have been two fundamental causes of delay. First, there has been difficulty in producing the hospital records. Where the claim is made by a widow—about a third of the claims are made by widows—the medical records are, of course, critical. Without them it is difficult to evaluate the claim properly. It has been suggested to me by a colleague in the House of Commons that the best way to overcome this problem where it exists is to pay the hospitals concerned to enable them to employ additional clerical assistance to concentrate on tracing the missing records. Has the department given any thought to that positive idea?
No doubt the most important complaint is that there is a long delay in obtaining an appointment for the medical assessment because of the lack of specialist consultants. I believe that this has been referred to by every speaker in the debate. I am told that a Mid-Glamorgan miner in his mid-80s was informed last week that he had been given a medical appointment in September next. Surely that is appalling.
Will the Minister tell the House how many specialists are in post and confirm the number which are required? How is this gap to be closed? One wonders whether a senior registrar could undertake the testing, or must the specialist be of consultant status? I am attracted by the pilot training scheme of doctors and nurses to enable them to summarise medical records. When will the results of that pilot scheme be known?
Like previous speakers, I shall also be interested to learn why those miners who have been certified by the DSS as suffering from bronchitis and emphysema for the purpose of DSS benefit have to undertake further medical examination for the purpose of this scheme. That must be clearly explained, if there is an explanation. However, in fairness, there are indications that things are on the move. There will be more medical testing centres. Like everyone else, I trust that the specialists will be available to man the new centres. If they are available, this development should herald a great acceleration in the programme.
There is concern that the DSS should be entitled to recover out of the special damages element of the final award a part of the disablement benefit for chronic
720
bronchitis and emphysema which it had paid to the claimant. That complaint has been raised this evening by my noble friends Lord Islwyn and Lord Dixon. It is a criticism which carries considerable weight. If we take the case of two ex-coalminers, one suffering from pneumoconiosis, the other from bronchitis emphysema, we see inconsistency. The bronchitis emphysema award will be reduced by the claw back provision while such a provision does not apply to the pneumoconiosis award. The emphysema claimant finds it difficult to understand that anomaly. He sees unfairness. Is that being looked at by the department?
Another criticism which I hear, but I note has not been raised this evening, is that the criteria for determining eligibility for the bereavement award are too narrow and over rely on the evidence of the cause of death as shown on the death certificate. Is that being looked at?
I return to where I began. It has not gone unnoticed in Wales (where there are currently about 27,000 claims) that the administration of the scheme in Scotland (where there are about 8,000 claims) has been devolved to a Scottish body while in Wales it is being administered centrally from Sheffield. I ask the department, in consultation with the Welsh Office, to urge the Healthcall Services and IRISC to set up offices in Wales to process the cases arising in Wales. Such a move should help to speed up the administration of the scheme by relieving the Sheffield office of some work while bringing decisions on the Welsh cases closer to the solicitors in Wales and cutting out the need for journeys to Sheffield.
I am, of course, pleased that the Welsh Office is setting up a claims monitoring group chaired by the Secretary of State for Wales which will meet regularly to ensure that the activities of all concerned are adequately co-ordinated. That also is an important step forward.
8.46 p.m.
Lord Hardy of Wath: My Lords, the House should be deeply indebted to the noble Lord, Lord Lofthouse. He has not only presented a case of substance but has also demonstrated his awareness and knowledge of the matter through his long experience in the mining industry and through his efforts in Westminster.
I was privileged to be a sponsor of my noble friend's Bills in the other place. His efforts and the relevant medical advice presented to the previous government resulted in the establishment of the scheme. We were delighted to see it but we soon realised that deficiency, difficulty and high cost were inbuilt into it. Fairly soon we learned, for example, that the X-rays which were supposed to be used were not suitable to identify either emphysema or bronchitis. I recall raising that matter in the other place. The Minister then promised that action would be taken. The months pass and each week scores of applicants die. We are concerned that the number should not rise at that speed for much longer.
The cost of the measure is enormous. The volume of documentation involved is also huge. Some of the documentation in individual applications amounts to

721
7½ kilograms. We should think of the time that it takes to study 7½ kilograms of paper when dealing with just one case.
There is an argument for the more widespread use of statements of truth, especially where records are not available. There is certainly a case for accepting the point made by my noble friends; namely, that recognition of this disability by the Department of Social Security would allow swift processing of thousands of cases. It would certainly bring a great deal of good cheer and reassurance in the coalfields.
Some of the regulations are unjust. Only the other day I spoke to a friend of mine who had submitted an application for compensation for white finger. He has two badly affected fingers on each hand but he does not qualify because the regulations state that to qualify one must have three fingers affected on one hand. I hope that my noble friend will consider that case.
I return to the issue that we are discussing. My noble friend Lord Dixon mentioned smoking. Let us consider the situation of a man born in 1920 who is 80 years of age today. He would have left school at 14 and gone down the pit in 1934. He would probably have started smoking in his teens and retired from the pit in 1980. Let us consider someone born in 1925. He would have gone down the pit in 1939 at the age of 14, as most boys did in the coalfields. He may have started to smoke at a time when it was fashionable and socially acceptable and when no health risks were associated with it. Yet someone who started to smoke as a boy in the 1930s must suffer an enormous financial penalty in the year 2000, 2001 or 2002 if the situation becomes much more protracted. It is not a kindly, sensible or just arrangement.
The House should have been convinced by the arguments applied by my noble friends today. There are few miners and few pits today but the coalfield communities are not separated from their long heritage. Mining in Yorkshire started in 1296. No coal is being produced now, but for 700 years, and particularly from the 19th century, it coloured the attitudes and values of the people. They know that, although we do not have pits, we have that heritage. We expect this Government to respond to that heritage and to simplify the situation as dramatically and swiftly as they can.
We inherited from the previous government a scheme at which, if it were operated by a private charity, the charity commissioners would look askance regarding the proportion of expenditure devoted to administration and operation rather than providing benefit. The Government are not a charity in that sense, but they must recognise that the legal and medical costs of the scheme—thousands of documents are involved, weighing up to 7½ kilograms per case—are enormous. The money needs to go to those who have earned it while they can still breathe. The sooner they receive that money the better.
8.51 p.m.
Lord Elton: My Lords, if your Lordships will permit me to speak for two minutes, I should like to express
722
the outrage that I feel, having heard the description of a scheme which would have been an embarrassment to the ancien rêgime in France before the revolution. It is difficult to express the degree of distaste one feels when hearing the extent of injustice to a class of people who have a nobility of their own and who have occupied a central place in the history and economy of this country for countless generations. It is not right that such people should be cast aside. It is not right that they should be cheated of their compensation until they and possibly their widows are dead.
I am not pointing the finger of blame at anyone. But I say this to the present Government. If they tolerate this situation they will be failing in an obvious moral and public duty. If the scheme as devised does not work, they have the power of legislation to replace it. As the noble Lord, Lord Clinton-Davis, said, there must be a time by which the clock must stop.
I speak intemperately because that is the only way in which to condense the strength of my feeling into the limited time available. I believe that the country at large would not tolerate this scandal if people were aware of it. It is part of the function of this House to make them aware. I believe that noble Lords have done a good job in that respect. I am grateful to the House for allowing me this time.
8.53 p.m.
Lord Ezra: My Lords, this has been a sad and disturbing occasion. I join in the tributes paid to the noble Lord, Lord Lofthouse of Pontefract, not only for introducing the debate today and speaking so movingly about the problem but also for his years of work in bringing this serious social problem to the notice of the Houses of Parliament and the wider public.
After a judgment as long ago as January 1998—rightly, the Government have been praised for immediately accepting it—and after the procedures were put in place, there is deep and growing concern that, although there are 123,000 claimants. from the information given by the noble Lord, Lord McIntosh of Haringey, on 28th September in answer to a Question from the noble Lord, Lord Dormand of Easington, only 25,000 individual payments were made to that date. Around 16,000 offers were expected to be made before Christmas. The Minister will no doubt confirm whether those figures are correct. If they are anywhere near correct, it demonstrates the fatal weakness of the scheme that so few have been compensated and so few offers are expected to be made by the end of the year despite the large number of elderly, ailing mineworkers who have put in claims.
The Government have taken the issue very seriously. They are as worried as we are that while it is dragging on, tragically, a number of claimants are dying. The figure of 7,000 has been mentioned. Many more have died as a result of the disease. The noble Lord, Lord Prys-Davies, and others pointed out that the Government have recently taken steps to speed up the operation of the scheme. Because the scheme began

723
as the result of a judgment, the new arrangements had to be cleared with the judge. This apparently was done on 16th November.
What does the Minister expect to come out of this speeded-up scheme? Will it materially affect the rate at which offers are being made? I believe that it will not do so sufficiently to satisfy the doubts expressed so vigorously today. The noble Lord, Lord Lofthouse, the noble Lord, Lord Mason of Barnsley, and the noble Lord, Lord Islwyn, made specific suggestions. When we have discussed the issue on previous occasions, I have referred to the way in which the pneumoconiosis scheme was dealt with some years ago. The noble Lord, Lord Mason, and others will recall that a lump sum, then considered adequate for the purpose, was set aside. Individual settlements were made rapidly without the procedures which are now taking place. When I raised the issue I was told that the situation is now different; we are bound by a legal judgment; we have to do things according to that judgment. But in the light of the real human suffering involved in these long delays, the deaths that are taking place and the difficulties of these mineworkers in surviving, I wonder whether an accommodation cannot be reached with the judge to speed up the process on the lines suggested so graphically and effectively in today's debate.
8.58 p.m.
Baroness Miller of Hendon: My Lords, the noble Lord, Lord Lofthouse of Pontefract, is not only to be thanked but congratulated on pursuing with other noble Lords and Members of another place this sad and dreadful problem which still has not been resolved.
Many years ago I visited a gold mine in South Africa. It was sanitised and clean. I did not go down deep into the mine but I felt claustrophobic. The smell was awful. It was terribly damp. I wondered then how the miners—many noble Lords have graphically described the situation—could face such work every day. As if that were not enough, they are now victims of horrendous lung diseases which continue to take lives and make their final years ones of constant, debilitating illness with men literally fighting for every breath before their wife and children. And still we wait. The situation is appalling.
To add insult to injury, only recently has anybody accepted that the disease was an occupational one. It was good to hear how hard some noble Lords opposite have worked to get that changed. But is not that often the case? According to the Pavlovian instinctive reaction of Whitehall—I have chosen that non-political word deliberately, because, despite what the noble Lord, Lord Clinton-Davis, said, this is not a political issue—no haemophiliac was given blood contaminated by AIDS, there is no such thing as Gulf War syndrome, organophosphates are not dangerous and beef exposed to BSE was not dangerous to eat. It takes ages for anybody to accept that there is a problem.
In 1992, the Industrial Injuries Advisory Council changed its mind and said that bronchitis and
724
emphysema could be accepted. The Conservative Government accepted them on a no-fault basis in 1993. That change in the compensation regime resulted in 45,000 claims, of which only 10 per cent were successful before April 1997. I am happy to give the present Government due credit for changing the criteria. As a result of that change, a further influx of almost 120,000 claims followed. In co-operation with miners' representatives, the former government encouraged a series of eight test cases to test the issues and to embrace a variety of lung injuries and working histories.
The trial of that complex litigation began before Mr Justice Turner in 1996 and ended a year later. I shall not give all the history because time precludes it, but by 2nd August 2000, an irate Mr Justice Turner demanded to know why the claims were taking so long to process. He ordered the DTI to report to him by the end of September. Despite the two and a half years since the judgment, the DTI has failed to make serious inroads into settling the claims. According to answers given in the other place, of the 120,000 claims, only 5,161 have been fully and finally settled and 26,000 payments, totalling £86 million, have been made to other individuals. Sadly, in 6,341 cases, the claimants died before receiving any compensation. That is a sad reflection on all of us. I cannot congratulate enough those noble Lords who continue to press and press. Nobody should be proud of the sad story that we have heard this evening.
I understand that in response to Mr Justice Turner's demand, the DTI has gone back to court for further directions to speed up the payments. Like other noble Lords, I ask the Minister what proposals the Government have regarding the outcome of that application.
We are told that the claims are being held up by delays in the delivery of medical records by hospitals and by controversy over the fees charged by doctors. There is even reported to be disgraceful conduct by some solicitors, who are demanding success fees, despite the scheme providing for all legal fees to be paid by the Government. We have even had the phenomenon of desperate miners being forced to turn to the claim assessors who advertise on television and take a bite out of the compensation. There are anecdotal reports of less reputable assessors snatching at derisory offers, thereby accelerating the payment of their success fees.
The noble Lord, Lord Islwyn, has called on the Minister of State, who was put in charge of the compensation monitoring group more than 14 months ago, to resign. In a press release last September, Mrs Liddell told us:
"My patience is exhausted with the slow progress".
Only last week, the Leader of the House of Commons said:
"It is a source of irritation to me and to my right hon. Friend the Secretary of State for Trade and Industry that something that we sought to get under way as speedily as possible in the early months of this Government is still not going through at the speed that everybody wishes".—[Official Report, Commons. 14/12/00; col. 809.]

725
I do not blame Ministers for the continuing delay, except to the extent that they are now where the buck stops. I do not doubt for one moment the sincerity of the Ministers involved. Why cannot the Government translate their fine sentiments into deeds and get on and make it happen?
In a timely article in The Times last Saturday, Tristram Hunt complained that, despite cosmetic structural changes made since the Government came to power, Whitehall's machinery has been
"left largely unchanged, and too often has acted as an impediment to Labour's programme".
He also said:
"Labour has not turned its fire on Whitehall's great anachronism—the lumbering departments of state. Tony Blair is a Prime Minister notoriously uninterested in the mechanics of government".
I do not expect the Minister to agree with the last sentence of that quotation, but, as a member of the Opposition, I thought that I could continue with it.
One of the Prime Minister's predecessors, Harold Wilson, once urged what he called the "smack of firm government". Will the Minister urge his colleagues, who undoubtedly have good intentions and wish to resolve this hardship to the claimants, to exercise their authority and power and give that smack of firm government, in the form, if necessary, of a boot applied to that part of the anatomy of every person involved where it will do the most good?
9.6 p.m.
Lord Sainsbury of Turville: My Lords, I join others in thanking my noble friend Lord Lofthouse for raising this important issue. I welcome this opportunity to update your Lordships on the progress that we are now making on the settling of claims by former miners against British Coal.
There is no Minister in the DTI or the rest of the Government who is not deeply concerned about the issue and desperate to speed up the process. We agree that justice deferred is justice denied, but I urge the House not to blame the civil servants, because there is a dedicated team in the DTI trying to resolve the issue. Neither is it a problem of the machinery of government. I shall attempt to set out the nature of the problems and what we are doing to try to sort them out.
There are two major schemes on health claims resulting from successful litigation against British Coal. In addition to the 129,000 claims received in connection with respiratory diseases, the department has also received more than 115,000 claims in relation to vibration-related diseases. Some 30,000 of those have been registered since the end of August. Progress on those has been reasonably good. To date, the department has settled nearly 19,000 claims and made a further 20,000 interim payments. In total we have paid nearly £200 million in compensation.
The number of claims in connection with respiratory disease also continues to rise. However, we are finding it a great deal more difficult to deal with those claims as speedily as we would wish because the
726
legal and medical issues flowing from the High Court judgments are far more complex than those in relation to vibration-related diseases, and they necessitated a complex agreement with the miners' solicitors. The Government fully accept that progress has been too slow in processing the claims and they are working urgently to speed up matters. Payments are now beginning to flow. In total, some £95 million has been paid out in respiratory compensation. Taken together with compensation for vibration-related diseases in recent weeks, we have been paying out over £5 million per week.
The question of interim payments was raised. We are of course paying interims wherever possible. We have paid nearly £24,000 in total in varying amounts. The figure of £2,000 which was mentioned is based on the receipt of DSS benefit. We are also paying an expedited offer. Where that offer is rejected, we then pay 70 per cent of the offer and the maximum interim payment is over £10,000.
I believe that the noble Lord, Lord Ezra, asked about numbers. In September we said that we would expect approximately 6,000 revised expedited offers, approximately 3,000 ex gratia top-ups and approximately 10,000 new offers, based on reviews of lung tests carried out by respiratory consultants. So far, the numbers are 5,800 revised offers and 3,300 ex gratia payments. To date, we have only 2,700 new offers. We shall not know the total number for a few days as the reviews are still continuing. If we fall short of the figure of 10,000 new offers, it will be because the respiratory consultants have not found in claimants the incidence of the disease that we had expected.
As your Lordships know, within a few weeks of this Government coming into office, the lengthy High Court trial came to a conclusion. Within three weeks of this Government assuming the former British Coal's health liabilities, the judge handed down his judgment. We did not appeal or contest the findings. After years of neglect by British Coal and a blind eye from the previous government, this Government were the first to accept responsibility for the damage caused to our miners.
I believe that the remarks of the noble Lord, Lord Elton, would have been more appropriate if he had pointed out that the current situation is due largely to the fact that, as opposed to the previous situation with regard to pneumoconiosis, in this case the miners had to invoke the legal process in order for action to be taken while, as I said, the government turned a blind eye. Many of the issues which we face today are due to the fact that the legal process has had to be invoked, with all the complexity that that brings.
As my noble friend Lord Lofthouse said, we were waiting as a government to give out the money when we heard of that judgment. Indeed, the money is available to be given out now. I believe that at that time everyone failed to understand the difficulty inherent in applying that judgment in what has been the largest case of its kind.
My noble friends Lord Lofthouse and Lord Mason raised the question of a simple system of fixed payments. I believe that in many ways we all wish that

727
we could sweep away this lengthy, difficult and complex process and move to a system of simple payments. However, I believe that it is often forgotten that the department and the solicitors who represent the claimants must endeavour to settle claims in line with the High Court judgment. As Mr Justice Turner said at the last court hearing in November:
"There is the complexity of the basis upon which compensation in a common law claim is a necessary part and it is not just sheer volumes of numbers. but the complexity of process that has to be completed which, added to the number of claimants, does create the apparent problem of slow progress in the meeting of these claims".
At the same court hearing, the judge went on to comment on the suggestion that the department make flat-rate, one-off payments to all claimants—a figure of £10,000 has been mentioned. He said:
"The purpose of the scheme set up by the Claims Handling Agreement is to evaluate the extent of a claimant's or deceased miner's injury and comparing one miner with another so that the evaluated amount of the compensation will come out of the process at the end … any such evaluated basis of compensation which is fair as between one miner or one deceased and another has to go through the sort of process we have been discussing … to sweep away the evaluated basis of compensation and substitute a lump sum compensation that is totally outside the scheme, is outside anything which is available within the common law jurisdiction in which we operate".
He also said that such suggestions would ultimately cause disappointment to many claimants, who would have dashed expectations.
One has to answer the question: if we now took legal action to sweep away the whole scheme and go back to a simpler system of fixed payments, would that solve the issue? I am afraid to say that it seems to me that it would still leave major issues of unfairness and problems of real equity in this case. Remember that we are in a situation where 30 per cent of the claimants are not, in this case, receiving compensation when their cases have been analysed. As a result of that judgment, we negotiated a handling agreement with the claimants' solicitors which set out the procedures for settling respiratory disease claims. It was designed to ensure that everyone received their fair and proper compensation.
I should like to take this opportunity to outline some of the progress which has been made and the actions we are taking to speed things up. Healthcall, which is carrying out the spirometry programme for the department, has had to deal with probably the largest series of lung tests ever undertaken in the country. Spirometry allows us to assess those most likely to have a disability and enables us to prioritise claimants going forward to the full medical assessment process (MAP). To date, Healthcall has tested over 63,500 miners and contacted a further 13,700 for an appointment. Healthcall will continue to invite people to attend spirometry as their claims are registered and we will continue to offer expedited payments and pay interims if the agreed criteria are met.
The Minister for Energy and Competitiveness in Europe announced at the end of September new fast track proposals that would generate thousands of new and revised offers by Christmas. I am pleased to say
728
that some 12,000 new and revised offers totalling nearly £60 million have been made and more are due to be sent out this week. About £17 million worth of offers have been accepted and paid.
We are presently completing about 400 medical assessment processes per week but we need to get that up to 1,000 per week as quickly as possible. It must be remembered that there has never been a process of assessment of this size in the UK before. Many of those involved had to develop an understanding of the complex procedures very quickly. We have developed a number of initiatives which we hope will speed up the rate of assessments. The main bottleneck is the lack of respiratory consultants needed to get the medical assessments done.
We are urgently trying to increase the number of respiratory consultants. There are now 180 in post. We are trying to speed that up as quickly as possible. However, there is only a limited number of respiratory consultants who can carry out the assessment. That has now been identified as the main bottleneck in the process. We are looking at how doctors are used and paid in order to ensure that we attract as many doctors as possible to take part in the scheme and that we are using them efficiently. We are also looking at using nurses, GPs or medical secretaries to summarise the extensive medical records which are currently examined by the consultant. That will help to free up additional time for the consultants to examine the claimants, which is seen by many of the consultants as the most useful part of the process in assessing disability.
We are doing a number of other things. We are opening two new test centres in South Wales, which will be operational early in the new year. as well as a centre in Stirling. A new centre in Bristol is now operational and the first tests are booked for 9th January.
The question of medical records is another point in issue. As many of your Lordships will know, part of the medical assessment process requires the department to obtain the medical records of all claimants. Those records are held in a number of sources, such as GP surgeries and hospitals, as well as the DSS. Earlier in the year when we started to collect the records, many doctors and hospitals were cautious about releasing records. We sorted out that problem and that is now speeding up.
I turn to the question of compensation recovery by the DSS. The compensation recovery legislation provides for certain types of special damages, such as loss of earnings, cost of care and loss of mobility, to be reduced where an individual has already received compensation for that loss from the DSS. That is effectively to prevent the claimant being compensated twice, once by the state and once by the compensator. I think that everyone will agree that that is fair to other people in similar circumstances. I agree, however, that the sort of mistake described by the noble Lord, Lord Islwyn, is intolerable. We shall do everything to ensure that it does not happen again.

729
I have already touched on some of the judge's comments at the High Court hearing in Sheffield last month. But your Lordships will be interested to know that Mr Justice Turner also visited our Claim Handlers and Medical Assessment Centre. He noted that the medical tests were a necessary part of ensuring that claimants received the compensation properly due to them and, while they were not easy to conduct, they were absolutely necessary.
Your Lordships may also wish to know that at the last hearing the department proposed that the February cut-off date for lodging respiratory claims be postponed. That was agreed by the judge and the department will keep all parties informed of any new date.
My noble friends Lord Lofthouse and Lord Islwyn raised the point that DSS assessments are carried out to establish the presence of chronic bronchitis or emphysema, and that those could be used for paying compensation. I can only repeat the consistent advice that we received; that is, that those are not sufficiently detailed to allow us to make an accurate assessment of the degree of disability for which we are liable to compensate.
Lord Lofthouse of Pontefract: My Lords, before my noble friend sits down, perhaps I can ask a question.
Lord Sainsbury of Turville: My Lords, perhaps I can come to the noble Lord's point, which was that we could possibly go back to the judge and the claimants' solicitors group. I am not certain that we could do that, but I shall make certain that the issue is reviewed again and we see whether there is a way in which those records, with the judge's permission, may be used to deal with that situation. I cannot say more on that at this stage. I believe the question has been raised but I shall make certain it is raised again.
A number of specific points were raised by my noble friend Lord Prys-Davies. I have the answers here but perhaps I can write to him because I am running out of time. Also, in answer to my noble friend Lord Hardy of Wath, the judge was quite clear that smoking causes emphysema and it had to be taken into account in evaluating the amount of compensation due.
Perhaps I can deal with the final question of the solicitors' fees. As the Government have previously stated, our aim is to make sure that all claimants receive the full compensation to which they are entitled. We are therefore extremely angry that we continue to hear of claimants whose solicitors are
730
taking a cut out of their client's compensation. As your Lordships will be aware, we agreed a scale of fixed costs, plus reasonable disbursements to be paid to solicitors in respect of all successful cases. We are also paying some solicitors' costs in respect of some unsuccessful claims. In addition we are paying for the lung testing, the records collection and the consultation with the specialist and do not intend to recover any of those costs where a claim is unsuccessful, as would be the normal entitlement of a defendant. Therefore, in the vast majority of successful cases, we anticipate that we shall be meeting most, if not all, of the solicitors' costs.
Lord Elton: My Lords, we are indebted to the noble Lord for all this information on an important matter. But the noble Lord is now 30 per cent over time. I understand that he has 12 minutes. I draw his attention to that fact.
Lord Sainsbury of Turville: My Lords, I wanted to make some of these points because this is an enormously important subject. Let me conclude by saying that we will do everything we can to make certain that those making claims for respiratory disease or vibration white finger receive fair compensation as soon as possible. But we will be prepared to listen to any proposal from your Lordships or anyone else that may help to improve this difficult and complex process.
Baroness Miller of Hendon: My Lords, before the Minister sits down, I raced through my speech in order to ensure that he had plenty of time to reply—it was good that he was able to give so much information—but he made an incorrect comment.
I said that by 1992 the Industrial injuries Advisory Committee had concluded that chronic bronchitis and emphysema was disabling. The Conservative government of the day accepted that report on a no-fault basis. Forty-five thousand applications were received, of which 10,000 were successful before the criteria were changed in April 1997. I gave credit to the present Government for changing the provisions but the Minister suggested that my government had done nothing. That is not correct; we accepted the report. As a result of the no-fault claims, so many claims began that our government brought forward the eight test cases. In fairness, and for the record, I want to mention that to the Minister.
House adjourned at twenty-six minutes past nine o'clock.